UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 25, 2017
FRANKLIN FINANCIAL NETWORK, INC.
(Exact name of registrant as specified in charter)
Tennessee | 001-36895 | 20-8839445 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
722 Columbia Avenue, Franklin, Tennessee 37064
(Address of Principal Executive Offices)
615-236-2265
(Registrants Telephone Number, Including Area Code)
(Former Name or Former Address, If Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒
Item 1.01. | Entry Into a Material Definitive Agreement. |
On July 25, 2017, Franklin Synergy Bank (the Bank), a wholly-owned subsidiary of Franklin Financial Network, Inc. (the Company), and Petra Real Estate Partners II, LLC entered into a Triple Net Office Lease Agreement (the Spring Hill Lease). The Spring Hill Lease relates to the relocation of the Banks Spring Hill, Tennessee branch, which is currently located at 2035 Wall Street, Spring Hill, Tennessee 37174, to the premises subject to the Spring Hill Lease, which is located at 4824 Main Street, Suite 120, Spring Hill, Tennessee 37174. Petra Real Estate Partners II, LLC is an affiliate of Henry W. Brockman and Dr. David H. Kemp, each of whom is a director of the Bank. The Spring Hill Lease has a term of 15 years, which the Bank has the option to renew for two successive five year periods, and provides for monthly rent payments of $10,176.58 per month for the first year of the term of the Spring Hill Lease, subject to annual adjustment thereafter.
On July 25, 2017, the Bank also entered into a Lease Agreement with SS McEwen, LLC related to a new branch in Franklin, Tennessee currently in development (the Carothers Lease). The Carothers Lease has a term of 10 years, which the Bank has the option to renew for two successive five year periods, and provides for monthly rent payments of $12,600.00 per month for the first year of the term of the Carothers Lease, subject to annual adjustment thereafter.
The foregoing summaries of the Spring Hill Lease and the Carothers Lease do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Spring Hill Lease and the Carothers Lease, filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
Exhibit Number |
Description |
|
10.1 | Triple Net Office Lease Agreement, by and between Petra Real Estate Partners II, LLC and Franklin Synergy Bank | |
10.2 | Lease Agreement, by and between SS McEwen, LLC and Franklin Synergy Bank |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: July 27, 2017
FRANKLIN FINANCIAL NETWORK, INC. | ||
By: | /s/ Sarah Meyerrose | |
Sarah Meyerrose | ||
Executive Vice President and Chief Financial Officer |
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EXHIBIT INDEX
Exhibit
|
Description |
|
10.1 | Triple Net Office Lease Agreement, by and between Petra Real Estate Partners II, LLC and Franklin Synergy Bank | |
10.2 |
Lease Agreement, by and between SS McEwen, LLC and Franklin Synergy Bank |
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Exhibit 10.1
TRIPLE NET OFFICE LEASE AGREEMENT
THIS TRIPLE NET OFFICE LEASE AGREEMENT (this Lease) is made and entered into on this 25 th day of July , 2017, by and between PETRA REAL ESTATE PARTNERS II, LLC , a Tennessee limited liability company, (Landlord), and FRANKLIN SYNERGY BANK , a Tennessee banking corporation (Tenant).
1. Leased Premises .
a. Subject to and upon the terms hereinafter set forth, and in consideration of the sum of Ten Dollars ($10.00) and the mutual covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, Landlord does hereby lease and demise to Tenant, and Tenant does hereby lease and take from Landlord, that certain improved real property municipally known as Suite 120, 4824 Main Street located in Spring Hill, Williamson County, Tennessee, consisting of 4,211 rentable square feet and more particularly described in Exhibit A attached hereto (the Premises).
b. Tenants taking possession of the Premises or any portion thereof shall be conclusive evidence against Tenant that such portion of the Premises was then in good order and satisfactory condition, subject to any punch list items identified in writing from Tenant to Landlord within thirty (30) days following completion of Landlords Work, and further subject to any latent defects in Landlords Work of which Tenant notifies Landlord in writing within one (1) year from the completion of Landlords Work. Except to the extent expressly set forth in this Lease, Tenant acknowledges that no promise by or on behalf of Landlord, any of Landlords beneficiaries, or any of their respective agents, partners or employees to alter, remodel, improve, repair, decorate or clean the Premises has been made to or relied upon by Tenant, and that no representation respecting the condition of the Premises by or on behalf of Landlord, any of Landlords beneficiaries, or any of their respective agents, partners or employees has been made to or relied upon by Tenant.
2. Term. Subject to and upon the terms and conditions set forth herein, or in any exhibit hereto, the term (together with any extensions or renewals thereof, the Term) of this Lease shall commence on the Commencement Date (defined below) and shall expire one hundred eighty months (180) after the Commencement Date. Commencement Date shall be 30 days after Landlord completes Landlords Work and delivers possession of the Premises to Tenant by Landlord giving Tenant written notice. For purposes of clarification, immaterial punch list items identified by Tenant pursuant to Section 1(b) shall not affect the Commencement Date, unless they materially and adversely affect Tenants ability to (i) operate its business in the Premises or (ii) complete Tenants build out of the Premises. The Commencement Date shall be set forth in a Commencement Agreement, identical in the form to that attached hereto as Exhibit B and executed by Landlord and Tenant.
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3. Use . The Premises are to be used and occupied solely for the purpose of providing financial and banking services and for any other lawful use, but for no unlawful purpose. Tenant shall not use or allow the Premises to be used for any improper, immoral, disreputable or objectionable purpose, and Tenant shall not cause, maintain or permit any nuisance or waste in, on or about the Premises. Without limitation of the foregoing, in no event shall Tenant use or permit the use of all or any portion of the Premises (i) as and/or for sleeping quarters and/or lodging or (ii) for any unlawful purpose of any kind whatsoever and howsoever arising.
4. Rent .
a. Commencing on the Commencement Date and continuing thereafter throughout the full Term of this Lease, Tenant hereby agrees to pay the annual Base Rental (defined and set forth below) and Additional Rental (defined below). The Base Rental shall be due and payable in advance in twelve equal monthly installments on the first day of each calendar month at Landlords address as provided herein (or such other address as may be designated by Landlord from time to time) with a 7 day grace period. If the Commencement Date is other than the first day of a calendar month or if this Lease expires on other than the last day of a calendar month, then the installments of Base Rental for such month or months shall be prorated.
Base Rental shall mean the amount of rent due to Landlord per square foot for the first year of the Term as set forth in the Base Rental Agreement by and between Landlord and Tenant, in the form attached hereto as Exhibit B , to be executed and delivered to Landlord before the Commencement Date; provided, however, that Base Rental for the first year of Term for the Premises shall be as follows:
Year |
Per Square Foot First Floor |
Total Per Annum | Total Per Month | |||
1 | $29 | $122,119 | $10,176.58 |
Following the first year of the Term, Base Rental shall increase on each anniversary of the Commencement Date as set forth herein. Effective on each Adjustment Date (defined below), Base Rental shall be increased (relative to the previous years Base Rental) by the percentage increase, if any, in the CPI (defined below); provided, however, that each annual increase in Base Rental shall not be less than 1.5% of the previous years annual Base Rental and not more than 3.5% of the previous years annual Base Rental. Adjustment Date shall mean, as the case may require, each anniversary of the Commencement Date; provided, however, if the Commencement Date is other than the first day of the month, then Adjustment Date shall mean, as the case may require, the first day of the first month occurring after each anniversary of the Commencement Date. As used herein, CPI shall mean the Consumer Price Index for All Urban Consumers South Urban Area, All Items, U.S.A. Area, 1982-1984 = 100, as published by the Bureau of Labor Statistics, United States Department of Labor (U.S. City Average). If such index is discontinued, CPI shall then mean the most nearly comparable index published by the Bureau of Labor Statistics or other official agency of the United States Government as determined by Landlord.
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b. All sums other than Base Rental due Landlord under this Lease (including, without limitation, amounts reimbursed to Landlord or for which Tenant must indemnify Landlord, late fees, and attorney fees and costs) shall be additional rental (Additional Rental). Base Rental and Additional Rental collectively are referred to as Rental or Rent.
5. Renewal Options .
a. Tenant shall have the right and option to renew the Lease (Renewal Option) for two (2) successive renewal periods of five (5) years each (each, an Option Term); provided, however, the Renewal Option is contingent upon the following: (i) there is not an Event of Default beyond all applicable cure period(s) at the time Tenant gives Landlord notice of Tenants intention to exercise the Renewal Option or at the expiration of the current Term; (ii) no event has occurred that upon notice or the passage of time would constitute an Event of Default, unless Landlord has given notice of default and Tenant is diligently attempting to cure such event; and (iii) Tenant is occupying the Premises. Following expiration of the final Option Term allowable hereunder, Tenant shall have no further right to renew the Lease pursuant to this Section 5.
b. Tenant shall exercise the Renewal Option by giving Landlord notice at least one hundred eighty (180) days prior to the expiration of the current Term. If Tenant fails to give notice to Landlord prior to the 180-day period, then Tenant shall forfeit the Renewal Option. If Tenant exercises the Renewal Option, then during the Option Term, Landlord and Tenants respective rights, duties and obligations shall be governed by the terms and conditions of the Lease, except as provided otherwise in this Section. Time is of the essence in exercising the Renewal Option.
c. The Base Rental for an Option Term shall be the Fair Market Rental Rate. Fair Market Rental Rate shall mean the market rental rate for the time period such determination is being made for bank and financial space in same class office buildings in the area of Spring Hill, Tennessee (the Area) of comparable condition for space of equivalent quality, size, utility, and location. Such determination shall take into account all relevant factors, including, without limitation, the following matters: the credit standing of Tenant; the length of the term; the fact that Landlord will experience no vacancy period and that Tenant will not suffer the costs and business interruption associated with moving its offices and negotiating a new lease; construction allowances and other tenant concessions that would be available to tenants comparable to Tenant in the Area (such as moving expense allowance, free rent periods, and lease assumptions and take over provisions, if any, but specifically excluding the value of improvements installed in the Premises at Tenants cost), and whether adjustments are then being made in determining the rental rates for renewals in the Area because of concessions being offered by Landlord to Tenant (or the lack thereof for the Option Term in question). For purposes of such calculation, it will only be assumed that Landlord is paying a representative of Tenant a brokerage commission in connection with the Option Term in question if Landlord is in fact paying a brokerage commission to a representative of Tenant in connection with the applicable Option Term.
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6. Utilities and Service . Tenant shall be responsible for its own interior maintenance, janitorial and utilities, which are separately metered. Tenant shall pay its pro rata share of operating expenses including but not limited to common area maintenance, real estate taxes and common area liability insurance. Tenants pro rata share of Operating Costs that are controllable by Landlord, excluding expenditures for insurance, taxes, governmental or regulatory fees or expenses, security costs, snow and ice removal, and utilities (Controllable Operating Costs) shall be no more than $2 per square foot in lease year one. Lease year 2 and thereafter shall not exceed 105% of Tenants pro rata share of Controllable Operating Costs for the immediately preceding year. At all times during the term of this Lease, Tenant shall pay its full pro rata share of the uncontrollable Operating Costs attributable to taxes, insurance, governmental or regulatory fees or expenses, security costs, snow and ice removal, and utilities. Tenant shall begin paying Operating Expenses upon the Rent Commencement Date. Tenants pro rata share shall be 41.8% as calculated by dividing the total rentable square footage of the building (10,085 square feet) by the square footage of the Tenants space (4,211 square feet). Tenant shall have the option to request backup for all of the expenses in order to verify the Tenants portion, and Landlord shall provide the information within 10 business days after the request has been received.
7. Security Deposit . Tenant hereby agrees to pay to Landlord a security deposit of ten thousand one hundred seventy-six dollars and fifty-eight cents ($10,176.58), which is equal to first months Base Rental, on the day this Lease is executed by Tenant (the Security Deposit). Upon the occurrence of any Event of Default by Tenant, Landlord may, from time to time, without prejudice to any other remedy, use the Security Deposit to the extent necessary to make good any arrears of Base Rental or Additional Rental or any other payment obligation hereunder, including, but not limited to, the cost of any damage, injury, expense, or liability caused by any Event of Default by Tenant hereunder. Any remaining balance of the Security Deposit shall be returned by Landlord to Tenant within a reasonable period of time after the termination or expiration of this Lease and the satisfaction of Tenants obligations hereunder. The Security Deposit shall not be considered an advance payment of rental or a measure of Landlords damages in case of default by Tenant. Tenant shall not be entitled to receive and shall not receive any interest on the Security Deposit, and Landlord may commingle the same with other monies of Landlord. In the event Landlord applies the Security Deposit or any portion thereof to the payment of any sum described above and this Lease is not terminated, Tenant shall immediately deposit with Landlord an amount of money equal to the amount so applied, and such amount shall be deemed to be part of the Security Deposit. In the event of a sale or transfer of Landlords interest in the Premises, Landlord shall have the right to transfer the Security Deposit to the purchaser or lessor, as the case may be, and upon any such transfer and acknowledgement of receipt of Security Deposit by such transferee, Landlord shall be relieved of all liability to Tenant for the return of the Security Deposit, and Tenant shall look solely to the new owner or lessor for the return of the Security Deposit.
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8. Keys and Locks . Landlord shall furnish Tenant with two (2) keys for each standard lockset on code required doors entering the Premises from public areas. Additional keys will be Tenants responsibility and at Tenants expense. All such keys shall remain the property of Landlord. Upon termination of this Lease, Tenant shall surrender to Landlord all keys to any locks on doors entering or within the Premises, and give to Landlord the explanation of the combination of all locks for safes, safe cabinets and vault doors, if any, in the Premises.
9. Entry for Repairs and Inspection . Upon reasonable prior notice from Landlord, Tenant shall permit Landlord and its contractors, agents or representatives to enter into and upon any part of the Premises during reasonable hours to inspect the same; perform maintenance and make repairs, replacements or improvements as set forth under this Lease; and for the purpose of showing the Premises to prospective tenants or purchasers. Landlord shall use its reasonable efforts not to interfere materially with the operation of Tenants business during any such entry.
10. Laws and Regulations; Encumbrances . Tenant shall comply with, and Tenant shall cause its employees, contractors and agents to comply with, and shall use its best efforts to cause its visitors and invitees to comply with the following, to the extent Tenant has been made aware thereof: (i) all laws, ordinances, orders, rules and regulations of all state, federal, municipal and other governmental or judicial agencies or bodies relating to the use, condition or occupancy of the Premises; and (ii) all recorded easements, operating agreements, parking agreements, declarations, covenants and instruments encumbering the Premises. Copies of all documents described above must be provided to Tenant by Landlord upon Landlord receiving written request from Tenant for the specific documents. Landlord warrants that to Landlords knowledge, no such ordinances or other matters of record prohibit Tenants use of the Premises as a branch banking facility.
