Exhibit 10.15 - Lease Agreement with JWL
Properties, LLC
LEASE AGREEMENT
SHOPPING CENTER: PEACHTREE CENTRE
LOCATION:
NEW ALBANY, INDIANA
LANDLORD:
JWL PROPERTIES LLC
TENANT:
COMMUNITY BANK SHARES
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Article I. GRANT AND
TERM....................................................
12
Section 1.01 -
Premises:............................................ 12
Section 1.02 - Site
Plan:........................................... 12
Section 1.03 -
Term:................................................ 12
Article II.
RENT.............................................................
12
Section 2.01 - Minimum
Rent:........................................ 12
Section 2.02 - Percentage Rent: - Intentionally
Omitted............. 12
Section 2.03 - Gross Sales
Defined:................................. 12
Section 2.04 - Tenant's Books and
Records:.......................... 12
Section 2.05 - Payments by
Tenant:.................................. 12
Section 2.06 - Security
Deposit:.................................... 12
Section 2.07 - Late
Charge:......................................... 12
Section 2.08 - Returned
Checks:..................................... 12
Article III. PREPARATION OF
PREMISES......................................... 12
Section 3.01 - Landlord's
Work:..................................... 12
Section 3.02 - Delivery
Date:....................................... 12
Section 3.03 - Tenant's
Work:....................................... 12
Section 3.04 - Alterations by
Tenant:............................... 12
Section 3.05 -
Remodel:............................................. 12
Article IV. CONDUCT OF
BUSINESS.............................................. 12
Section 4.01 - Use and Trade
Name:.................................. 12
Section 4.02 - Operation of
Business:............................... 12
Section 4.03 -
Utilities:........................................... 12
Section 4.04 - Sprinkler
Charge:.................................... 7
Section 4.05 -
Sign:................................................ 12
Section 4.06 - Tenant's
Warranties:................................. 12
Section 4.07 - Legal
Requirements:.................................. 12
Section 4.08 -
Competition:......................................... 9
Section 4.09 - Hazardous
Materials:................................. 12
Section 4.10 -
Relocation:.......................................... 12
Article V. COMMON
AREA.......................................................
12
Section 5.01 -
Definition:.......................................... 12
Section 5.02 -
Use:................................................. 12
Section 5.03 - Common Area
Expenses:................................ 12
Article VI. REPAIRS AND
MAINTENANCE.......................................... 12
Section 6.01 - Landlord's
Obligations:.............................. 12
Section 6.02 - Tenant's
Obligations:................................ 12
Article VII. REAL ESTATE
TAXES............................................... 12
Section 7.01 -
Liability:........................................... 12
Section 7.02 - Method of
Payment:................................... 12
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Article VIII.
INSURANCE......................................................
12
Section 8.01 - Landlord's
Obligations:.............................. 12
Section 8.02 - Tenant's Contribution Towards Landlord's
Insurance:.. 12
Section 8.03 - Tenant's
Obligations:................................ 12
Section 8.04 - Covenants to Hold
Harmless:.......................... 12
Section 8.05 - Liability of Landlord to
Tenant:..................... 12
Article IX. DESTRUCTION OF
PREMISES.......................................... 12
Section 9.01 - Continuance of
Lease:................................ 12
Section 9.02 - Reconstruction; Rent
Abatement:...................... 12
Article X.
CONDEMNATION......................................................
12
Section 10.01 - Eminent
Domain:..................................... 12
Article XI. ASSIGNING, SUBLETTING AND
ENCUMBERING LEASE...................... 12
Section 11.01 - Assigning, Subletting and Encumbering
Lease:........ 12
Article XII. SUBORDINATION AND
FINANCING..................................... 12
Section 12.01 -
Subordination:...................................... 12
Section 12.02 -
Attornment:......................................... 12
Section 12.03 -
Financing:.......................................... 12
Section 12.04 -
Estoppel:........................................... 12
Article XIII.
DEFAULTS.......................................................
12
Section 13.01 - Events of
Default:.................................. 12
Section 13.02 - Landlord's
Remedies:................................ 12
Section 13.03 - Additional Remedies and
Waivers:.................... 12
Section 13.04 - Default by
Landlord:................................ 12
Article XIV. BANKRUPTCY OR
INSOLVENCY........................................ 12
Section 14.01 - Tenant's Interest Not
Transferable:................. 12
Section 14.02 - Landlord's Option to
Terminate:..................... 12
Section 14.03 - Tenant's Obligation to Avoid Creditors'
Proceedings: 12
Section 14.04 - Application of Bankruptcy
Proceeds:................. 12
Section 14.05 -
Bankruptcy:......................................... 12
Article XV. RIGHT OF
ACCESS..................................................
12
Section 15.01 - Right of
Access:.................................... 12
Article XVI.
DELAYS..........................................................
12
Section 16.01 -
Delays:............................................. 12
Article XVII. END OF
TERM....................................................
12
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Section 17.01 - Return of
Premises:................................. 12
Section 17.02 - Holding
Over:....................................... 12
Article XVIII. COVENANT OF QUIET
ENJOYMENT................................... 12
Section 18.01 - Covenant of Quiet
Enjoyment:........................ 12
Article XIX.