11. Hazardous Substances . Tenant shall comply, at its sole cost and expense, with all laws, ordinances, orders, rules and regulations of all state, federal, municipal and other governmental or judicial agencies or bodies relating to the protection of public health, safety, welfare or the environment (collectively, Environmental Laws) in the use, occupancy and operation of the Premises. Tenant agrees that no Hazardous Substances (defined below) shall be used, located, stored or processed on the Premises by Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees, and no Hazardous Substances will be released or discharged from the Premises. The term Hazardous Substances shall mean and include all hazardous and toxic substances, waste or materials, any pollutant or contaminant, including, without limitation, PCBs, asbestos and raw materials that include hazardous constituents or any other similar substances or materials that are now or hereafter included under or regulated by any Environmental Laws or that would pose a health, safety or environmental hazard. Tenant hereby agrees to indemnify, defend and hold harmless Landlord from and against any and all losses, liabilities (including, but not limited to, strict liability), damages, injuries, expenses (including, but not limited to, court costs, litigation expenses, reasonable attorneys fees and costs of settlement or judgment), suits and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by any person, entity or governmental agency for, with respect to, or as a direct or indirect result of, the presence in or the escape, leakage, spillage, discharge, emission or release from the Premises of any Hazardous Substances by Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees. Tenant shall not be responsible for any Hazardous Substances located on the Premises prior to the date Landlord delivers the Premises to Tenant.
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12. Taxes and Assessments .
a. Tenant shall pay all taxes, license fees, and special charges and assessments levied by any taxing authorities against personal property which Tenant owns and/or uses within, upon, or about the Premises, or by reason of the conduct and operation of its business thereon, including, without limitation, any special assessments or charges for water and/or sewers.
b. Tenant shall also pay its pro rata share of any and all ad valorem real estate taxes on the Premises and any personal property taxes assessable on any personal property located on the Premises on or before the same are due to the taxing authority. Tenants pro rata share shall be 41.8% as calculated by dividing the total rentable square footage of the building (10,085 square feet) by the square footage of the Tenants space (4,211 square feet). Landlord shall forward all ad valorem tax bills for the Premises to Tenant immediately upon receipt. Landlord shall have the right to pay such taxes before they become delinquent if Tenant has not paid as required under this Lease, and such payment on Tenants behalf shall be immediately payable to Landlord by Tenant as Additional Rental. The estimation for year one shall be $1 per square foot, which shall be paid monthly by Tenant as part of the triple net expenses. Tenant shall have the option to request backup for all of the taxes in order to verify the Tenants portion, and Landlord shall provide the information within 10 business days after the request has been received.
c. Notwithstanding the foregoing, Tenant shall have no obligation under this Lease to pay: (i) income, profits, intangible, documentary stamps, franchise, corporate, capital stock, succession, estate, gift or inheritance taxes; (ii) any assessment or additional tax associated with a change in ownership of the Premises; or (iii) governmentally imposed impact fees related to further improvement of the Premises, including, but not limited to, the widening of exterior roads, the installation of or connection to sewer lines, sanitary and storm drainage systems and other utility lines and installations.
d. Tenant shall indemnify Landlord against all taxes (on personal property and real property), licenses fees, special charges and assessments paid for by Landlord on Tenants behalf, and Tenant shall indemnify Landlord against all costs and expenses (including attorney fees) in connection with same. Amounts due Landlord hereunder shall be Additional Rental.
e. Tenant may at its sole cost and expense, and in its own name and/or in the name of Landlord, dispute and contest any of the above-described taxes, license fees, special charges, assessments and/or ad valorem real estate taxes by appropriate proceedings diligently conducted in good faith, but only after Tenant has deposited with Landlord or with an applicable competent authority, in Tenants reasonable discretion, the amount so contested and unpaid which shall be held by Landlord (if Landlord is so chosen to hold such deposited funds) in an interest-bearing account until the termination of the proceedings, at which time the amount deposited shall
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be applied by Landlord toward the payment of the items held valid (plus any court costs, interest, penalties and other liabilities associated with the proceedings), and Tenants share of any excess shall be returned to Tenant. Tenant shall indemnify, defend and hold harmless Landlord from and against any cost, damage or expense, including attorneys fees, actually and reasonably incurred by Landlord, as Additional Rental, in connection with any such proceedings.
13. Leasehold Improvements .
a. Following completion of Landlords Work (defined in Exhibit C hereto) and Tenants acceptance of the Premises from Landlord, subject to the punch list items and latent defects identified in accordance with Section 1(b) above, Tenant accepts the same AS IS without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements except as expressly set forth in this Lease. ADDITIONALLY, EXCEPT AS EXPRESSLY SET FORTH IN THIS LEASE, LANDLORD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASEHOLD IMPROVEMENTS OR TO LANDLORDS WORK, AND ALL IMPLIED WARRANTIES WITH RESPECT TO THE PREMISES, INCLUDING WITHOUT LIMITATION THOSE OF SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY NEGATED AND WAIVED.
b. Tenant shall be entitled to a Tenant Improvement Allowance (defined and set forth in Exhibit C ). Notwithstanding the Tenant Improvement Allowance, Tenant agrees that it will make no exterior or structural alterations or additions to the Premises nor post or attach or affix to the exterior of the Premises, any signs, air conditioners or other objects without memorializing such proposed alterations, attachments, or fixtures in a Tenant work letter (in form acceptable to Landlord) and obtaining Landlords prior written consent to same. Notwithstanding the foregoing, Tenant shall have the right to make interior, non-structural alterations to the Premises without Landlords consent, so long as such alterations do not (i) affect the structure or electrical, plumbing, or mechanical systems of the Premises; or (ii) decrease the value of the Premises. Except as may be covered by Tenants Improvement Allowance, Tenant shall be responsible for the cost of such alterations or signs. Tenant shall have the right to install its trade fixtures and equipment in, upon and about the Premises; provided, however, that Tenant shall remove the same on or before the expiration of this Lease, and if so requested by Landlord, promptly after any termination of this Lease; and provided, further, that Tenant shall promptly thereafter repair all damage caused to the Premises by reason of such installation or removal.
c. Tenant shall indemnify and hold Landlord harmless from and against all costs (including reasonable attorneys fees and costs of suit), losses, liabilities, or causes of action arising out of or relating to any alterations, additions or improvements made by Tenant to the Premises, including, but not limited to, work not completed in a workmanlike manner and any contractors, mechanics or materialmans liens asserted in connection therewith. This indemnification obligation shall survive the Term of this Lease.
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d. Should any contractors, mechanics or other liens be filed against any portion of the Premises by reason of Tenants acts or omissions or because of a claim against Tenant, Tenant shall cause the same to be canceled or discharged of record by bond or otherwise within thirty (30) days after notice by Landlord. If Tenant shall fail to cancel or discharge said lien or liens, within said thirty (30) day period, Landlord may, at its sole option, cancel or discharge the same and upon Landlords demand, Tenant shall promptly reimburse Landlord for all reasonable costs incurred in canceling or discharging such liens, including attorney fees in connection with same.
14. Maintenance and Repairs to the Premises . Following completion of Landlords Work, but subject to any punch list items, latent defects, or other defects expressly covered by any warranty under this Lease, Tenant shall make and pay for any and all repairs or replacements to any and all portions of the interior and exterior of the Premises which are necessary to keep the same in a good state of repair or condition, such as, but not limited to, the roof and all structural members of the building, all fixtures, furnishings, lighting, air conditioning, plumbing, heating, electrical, floors, walls, ventilation systems, and any and all other parts of the building or other portions of the Premises. Tenant shall perform all maintenance, repairs, replacements and improvements required by any governmental law, ordination, rule or regulation. Landlord shall maintain the parking lot, landscaping, plantings, and the exterior of the Premises in a good and neat condition at all times, and Tenant shall be responsible for its pro rata share of the costs. Tenants pro rata share shall be 41.8% as calculated by dividing the total rentable square footage of the building (10,085 square feet) by the square footage of the Tenants space (4,211 square feet). Tenant shall have the option to request backup for all of the expenses in order to verify the Tenants portion, and Landlord shall provide the information within 10 business days after the request has been received. Notwithstanding anything in this Lease to the contrary, Tenant shall not be required to construct or install any item that is capital in nature, unless the need for such installation or construction is caused by Tenants negligence or willful misconduct. Without limiting Tenants maintenance and repair obligations hereunder, in the event Tenant fails to commence, within ten (10) days after written notice from Landlord to Tenant, or to diligently complete, any maintenance, repairs, replacements or improvements necessitated by Tenants negligence or willful conduct, or necessitated by Tenants waste of the Premises, Landlord may, at its option, perform any such maintenance, repairs, replacements or improvements deemed necessary by Landlord, and Tenant shall pay to Landlord on demand Landlords cost thereof, plus an administrative fee of ten percent (10%) of such costs as Additional Rental. As used in this Section 15, any requirement to maintain the Premises in a good state of repair or condition shall mean maintenance of the Premises in as good a condition as existed upon the initial completion of the improvements on the Premises, reasonable wear and tear and damage by casualty excepted.
15. Condemnation . If all or substantially all of the Premises, or such portion of the Premises as would render, in Landlords reasonable judgment, the continuance of Tenants business from the Premises impracticable, shall be permanently taken or condemned for any public purpose, then Landlord or Tenant may terminate this Lease. If less than all or substantially all of the Premises shall be taken, then Landlord shall have the option of terminating this Lease by written notice to Tenant within ten (10) days following the date of such condemnation or taking. If this
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Lease is terminated as provided above, this Lease shall cease and expire as of the date of the taking. In the event that this Lease is not terminated and a portion of the Premises is taken, Tenant shall pay the Base Rental and Additional Rental up to the date of the taking, and this Lease shall thereupon cease and terminate with respect to the portion of the Premises so taken. Thereafter the Base Rental and Additional Rental shall be adjusted on an equitable basis. If this Lease is not terminated, Landlord shall promptly repair the Premises building to an architectural unit, fit for Tenants occupancy and business; provided, however, that Landlords obligation to repair hereunder shall be limited to the extent of the net proceeds from such taking made available to Landlord for such repair. However, in the event such proceeds are not sufficient to restore the Premises to a condition reasonably suitable for the operation of Tenants business, Tenant may terminate this Lease, at the time Landlord notifies Tenant of the extent to which the Premises will be restored. In the event of any temporary taking or condemnation for any public purpose of the Premises or any portion thereof, this Lease shall continue in full force and effect except that Base Rental and Additional Rental shall be adjusted on an equitable basis for the period of such taking, and Landlord shall be under no obligation to make any repairs or alterations. In the event of any taking of the Premises, Tenant hereby assigns to Landlord the value of all or any portion of the unexpired term of the Lease and all leasehold improvements, and Tenant shall not assert a claim for a condemnation award therefor; provided, however, Tenant may pursue a separate award from the condemning authority for (a) relocation and moving expenses, and (b) compensation for loss of Tenants business.
16. Fire or Casualty . If the building or any improvement on the Premises shall be damaged in any way, in whole or in part, or rendered untenantable by fire or other casualty, Tenant shall restore the building to its original condition. Rent shall not abate or be reduced following any casualty loss or during any period of restoration to the Tenants Premises if the fire is due to the Tenants Premises. It shall be Landlords responsibility to obtain business interruption insurance coverage to insure against any loss Tenant may suffer as a result of any casualty damage by other leased space as well as Tenants inability to use all or any part of the Premises as a result of such casualty. Tenant shall pay its pro rata share on the business interruption insurance coverage, and Tenants pro rata share shall be 41.8% as calculated by dividing the total rentable square footage of the building (10,085 square feet) by the square footage of the Tenants space (4,211 square feet). Tenant shall have the option to request backup for all of the expenses in order to verify the Tenants portion, and Landlord shall provide the information within 10 business days after the request has been received.
17. Insurance .
a. Liability Insurance. Tenant shall, during the entire term hereof keep in full force and effect a policy or policies of public liability, personal and property damage insurance with respect to the Premises, in which the limits shall be not less than $2,000,000 in the aggregate, and $1,000,000 per occurrence. Such amounts shall be increased every three (3) years based on any increase in the Consumer Price Index-All Urban during such 3-year period. The policies shall name Landlord and any lender of Landlord as an additional insured, and shall contain a clause that the insurer will not cancel or change the insurance without first giving all additional insureds thirty (30) days prior written notice. The insurance shall be with an insurance company licensed to do business in Tennessee, and a copy of the policy, or a certificate of insurance, shall be delivered to Landlord initially and at each renewal hereof.
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b. Fire and Casualty Insurance. Landlord agrees to keep in full force and effect a policy or policies or broad form, all risk coverage insurance, in amounts not less than eighty percent (80%) of the reasonable reproduction or replacement value of the Premises improvements (including all buildings and structures thereon, and all portions thereof), determined annually, and with no reduction for depreciation, use, wear and tear. With respect to damage or destruction of Premises improvements, which damage or destruction is covered, in whole or in part, by insurance, it is agreed that the proceeds from such insurance which are paid to Landlord shall be used and applied exclusively for the purpose of making replacements or repairs, if and only if such proceeds are sufficient in amount to complete such necessary replacements or repairs, which are paid to Landlord are insufficient therefor, Landlord will provide the deficiency, it being the intent of the parties hereto that Landlord shall have the obligation to rebuild, reconstruct or replace the Premises improvements damaged or destroyed by fire or other casualty with improvements of equal value, whether such casualty shall be insured or not insured against, and whether the proceeds of any such insurance are paid to Landlord. The insurance shall be with a good and A-rated insurance company licensed to do business in Tennessee, and a copy of the policy, or a certificate of insurance together with proof of premium payment, shall be delivered to Tenant initially and at each renewal thereof. Tenant shall pay its pro rata share of all risk coverage insurance monthly as part of the triple net expenses. Tenants pro rata share shall be 41.8% as calculated by dividing the total rentable square footage of the building (10,085 square feet) by the square footage of the Tenants space (4,211 square feet).
18. Damages from Certain Causes . Landlord shall not be liable or responsible to Tenant for any loss or damage to any property or person occasioned by theft, fire, act of God, public enemy, riot, strike, insurrection, war, act or omission of any party other than Landlord, any nuisance or interference caused or created by any property owner other than Landlord, requisition or order of governmental body or authority, court order or injunction, or any cause beyond Landlords control or for any damage or inconvenience which may arise through repair or alteration of any part of the Premises as required by this Lease.
19. Hold Harmless .
a. Landlord shall not be liable to Tenant, its agents, servants, employees, contractors, customers or invitees for any damage to person or property caused by any act, omission or neglect of Tenant. Without limiting or being limited by any other indemnity in this Lease, but rather in confirmation and furtherance thereof, Tenant agrees to indemnify, defend by counsel reasonably acceptable to Landlord and hold Landlord harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, but not limited to, court costs, reasonable attorneys fees and litigation expenses) in connection with injury to or death of any person or damage to or theft, loss or loss of the use of any property occurring in or about the Premises arising from Tenants occupancy of the Premises, or the conduct of its business or from any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises, or from
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any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant to be performed pursuant to the terms of this Lease, or due to any other act or omission or willful misconduct of Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees.
b. Tenant shall not be liable to Landlord, its agents, servants, employees, contractors, customers or invitees for any damage to person or property caused by any act, omission or neglect of Landlord. Without limiting or being limited by any other indemnity in this Lease, but rather in confirmation and furtherance thereof, Landlord agrees to indemnify, defend by counsel reasonably acceptable to Tenant and hold Tenant harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, but not limited to, court costs, reasonable attorneys fees and litigation expenses) in connection with injury to or death of any person or damage to or theft, loss or loss of the use of any property occurring in or about the Premises arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease, or due to any other grossly negligent act or omission or willful misconduct of Landlord or any of its agents or employees.
20. | Default and Remedies . |
a. | The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an Event of Default): |
i) | Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant; |
ii) | Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenants business in the Premises); |
iii) | Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease; |
iv) | Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease; |
v) | Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant; |
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vi) | Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure; |
vii) | The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing; |
viii) | Tenant or any guarantor of Tenants obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property; |
ix) | A trustee or receiver is appointed for Tenant, any guarantor of Tenants obligations under this Lease or for a major part of either partys property and is not discharged within sixty (60) days after such appointment; |
x) | Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenants obligations under this Lease, or (B) against Tenant or any guarantor of Tenants obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or |
xi) | Tenants repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months. |
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenants part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlords actual cost incurred, on demand. |
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ii) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises. |
iii) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord. |
iv) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein. |
v) |
Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys fees) of |
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recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination. |
vi) | The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity. |
vii) | No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant. |
(c) In the event Landlord fails to perform any of its obligations under this Lease and such non-performance continues for a period of thirty (30) days following written notice of default from Tenant, Landlord shall be deemed to be in material default of this Lease, and Tenant shall have all remedies available at law, in equity or under this Lease; provided, however, that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Landlord commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure.
21. Late Payments . In the event any installment of any Rental owed by Tenant hereunder is not paid within 10 days, Tenant shall pay a late charge equal to the greater of $100.00 or five percent (5%) of the amount due. The parties agree that such charge is a fair and reasonable estimate of Landlords administrative expense incurred on account of late payment. Should Tenant make a partial payment of past due amounts, the amount of such partial payment shall be applied first to reduce all accrued and unpaid late charges, in inverse order of their maturity, and then to reduce all other past due amounts, in inverse order of their maturity.
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22. Attorneys Fees . If either party initiates any action to enforce its rights under this Lease or the terms hereof, the prevailing party shall be entitled to collect from the other party all court costs, reasonable attorneys fees and litigation expenses, including, but not limited to, costs of depositions and expert witnesses, that the prevailing party actually incurs in connection with such action.
23. No Waiver of Rights . No failure or delay of Landlord to exercise any right or power given it herein or to insist upon strict compliance by Tenant of any obligation imposed on it herein and no custom or practice of either party hereto at variance with any term hereof shall constitute a waiver or a modification of the terms hereof by Landlord or any right it has herein to demand strict compliance with the terms hereof by Tenant. No waiver of any right of Landlord or any default by Tenant on one occasion shall operate as a waiver of any of Landlords other rights or of any subsequent default by Tenant. No express waiver shall affect any condition, covenant, rule, or regulation other than the one specified in such waiver and then only for the time and in the manner specified in such waiver. No person has or shall have any authority to waive any provision of this Lease unless such waiver is expressly made in writing and signed by an authorized officer of Landlord.
24. Holding Over . In the event of holding over by Tenant after expiration or termination of this Lease without the written consent of Landlord, Tenant shall pay as rent for such holdover period one hundred fifty percent (150%) of the Rental that would have been payable if this Lease had not so terminated or expired). No holding over by Tenant after the term of this Lease shall be construed to extend this Lease, and Tenant shall be deemed a tenant at will, terminable on five (5) days notice from Landlord. In the event of any unauthorized holding over, Tenant shall indemnify Landlord against all claims for damages by any other tenant to whom Landlord shall have leased all or any part of the Premises effective upon the termination of this Lease.
25. Subordination .
a. If this Lease (and all its terms and conditions) shall become subject and subordinate to any mortgages or deeds of trust covering the Premises, whether or not for the full amount of all advances made or to be made thereunder and without regard to the time or character of such advances, the holder of any such mortgage or deed of trust (any of the foregoing, a Holder), shall execute a subordination, non-disturbance and attornment agreement in form and content reasonably acceptable to Tenant and such mortgagee providing (in part) that as long as an event of default on the part of Tenant is not in existence, Tenant shall not be disturbed in its possession of the Premises or have its rights hereunder terminated or modified by such mortgagee, except pursuant to the provisions of this Lease.
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b. Tenant agrees that if Landlord defaults in the performance or observance of any covenant or condition of this Lease required to be performed or observed by Landlord hereunder, Tenant will give written notice specifying such default by certified or registered mail, postage prepaid, to any Holder of which Tenant has been notified in writing, and before Tenant exercises any right or remedy which it may have on account of any such default of Landlord, such party shall have the same amount of time as is afforded Landlord to cure such default of Landlord. Whether or not any deed of trust or mortgage is foreclosed, or any Holder succeeds to any interest of Landlord under this Lease, no Holder shall have any liability to Tenant for any security deposit paid to Landlord by Tenant hereunder, unless such security deposit has actually been received by such Holder. No Holder of which Tenant has been notified, in writing, shall be bound by any amendment or modification of this Lease made without the written consent of such Holder, nor shall any such party be liable for any defaults of Landlord under this Lease. If the Landlord goes into default, the holder shall be responsible to refund the Tenants security deposit.
26. Estoppel Certificate . Tenant agrees that, from time to time upon request by Landlord, or any existing or prospective mortgagee or ground lessor, Tenant will complete, execute and deliver a written estoppel certificate certifying (a) that this Lease is unmodified and is in full force and effect (or if there have been modifications, that this Lease, as modified, is in full force and effect and setting forth the modifications); (b) the amounts of the monthly installments of Base Rental, Additional Rental and other sums then required to be paid under this Lease by Tenant; (c) the date to which the Base Rental, Additional Rental and other sums required to be paid under this Lease by Tenant have been paid; (d) that Landlord is not in default under any of the provisions of this Lease, or if in default, the nature thereof in detail and what is required to cure same; and (e) such other information concerning the status of this Lease or the parties performance hereunder reasonably requested by Landlord or the party to whom such estoppel certificate is to be addressed.
27. Sublease or Assignment by Tenant .
a. The Tenant shall not, without the Landlords prior written consent, (i) assign, convey, mortgage, pledge, encumber, or otherwise transfer (whether voluntarily, by operation of law, or otherwise) this Lease or any interest hereunder; (ii) allow any lien to be placed upon Tenants interest hereunder; (iii) sublet the Premises or any part thereof; or (iv) permit the use or occupancy of the Premises or any part thereof by anyone other than Tenant or Tenants subsidiaries. Any attempt to consummate any of the foregoing without Landlords consent shall be void and of no force or effect. For purposes hereof, the transfer of the ownership or voting rights in a controlling interest of the voting stock of Tenant (if Tenant is a corporation) or the transfer of a general partnership interest or a majority of the limited partnership or membership interest in Tenant (if Tenant is a partnership or limited liability company), at any time throughout the term of this Lease, shall be deemed to be an assignment of this Lease.
b. For any proposed assignment or subletting Tenant shall submit to Landlord a copy of the proposed sublease or assignment, and such additional information concerning the business, reputation and creditworthiness of the proposed sublessee or assignee as shall be sufficient to allow Landlord to form a commercially reasonable judgment with respect thereto. If Landlord approves any proposed sublease or assignment, Landlord shall receive from Tenant as Additional Rental fifty percent (50%) of any rents or other sums received by Tenant pursuant to said sublease or
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assignment in excess of the rentals payable to Landlord by Tenant under this Lease (after deducting all of Tenants reasonable costs associated therewith, including reasonable brokerage fees and the reasonable cost of remodeling or otherwise improving the Premises for said sublessee or assignee), as such rents or other sums are received by Tenant from the approved sublessee or assignee. Landlord may require that any rent or other sums paid by a sublessee or assignee be paid directly to Landlord.
c. Notwithstanding the giving by Landlord of its consent to any subletting, assignment or occupancy as provided hereunder or any language contained in such lease, sublease or assignment to the contrary, unless this Lease is expressly terminated by Landlord, Tenant shall not be relieved of any of Tenants obligations or covenants under this Lease and Tenant shall remain fully liable hereunder.
d. Notwithstanding anything in this Lease to the contrary, so long as Tenant remains jointly and severally liable for all of its obligations under this Lease, Tenant shall have the right, without Landlords consent, to assign or transfer its interest in this Lease: (i) in connection with a merger or reorganization of Tenant or a sale of all or substantially all of Tenants assets (so long as such assignee expressly assumes all of Tenants obligations under this Lease in writing); (ii) to an entity wholly or partially owned or controlled by, or under common control with, Tenant; or (iii) to an entity whose (A) net worth is equal to or greater than the greater of the net worth or Tenant (1) on the date of this Lease or (2) at the time of such assignment; and (B) use of the Premises will be for banking and financial services; general business office use; or any other reputable business activity approved by Landlord in its reasonable discretion.
28. Quiet Enjoyment . Landlord covenants that Tenant shall and may peacefully have, hold and enjoy the Premises free from hindrance by Landlord or any person claiming by, through or under Landlord but subject to the other terms hereof, provided that Tenant pays the Base Rental, Additional Rental, and any other sums herein recited to be paid by Tenant and performs all of Tenants covenants and agreements herein contained. It is understood and agreed that this covenant and any and all other covenants of Landlord contained in this Lease shall be binding upon Landlord and its successors only with respect to breaches occurring during the ownership of the Landlords interest hereunder.
29. Assignment by Landlord . Landlord shall have the right to transfer and assign, in whole or in part, all its rights and obligations hereunder, in the Premises, and in such event and upon such transfer no further liability or obligation shall thereafter accrue against Landlord hereunder.
30. Limitation of Landlords Personal Liability . Tenant specifically agrees to look solely to Landlords equity interest Premises for the recovery of any monetary judgment against Landlord, it being agreed that Landlord (and its partners, members and shareholders) shall never be personally liable for any such judgment. The provision contained in the foregoing sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord or Landlords successors-in-interest or any suit or action in connection with enforcement or collection of amounts which may become owing or payable under or on account of insurance maintained by Landlord.
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31. Force Majeure . Landlord and Tenant (except with respect to the payment of Base Rental or Additional Rental or any other monetary obligation under this Lease) shall be excused for the period of any delay and shall not be deemed in default with respect to the performance of any of the terms, covenants and conditions of this Lease when prevented from so doing by a cause or causes beyond the Landlords or Tenants (as the case may be) control (excluding financial inability to perform), which shall include, without limitation, all labor disputes, governmental regulations or controls, fire or other casualty, inability to obtain any material or services, acts of God, or any other cause not within the reasonable control of Landlord or Tenant (as the case may be).
32. Surrender of Premises . Upon the termination of this Lease by lapse of time or otherwise or upon the earlier termination of Tenants right of possession, Tenant shall quit and surrender possession of the Premises (including all leasehold improvements made or installed by Tenant or by Landlord) to Landlord, broom clean, in the same condition as upon delivery of possession to Tenant hereunder, normal wear and tear excepted. Before surrendering possession of the Premises, Tenant shall, without expense to Landlord, remove all signs, furnishings, equipment, trade fixtures, merchandise and other personal property installed or placed in the Premises and all debris and rubbish, and Tenant shall repair all damage to Premises resulting from such removal. If Tenant fails to remove any of the signs, furnishings, equipment, trade fixtures, merchandise and other personal property installed or placed in the Premises by the expiration of the Term or earlier termination of this Lease, then Landlord may, at its sole option, (i) deem any or all of such items abandoned and the sole property of Landlord; or (ii) remove any and all such items and dispose of same in any manner. Tenant shall pay Landlord on demand any and all expenses incurred by Landlord in the removal of such items, including, without limitation, the cost of repairing any damage to the Premises caused by such removal and storage charges (if Landlord elects to store such property).
33. Notices . Any notice or other communications required or permitted to be given under this Lease must be in writing and shall be effectively given or delivered if (a) hand delivered to the addresses for Landlord and Tenant stated below, (b) sent by certified or registered United States Mail, return receipt requested, to said addresses, (c) sent by nationally recognized overnight courier (such as Federal Express, UPS Next Day Air or Airborne Express), with all delivery charges paid by the sender and signature required for delivery, to said address; or (d) sent by facsimile to the facsimile numbers for Landlord and Tenant stated below and actually received, as evidenced by facsimile confirmation report, by Landlord or Tenant, as the case may be. Any notice mailed shall be deemed to have been given upon receipt or refusal thereof. Notice effected by hand delivery shall be deemed to have been given at the time of actual delivery. Either party shall have the right to change its address to which notices shall thereafter be sent and the party to whose attention such notice shall be directed by giving the other party notice thereof in accordance with the provisions of this Section.
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Landlord: | Petra Real Estate Partners II, LLC |
320 Main Street, Suite 230 |
Franklin, Tennessee 37064 |
Facsimile: (615) 794-7910 |
Tenant: | Franklin Synergy Bank |
722 Columbia Avenue |
Franklin, TN 37064 |
Phone: (615) 236-2265 |
34. Miscellaneous .
a. This Lease shall be binding upon and inure to the benefit of the successors and assigns of Landlord, and shall be binding upon and inure to the benefit of Tenant, its successors, and, to the extent assignment may be approved by Landlord hereunder, Tenants assigns.
b. All rights and remedies of Landlord and Tenant under this Lease shall be cumulative and none shall exclude any other rights or remedies allowed by law. This Lease is declared to be a Tennessee contract, and all of the terms hereof shall be construed according to the laws of the State of Tennessee.
c. This Lease may not be altered, changed or amended, except by an instrument in writing executed by all parties hereto.
d. If Tenant is a corporation, partnership, limited liability company or other entity, Tenant warrants that all consents or approvals required of third parties (including but not limited to its Board of Directors, partners or members) for the execution, delivery and performance of this Lease have been obtained and that Tenant has the right and authority to enter into and perform its covenants contained in this Lease.
e. To the extent permitted by applicable law, the parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this lease, the relationship of landlord and tenant, Tenants use or occupancy of the Premises and/or any claim of injury or damage. In the event Landlord commences any proceedings for nonpayment of rent or any other amounts payable hereunder, Tenant shall not interpose any counterclaim of whatever nature or description in any such proceeding, unless the failure to raise the same would constitute a waiver thereof. This shall not, however, be construed as a waiver of Tenants right to assert such claims in any separate action brought by Tenant.
f. If any term or provision of this Lease, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Lease shall be valid and shall be enforceable to the extent permitted by law.
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g. Time is of the essence in this Lease.
h. Tenant represents and warrants to Landlord that Tenant did not deal with any broker in connection with this Lease. Tenant shall indemnify, defend and hold Landlord harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, without limitation, court costs, reasonable attorneys fees and litigation expenses) arising from any claims or demands of any other broker or brokers or finders for any commission alleged to be due such other broker or brokers or finders claiming to have dealt with Tenant in connection with this Lease or with whom Tenant hereafter deals or whom Tenant employs.
i. If Tenant comprises more than one person, corporation, partnership, limited liability company or other entity, the liability hereunder of all such persons, corporations, partnerships or other entities shall be joint and several.
j. Landlords receipt of any monetary amount due hereunder (including Base Rental and Additional Rental) payable by Tenant hereunder with knowledge of the breach of a covenant or agreement contained in this Lease shall not be deemed a waiver of the breach. No acceptance by Landlord of a lesser amount than the full and complete installment of monetary amount due under this Lease (including Base Rental and Additional Rental) which is due shall be considered, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed, an accord and satisfaction. Landlord may accept a check or payment without prejudice to Landlords right to recover the balance due or to pursue any other remedy provided in this Lease.
k. Submission of this instrument for examination shall not constitute a reservation of or option to lease the Premises or in any manner bind Landlord, and no lease or obligation on Landlord shall arise until this instrument is signed and delivered by Landlord and Tenant.
l. Any claim, cause of action, liability or obligation arising under the term of this Lease and under the provisions hereof in favor of a party hereto against or obligating the other party hereto and all of Tenants indemnification obligations hereunder shall survive the expiration or any earlier termination of this Lease.
m. Tenant shall have the maximum exterior signage as approved by the City of Spring Hill codes. All exterior signage shall be approved by the Landlord. Landlord approves the use of any temporary signage within the city codes.