MISCELLANEOUS...................................................
12
Section 19.01 -
Interpretation:..................................... 12
Section 19.02 -
Notice:............................................. 12
Section 19.03 - Applicable
Laws:.................................... 12
Section 19.04 -
Successors:......................................... 12
Section 19.05 - Limitation on Landlord's Personal
Liability:........ 12
Section 19.06 -
Brokers:............................................ 12
Section 19.07 - Landlord
Assignment:................................ 12
Section 19.08 - Relationship of the
Parties:........................ 12
Section 19.09 - Waiver of Right of
Redemption:...................... 12
Section 19.10 - Waiver of Jury
Trial:............................... 12
Section 19.11 - Invalidity of Particular
Provisions:................ 12
Section 19.12 - Strict
Performance:................................. 12
Section 19.13 - Tenants'
Association:............................... 12
Section 19.14 - Financial
Disclosures:.............................. 12
Section 19.15 - Execution in
Counterparts:.......................... 12
Section 19.16 - Execution of Lease by
Landlord:..................... 12
Section 19.17 - Security
Agreement:................................. 12
Section 19.18 - Effect of
Captions:................................. 12
Section 19.19 -
Recording:.......................................... 12
Section 19.20 -
Confidentiality:.................................... 12
EXHIBIT A - SITE
PLAN.......................................................
A-1
EXHIBIT B - LANDLORD'S
WORK................................................. B-1
EXHIBIT C - TENANT'S
WORK....................................................
C-1
CONSTRUCTION ALLOWANCE
RIDER................................................. 1
GUARANTY OF
LEASE............................................................
2
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LEASE AGREEMENT
THIS LEASE
AGREEMENT ("Lease") is made as of the _______day of June, 2003,
by and between JWL PROPERTIES LLC, a
Kentucky Limited Liability Company
("Landlord"), with its principal office at
3211 Grant Line Road, Suite 7, New
Albany, Indiana, 47150, and COMMUNITY BANK
SHARES OF INDIANA INC, an Indiana
corparation ("Tenant"), with its principal
office at 101 W Spring St. New Albany
Indiana 47150.
GRANT AND TERM
Premises:
Landlord
hereby leases to Tenant for the term and upon the covenants
hereinafter set forth, approximately 2,000
square feet of ground floor area plus
two drive through lanes with canopy
("Premises") in the shopping center,
designated as Peachtree Centre, or by such
other name as Landlord may, from time
to time hereafter designate ("Shopping
Center"). The Premises are cross-hatched
on the site plan of the Shopping Center,
attached hereto and made a part hereof
as Exhibit "A". The exact square footage in
the Premises shall be determined by
Landlord's architect. Such square footage
shall be measured from the mid-line of
interior walls and the exterior part of
exterior walls, and shall include the
totality of the area within such
boundaries, including any mezzanines. The
certificate of Landlord's architect as to
square footage shall be binding upon
both parties hereto. In the event the
square footage, as determined by
Landlord's architect, differs from the
square footage set forth above, the
Minimum Rent to be paid by Tenant as set
forth in Article II shall be adjusted
after the exact square footage is
determined by multiplying the square footage
by the amount(s) per square foot as set
forth in Section 2.01 of this Lease, and
the respective Break Point(s) shall be
adjusted accordingly.
Site Plan:
Exhibit
"A" sets forth the planned general layout of the Shopping
Center.
Landlord does not warrant or represent that
the Shopping Center will be or has
been constructed exactly as shown thereon
or that it will be completed by a
specific date. Indeed, in the event that
Landlord should elect not to construct
the Shopping Center for any reason
whatsoever, Landlord may terminate this Lease
by written notice to Tenant provided on or
before April 30, 2004. In any event,
Landlord may change or alter any of the
stores, Common Areas (herein defined) or
any other aspect of the Shopping Center, or
may sell or lease any portions of
the Shopping Center all without the consent
of or notice to Tenant. This Lease
is subject to all applicable building
restrictions, planning and zoning
ordinances, governmental rules and
regulations, and all other encumbrances,
restrictions and easements affecting the
Shopping Center and the terms and
provisions of certain declarations,
reciprocal easement and operating agreements
now or hereafter affecting the Shopping
Center.
Term:
The term
of this Lease shall be for a period of ten (10) Lease Years
commencing on (i) the expiration of a
thirty (30) day period (the "Fixturing
Period") after the "Delivery Date" (herein
defined) or, (ii) the date on which
Tenant shall open for business at all or
any part of the Premises, whichever
occurs first ("Term Commencement Date"),
and expiring midnight on the last day
of the month in which the tenth (10th)
anniversary of the Term Commencement Date
occurs, unless sooner terminated in
accordance with the provisions hereof
("Expiration Date"). The term "Lease Year"
as used in this Lease shall be
defined to mean each successive twelve (12)
month period commencing on the Term
Commencement Date. If the term commences on
a day other than the first day of
the month, then the first Lease Year shall
be extended for such a fractional
month. All subsequent Lease Years shall
continue for twelve (12) calendar months
thereafter, except that the last Lease Year
shall terminate on the date this
Lease is terminated. Within thirty (30)
days after the Term Commencement Date,
Landlord and Tenant shall enter into a
supplemental agreement prepared by
Landlord which affirms the Delivery Date,
Term Commencement Date, and the
Expiration Date.