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[Signature page follows.]
IN WITNESS WHEREOF , the parties hereto have executed and sealed this Lease as of the date aforesaid.
LANDLORD: | ||
PETRA REAL ESTATE PARTNERS II, LLC | ||
By: | /s/ Henry W. Brockman, Jr. | |
Title: | Managing Partner |
TENANT: | ||
FRANKLIN SYNERGY BANK | ||
By: | /s/ Sarah Meyerrose | |
Title: | EVP/CFO |
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EXHIBIT A
Description of Premises
All that tract or parcel of land in Williamson County, Tennessee, and being more particularly described as follows:
Land in Williamson County, Tennessee, being Lot(s) 2, as shown on the map entitled Cadence Crossing Subdivision, of record in Plat Book P63, Page 130, Scriveners Affidavit of record in Book 6750, Page 775, Registers Office for Williamson County, Tennessee, to which plan reference is hereby made for a more complete and accurate legal description.
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EXHIBIT B
Form of Commencement Agreement
COMMENCEMENT AGREEMENT
THIS COMMENCEMENT AGREEMENT (this Agreement), made and entered into as of this day of , 201 , is by and between PETRA REAL ESTATE PARTNERS II, LLC , a Tennessee limited liability company, (Landlord), and FRANKLIN SYNERGY BANK , a Tennessee banking corporation (Tenant).
A. Tenant and Landlord entered into that certain Triple Net Office Lease Agreement dated (the Lease), for certain improved real property municipally known as located in Spring Hill, Williamson County, Tennessee, consisting of approximately rentable square feet, being more particularly described in the Lease; and
B. The parties desire to precisely establish the Commencement Date as set forth below.
NOW, THEREFORE, in consideration of the mutual and reciprocal promises herein contained, and pursuant to Section 2 of the Lease, Tenant and Landlord hereby agree that the Lease is hereby modified as follows:
1. The term of the Lease by and between Landlord and Tenant actually commenced on (the Commencement Date).
2. Except as modified and amended by this Agreement, the Lease shall remain in full force and effect.
IN WITNESS WHEREOF , Landlord and Tenant have caused this Agreement to be duly executed, as of the day and year first above written.
LANDLORD: | TENANT: | |||||||
PETRA REAL ESTATE PARTNERS II, LLC | FRANKLIN SYNERGY BANK | |||||||
By: | By: | |||||||
Title: | Title: |
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EXHIBIT C
Landlords Work and Tenant Improvement Allowance
Landlords Work
Before the Commencement Date, Landlord shall complete on the Premises construction of the two-story, warm white box building shown on the plans and drawings attached hereto as Exhibit C-1 , consisting of approximately 4,211 square feet and shall include base electrical, plumbing, and mechanical systems (the Landlords Work). Landlord anticipates that Landlords Work shall be complete by October 31, 2017, but Landlord does not guarantee this anticipated completion date and Tenant represents and warrants that it is not relying on this anticipated completion date. Notwithstanding the foregoing, if Landlords Work is not complete by January 1, 2018, Tenant shall have a continuing right to terminate this Lease upon written notice to Landlord, in which event neither party shall have any further obligation to the other hereunder.
Landlord warrants to Tenant that Landlords Work shall be completed (i) in a good and workmanlike manner and (ii) in accordance with the requirements of all applicable laws, codes and ordinances of governmental authorities having jurisdiction over the Premises. Landlord further hereby assigns to Tenant all third-party warranties granted to Landlord in connection with Landlords Work.
Tenant Improvement Allowance
Following completion of Landlords Work and delivery of the Premises to Tenant, Landlord shall provide Tenant with an improvement allowance (the Tenant Improvement Allowance) of $30 per square foot of the building constructed under Landlords Work. The Tenant Improvement Allowance shall be payable to Tenant no earlier than the Commencement Date.
24
EXHIBIT C-1
Building Plans and Drawings
[See attached.]
25
Exhibit 10.2
LEASE SUMMARY
Landlord:
Name: | SS MCEWEN, LLC | |||
Address: | c/o Southstar, LLC | |||
501 Corporate Centre Drive | ||||
Suite 305 | ||||
Franklin, TN 37067 |
Tenant:
Name: | FRANKLIN FINANCIAL NETWORK INC. | |||
Address: | 722 Columbia Avenue | |||
Franklin, TN 37064 | ||||
Attn: Facilities Management |
Project:
Carothers Crossing East Shopping Center, Franklin, Tennessee, as shown on Exhibit A , attached.
Premises and Approximate Square Footage:
Approximately 3,600 square feet, being Space Nos. 1, 2 and 3, located in the Project as shown on the plan attached hereto as Exhibit A , together with a drive thru window, with canopy, median, curbs, two concrete drive aisles, vacuum tubes and other improvements and equipment that serve such drive thru window as shown on Exhibit A (collectively, the Drive Thru Window Improvements).
Term of Lease:
One hundred twenty (120) months, commencing on the Commencement Date and continuing until the last day of the one hundred twentieth (120 th ) calendar month after the Commencement Date.
Commencement Date:
The earlier to occur of (i) the date that is one hundred twenty (120) days after Landlord delivers possession of the Premises to Tenant in a condition that Tenant can commence Tenants Work or (ii) the date Tenant opens for business on the Premises.
Minimum Annual Rent:
Minimum Annual Rent shall be payable in monthly installments as set forth in Section 4 of the Lease, in the following amounts:
Months |
Minimum Annual Rent |
Minimum Monthly
Installment |
||||||
1-12 |
$ | 151,200.00 | $ | 12,600.00 | ||||
13-24 |
$ | 154,224.00 | $ | 12,852.00 | ||||
25-36 |
$ | 157,308.48 | $ | 13,109.04 | ||||
37-48 |
$ | 160,454.65 | $ | 13,371.22 | ||||
49-60 |
$ | 163,663.74 | $ | 13,638.65 | ||||
61-72 |
$ | 166,937.02 | $ | 13,911.42 | ||||
73-84 |
$ | 170,275.76 | $ | 14,189.65 | ||||
85-96 |
$ | 173,681.27 | $ | 14,473.44 | ||||
97-108 |
$ | 177,154.90 | $ | 14,762.91 | ||||
109-120 |
$ | 180,698.00 | $ | 15,058.17 |
The foregoing represents an initial rent of $42.00 per rentable square foot commencing on the Commencement Date with an annual increase of two percent (2%) commencing in the 13 th month after the Commencement Date and every 12 months thereafter.
Other Sums Payable:
Proportionate share of Taxes, Insurance and Common Area Charges (as such terms are defined in this Lease). The initial estimated annual payment for Taxes, Insurance, and Common Area Charges is $7.50 per square foot of the Premises per year, payable in equal monthly installments beginning on the Commencement Date.
Tenant shall pay the cost of all utilities serving the Premises in accordance with Section 13.
Tenant Tradename:
Franklin Synergy Bank
Permitted Use:
Operation of a bank branch
Security Deposit: None
INDEX OF LEASE ARTICLES
Page | ||||||
1. |
PREMISES | 1 | ||||
2. |
TERM | 1 | ||||
3. |
PLANS AND SPECIFICATIONS | 1 | ||||
4. |
MINIMUM ANNUAL RENT | 3 | ||||
5. |
REAL ESTATE TAXES, INSURANCE, AND COMMON AREA CHARGES | 4 | ||||
6. |
USE | 6 | ||||
7. |
OPERATION OF BUSINESS | 6 | ||||
8. |
RADIUS | 6 | ||||
9. |
COMPLIANCE WITH LAW AND INSURANCE REQUIREMENTS | 7 | ||||
10. |
ALTERATIONS AND ADDITIONS | 7 | ||||
11. |
REPAIRS | 7 | ||||
12. |
UTILITIES | 8 | ||||
13. |
LIENS | 8 | ||||
14. |
ASSIGNMENT AND SUBLETTING | 9 | ||||
15. |
INDEMNITY | 9 | ||||
16. |
INSURANCE | 10 | ||||
17. |
PROPERTY TAXES | 12 | ||||
18. |
RULES AND REGULATIONS | 12 | ||||
19. |
PARKING | 12 | ||||
20. |
ENTRY BY LANDLORD | 12 | ||||
21. |
CASUALTY | 13 | ||||
22. |
EMINENT DOMAIN | 14 | ||||
23. |
EVENTS OF DEFAULT | 14 | ||||
24. |
REMEDIES IN DEFAULT | 15 | ||||
25. |
DAMAGES UPON TERMINATION | 17 | ||||
26. |
SECURITY DEPOSIT | 18 | ||||
27. |
ESTOPPEL CERTIFICATE | 18 | ||||
28. |
AUTHORITY OF PARTIES | 19 | ||||
29. |
LANDLORDS LIABILITY | 19 | ||||
30. |
HAZARDOUS MATERIALS | 20 | ||||
31. |
EXTERIOR SIGNS | 20 | ||||
32. |
GENERAL PROVISIONS | 20 |
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LEASE AGREEMENT
This Lease Agreement (the Lease) is made and entered into as of the 25th day of July, 2017 (the Effective Date) between SS MCEWEN, LLC , a Tennessee limited liability company, (Landlord) and FRANKLIN FINANCIAL NETWORK INC. , a Tennessee corporation (Tenant).
1. Premises .
a. | Landlord leases to Tenant, and Tenant leases from Landlord those certain Premises as described on the Lease Summary. |
b. | The Project, as used herein, shall mean the shopping center described on the Lease Summary. Exhibit A sets forth the general layout of the Project, but Landlord reserves the right to construct the Project in one or more phases, to enlarge or to decrease the size of the Project, to subdivide the Project, and to construct other buildings or improvements or to relocate or add any buildings, improvements, parking areas and other common areas in the Project, provided that the size and relative location of the Premises shall not be materially altered. |
c. | Landlord reserves the use of the roof, exterior walls (excluding store fronts) and the area above and below the Premises, together with the right to install, maintain, use, repair and replace pipes, ducts, conduits, wires and structural elements running through the Premises that serve other parts of the Project. |
2. Term . The term of this Lease shall be as set forth in the Lease Summary
3. Plans and Specifications .
a. | Landlord is to perform certain work on the Project and the Premises as set forth in Exhibit C , attached (the Landlords Work) and Landlord shall deliver possession of the Premises to Tenant when the Premises are in suitable condition for the commencement of construction of certain improvements as set forth in Exhibit D , attached (the Tenants Work) to be constructed in accordance with the Tenant Plans (as defined below). Landlords obligation with respect to construction on the Premises shall be limited to Landlords Work. Landlord shall endeavor to notify Tenant in writing not less than fifteen (15) days in advance of the date (the Delivery Date) that Tenant can commence Tenants Work; and Tenant shall commence such work within a reasonable period of time after receipt of such notice (although Landlord may not have completed Landlords Work on such date and may be in the Premises concurrently with Tenant, provided that Landlords presence does not materially interfere with Tenants ability to commence, continue or complete Tenants Work) (the Delivery Date). Except for incomplete work then in progress as of the date Tenant accepts delivery of the Premises for the purpose of commencing Tenants Work, Tenant shall be deemed to have accepted the Premises in the condition delivered by Landlord unless the Tenant delivers to Landlord a punchlist specifying any defects within ten (10) days of delivery. |
b. | Landlord projects that the Delivery Date will occur on or about May 1, 2018, but Landlord shall have no liability to Tenant hereunder if the Delivery Date fails to occur by that date due to contractor delays, strike or other labor troubles, governmental restrictions, failure or shortage of utility service, national or local emergency, accident, flood, fire or other casualty, adverse weather condition, other act of God, inability to obtain a building permit or a certificate of occupancy, or any other cause beyond Landlords reasonable control. |
c. | Within forty-five (45) days after the Effective Date, Tenant shall deliver to Landlord plans and specifications for the work that Tenant desires to perform to prepare the Premises for occupancy by Tenant (the Tenant Plans). The Tenant Plans shall comply with all of Landlords design criteria as established by Landlord for the Project from time to time and shall be consistent with Landlords Work. The Tenant Plans shall be reviewed by Landlord within ten (10) days of receipt. Landlord shall inform Tenant of any modifications it requires to the Tenant Plans within such ten (10) day period. Tenant shall thereafter have ten (10) days to revise the Tenant Plans and submit the same for Landlords final approval. After Landlords final approval of the Tenant Plans, any modification shall be subject to Landlords prior written approval, which shall not be unreasonably withheld. |
d. | Tenant shall submit the Tenant Plans to the City of Franklin for approval not later than three (3) business days after the Landlord approves the Tenant Plans, and Tenant shall provide to Landlord evidence of such submission not later than three (3) business days after the Tenant Plans are submitted to the City of Franklin. Further, Tenant shall keep Landlord informed about the status of its submission and the estimated timing for issuance of a building permit. Tenant shall obtain a building permit and commence construction of Tenants Work not later than five (5) business days after the Tenant Plans are approved by the City of Franklin. |
e. | Tenant shall complete Tenants Work in a good and workmanlike manner and in accordance with applicable legal requirements and the Tenant Plans as approved by Landlord. Tenant shall install all store and trade fixtures and equipment therein not later than the Commencement Date. Except for Tenants obligation to pay Minimum Annual Rent, Common Area Charges, Insurance and Taxes, which shall not commence until the Commencement Date, Tenant shall comply with all of the other terms and conditions of this Lease beginning on the Delivery Date, including the obligation to pay for utilities to the Premises. Tenant hereby releases Landlord and its contractors from any claim whatsoever for damages against Landlord or its contractors for any delay in the date on which the Premises shall be ready for delivery to Tenant or the date on which the Landlords Work is complete. |
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f. | Tenant shall hire a licensed general contractor, approved in writing by Landlord, to perform the Tenants Work not to be unreasonably withheld. Tenant shall place Landlord and Landlords general contractor as additional insureds on its Builders Risk and Liability Insurance Policies that cover the Tenants entire construction cost. Evidence of insurance shall be provided to Landlord prior to any construction commencement within or at the Premises. |
g. | So long as Tenant is not then in default under the Lease, Landlord will reimburse Tenant up to One Hundred Twenty-Six Thousand and No/100 Dollars ($126,000.00) towards the cost of designing and completing the Tenants Work, including the Drive Through Window Improvements (the Allowance) following the occurrence of the last to occur of the following: (1) Tenants opening for business, (2) Tenants payment of the first full calendar months rent, (3) Tenant providing Landlord with proof of full lien releases from all contractors and materialmen performing work on or delivering supplies to the Premises on behalf of Tenant, (4) Tenants providing invoices confirming that Tenant has expended not less than the amount of the Allowance for hard costs of completing the Tenants Work, and (5) Tenants delivery of a final Certificate of Occupancy for the Premises. Any unused Allowance shall be forfeited if not drawn upon by the date that is ninety (90) days after Tenant opens for business in the Premises. |
4. Minimum Annual Rent .
a. | The Minimum Annual Rent for the Premises shall be as set forth in the Lease Summary, and shall be payable in advance to Landlord, in equal monthly installments commencing on the Commencement Date and thereafter on the first (1st) day of each successive month. |
b. | In the event the Commencement Date is on a day other than the first day of the month, the first rental payment shall be prorated for the period between the Commencement Date and the first day of the month following the Commencement Date. Rent for any period during the term hereof that is less than one (1) month shall be a prorated portion of the monthly installment of Rent set forth herein. |
c. | As used herein, the term rent or Rent shall mean all sums payable by Tenant to Landlord under this Lease. |
d. |
All payments of Rent shall be made by Tenant without notice or demand at the office of Landlord or at such other place as Landlord may from time to time designate in writing, and without set-off, counterclaim, deduction or abatement except as otherwise expressly provided herein. Any payments of Rent not received by Landlord within five (5) days from the date when due shall be deemed delinquent and Tenant shall pay to Landlord on demand a late charge equal to five percent (5%) of the amount of such Rent. Tenant acknowledges that |
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such late charge is not a penalty, but is to compensate Landlord for the additional administrative expenses and other expenses incurred by Landlord in handling delinquent payments (which expenses are not readily ascertainable), and is in addition to, not in lieu of, interest on late payments as provided herein and any other remedies that Landlord may have by virtue of Tenants failure to make payments when due. Interest on any payment of Rent not received by Landlord on or before the date when due shall accrue from the date when due to and including the date such payment is received by Landlord at the average prime rate of interest published by the Federal Reserve from time to time, plus four percent (4%), but in no event in excess of the maximum interest rate permitted under applicable law from time to time (the Default Rate). |
5. Real Estate Taxes, Insurance, and Common Area Charges .
a. | Tenants Proportionate Share . Tenants Proportionate Share, as used herein, shall be determined by multiplying the total amount of the expenses in question by a fraction, the numerator of which shall be the total square footage in the Premises as set forth in the Lease Summary and the denominator of which shall be the amount of leasable square footage in the Project. |
b. | Tenants Share of Taxes . Tenant shall pay to Landlord Tenants Proportionate Share of all Taxes applicable to the Project. The term Taxes shall mean all taxes and assessments (special or otherwise), impact fees, and sewage charges levied or assessed against the use and/or occupancy of the Project, including any personalty used in connection therewith, imposed by federal, state or local authority or any other taxing authority having jurisdiction over the Project, and shall also include all costs and expenses, including reasonable attorneys fees, incurred by Landlord during negotiations for or contests of the amount of Taxes. In the event a refund of Taxes is obtained, such refund will be credited against the Taxes. Taxes shall not include income, franchise, excise, estate or inheritance taxes personal in nature to Landlord. |
c. | Tenants Share of Insurance Premiums . Tenant shall pay to Landlord Tenants Proportionate Share of premiums charged for insurance carried by Landlord with respect to the Project (the Insurance). |
d. |
Common Area Charges . Tenant shall pay to Landlord Tenants Proportionate Share of the Operating Costs for the Project (the Common Area Charges). Common Areas shall include but not be limited to all areas, space, facilities, parking lots, equipment, signs, and special services from time to time made available by Landlord for the common and joint use and benefit of Landlord, Tenant, other tenants and occupants of the Project, and their respective employees, agents, subtenants, concessionaires, licensees, customers and invitees. Landlord shall operate, manage, equip, light, and maintain the Common Areas in such a manner as Landlord may from time to time determine. Landlord, in its |
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sole discretion, may elect to employ security for the Common Areas; provided however, Landlord shall be under no obligation to do so, and Landlords election to employ security shall not be deemed an undertaking by Landlord to ensure the safety of the tenants or any of their agents, employees, contractors, customers or invitees or the property of any such parties. Tenant is hereby given a license (in common with all others to whom Landlord has or may hereafter grant rights) to use, during this Lease, the Common Areas of the Project, subject to reasonable rules and regulations established by Landlord. Operating Costs shall mean the total cost and expense incurred in owning, operating, maintaining, repairing and replacing the Common Areas, including, without limitation: the cost of police and fire protection equipment and services, if provided; gardening and landscaping; repairs and painting; decorating and redecorating the Common Areas; striping, sweeping and lighting (including the cost of electricity and maintenance and replacement of fixtures and bulbs); regulating traffic; rubbish, garbage and other refuse removal; ice and snow removal; machinery, equipment and supplies used in the operation, maintenance and repair of the Common Areas and facilities; depreciation of machinery and equipment used in the operation and maintenance of the Common Areas; replacement of paving, curbs and walkways; utility, drainage and water systems, impact fees and charges; and the cost to Landlord of personnel to implement and perform the operation, maintenance and repairs of the Common Areas as provided above (including workers compensation insurance, salaries and other benefits covering such personnel); owners association fees; management fees for the management of the Project; and administrative cost not to exceed ten percent (10%) of the total of such costs. |
e. | Payment . In addition to the Minimum Annual Rent and all other payments due under this Lease, Tenant shall pay Tenants Proportionate Share of Taxes, Insurance, and Common Area Charges (the Tenants Cost Allocation) for each year, payable in advance in monthly installments based on Landlords estimates (the Estimated Payment), commencing on the Commencement Date. The estimated annual Tenants Cost Allocation shall initially be Twenty-Seven Thousand and 00/100 Dollars ($27,000.00) (i.e. $7.50 per square foot of the Premises). Within a reasonable period after the end of each calendar year, Landlord shall deliver to Tenant a statement (the Statement) setting forth Tenants Cost Allocation for such year. If Tenants Cost Allocation for such year exceeds the total of the Estimated Payment made by Tenant for each year, Tenant shall pay Landlord the amount of the deficiency within thirty (30) days of the receipt of the Statement. If the Estimated Payment made by Tenant exceeds Tenants Cost Allocation for such year, then Landlord shall credit against Tenants next ensuing Estimated Payment(s) an amount equal to the difference until the credit is exhausted. If a credit is due from Landlord after the expiration or termination of the Lease, Landlord shall pay Tenant the amount of the credit or refunded to Tenant if the excess collection is attributable to the last year of the term of this Lease unless renewed. The obligations of Tenant and Landlord to make payments required under this Section shall survive the expiration or termination of this Lease. |
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6. Use . Tenant shall use the Premises for the purpose and under the tradename set forth in the Lease Summary, and shall not use or permit the Premises to be used for any other purpose without the prior written consent of Landlord, which may be withheld in Landlords sole discretion. Tenant shall not cause or permit the use, generation, storage or disposal in or about the Premises or the Project of any substances, materials or wastes subject to regulation under any federal or state or local laws from time to time in effect concerning hazardous, toxic or radioactive materials unless Tenant shall have received Landlords prior written consent, which Landlord may withhold or at any time revoke in its sole discretion. Tenant shall comply with all state and local laws in effect from time to time prohibiting discrimination or segregation by reason of race, color, creed, age, religion, sex or national origin. No auction, liquidation, going out of business, fire or bankruptcy sales may be conducted or advertised by sign or otherwise in the Premises. Tenants sales practices shall be in accord with standards and practices generally acceptable in comparable first-class retail projects. Tenant shall not offer any goods or services that Landlord determines, in its sole discretion, to be inconsistent with the image of projects of a similar nature, nor shall Tenant display or sell any goods containing portrayals that Landlord determines, in its sole discretion, to be lewd, graphically violent or pornographic. Tenant agrees that it will conduct its business in good faith, and will not do any act tending to injure the reputation of the Project as determined by Landlord. Tenant shall not sell or display any paraphernalia used in the preparation or consumption of controlled substances. In the event Landlord has approved Tenants remaining open for business after normal Project hours, then such approval shall be conditioned upon Tenants paying for all additional costs incurred by Landlord as a result thereof. Tenant shall not do or permit anything to be done in or about the Premises that will in any way obstruct or interfere with the rights of other tenants or occupants of the Project or injure or annoy them, or use or allow the Premises to be used for any improper, immoral, disreputable or objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance or waste in, on or about the Premises. Tenant shall not use or permit the use of any portion of the Premises as sleeping quarters, lodging rooms, or for any unlawful purposes. Tenant shall not erect any aerial on the roof or exterior walls of any building within the Project. Landlord shall have the option to provide pest extermination services throughout the Project, in which event Tenant shall pay to Landlord Tenants Proportionate Share of the cost of such service.
7. Operation of Business . Tenant shall open for business not later than six (6) months after the Delivery Date and shall remain open for business and operate continuously, during customary banking hours, in all of the Premises for the entire term of this Lease, and shall conduct its business at all times in a first class and reputable manner, maintaining at all times a full staff of employees. Failure by Tenant so to be open for business and to operate shall entitle Landlord, in addition to other remedies provided in this Lease, to mandatory injunctive relief.
8. Radius . [INTENTIONALLY OMITTED].
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9. Compliance with Law and Insurance Requirements . Tenant shall not use the Premises or permit anything to be done in or about the Premises that will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or that may hereafter be enacted or promulgated. Tenant shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances and governmental rules, regulations or requirements now in force or that may hereafter be in force, and with the requirements of any board of fire insurance underwriters or other similar bodies now or hereafter constituted relating to or affecting the condition, use or occupancy of the Premises whether substantial or insubstantial, foreseen or unforeseen, or shall involve structural changes or improvements to the Premises. Tenant shall not do or permit anything to be done in or about the Premises or bring or keep anything on the Premises that will in any way increase the existing rate of or affect any fire or other insurance upon the Project or any of its contents, or cause cancellation of any insurance policy covering the Project or any part thereof or any of its contents. Tenant shall pay for any increase in insurance premiums on insurance carried by Landlord resulting from Tenants use or occupancy of the Premises or the Project within ten (10) days after notice from Landlord.
10. Alterations and Additions . Tenant shall not make or allow to be made any alterations, additions, or improvements to the Premises or any part thereof without the prior written consent of Landlord, which consent may not be unreasonably withheld, except for any exterior alterations, structural alterations or roof penetrations each of which shall require Landlords consent which may be granted or withheld in Landlords sole and absolute discretion. Any alterations, additions or improvements to the Premises, excepting movable furniture and trade fixtures, shall, on the expiration of this Lease, at Landlords option become a part of the realty and belong to the Landlord or shall be removed by Tenant. All such alterations and additions shall be made by Tenant at Tenants sole cost and expense, and any contractor or person selected by Tenant to make the same must first be approved in writing by the Landlord. Landlords roofing contractor must perform any roof penetrations, so as not to impair the roof warranty. If Tenant violates the provisions of this Section relating to roof penetrations or performs any other work that impairs the roof warranty, in addition to any other damages to which Landlord may be entitled, Tenant shall indemnify Landlord and shall pay for all repairs to the roof that would have been covered by Landlords roof warranty, and this indemnity shall survive the expiration or earlier termination of this Lease.
11. Repairs .
a. |
Tenant shall, at Tenants sole cost and expense, keep the Premises and every part thereof, including all of the Drive Thru Window Improvements and plumbing and heating and cooling equipment, in good condition and repair. Tenant shall keep a maintenance contract on the HVAC system to include at least monthly filter changes and inspections; and to perform preventative maintenance per manufacturer recommendations. Tenant shall retain and if asked provide copies of inspection reports to Landlord. Except as specifically provided in this Lease, Landlord shall have no obligation whatsoever to alter, remodel, improve, repair, decorate or paint the Premises or any part thereof and the parties hereto affirm that Landlord has made no representations to Tenant respecting the condition of |
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the Premises except as specifically provided herein. In the event Tenant shall fail to maintain or repair the Premises as required herein, Landlord shall have the right to enter the Premises and perform such maintenance or repair at Tenants expense. Tenant shall pay Landlord on demand all costs incurred by Landlord in performing such work, plus an administrative fee of ten percent (10%). |
b. | Notwithstanding the provisions of subsection (a) above, Landlord shall repair and maintain the roof, foundation and structural portions of the Premises excluding the Drive Thru Window Improvements, unless such maintenance or repairs are caused in part or in whole by the act, neglect, fault or omission of any duty by the Tenant, its agents, servants, employees or invitees, in which case Tenant shall pay to Landlord the cost of such maintenance and repairs. Landlord shall not be liable for any failure to make any such repairs or to perform any maintenance required of Landlord hereunder unless such failure shall persist for any unreasonable time after written notice of the need of such repairs or maintenance is given to Landlord by Tenant. |
12. Utilities . Tenant shall, at Tenants sole cost and expense, pay all costs associated with setting utility meters and utility deposits unless specified as part of the Landlords Work. Tenant shall pay the cost of all utilities serving the Premises. No disruption or cessation of utility service to the Premises shall render Landlord liable for damages to either person or property, be construed as an eviction of Tenant, work an abatement of rent, or relieve Tenant from fulfillment of any covenant or agreement hereof. Tenant shall pay prior to delinquency all separately metered charges for electricity or any other utility consumed in the Premises by Tenant. Landlord may elect to furnish one or more other utility services to Tenant, and, in such event, Tenant shall purchase such services from Landlord and shall pay, as Additional Rent, the charges for such services provided by Landlord. Landlord may at any time discontinue furnishing any service without obligation, other than to connect the Premises to the appropriate public utility.
13. Liens . Landlords interest in the Premises shall not be subject to liens for improvements made by Tenant, and Tenant shall have no power or authority to create any lien or permit any lien to attach to the Premises or the present estate, reversion or other interest of Landlord in the Premises, the Project, or other improvements thereon as a result of improvements made by Tenant or by reason of any other work done on Tenants behalf or any other act or omission of Tenant. All materialmen, contractors, artists, mechanics and laborers and other persons contracting with Tenant with respect to the Premises or any part thereof, are hereby charged with notice that such liens are expressly prohibited and that they must look solely to Tenant to secure payment for any work done or material furnished for improvements made at the request of Tenant. Tenant agrees to provide notice to such effect to any such persons doing work or supplying materials to the Premises. Tenant shall indemnify Landlord against any loss or expenses incurred as a result of the assertion of any such lien, and Tenant covenants and agrees to remove such lien or transfer such lien to a bond or such other security, as may be permitted by applicable law, within ten (10) days of its assertion. In the event Tenant fails to have such lien removed as required hereunder, Landlord shall have the right to pay such lien and Tenant shall reimburse Landlord for such sum, plus an administrative fee of ten percent (10%) upon demand.