RENT
Minimum Rent:
Commencing on
the Term Commencement Date and continuing during the entire
term of this Lease, Tenant shall pay annual
"Minimum Rent" for the Premises
payable to Landlord, without demand,
deduction, set-off or counterclaim, in
equal installments ("Monthly Minimum Rent")
in advance, on or before the first
(1st) day of each month, as follows:
LEASE
YEARS
ANNUAL RENT MONTHLY
RENT
-----------
-----------
------------
1-5
$79,200.00
$6,600.00
6-10
$87,120.00
$7,260.00
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The first
installment of Minimum Rent shall be paid upon the Term
Commencement Date. If the Term Commencement
Date occurs on other than the first
(1st) day of a month, Minimum Rent shall be
prorated on a daily basis on the
basis of a thirty (30) day month.
Percentage Rent: - Intentionally
Omitted.
Gross Sales Defined:-Intentionally
Omitted
Tenant's Books and Records:-Intentionally
Omitted
Payments by Tenant:
Throughout
the term of this Lease, Tenant shall pay to Landlord, without
demand, deductions, set-offs or
counterclaims, the rent, which is hereby defined
as the sum of the Minimum Rent and all
Additional Rent, when and as the same
shall be due and payable hereunder. Unless
otherwise stated, all sums of money
or charges payable to Landlord from Tenant
by this Lease, other than Minimum
Rent, are defined as "Additional Rent" and
are due ten (10) days after the
rendering of an invoice therefore, without
any deductions, set-offs or
counterclaims, and failure to pay such
charges carries the same consequences as
Tenant's failure to pay Minimum Rent. All
payments and charges required to be
made by Tenant to Landlord hereunder shall
be payable in coin or currency of the
United States of America, at the address
indicated herein. No payment to or
receipt by Landlord of a lesser amount than
that then amount required to be paid
hereunder shall be deemed to be other than
on account of the earliest amount of
such obligation then due hereunder. No
endorsement or statement on any check or
other communication accompanying a check
for payment of any amounts payable
hereunder shall be deemed an accord and
satisfaction, and Landlord may accept
such check in payment without prejudice to
Landlord's right to recover the
balance of any sums owed by Tenant
hereunder. In the event Landlord bills Tenant
for any charge hereunder and within ninety
(90) days of receipt of the same
Tenant does not provide Landlord with
notice that it disputes such charge, then
Tenant waives any further right to dispute
such charge and that charge shall
automatically become an account stated
between Landlord and Tenant.
Security Deposit:
Tenant,
concurrently with the execution of this Lease, shall deposit
with
Landlord the sum of Thirteen Thousand Two
Hundred and 00/100 Dollars
($13,200.00), which sum shall be held by
Landlord as security against a Default
by Tenant, pursuant to the terms of this
Lease. The deposit (which shall not
bear interest to Tenant) may be applied by
Landlord in order to cure any
Default. The deposit shall be returned to
Tenant by the Landlord, after
deducting therefrom any sums owed to
Landlord, pursuant to provisions of this
Lease, upon the termination of this Lease,
provided such termination is not
caused by Tenant. A mortgagee in possession
of the Premises, or any interest
therein, through public or private
foreclosure or the acceptance of a deed in
lieu thereof, shall have no liability to
Tenant for return of all or any portion
of the deposit, unless, and then only to
the extent that, such mortgagee has
acknowledged receipt of all or any portion
of Tenant's deposit. In the event
Landlord applies the deposit in whole or in
part against a Default by Tenant,
Tenant shall, upon demand by Landlord,
deposit sufficient funds to maintain the
deposit in the initial amount. Failure of
Tenant to deposit additional funds as
security shall constitute a Default
hereunder and entitle Landlord to avail
itself of the remedies as provided in this
Lease for non-payment of Minimum Rent
by Tenant. Upon the expiration of the term
hereof, Landlord shall retain the
deposit, or so much as has not been applied
in accordance with the provisions
hereof, until such time as all of Tenant's
obligations to pay any Additional
Rent have been fully paid and
satisfied.
Late Charge:
In the
event any sums required hereunder to be paid are not received
by
Landlord on or before the date the same are
due, then, Tenant shall immediately
pay, as Additional Rent, a service charge
equal to the greater of One Hundred
Dollars ($100.00), or ten percent (10%) of
the past due sum. In addition,
interest shall accrue on all past due sums
at an annual rate equal to the
greater of one and one-half percent (1
1/2%) per month, or three percent (3%) in
excess of the prime rate of interest
announced from time to time by Keybank
National Association, or its successor
institution, but not in excess of the
maximum legal rate. Such interest shall
also be deemed Additional Rent.