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14. Assignment and Subletting . Tenant shall not, either voluntarily or by operation of law, mortgage, pledge, hypothecate or encumber this Lease, or any interest therein, or sublet the Premises nor assign this Lease or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person to occupy or use the Premises, or any portion thereof (collectively, a Transfer), without Landlords prior written consent, which consent shall not be unreasonably withheld. A consent to one Transfer by another entity shall not be deemed to be a consent to any subsequent Transfer. Notwithstanding any such assignment or subletting, Tenant shall remain fully liable hereunder. Landlord may consent to Transfers or amendments or modifications to the Lease with assignees of Tenant without notifying Tenant, or any successor Tenant, and without obtaining its or their consent thereto, and any such actions shall not relieve Tenant of primary liability under this Lease. Any Transfer without the consent of Landlord as required hereunder shall be void. If Landlord consents or is deemed to have consented to allow the proposed Transfer, Tenant shall submit to Landlord a copy of the executed Transfer document, which must provide for the assumption of all of Tenants obligations under this Lease. At any time, Landlord may require that any rent or other sums paid by any sublessee be paid directly to Landlord. With regard to the foregoing, it shall be reasonable under this Lease and under any applicable Law for Landlord to withhold consent to any proposed Transfer where one or more of the following apply, without limitation as to other reasonable grounds for withholding consent: (a) the transferee is of a character or reputation or engaged in a business that is not consistent with the quality of the Project; (b) the transferee intends to use the Premises for purposes that are different than the Permitted Use; (c) the transferee intends to use the Premises for purposes that would result in a reduction of customer traffic; (d) the transferee is either a governmental agency or instrumentality thereof; (e) the transfer would likely result in significant increase in the use of the parking areas or Common Areas by the transferees employees or visitors; (f) the transferee is not consistent with Landlords desired tenant mix; (g) the transferee does not have has at least three (3) years of experience of operating the same or a similar business; (h) the transferee is not a party of reasonable financial worth or financial stability in light of the responsibilities involved under the Lease on the date consent is requested, as determined by Landlord; (i) the Transfer would cause a violation of another lease or any agreement to which Landlord is a party, or would give an occupant of the Project a right to cancel its lease; or (j) either the transferee or an affiliate of the transferee (i) occupies space in the Project at the time of the request for consent; (ii) is negotiating with Landlord to lease space in the Project at such time; or (iii) has negotiated with Landlord during the twelve (12)-month period immediately preceding Tenants notice of its intent to transfer this Lease or interest in Premises.
15. Indemnity .
a. |
Tenant shall indemnify and hold harmless Landlord from and against any and all claims arising from Tenants use of the Premises for the conduct of its business or from any activity, work or other things done, permitted or suffered by the Tenant in or about the Project, and shall further indemnify and hold harmless Landlord against and from any and all claims arising from any breach or default in the |
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performance of any obligations on Tenants part to be performed under the terms of this Lease, or arising from any act or negligence of the Tenant, or any officer, agent, employee, guest, contractor or invitee of Tenant, and from all and against all costs, attorneys fees, expenses, and liability incurred in or about any such claim or any claim or any action or proceeding brought thereon, and, in any case, if action or proceeding be brought against Landlord by reason of any such claim, Tenant upon notice from Landlord shall defend the same at Tenants expense by counsel reasonably satisfactory to Landlord. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises, from any cause other than Landlords gross negligence, and Tenant hereby waives all claims in respect thereof against Landlord. |
b. | Landlord shall not be liable for any loss or damage to any property by theft or otherwise, nor for any injury to or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain, unless caused by or due to the gross negligence of Landlord, its agents, servants or employees. Landlord shall not be liable for any failure or interruption of utility services to the Premises and the same shall not be considered a constructive eviction of Tenant, nor shall the same entitle Tenant to an abatement of rent. Landlord shall not be liable for loss of business by Tenant. Except as expressly set forth in this Lease, Landlord shall not be liable for any defects in the Premises. Tenant shall give prompt notice to Landlord in case of fire or accident in the Premises or in the Project. |
16. | Insurance . |
a. | Tenant shall, at its sole cost, maintain the following insurance at all times during this Lease and at all times thereafter when Tenant is in possession of the Premises: |
i. | Commercial general liability insurance with a combined single limit for personal injury, loss of life and property damage of not less than Three Million and No/100 Dollars ($3,000,000.00) per occurrence, (with Tenant being permitted to provide liability coverage in excess of $1,000,000 via an umbrella policy). |
ii. | Property insurance insuring Tenants leasehold improvements, furnishings, personal property, inventory, fixtures and equipment on an all risk basis written on a special form policy, or the equivalent, against loss by reason of fire, hazard or other casualty, with extended coverage, to the extent of at least eighty percent (80%) of the value thereof. |
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iii. | Plate glass insurance on all plate glass for the Premises insuring both Landlord and Tenant against loss or liability arising as a result thereof. |
iv. | Workmans compensation insurance as may be required by applicable law. |
v. | In the event Tenant makes any improvements or alterations to the Premises, builders risk insurance written on a completed value (non-reporting) basis with Landlord being named as an additional insured. |
b. | All insurance required of Tenant hereunder shall be carried with insurance companies and in form reasonably satisfactory to Landlord. Tenant shall deliver to Landlord prior to the Commencement Date original policies or certificates of all of such insurance, which shall provide that Landlord will be given not less than ten (10) days written notice prior to cancellation or expiration of the insurance evidenced thereby. Renewals of all of such insurance shall be delivered to Landlord at least ten (10) days prior to the expiration date of such insurance. |
c. | All insurance required of Tenant hereunder shall be on a non-contributory basis and shall name Landlord, and at Landlords option, any mortgage lender on the Project, as an additional insured or insured mortgagee as the case may be. The limits of said insurance shall not, however, limit the liability of Tenant hereunder. Tenant may carry such insurance under a blanket policy; provided, however, such insurance by Tenant shall have a Landlords protective liability endorsement attached thereto. If Tenant shall fail to procure and maintain such insurance, Landlord may, but shall not be required to, procure and maintain the same, and Tenant shall reimburse Landlord for the cost thereof as Additional Rent, plus an administrative fee of ten percent (10%) upon demand. Landlord may require periodic increases in the amounts of Tenants insurance coverage in accordance with sound and prudent business practice. |
d. | Tenant acknowledges and agrees that Landlord will not obtain or carry insurance on Tenants personal property, fixtures, equipment, inventory or Tenants leasehold improvements, and Tenant agrees that Tenant shall be responsible for obtaining and carrying insurance on the foregoing, at its sole cost and expense. |
e. | Anything in this Lease to the contrary notwithstanding, Landlord and Tenant each hereby waives any and all rights of recovery, claim, action or cause of action against the other for any loss or damage that may occur to the Premises or any improvements thereto, the Project or any personal property of Landlord or Tenant, arising from any cause that (i) would be insured against under the terms of any property insurance required to be carried hereunder; or (ii) is insured against under the terms of any property insurance actually carried, regardless of whether the same is required hereunder. The foregoing waiver shall apply regardless of the cause or origin of such claim, including but not limited to the negligence of a party, or such partys agents, officers, employees or contractors. The foregoing waiver shall not apply if it would have the effect, but only to the extent of such effect, of invalidating any insurance coverage of Landlord or Tenant. The foregoing waiver shall also apply to any deductible, as if the same were a part of the insurance recovery. |
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17. Property Taxes . Tenant shall pay or cause to be paid before delinquency, any and all taxes levied or assessed that become payable during the term hereof upon all Tenants leasehold improvements, equipment, furniture, fixtures and personal property located in the Premises. In the event of any or all of the Tenants leasehold improvements, equipment, furniture, fixtures and personal property shall be assessed and taxed with the Project, Tenant shall pay to Landlord its share of such taxes within ten (10) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of such taxes applicable to Tenants property.
18. Rules and Regulations . Tenant shall faithfully observe and comply with all rules and regulations of general applicability that Landlord may from time to time promulgate for the Project. Landlord reserves the right from time to time to make all reasonable modifications to such rules. The additions and modifications to those rules shall be binding upon Tenant upon delivery of a copy to Tenant. Landlord shall not be responsible to Tenant for the noncompliance with any rules by another tenant or occupant, but Landlord will use reasonable efforts to uniformly enforce all rules and regulations in a nondiscriminatory manner.
19. Parking . Tenant shall use its best efforts to cause its employees to park in the parking spaces designated as employee parking on the site plan attached hereto as Exhibit B and incorporated herein by this reference. Tenant shall supply Landlord with lists of the license plate numbers of the cars of Tenants employees within five (5) days of request. Tenant hereby acknowledges that Landlord may tow away or cause to be towed away from the Project any employee vehicles not parking in the area designated for employee parking, and to attach violation stickers or notices to such cars.
20. Entry by Landlord . Landlord reserves and shall at any and all times have the right to enter the Premises, upon reasonable notice to Tenant, except in those circumstances or emergencies when the giving of such notice is not practicable, and inspect the same, to show the Premises to prospective purchasers or tenants, to post notices of non-responsibility, and to alter, improve or repair the Premises and any portion of the Project that Landlord may deem necessary or desirable, without abatement of rent, and may for that purpose erect scaffolding and other necessary structures where required by the character of the work to be performed, always providing that the entrance to the Premises shall not be blocked thereby, and further providing that the business of the Tenant shall not be interfered with unreasonably. During the six (6) months prior to the expiration of the Lease term, Landlord may exhibit the Premises to prospective tenants or purchasers, and place upon the Premises the usual notices For Lease or For Sale, which notices Tenant shall permit to remain thereon without molestation. Tenant hereby waives any claim for damages or for any injury or inconvenience to or interference with Tenants business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned thereby. For each of aforesaid purposes, Landlord shall at all times have and retain a
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key to all doors in, upon and about the Premises, excluding Tenants vaults, safes and files, and Landlord shall have the right to use any and all means that Landlord may deem proper to gain access to the Premises in an emergency, without liability to Tenant except for any failure to exercise due care for Tenants property. Landlords entry on the Premises shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or a constructive eviction of Tenant from the Premises or any portion thereof.
21. Casualty .
a. | Subject to the other provisions of this Section, in the event the Premises or the Project are damaged, this Lease shall remain in full force and effect. If Landlord does not terminate this Lease, then Landlord shall forthwith repair the Premises to a state ready for restoration by Tenant of Tenants improvements. |
b. | Notwithstanding the foregoing, Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Premises, and Landlord may terminate this Lease by written notice to Tenant, when (i) the damage resulting from any casualty covered under this Section occurs during the last two (2) years of the term of this Lease, (ii) the Premises are damaged to the extent of thirty percent (30%) or more thereof, (iii) thirty percent (30%) or more of the Project is damaged, (iv) the insurance available to Landlord is not sufficient to cover the cost of such repair, reconstruction or restoration; or (v) the holder of any deed of trust or mortgage encumbering the Project does not permit use of such insurance proceeds for reconstruction. |
c. | The provisions of this Section with respect to repair by Landlord shall be limited to such repair as is necessary to place the Premises in the condition specified for Landlords Work herein and when placed in such condition the Premises shall be deemed restored and rendered tenantable upon Tenants completion of restoration of its leasehold improvements. Promptly following Landlords restoration work Tenant, at Tenants expense, shall perform the work required to place the Premises in the condition specified for Tenants Work herein, and Tenant shall also repair or replace its stock in trade, fixtures, personal property, furniture, furnishings, floor coverings and equipment, and if Tenant has closed, Tenant shall promptly reopen for business. |
d. | Landlord shall not be required to repair any injury or damage by fire or other cause, or to make any repairs or replacement of any improvements, or any other property installed in or located on the Premises by Tenant. |
e. | Tenant shall be entitled to an abatement in Minimum Annual Rent in proportion to the portion of the Premises that is rendered untenantable by such damage; provided, however, if the damage is due to the acts or omissions of Tenant or its employees, and the same is not covered by any rent loss insurance carried by Landlord, there shall be no abatement of rent. Such abatement shall commence as of the date of such damage and shall terminate on the earlier to occur of thirty (30) days after the date Landlord delivers the Premises to Tenant for restoration of Tenants improvements or the date Tenant re-opens for business. |
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22. Eminent Domain . If such a portion of the Premises is taken under the power of eminent domain or appropriation by any public or quasi-public authority, or Landlord delivers a deed-in-lieu of such a taking (a Taking), with the result that the operation of Tenants business is no longer economically feasible, either party hereto shall have the right, at its option, to terminate this Lease as of the date of such Taking, upon notice within thirty (30) days following the date of said taking. If the Taking results in thirty percent (30%) or more of the Project other than the Premises being taken, or a sufficient portion of the Project other than the Premises being taken so that it is no longer, in Landlords sole discretion, an economically viable entity, Landlord shall have the option to terminate this Lease upon notice within thirty (30) days following the date of such Taking, effective as of the date of such notice. In all events, Landlord shall be entitled to the entire award that may be paid in connection with such Taking, and Tenant shall have no claim against Landlord for the value of the unexpired term of this Lease or any extension or renewal term. Tenant may make a separate claim against the taking authority for damages to Tenants fixtures and for moving expenses. In the event neither party terminates this Lease as herein provided, the Minimum Annual Rent and other sums payable hereunder based on square footage shall be proportionately reduced.
23. Events of Default . This Lease is made upon the condition that Tenant shall punctually and faithfully perform all of the covenants, conditions and agreements by it to be performed as in this Lease set forth. The following shall each be deemed to be an event of default (each of which is sometimes referred to as an Event of Default in this Lease):
a. | the failure by the Tenant to pay the Minimum Annual Rent or any other sums within five (5) days of when due; |
b. | the failure of Tenant to open its business to the public in the Premises as required by this Lease, or the failure to remain open and operate as required by this Lease, or if Tenant vacates or abandons the Premises; |
c. | the failure of Tenant to observe or perform any of the other covenants, terms or conditions set forth in this Lease where said failure continues for a period of thirty (30) days after written notice thereof from Landlord to Tenant (unless such failure is curable, but cannot reasonably be cured within thirty (30) days and Tenant shall have commenced to cure said failure within thirty (30) days and continues diligently to pursue the curing of such failure until completed); |
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d. | the filing of a proceeding in bankruptcy or arrangement or reorganization with respect to Tenant or any guarantor of this Lease pursuant to the United States Bankruptcy Code or any similar law, federal or state, including but not limited to: |
i. | Tenant or any guarantor of this Lease shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state, or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or any such guarantor, or shall make any general assignment for the benefit of creditors, or shall admit in writing its inability to pay or shall fail to pay its debts generally as they become due; or |
ii. | A court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against Tenant or any such guarantor seeking any reorganization, dissolution or similar relief under any present or future federal, state, or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors or Tenant or any such guarantor shall be the subject of an order for relief entered by such a court, and such order, judgment or decree shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive) from the first date of entry thereof, or any trustee, receiver, custodian or liquidator of Tenant or any such guarantor shall be appointed without the consent or acquiescence of Tenant or any such guarantor and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive); |
e. | repetition or continuation of any failure to timely pay any Minimum Annual Rent, or other sums due hereunder, where such failure shall continue or be repeated for two (2) consecutive months, or for a total of four (4) months in any period of twelve (12) consecutive months; and |
f. | repetition of any failure to observe or perform any of the other covenants, terms or conditions hereof more than six (6) times, in the aggregate, in any period of twelve (12) consecutive months. |
24. Remedies in Default . If an Event of Default occurs, Landlord may:
a. | Terminate this Lease, in which event Tenant shall immediately surrender possession of the Premises to Landlord. |
b. |
Terminate Tenants right to possession of the Premises without terminating this Lease, in which event this Lease will continue in effect and Landlord shall have the right to collect Rent when due. Landlord may relet the Premises for the benefit of Tenant, and Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the Premises, including without limitation, reasonable |
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attorneys fees, brokers commissions, expenses of remodeling the Premises and like costs. Reletting can be for a period shorter or longer than the remaining Lease term. Tenant shall pay to Landlord the Rent under this Lease on the dates the same is due, less any Rent the Landlord receives from any reletting. Tenant shall have no right to any rent received by Landlord from such reletting in excess of the Rent hereunder. No act by Landlord with respect to the Premises shall terminate this Lease, including but not limited to acceptance of the keys, institution of an action for detainer or other dispossessory proceedings; it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant. |
c. | In addition to Landlords rights of self-help set forth elsewhere in this Lease, if Tenant at any time fails to perform any of its obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the right, but not the obligation, to perform such obligations on behalf of and for the account of Tenant and to take all such action to perform such obligations. In such event, Landlords costs and expenses incurred therein shall be paid for by Tenant forthwith as additional rent, upon demand therefor, with interest thereon from the date Landlord performs such work at the lesser of eighteen percent (18%) per annum or highest lawful rate (the Interest Rate). |
d. | In any action to enforce its rights hereunder or in any litigation concerning this Lease, Landlord shall be entitled to collect court costs, reasonable attorneys fees and all costs of collection, including but not limited to costs of depositions and expert witnesses. |
e. | Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Premises by reason of the violation by Tenant of any of the terms, covenants or obligations of this Lease, or otherwise. |
f. | A termination of this Lease by Landlord or the recovery of possession of the Premises by Landlord or any voluntary or other surrender of this Lease by Tenant or a mutual cancellation thereof, shall not work a merger and shall at the option of Landlord, terminate all or any existing franchises or concessions, licenses, permits, subleases, subtenancies or the like between Tenant and any third party with respect to the Premises, or may, at the option of Landlord, operate as an assignment to Landlord of Tenants interest in same. |
g. | The rights given to Landlord in this Section are cumulative and shall be in addition and supplemental to all other rights or remedies that Landlord may have under this Lease, under laws then in force or in equity. |
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h. | All demands for rent and all other demands, notices and entries, whether provided for under common law or otherwise, that are not expressly required by the terms hereof, are hereby waived by Tenant. |
i. | In order to secure payment of all Rent becoming due hereunder from Tenant, and to secure payment of any damages or loss that Landlord may suffer by reason of the breach of Tenant of any covenant, or condition contained herein, Tenant hereby grants Landlord a security interest upon all goods, wares, equipment, fixtures (including trade fixtures), furniture, improvements, and other personal property of Tenant presently or hereafter situated in the Premises (the Collateral), and all proceeds from the sale or lease thereof, and such property shall not be removed from the Premises without the consent of Landlord, except in the ordinary course of business, until Tenant has paid all arrearages in Rent hereunder and complied with all the agreements and conditions hereof. This Lease is intended as and constitutes a security agreement within the meaning of the Uniform Commercial Code of the state in which the Premises are located (the UCC). If an Event of Default occurs, Landlord may, in addition to all other remedies provided herein or by law, enter upon the Premises and take possession of any and all of the Collateral and sell the Collateral pursuant to the UCC. Commercially reasonable notice shall be deemed to be at least ten (10) days notice prior to any foreclosure sale of the Collateral. The Collateral shall be sold on the Premises or at such other location as may be selected by Landlord in Landlords sole discretion. Landlord or its assigns may purchase at a public sale, and unless prohibited by law, at a private sale. The proceeds from any disposition pursuant to this subsection, less all expenses connected with the taking of possession and foreclosure, including reasonable attorneys fees and legal expenses, shall be applied as a credit against Tenants indebtedness to Landlord. Any surplus shall be paid to Tenant or as otherwise required by law. Landlord shall have the right to file a financing statement in form sufficient to perfect the security interest granted herein. Any statutory lien for rent is not hereby waived, the express contractual lien herein granted being in addition and supplementary hereto. |