Notwithstanding this service and interest
charge, Tenant shall be in Default if
all payments required to be made by Tenant
are not made at or before the times
herein stipulated. Notwithstanding the
foregoing, this Section 2.07 shall be
inapplicable each Lease Year until Landlord
shall have provided Tenant with one
(1) written notice of such delinquent
payment and a five (5) day opportunity to
cure. Thereafter, no notice shall be
required for the remainder of that Lease
Year, regardless of whether Tenant cures
within the aforesaid five (5) day cure
period.
Returned Checks:
In the
event that Tenant's check for rents and charges is returned for
any
reason, Tenant agrees to pay Landlord the
sum of Fifty Dollars ($50.00) as a
handling charge in addition to any
applicable late charge. Returned checks must
be redeemed by
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cashier's check. In the event more than one
check is returned, Tenant agrees to
pay all subsequent rents and charges by
cashier's check.
PREPARATION OF PREMISES
Landlord's Work:
Landlord,
at its expense, shall construct the Premises substantially in
accordance with the work described in
Exhibit "B" ("Landlord's Work"). All other
work done by Landlord at Tenant's request
shall be at Tenant's expense and shall
be paid for by Tenant depositing with
Landlord, prior to the commencement of
such other work, a sum equal to the cost
for such work, as reasonably estimated
by Landlord. Upon completion thereof,
appropriate adjustment shall be made
between Landlord and Tenant based upon the
actual cost of the work. The opening
by Tenant of Tenant's business in the
Premises shall constitute an
acknowledgment by Tenant that Landlord has
sufficiently performed all of
Landlord's Work.
Delivery Date:
Landlord
shall give Tenant written notice of not less than ten (10) days
of the date on which Landlord's Work will
be substantially completed and the
Premises will be available to Tenant for
the performance of Tenant's Work.
Tenant agrees to take physical possession
of the Premises and begin its work
under Section 3.03 on the date Landlord
tenders possession of the Premises to
Tenant. The date on which the Premises are
made available to Tenant shall be the
"Delivery Date", and from and after the
Delivery Date Tenant agrees to
diligently perform Tenant's Work to
completion. If the Premises are not
delivered to Tenant within twenty-four (24)
months from the date of this Lease,
Landlord and Tenant shall have the option,
to terminate this Lease upon prior
written notice to the other party and, in
such event, this Lease shall
thereafter be null and void and of no
further force or effect, and any money or
security deposited hereunder shall be
returned to Tenant and thereafter neither
party shall have any further liability to
the other, either for damages or
otherwise, by reason of such termination as
though this Lease had not been
executed in the first instance. Under no
circumstances shall Landlord be liable
to Tenant in damages for any delay in
commencing or completing the Premises, or
for a total failure to complete same or for
a failure to deliver same.
Tenant
hereby expressly agrees that the entry or occupancy of the
Premises
by Tenant or Tenant's agents or contractors
prior to the date herein fixed for
the Term Commencement Date shall be
governed by and shall be subject to all of
the terms and provisions of this Lease, and
Tenant shall observe and perform all
its obligations under this Lease,
including, without limitation, its obligation
to pay charges for temporary utilities,
insurance, and other charges pursuant to
the provisions of Exhibit "C", but
excepting its obligations to pay Minimum
Rent, Common Area Expenses, Taxes,
Insurance, and charges for the Fund, from the
date upon which the Premises are made
available to Tenant for its work (or from
the date when Tenant commences to perform
Tenant's Work, if earlier) until the
Term Commencement Date.
Tenant's Work:
Other than
work done pursuant to Section 3.01, all work is to be performed
by Tenant at its expense ("Tenant's Work")
in accordance with Exhibit "C",
attached hereto and made a part hereof and
in accordance with the provisions
hereof. All entry into the Premises and
work done by Tenant shall be at Tenant's
risk. Tenant shall prepare and submit to
Landlord store design and working
drawings of Tenant's Work with respect to
the Premises within thirty (30) days
after the date of this Lease. In the event
Tenant's plans and specifications, in
the sole judgment of Landlord or Landlord's
architect, are incomplete,
inadequate or inconsistent with the terms
of this Lease and/or do not conform to
the standards of design, motif, decor and
quality established or adopted by
Landlord and/or would tend to create an
imbalance with or be incompatible with
adjoining premises, and/or would subject
Landlord to additional costs or
expenses in the performance of Landlord's
Work, and/or would provide for or
require any installation or work which is
or might be unlawful or create an
unsound or dangerous condition or adversely
affect the structural soundness of
the Premises or the building of which the
same forms a part, and/or would
interfere with the use and enjoyment of any
adjoining space in the building in
which the Premises are located, then, in
the event Landlord determines that
Landlord and Tenant are unable to agree
upon store design drawings and/or
working drawings, Landlord shall have the
option, upon ten (10) days' written
notice to Tenant to declare this Lease null
and void and of no further force and
effect, in which event this Lease shall
terminate. All work performed by Tenant
shall be subject to Landlord's prior
written approval and shall be in accordance
with good construction practices, all
applicable laws, codes, ordinances,
regulations, and insurance requirements and
Landlord's reasonable rules and
regulations. No material deviations from
the final plans and specifications,
once approved by Landlord, shall be
permitted. Landlord's review of Tenant's
plans and specifications shall not
constitute the assumption of any
responsibility by Landlord for their
accuracy or sufficiency, and shall in no
event create an express or implied
confirmation that Tenant's design and/or
working drawings have been prepared in
accordance with the requirements of
applicable laws, codes, ordinances and
regulations. Further, Landlord shall have
no responsibility or liability for any loss
or damage to any property belonging
to Tenant. Tenant agrees to pay for all the
utilities used or consumed in the
Premises by Tenant on and after the
Delivery Date. Tenant shall obtain, at
Tenant's sole expense, all certificates and
approvals which may be necessary so
that a certificate of occupancy for the
Premises may be issued. Copies of all
such certificates shall be delivered to
Landlord prior to Tenant commencing
Tenant's Work. Upon the issuance of the
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certificate of occupancy, a copy thereof
shall be immediately delivered to
Landlord. Except for Landlord's Work,
Tenant shall ready the Premises for the
opening of Tenant's business by the Term
Commencement Date.