25. Damages upon Termination .
a. | If Landlord elects to terminate this Lease under the provisions of the preceding Section, Landlord may recover from Tenant damages computed in accordance with the following formula in addition to Landlords other remedies: |
i. | the worth at the time of judgment of any unpaid Rent which has been earned at the time of such termination; plus |
ii. | the worth at the time of judgment of the amount by which the unpaid Rent which would have been earned after termination until the time of judgment exceeds the amount of such rental loss Tenant proves could have been reasonably avoided; plus |
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iii. | the worth at the time of judgment of the amount by which the unpaid Rent for the balance of the Term after the time of judgment exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus |
iv. | any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenants failure to perform its obligations under this Lease or which in the ordinary course of things would likely to result therefrom including but not limited to, the cost of recovering possession of the Premises, expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorneys fees, and the unamortized portion of (A) real estate commissions paid by Landlord in connection with this Lease, (B) all costs incurred by Landlord to improve the Premises, and (C) any additional amount furnished in the nature of an allowance (all of such amortization to be based on the assumption that such costs and expenses are amortized on a straight line basis over the initial lease term); plus |
v. | at Landlords election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable state law. Damages shall be due and payable from the date of termination. |
b. | As used in subsections (a)(i) and (ii), the phrase worth at the time of judgment shall be computed by adding interest on all such sums from the date when originally due at the Interest Rate. As used in subsection (a)(iii), the phrase worth at the time of judgment is computed by discounting the sum in question at the Federal Reserve rate promulgated by the Federal Reserve office for the district in which the Project is located. For the purposes of this Section, Rent for each year of the unexpired Term shall be the Minimum Annual Rent payable under this Lease, together with any other continuously accruing expenses payable hereunder. |
26. Security Deposit . [INTENTIONALLY OMITTED].
27. Estoppel Certificate . Tenant shall at any time and from time to time within ten (10) days of written notice from Landlord execute, acknowledge and deliver to Landlord or its designees a statement in writing (a) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease as so modified is in full force and effect) and the date to which the rental and other charges are paid in advance, if any; (b) acknowledging that there are not, to the Tenants knowledge, any uncured defaults on the part of the Landlord hereunder, or specifying such defaults if any are claimed; (c) certifying the amount of rent then due and whether Tenant has made any payments
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of rent more than thirty (30) days in advance; (d) certifying that Landlord has satisfied all of its obligations and paid all allowances due with respect to the construction of the Project and Tenants leasehold improvements; (e) confirming the amount of Tenants Security Deposit, if any, and (f) certifying or acknowledging such other matters as Landlord or its designees may reasonably require. Any such statement may be relied upon by a prospective purchaser or encumbrancer of all or any portion of the Project. If Tenant fails to deliver such certificate as required herein, Tenant shall be deemed to have conclusively agreed to and be bound by all matters set forth in the certificate as submitted by Landlord. In addition to all other remedies to which Landlord may be entitled on account of Tenants failure to deliver the certificate as required herein, Landlord shall be entitled to collect and amount equal to $25.00 per day for each day after the initial ten (10) day period that Tenants failure to deliver the certificate continues.
28. Authority of Parties . If Tenant is a trust, corporation, partnership or limited liability company, each individual executing this Lease on behalf of said entity represents and warrants that said entity is in good standing under the laws of the state of its formation and is qualified to do business in the state in which the Project is located, and that such individual is authorized to execute and deliver this Lease on behalf of said entity, in accordance with the terms of the trust, a duly adopted resolution of the board of directors, the by-laws, or the partnership or operating agreement, as appropriate, and that this Lease is binding upon said entity in accordance with its terms. Tenant agrees to supply, upon request of Landlord, such evidence of authority as Landlord may reasonably request.
29. Landlords Liability . In no event shall Landlord be in default hereunder unless it has failed to cure such default within thirty (30) days after written notice (or if more than thirty (30) days shall be required because of the nature of the default, if Landlord shall fail to proceed diligently to cure such default after written notice). It is expressly understood and agreed that any money judgment resulting from any default or other claim arising under this Lease shall be satisfied only out of Landlords interest in the Project, and no other real, personal or mixed property of Landlord (the term Landlord for purposes of this Section only shall mean any and all partners, both general and/or limited, officers, directors, shareholders, members and beneficiaries, if any, who comprise Landlord), wherever situated, shall be subject to levy on any judgment obtained against Landlord. Tenant hereby waives, to the extent waivable under law, any right to satisfy a money judgment against Landlord except from Landlords interest in the Project. If such interest is not sufficient for the payment of such judgment, Tenant will not institute any further action, suit, claim or demand, in law or in equity, against Landlord for or on the account of such deficiency. Notwithstanding anything herein contained to the contrary, Tenant hereby waives, to the extent waivable under law, any right to specific performance in the event of Landlords default referred to herein, and Tenant expressly agrees that except as provided in the immediately following sentence, Tenants remedy shall be limited to the monetary damages referred to in this Section. Notwithstanding the foregoing, in the event of failure by Landlord to give any consent, as provided in this Lease, Tenants sole remedy shall be an action for specific performance at law, but in no event shall Landlord be responsible in monetary damages for failure to give such consent.
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30. Hazardous Materials . Tenant shall not cause or permit the use, generation, storage or disposal in or about the Premises of any substances, materials or wastes subject to regulation under any federal, state or local law from time to time in effect concerning hazardous, toxic or radioactive materials (hereinafter Hazardous Materials) unless Tenant shall have received Landlords prior written consent, which consent Landlord may withhold or at any time revoke at its sole discretion. If Tenant uses, generates, stores or disposes of any Hazardous Materials in or about the Premises, Tenant shall obtain all necessary permits and comply with all statutes, regulations and rules applicable to such activity. Furthermore, Landlord shall have the right to require that Tenant deliver periodic environmental audits of the Premises evidencing that no violations have occurred. Tenant shall indemnify and hold Landlord harmless from and against all liability, cost, claim, penalty, expense and fees (including court costs and attorneys fees) arising from Tenants use, generation, storage, or disposal of Hazardous Materials in or about the Premises. This Section shall survive the expiration or earlier termination of this Lease.
31. Exterior Signs . Tenant shall place no signs, awnings, canopies, advertising manner or other thing of any kind on any exterior door, wall or window, or upon the roof of the Premises except with the prior written consent of Landlord, which shall not be unreasonably withheld Any and all signs placed on the Premises by Tenant shall be maintained in compliance with all governmental ordinances, rules and regulations governing such signs, and Tenant shall be responsible to Landlord for any damage caused by the installation, use, removal or maintenance of the same or violation of any ordinance, rule or regulation with regard thereto, including complete restoration of the brick storefront, if any. All such signs, awnings, canopies, advertising matter or other thing of any kind shall be removed by Tenant prior to the expiration or termination of this Lease, and upon such removal Tenant shall simultaneously repair all damage incidental to such removal. All pylon and monument signs serving the Premises shall be deemed to be part of the land, shall not be removed by Tenant and shall be surrendered to Landlord as part of the Premises at the expiration of this Lease. Landlord may, in its discretion, install a monument or pylon sign for the Project. Although Tenant shall not be entitled to a panel or other identification on such sign, Landlord agrees that no Tenant occupying less space than Tenant may have such panel or identification unless Tenant has the right to install a comparable panel or identification.
32. General Provisions .
a. | Holding Over . If Tenant holds over after the expiration of this Lease, Tenant shall be holding merely as a tenant-at-will, and Landlord shall have no obligation to notify Tenant of any termination of Tenants possession. If Tenant so holds over, Tenant shall pay to Landlord upon demand rent for each day of Tenants possession of the Premises after termination of this Lease in an amount equal to the monthly Rent applicable upon termination divided by thirty (30) and multiplied by two hundred percent (200%). Tenant shall indemnify and hold Landlord harmless from all loss or liability, including any claim made by any successor tenant founded upon Tenants failure to surrender the Premises on a timely basis. |
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b. | Attachments . Addendums, exhibits, clauses and riders, if any, signed by the Landlord and the Tenant and endorsed on or affixed to this Lease are a part hereof. |
c. | Waiver . The waiver by Landlord of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition on any subsequent breach of the same or any other term, covenant or condition herein contained. No receipt of money by the Landlord from or on behalf of the Tenant after a default, nor the application by Landlord of any security for the obligations of Tenant after default shall (i) reinstate, continue, or extend the term of this Lease, if the same has been terminated; (ii) affect any notice given to the Tenant; (iii) operate as a waiver of the right of the Landlord to enforce the payment of Rent then due or falling due thereafter; or (iv) operate as a waiver of the right of the Landlord to recover possession of the Premises by proper suit, action, proceeding, or a waiver of any other remedy to which Landlord may be entitled on account of such default. The acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any breach by Tenant of any term, covenant or condition of this Lease. |
d. | Notice . All rents and other sums payable by Tenant to Landlord shall be paid to Landlord at the address set forth on the Lease Summary, or such other place as Landlord may specify in writing to Tenant. All notices, consents, approvals and demands that may or are required or permitted to be given by either party to the other hereunder shall be in writing. All notices, consents, approvals and other communications that may be or are required to be given under this Lease shall be properly given only if sent by (i) hand delivery to the intended address; (ii) first class, United States Mail, postage prepaid, certified, with return receipt requested, (iii) facsimile or electronic transfer during normal business hours followed by a confirmatory letter sent in another manner permitted hereunder; or (iv) a nationally recognized overnight delivery service (such as Federal Express, UPS Next Day Air, Purolator Courier or Airborne Express), with all delivery charges paid by the sender and sent to the address set forth on the Lease Summary, or at such other address as either party each may request in writing. Such notices shall be deemed received (A) if delivered by hand or overnight delivery service, on the date of delivery; (B) if sent by United States mail, on the date of deposit; and (C) if sent by electronic transfer, on the date of transmission. The refusal to accept delivery shall constitute acceptance. |
e. | Joint Obligation . If there be more than one Tenant or guarantor, the obligations of Tenant hereunder shall be joint and several among them. |
f. | Marginal Headings . The marginal headings and Section titles to the Sections in this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part hereof. |
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g. | Time . Time is of the essence of this Lease and each and all of its provisions in which performance is a factor. |
h. | Successors and Assigns . The covenants and conditions herein contained, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the parties hereto. |
i. | Recordation . This Lease shall not be recorded. Upon written request by Landlord or Tenant, the other party shall execute a memorandum of this Lease, which the requesting party may record at its own expense. |
j. | Quiet Possession . Upon Tenant paying the Rent reserved hereunder and observing and performing all of the covenants, conditions and provisions of Tenants part to be observed and performed hereunder, Tenant shall have quiet possession of the Premises for the entire term hereof, subject to all the provisions of this Lease and the provisions of any mortgage, deed of trust, ground lease or other encumbrance affecting the Project or any portion thereof. |
k. | Late Charges . In the event that Tenant shall fail to pay the Landlord in full within five (5) days of the date when due any payment owing to Landlord pursuant to the terms of this Lease, said late payment shall bear interest, at the option of the Landlord, from the date when due at the Interest Rate, until the same shall have been fully paid. Following two consecutive late payments of rent or other sums due hereunder on a monthly basis, Landlord shall have the option to require that beginning with the next payment due, rent shall no longer be paid in monthly installments but shall be payable three (3) months in advance. |
The foregoing shall be in addition to, but not in limitation of, any other remedies available to Landlord on account of a default by Tenant.