Alterations by Tenant:
Tenant may
not make any exterior, structural or mechanical alterations to
the Premises without the prior written
consent of Landlord. In addition, Tenant
shall not make any interior alterations,
except for alterations to the decor of
the Premises provided such alterations
affect color or merchandising aspects of
the interior only, without giving prior
written notice to Landlord and Landlord
giving Tenant its written consent
therefore. Any such alterations shall be
performed in a good and workmanlike manner
and in accordance with applicable
legal and insurance requirements and the
terms and provisions of this Lease.
In the
event that any mechanic's lien is filed against the Premises or
Shopping Center as a result of any work or
act of Tenant, Tenant, at its
expense, shall discharge or bond off the
same within ten (10) days from the
filing thereof. If Tenant fails to
discharge said mechanic's lien, Landlord may
bond or pay without inquiring into the
validity of merits of such lien and all
sums so advanced shall be paid to Landlord
as Additional Rent.
Prior to
the commencement of any work by Tenant, Tenant shall obtain
public liability and workmen's'
compensation insurance to cover every contractor
to be employed by Tenant, and shall deliver
duplicate originals of all
certificates of such insurance to Landlord
for written approval.
If, in an
emergency, it shall become necessary to make repairs required
to
be made by Tenant, Landlord may reenter the
Premises and proceed to have such
repairs made and pay the costs thereof.
Tenant shall pay Landlord the costs of
such repairs as Additional Rent.
Remodel:
During the
term of this Lease, Tenant agrees to refurbish (carpet, paint,
replace fixtures, etc.) the Premises as
needed and required in order to maintain
a first class operation. All such work
shall be carried out in accordance with
the provisions of this Lease, including the
provisions of this Lease governing
construction of the Premises.
CONDUCT OF BUSINESS
Use and Trade Name:
Tenant
shall use and occupy the Premises for the following purpose
only,
and for no other purpose whatsoever: A
branch bank and financial center.
If any
governmental license or permit shall be required for the proper
and
lawful conduct of Tenant's business or
other activity carried on in the
Premises, or if a failure to procure such a
license or permit might or would in
any way adversely affect Landlord or the
Shopping Center, then Tenant, at
Tenant's expense, shall duly procure and
thereafter maintain such a license or
permit and submit the same for inspection
by Landlord. Tenant, at Tenant's
expense, shall, at all times, comply with
the requirements of each such license
or permit.
Operation of Business:-Intentionally
deleted
Utilities:
Tenant, at
its expense, shall arrange for and pay all costs of the charges
for all utilities and services provided or
used in or at the Premises,
commencing with the Delivery Date and
throughout the term of this Lease. Tenant
shall pay directly to the public utility
companies the cost of any installation
not included in Landlord's Work of any and
all such utility services. In the
event that Landlord supplies or pays for
any such utilities, then as Additional
Rent, Tenant shall reimburse Landlord for
the same. In the event, for any reason
whatsoever, any particular utility is not
separately metered, then, and in that
event, Tenant shall be responsible for its
share based upon the formula that
Landlord, in its reasonable discretion,
deems appropriate. Tenant agrees to
indemnify and hold harmless Landlord from
and against any and all claims arising
from the installation and maintenance of
such utility services and from all
costs and charges for utilities consumed on
or by the Premises. Landlord shall
not be liable to Tenant for damages or
otherwise (i) if any utilities shall
become unavailable from any public utility
company, public authority or any
other person or entity supplying or
distributing such utility, or (ii) for any
interruption in any utility service
(including, but without limitation, any
heating, ventilation or air conditioning)
caused by the making of any necessary
repairs or improvements or by any cause
beyond Landlord's reasonable control,
and the same shall not constitute a
default, termination or an eviction.
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The
parties hereto acknowledge that energy shortages in the region
in
which the Shopping Center is located may,
from time to time, necessitate reduced
or curtailed operation of the Shopping
Center and the business conducted by
Tenant in the Premises. Tenant agrees to
and shall comply with such rules and
regulations as may be promulgated from time
to time by Landlord with respect to
energy consumption, provided that the same
apply uniformly to all tenants in the
Shopping Center, and during such periods of
time when, in the opinion of
Landlord, energy shortages so dictate,
Tenant shall reduce or curtail business
operations in the Premises as shall be
directed by Landlord. Compliance with
such rules and regulations and such
reduction or curtailment of business
operations shall not constitute a breach of
Landlord's covenant of quiet
enjoyment, nor shall the same constitute an
actual or constructive eviction of
Tenant, or otherwise invalidate or affect
this Lease, and Tenant shall not be
entitled to any diminution, reduction or
abatement of rent during periods of
reduction or curtailment of business
operations.
Intentionally Deleted
Sign:
Tenant
shall install and maintain a sign affixed to the exterior of
the
Premises in a location and size designated
by Landlord, subject to the prior
written approval, which shall not be
unreasonably withheld, of Landlord.
Notwithstanding Landlord's approval and/or
the terms of this Lease, Tenant's
sign shall conform to all applicable legal,
quasi-legal (e.g. deed restrictions,
reciprocal easement agreements, and the
like), and insurance requirements and
limitations. Tenant shall pay for all costs
in connection with such sign and
shall be responsible for the cost of proper
installation and removal thereof and
any damage caused to the Shopping Center
and/or Premises thereby. In the event
Landlord deems it necessary to remove such
sign, then Landlord shall have the
right to do so, provided, however, Landlord
shall replace said sign as soon as
practicable at Landlord's sole cost. No
additional signs, which can be seen from
the exterior of the Premises, shall be
installed or displayed in, on or about
the Premises without the prior written
consent of Landlord. Any interior signs
must be tasteful and shall be prepared in a
professional manner (not
hand-lettered). Any sign or display visible
from the exterior of the Premises
which does not meet the above criteria may
be removed at any time by Landlord
without incurring any liability
therefore.
Tenant's Warranties:
Tenant
warrants, represents, covenants and agrees to and with
Landlord,
that throughout the term hereof it shall:
(i) keep the Premises and any platform
or loading dock used by Tenant in a neat
and clean condition, (ii) pay, before
delinquent, any and all taxes, assessments
and public charges imposed upon
Tenant's business or fixtures, and pay when
due all fees of similar nature,
(iii) observe all rules and regulations
established by Landlord for tenants in
the Shopping Center, (iv) observe all
restrictive covenants of record which are
applicable to the Shopping Center, provided
the same do not prohibit Tenant's
permitted use of the Premises, (v) not use
the parking areas or sidewalks or any
space outside the Premises for display,
sale, storage, or any other similar
undertaking, (vi) not use any advertising
medium or sound devices inside the
Premises which may be heard outside the
Premises, or permit any objectionable
odors to emanate from the Premises, (vii)
keep the Premises sufficiently heated
to prevent freezing of water in pipes and
fixtures in and about the Premises,
(viii) keep the temperature within the
Premises at such levels as may be
required by any federal, state or local
laws, ordinances or regulations, (x)
employ only such labor in the performance
of any work in and about the Premises
as will not cause any conflict or
controversy with any labor organization
representing trades performing work for
Landlord, its contractors or
subcontractors, (xi) not conduct any
auction, distress, fire or bankruptcy sale
(whether real or fictitious) or conduct the
type of business commonly referred
to as "discount" or "cut-price", (xii) not
use or permit the use of any part of
the Premises for the sale, rental, display
or operation of amusement,
electronic, video machines, games,
cassettes or devices without the prior
written consent of Landlord or allow the
sale or offering of any lottery or
raffle tickets or permit any form of games
of chance or gambling, in any form,
without such similar consent, (xiii) not
allow the operation of any coin
operated or vending machine in the
Premises, except in areas reserved solely for
the use of Tenant's employees, (xiv)
conduct its sales practices consistent with
the standards and practices generally
acceptable in first-class retail shopping
centers, display and sell only
first-quality merchandise in the Premises, and
conduct its business in the Premises in a
lawful manner and in good faith, (xv)
not do any act tending to injure the
reputation of the Shopping Center as
determined by Landlord, and (xvi) not
commit or suffer to be committed any waste
upon the Premises, not place a load upon
any floor of the Premises which exceeds
the floor load per square foot area which
such floor was designated to carry,
and not commit or suffer to be committed
any nuisance or other act or thing
which may disturb the quiet enjoyment of
any other occupant or tenant of the
Shopping Center.
Legal Requirements:
Tenant
shall at its own expense, comply with all laws, orders,
ordinances
and with directions of public officers
thereunder, with all applicable Board of
Fire Insurance Underwriters regulations and
other requirements and with all
notices from Landlord's mortgagee
respecting all matters of occupancy, condition
or maintenance of the Premises, whether
such orders or directions shall be
directed to Tenant or Landlord, and Tenant
shall hold Landlord harmless from any
and all costs or expenses on account
thereof. Tenant shall procure and maintain
all licenses and permits legally necessary
for the operation of Tenant's
business and allow Landlord to inspect them
on request.