l. | Prior Agreements . The submission of this Lease for examination and negotiation does not constitute an offer to lease, or a reservation of, or option for, the Premises. This Lease shall become effective and binding only upon execution and delivery hereof by Tenant and by Landlord (or, when duly authorized, by Landlords agent or employee). No act or omission of any agent of Landlord or of Landlords broker shall alter, change or modify any of the provisions hereof. This Lease constitutes the entire agreement between the parties and all prior negotiations shall be deemed incorporated herein. Landlord has made no promises, representations, warranties or covenants, except as expressly provided herein. This Lease may only be modified by an instrument in writing signed by both parties. |
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m. | Force Majeure . Whenever a day is appointed herein on which, or a period of time is appointed within which, either party hereto is required to do or complete any act, matter or thing, the time for the doing or completion thereof shall be extended by a period of time equal to the number of days on or during which such party is prevented from, or is interfered with, the doing or completion of such act, matter or thing because of strikes, lock-outs, embargoes, unavailability of labor or materials, wars, insurrections, rebellions, civil disorder, declaration of national emergencies, acts of God, or other causes beyond such partys reasonable control (financial reasons excepted); provided however, nothing contained in this Section shall excuse Tenant from (i) the prompt payment of any Rent except as may be expressly provided elsewhere in this Lease, or (ii) Tenants obligation to open for business not later than the Commencement Date. |
n. | Sale by Landlord . In the event of any sale of the Project or any part thereof, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring on or after the consummation of such sale, and the purchaser at such sale or any subsequent sale shall be deemed, without any further agreement between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of the Landlord under this Lease from and after the date of such Sale. |
o. | Subordination, Attornment . |
i. |
This Lease is subject and subordinate to all ground or master leases, mortgages, deeds of trust and other financing liens or security interests, which now affect the Premises or the Project, and to all renewals, modifications, consolidations, replacements, and extensions thereof. If the lessor under any such lease or the holder or holders of any such mortgage or deed of trust shall advise Landlord that they desire or require this Lease to be prior and superior thereto, upon written notice to Tenant, this Lease shall automatically be superior thereto, and Tenant agrees promptly to execute, acknowledge and deliver any and all documents or instruments which Landlord or such lessor, holder, or holders reasonably may require for purposes of confirming such priority. Notwithstanding the foregoing, and without requiring any reversal of priorities with this Lease as aforesaid, at the option of the lessor under any such lease or the holder or holders of any such mortgage or deed of trust to which this Lease is subject and subordinate as aforesaid, Tenant shall be deemed to attorn, and hereby agrees to attorn to any party so purchasing or otherwise acquiring the Project or the Premises at any foreclosure sale (or by deed in lieu of foreclosure) or pursuant to the exercise of any other rights, powers or remedies under such mortgages, deeds of trust, ground or master leases, as if such party had been named as Landlord herein; it being intended hereby that even if this Lease would otherwise be terminated, cut off or defeated by reason of any act or actions by the lessor under any such senior lease or the holder or holders of any such senior mortgage or deed of trust, by |
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virtue of Tenants agreement herein to attorn the party so purchasing or otherwise succeeding Landlord as the owner of the Project or the Premises shall be presumed to have accepted the Premises subject to this Lease remaining in full force and effect absent written notice to Tenant to the contrary from such party within ninety (90) days after such change in ownership.
ii. | Landlord shall have the right to cause this Lease to be and become and remain subject and subordinate to any and all ground or master leases, mortgages, or deeds of trust which may hereafter be executed covering the Premises or the Project and any renewals, modifications, consolidations, replacements or extensions thereof, for the full amount of all advances made or to be made thereunder and without regard to the time or character of such advances, together with interest thereon and subject to all the terms and provisions thereof. Tenant agrees, upon written request therefor, to execute, acknowledge, and deliver any and all documents or instruments (including so-called subordination and nondisturbance agreements customarily required by such ground or master lessors or by such lenders) that are requested by Landlord, or that are necessary or proper to assure the subordination of this Lease to any such mortgages, deeds of trust, or leasehold estates. |
iii. | Tenants failure to deliver any document or instrument required under this Section within ten (10) days after written request shall, at the option of Landlord, constitute a material breach or default under this Lease without further notice or opportunity to cure. In addition to any other remedies available to Landlord on account of such failure, Landlord is hereby appointed and authorized as agent and attorney-in fact of Tenant, should it choose to do so, to execute all instruments required of Tenant under this Section in the event Tenant fails to execute and deliver said instruments in the form determined necessary by Landlord or its lessor or mortgagee within ten (10) days after notice from Landlord demanding the execution thereof. This power shall be deemed coupled with an interest and is irrevocable. |
p. | Modification for Lender . If in connection with obtaining financing for the Project, the Landlords lender shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay, or defer its consent thereto, provided that such modifications do not increase the monetary obligations of Tenant hereunder or materially impair the leasehold interest hereby created. |
q. |
Mortgagee Protection . Tenant agrees to give any ground lessors or mortgage and/or deed of trust holders, as to all or a portion of the Project, by registered mail, a copy of any notice of default served upon Landlord, provided that prior to |
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such notice Tenant has been notified in writing (by way of notice or assignment of rents and leases, or otherwise) of the addresses and identity of such parties. Tenant agrees not to exercise any remedies available by virtue of a Landlords failure to cure a default within thirty (30) days after receipt of notice of default (or such additional time as may be reasonably necessary to cure such default) unless Tenant has also given such parties a reasonable opportunity to cure such default (including but not limited to foreclosure proceedings if necessary to effect such cure).
r. | Name . Tenant shall not use the name of the Project for any purpose other than as an address of the business to be conducted by the Tenant in the Premises. |
s. | Severability . Any provisions of this Lease which shall prove to be invalid, void or illegal shall in no way effect, impair or invalidate any other provisions hereof and such other provisions shall remain in full force and effect. |
t. | Not Partners . Nothing in this Lease shall be deemed to create a relationship between Landlord and Tenant as partners or joint venturers for any purpose. Landlord shall not be liable to any creditor of Tenant or any claimant against the assets of Tenant for any debt, lien or other obligation of Tenant. |
u. | Choice of Law . This Lease shall be governed by the law of the state in which the Premises are located. |
v. | Execution in Counterparts . This Lease may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. |
w. | Financial Statements . Landlord shall have the right to obtain financial statements for Tenant and any Guarantor of this Lease upon request. Such statements shall be prepared in accordance with generally accepted accounting principals, and Landlord may require that the same be audited. |
x. | Brokers . Each of Landlord and Tenant represents and warrants to the other that, in connection with the execution of this Lease, no party has any right to receive a brokerage commission or finders fee arising out of the agreement or conduct of the party making such representation or warranty, and each agrees to indemnify the other against and hold it harmless from all liability arising from any claim by a broker or any other party to a commission arising out of the agreement or conduct of the indemnifying party, without limitation, reasonable attorneys fees. |
y. |
Surrender of Premises . Upon the expiration or earlier termination of this Lease, Tenant shall quit and surrender possession of the Premises to Landlord in the same condition as upon delivery of possession to Tenant hereunder, reasonable wear and tear and damage by acts of God, the elements and unavoidable casualty |
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excepted. Before surrendering possession of the Premises, Tenant shall, without expense to Landlord, remove or cause to be removed from the Premises all signs, furnishings, equipment, trade fixtures, merchandise, and other personal property installed or placed therein, and all debris and rubbish, and Tenant shall repair all damage to said Premises resulting from such removal. If Tenant fails to remove any of its signs, furnishings, equipment, etc., by the expiration or termination of this Lease, then Landlord may, at its sole option (i) treat Tenant as a holdover, in which event the provisions of this Lease regarding holding over shall apply; (ii) deem any or all of such items abandoned and the sole property of Landlord; or (iii) remove any and all such items and dispose of same in any manner. In addition, upon request by Landlord, Tenant shall remove Tenants alterations, additions or improvements to the Premises, at Tenants expense, and Tenant shall repair any damage to the Premises caused by such removal.
z. | Attorneys Fees . To the extent not addressed elsewhere within this Lease, in the event either party initiates any action to enforce its rights under this Lease or the terms hereof, the prevailing party shall be entitled to collect from the other party all court costs, reasonable attorneys fees and litigation expenses, including, but not limited to, costs of depositions and expert witnesses, that the prevailing party actually incurs in connection with such action. |
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The parties hereto have executed this Lease on the dates specified immediately beside their respective signatures.
LANDLORD: | ||||||||
SS MCEWEN, LLC | ||||||||
Date: | 7/25/2017 | By: | /s/ Glenn R. Wilson | |||||
Glenn R. Wilson, Manager |
TENANT: | ||||||||
FRANKLIN FINANCIAL NETWORK INC. | ||||||||
Date: | 7/25/2017 | By: | /s/ Sarah Meyerrose | |||||
Title: | EVP/CFO |
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Addendum #1
Renewal Option With Fixed
Step Minimum Annual Rent Increase
1. Tenant is hereby granted the option to renew this Lease for two (2) additional consecutive term(s) of five (5) year(s) each (provided Tenant is not then in default of any of the provisions and conditions of this Lease), by giving Landlord written notice of its intention to exercise such option at least six (6) months prior to the expiration of the then current term of this Lease. Said renewal(s) shall be upon the same terms and provisions set forth in this Lease except that:
a. | Commencing with the first day of the first (1st) option period, the Minimum Annual Rent shall be payable in monthly installments in the following amounts: |
Months |
Minimum Annual
Rent |
Minimum Monthly
Installment |
||||||
121-132 |
$ | 184,311.96 | $ | 15,359.33 | ||||
133-144 |
$ | 187,998.20 | $ | 15,666.52 | ||||
145-156 |
$ | 191,758.16 | $ | 15,979.85 | ||||
157-168 |
$ | 195,593.32 | $ | 16,299.44 | ||||
169-180 |
$ | 199,505.19 | $ | 16,625.43 |
b. | Commencing with the first day of the second (2nd) option period, the Minimum Annual Rent shall be payable in monthly installments in the following amounts: |
Months |
Minimum Annual
Rent |
Minimum Monthly
Installment |
||||||
181-192 |
$ | 203,459.29 | $ | 16,957.94 | ||||
193-204 |
$ | 207,565.20 | $ | 17,297.10 | ||||
205-216 |
$ | 211,716.50 | $ | 17,643.04 | ||||
217-228 |
$ | 215,950.83 | $ | 17,995.90 | ||||
229-240 |
$ | 220,269.85 | $ | 18,355.82 |
2. Notwithstanding the foregoing, this option shall be null and void and of no further force or effect if any of the following have occurred:
a. | Tenant has assigned this Lease or sublet the Premises in violation of this Lease. |
b. | An Event of Default has occurred, either at the time Tenant exercises the option or at the time the renewal term is scheduled to commence. |
c. | Landlord determines, in Landlords sole discretion, that the creditworthiness of Tenant is less than the creditworthiness of Tenant at the time of execution of this Lease. Upon request of Landlord Tenant shall submit evidence of its financial condition, including but not limited to a current, complete, accurate and detailed audited financial statement, bank references, a Dun & Bradstreet report and a balance sheet certified as true and correct by the chief financial officer of Tenant. |
d. | Tenant has vacated the Premises or ceased doing business from the Premises. |
3. As a further condition of Tenants exercising such renewal option, accompanying tenants notice of exercise Tenant shall deliver an original, signed and notarized reaffirmation from each Guarantor, if applicable, in form and content acceptable to Landlord.
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EXHIBIT A
SHOPPING CENTER AND PREMISES LOCATION
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EXHIBIT B
LOCATION OF EMPLOYEE PARKING
EXHIBIT C
SPECIFICATIONS FOR LANDLORDS WORK
All Landlord construction shall be in accordance with the requirements of all-applicable codes, ordinances, rules and regulations of all authorities having jurisdiction over their respective portions of the work and Landlords insurance carriers.
I. | Landlord agrees to construct and install the following improvements to the Tenants Premises, as shown in Landlords plans (Landlords Work): |
A. | Building exterior, roof system and demising walls (metal studs only) per Landlords shell building plans. |
B. | Single ply membrane, insulated metal deck roofing system. |
C. | 6 metal stud demise walls for Tenant to install a minimum of (1) layer of 5/8 Type X gypsum board to the Tenants side of each of Tenants demising walls to the roof deck (or more layers if required by code). |
D. | Premises shall allow Tenant to install a ceiling at a minimum height of 10-0. |
E. | High efficiency HVAC Set and stubbed in to the Premises at 1 ton per 325sf. |
F. | Concrete floor slab throughout |
G. | Sanitary Sewer stub-up at rear of space for plumbing fixture tie-in by Tenant. |
H. | Electrical conduit shall be stubbed into the rear of the Tenants Premises with pull string for Tenant to pull conductors (wire) from an empty meter trough located outside the building to complete the permanent power service to the premises. Power Company shall bring conduit and conductors to the empty meter trough ONLY. |
I. | Telephone conduit with pull string stubbed into Tenants Premises along the interior, rear wall of the Tenants space. |
J. | Gas service to be provided by Gas Company at the rear of the building at a single location. Location to be determined by Gas Company. |
K. | Minimum 3/4 cold-water stub out with shut off valve shall be provided at the rear of the Premises. |
L. | If required by Code, a sprinkler system with trunk lines through the premises to meet code requirements for raw shell construction. |
M. | Aluminum storefront system with glass, per Landlords shell building construction drawings. |
N. | Aluminum front entry door(s) with glass per Landlords shell building construction drawings. |
O. | (1) Hollow metal rear loading door per Landlords shell building construction drawings. |
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EXHIBIT D
TENANTS WORK
All Tenant construction shall be in accordance with the requirements of all-applicable codes, ordinances, rules and regulations of all authorities having jurisdiction over their respective portions of the work and Landlords insurance carriers.
A. | Install new or like new trade fixtures. |
B. | Install additional equipment that Tenants line of business typically requires, inclusive of equipment necessary to operate Tenants drive thru window. |
C. | Complete any work, labor, and materials required by Tenant to obtain a final certificate of occupancy and open for business that is not specified as a part of Landlords Work under Exhibit C . Said work shall be performed at the sole cost and expense of the Tenant, and shall be incorporated within Tenants plans and specifications. |
D. | Complete all other construction Tenant requires to open for business, including the Drive Thru Window Improvements. |
E. | Construct the premises in accordance with all city, state, and federal codes |
F. | Hire an Architect to prepare Tenants Plans and Specifications, who is licensed by the appropriate State where the Tenants Premises is located. |
G. | Tenant shall install an inline sub-meter in the incoming cold water service line at the rear of the premises as a part of Tenants Work so that Landlord may accurately bill Tenant for its share of water and sewer usage on a monthly or quarterly basis. Sub-meter shall be installed in an area that easily accessible and readable from the floor of the Tenants Premises. No sub-meters shall be installed above a hard ceiling. |
H. | Contract directly with Landlords roofing contractor to perform all penetrations to the roof membrane including, but not limited to any additional HVAC equipment, units and curbs, plumbing vents, cable penetrations, etc. Landlord roofing contractor shall be hired by Tenant to preserve Landlord warranty on roof system. |
I. | Complete permanent power service to the Premises, which shall include, but not be limited to any required disconnect switch, meter socket/CT cabinet and electrical panel(s) and associated wiring. |
J. | Coordinate gas meter installation with the gas company and install any additional gas piping required to route gas service from existing location to the Tenants Premises. |
K. | Install any and all additional framing and drywall required for Tenant improvements. Based on the Tenants zoning use classification, Tenant may be required to install (2) layers of gypsum board on demising walls to the roof deck in order to meet fire separation requirements at Tenants sole cost. |
L. | Turn down and space fire sprinkler heads in ceiling as required by the municipal authority having jurisdiction. |
M. | Contract directly with Landlords fire alarm contractor (see below) to install all fire alarm devices and wire them into the house fire alarm panel. Landlords shell building fire alarm contractor shall be hired by Tenant to maintain the warranty on the house fire alarm panel. |
N. | Contract directly with Landlords HVAC contractor or a contractor approved by Landlord to perform all additional HVAC work including, but not limited to, setting units, ductwork; curbs, roof penetrations, etc. Landlords HVAC contractor shall be hired by Tenant to maintain consistency in equipment and services. |
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