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Intentionally Deleted
Hazardous Materials:
Tenant
agrees that it will not use, permit, hold, release or dispose
of
any Hazardous Material (defined
hereinafter) on, under or at the Premises or the
Shopping Center and that it will not use or
permit the use of the Premises or
any other portion of the Shopping Center as
a treatment, storage or disposal
(whether permanent or temporary) site for
any Hazardous Material, other than De
Minimis Amounts. The term "De Minimis
Amounts" shall mean, with respect to any
given level of Hazardous Materials, that
such level or quantity of Hazardous
Materials in any given form or combination
of forms (i) does not constitute a
violation of any applicable law, and (ii)
is customarily employed in, or
associated with, similar shopping centers
and operations such as that of Tenant.
Tenant further agrees that it will not
cause or allow any asbestos to be
incorporated into any improvements or
alterations which it makes or causes to be
made to the Premises. Tenant hereby holds
Landlord harmless from and indemnifies
Landlord against any and all losses,
liabilities, damages, injuries, costs,
expenses, fines, penalties, and claims of
any and every kind whatsoever
(including, without limitation, court costs
and attorneys' fees) which at any
time or from time to time may be paid,
incurred or suffered by, or asserted
against Landlord for, with respect to, or
as a direct or indirect result of (i)
a breach by Tenant of the foregoing
covenants, or (ii) to the extent caused or
allowed by Tenant or any agent, contractor,
employee, invitee or licensee of
Tenant, the presence on or under, or the
escape, seepage, leakage, spillage,
discharge, emission or release from, onto
or into the Premises, the Shopping
Center, the atmosphere, or any watercourse,
body of water or groundwater, of any
Hazardous Material (including, without
limitation, any losses, liabilities,
damages, injuries, costs, expenses or
claims asserted or arising under the
Comprehensive Environmental Response,
Compensation and Liability Act, any
so-called "Superfund" or "Superlien" law,
or any other Federal, state, local or
other statute, law, ordinance, code, rule,
regulation, order or decree
regulating, relating to or imposing
liability or standards of conduct concerning
any Hazardous Material); and the provisions
of and undertakings and
indemnification set out in this paragraph
shall survive the termination of this
Lease, and shall continue to be the
personal liability, obligation and
indemnification of Tenant, binding upon
Tenant, forever, subject to the
applicable statute of limitations. The
provisions of the preceding sentence
shall govern and control over any
inconsistent provision of this Lease. For
purposes of this Lease, "Hazardous
Material" means and includes any hazardous
substance or any pollutant or contaminant
defined as such in (or for purposes
of) the Comprehensive Environmental
Response, Compensation, and Liability Act,
any so-called "Superfund" or "Superlien"
law, the Toxic Substances Control Act,
or any other Federal, state or local
statute, law, ordinance, code, rule,
regulation, order or decree regulating,
relating to or imposing liability or
standards of conduct concerning, any
hazardous, toxic or dangerous waste,
substance or material, as now or at any
time hereafter in effect, or any other
hazardous, toxic or dangerous, waste,
substance or material.
The
Premises shall not contain any Hazardous Material on the
Delivery
Date. If during Tenant's initial
construction work in the Premises Tenant shall
discover any Hazardous Material in the
Premises which was not caused by Tenant
or Tenant's agents, employees, or
contractors, and which was present in the
Premises prior to Tenant first occupying
the Premises, then Tenant shall
promptly notify Landlord and Landlord will
diligently remove and dispose of such
Hazardous Materials in compliance with all
applicable laws and regulations.
Relocation:-Intentionally deleted
COMMON AREA
Definition:
The term
"Common Areas" shall mean the interior and exterior areas and
facilities within the Shopping Center,
which are: (i) not leased to a tenant, or
(ii) by nature not leasable to a tenant for
the purpose of the sale of
merchandise or the rendition of services to
the general public. Common Areas
shall include but shall not be limited to
all parking areas and facilities,
roadways, driveways, entrances and exits,
truck service ways and tunnels,
utilities, water filtration and treatment
facilities, retention ponds or basins
located within or outside the Shopping
Center, retaining and exterior walls,
sidewalks, open and enclosed malls, outside
courts, landscaped and planted
areas, escalators, stairways, elevators,
service corridors, service areas,
loading docks, hallways, public restrooms,
community rooms or areas, roofs,
equipment, signs and any special services
provided by Landlord for the common or
joint use and benefit of all tenants in the
Shopping Center, their employees,
customers and invitees.
Use:
During the
term of this Lease Tenant is granted, subject to Landlord's
reasonable rules and regulations
promulgated by Landlord from time to time, the
nonexclusive license to permit its
customers and invitees to use the sidewalks,
customer parking areas, the entrance and
exit ways designated by Landlord for
access and egress to and from the Premises
from a public street or highway.
Notwithstanding anything contained in this
Lease to the contrary, Landlord shall
have the right, at any time and from
time
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<PAGE>
to time, without notice to or consent of
Tenant, to change the size, location,
elevation and nature of any of the stores
in the Shopping Center or of the
Common Areas, or any part thereof,
including, without limitation, the right to
locate and/or erect thereon kiosks,
structures and other buildings and
improvements of any type. Subject to any
easements and restrictions of record
granted or approved by Landlord from time
to time, Common Areas shall be subject
to the exclusive control and management of
Landlord, and Landlord shall have the
right, at any time and from time to time,
to establish, modify, amend and
enforce reasonable rules and regulations
with respect to the Common Areas and
the use thereof. Tenant agrees to abide by
and conform to such rules and
regulations on notice thereof and to cause
its permitted concessionaires,
invitees and licensees and its and their
employees and agents to do the same.
Common Area Expenses:
Landlord
agrees to maintain and keep in good service and repair the
Common
Areas. The manner in which such areas and
facilities shall be maintained,
managed and operated, and the expenditures
therefore, shall be at the sole
discretion of Landlord and the use of such
areas and facilities shall be subject
to such reasonable rules and regulations as
Landlord shall make from time to
time. Starting with the Term Commencement
Date and continuing throughout the
entire term of this Lease, Tenant shall pay
Landlord, as Additional Rent,
Tenant's proportionate share of the total
costs and expenses incurred in
operating, managing, maintaining,
repairing, replacing, equipping, lighting, and
providing sanitation and sewer and other
services to the Shopping Center
("Common Area Expenses"). Tenant's
proportionate share of Common Area Expenses
shall be paid in advance, in equal monthly
installments on or before the first
day of each month. The manner in which said
payment shall be used shall be
within the sole reasonable discretion and
control of Landlord. Common Area
Expenses shall include, but not be limited
to, the following costs and expenses:
(i) gas, electricity, water, sewer and
other utility charges (including
surcharges) of whatever nature, (ii)
building personnel costs, including, but
not limited to, salaries, wages, employment
taxes, fringe benefits and other
direct and indirect costs of engineers,
superintendents, watchmen, porters and
any other building personnel, (iii) costs
of service and maintenance contracts,
including, but not limited to, chillers,
boilers, controls, windows, janitorial
and general cleaning, management fees and
security services, (iv) all other
maintenance and repair expenses (including
those payable by Landlord under
Section 6.01 hereof) and supplies which may
be deductible for such calendar year
in computing Federal income tax liability,
(v) any other costs and expenses
(i.e. items which are not capital
improvements) incurred by Landlord in
operating the Shopping Center, (vi) the
cost of any additional services not
provided to the Shopping Center at the Term
Commencement Date but thereafter
provided by Landlord in the prudent
management of the Shopping Center, (vii) the
cost of any capital improvements which are
made by Landlord after completion of
initial construction of the Shopping
Center, provided, however, that the cost of
each such capital improvements, together
with any financing charges incurred in
connection therewith, shall be amortized
and/or depreciated over the useful life
thereof and only that portion thereof
attributable to such calendar year shall
be included in the Common Area Expenses for
such calendar year, (viii) deposits
into reserve accounts for capital
improvements. Common Area Expenses shall not
include (aa) principal payments or interest
payments on any mortgages, deeds of
trust or other financing encumbrances, (bb)
leasing commissions payable by
Landlord, or (cc) deductions for
depreciation of the improvements shown on
Exhibit "A". Tenant's proportionate share
of Common Area Expenses shall be
calculated by multiplying Common Area
Expenses by a fraction, the numerator
shall be the total square footage of the
Premises, and the denominator shall be
the average total gross leased and occupied
square footage in the Shopping
Center for the applicable billing period.
For the purpose of calculating
Tenant's proportionate share of Common Area
Expenses, the total number of square
feet of constructed gross leased and
occupied floor area in the Shopping Center
shall never be less than eighty percent
(80%) of the total number of square feet
of constructed gross leasable floor area in
the Shopping Center. Notwithstanding
the above, in the event Landlord at any
time determines that Tenant's
proportionate share of Common Area Expenses
exceeds the amount per square foot
of the Premises as set forth in this
Section 5.03, then Tenant, following a
request from Landlord, shall commence to
pay with the next monthly installment
of rent due an amount sufficient to result
in Tenant's paying its full
proportionate share of Common Area
Expenses. At the end of each calendar year,
there shall be an adjustment if the amount
paid by Tenant is less than Tenant's
proportionate share actually incurred in
that year.
REPAIRS AND MAINTENANCE
Landlord's Obligations:
Subject to
including the costs thereof in Common Area Expenses, Landlord
shall keep in good repair the sewer and
water lines outside the Premises and the
structural supports, inclusive of the roof,
of the Premises; provided, however,
if the need of such repair is (a) caused by
Tenant or anyone claiming by or
through Tenant, or (b) due to the
installation or removal of Tenant's property
(regardless of fault), then, in any such
case, Tenant agrees to reimburse
Landlord for all costs and expenses
incurred by Landlord with respect to such
repair.
Tenant's Obligations:
Except as
stated in Section 6.01, Tenant, at its expense, shall (i) make
all repairs and replacements and perform
all maintenance work that is necessary
in order to k
