SUBLEASE
THIS SUBLEASE, made and entered into as of the 25th
day of July, 1996, by and between XXXXXXX FOODS, INC., an
Indiana Corporation, having as its principal address,
0000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxx, hereinafter
referred to as "Xxxxxxx", and First State Bank, an
Indiana financial institution, having its principal
offices at 000 Xxxx Xxxxxx in Tell City, Indiana,
hereinafter referred to as "Bank" ("Sublease").
WHEREAS, pursuant to a Lease, dated February 1,
1988, between Xxxxxxx Tell Homes Company and Kmart
Corporation, as amended by Modification of Leased
Agreement, dated September 26, 1991 (collectively, the
"Master Lease") Kmart leased a building of approximately
84,000 square feet, the "Leased Premises" located on the
property in Tell City, Perry County, Indiana, described
in Exhibit A attached hereto and made a part hereof and
depicted on Exhibit B attached hereto and made a part
hereof, which property, together with the buildings and
improvements thereon, including the Leased Premises, are
defined as the "Kmart Shopping Center", and a memorandum
of the Master Lease was recorded in Miscellaneous Record
21, Pages 122-126 in the Office of the Recorder of Perry
County; and
WHEREAS, Xxxxxxx has entered into a sublease for the
Leased Premises, with Kmart Corporation, dated December
2
4, 1995, which sublease is hereinafter referred to as the
"Master Sublease," and a memorandum of the Master
Sublease was recorded in Miscellaneous Record 33, Pages
644-650 in the Office of the Recorder of Perry County;
and, WHEREAS, Bank desires to sublease from Xxxxxxx
a portion of that Leased Premises currently leased by
Xxxxxxx, upon which Xxxxxxx shall be operating a retail
grocery business. NOW, THEREFORE, it is agreed by the
parties that Bank shall sublease and occupy a portion of
the Leased Premises leased by Xxxxxxx under the following
terms and conditions:
ARTICLE I
THE DEMISE
Section 1.01. The Sublet Premises. Xxxxxxx does
hereby sublet to Bank, and Bank subleases from Xxxxxxx,
upon the terms and conditions herein, a certain portion
of the Leased Premises, including a part of the building
to be occupied as a retail grocery supermarket and a part
of the Common Areas, which subleased premises are more
particularly depicted on "Exhibit B" attached hereto and
made part hereof. That portion sublet under this
Sublease may hereinafter be referred to as being the
"Sublet Premises" and the Sublease thereof by Bank shall
be subject to the terms and conditions set forth in the
Master Lease and Master Sublease above described.
3
Section 1.02. Common Areas. Bank shall have the
non-exclusive right to use common parking areas currently
existing for use by its customers, but shall require Bank
employees to park in spaces away from Xxxxxxx'x customer
parking near the place of customer access to Xxxxxxx'x
store. Bank's employees shall have non-exclusive right
to use restrooms and employee "break" room in the Xxxxxxx
store, and Bank's customers shall have access to the
Sublet Premises through the Xxxxxxx store during normal
business hours.
Section 1.03. Services. Xxxxxxx shall furnish the
Bank with heat, air conditioning; lights and all utility
services except telephone. Such telephone expenses shall
be paid by Bank, except that Xxxxxxx shall, in the
construction of the Sublet Premises, provide all
necessary telephone conduits and wiring. Said utilities
shall be adequate to maintain a proper environment for
operation of branch bank facilities.
Xxxxxxx shall, at Xxxxxxx'x expense, maintain the
Sublet Premises and all of the HVAC and other building
equipment not owned by Bank in good condition and repair.
Bank shall, at Bank's expense, provide the day-to-day
janitorial services, including carpet and floor
maintenance, and the upkeep and repair of all interior
4
leasehold improvements added by Bank. Provided, however,
that Bank also shall be responsible for the repair of any
portion of the Sublet Premises to the extent damaged by
Bank, its employees or representatives. Xxxxxxx shall
maintain the driveways and parking areas in good
condition and repair and reasonably free of snow, ice,
dirt and debris as required by the Master Lease and
Master Sublease. No trash, waste or other debris is to
be located or placed by Bank outside the Sublet Premises
or Xxxxxxx'x store except in closed containers as
provided by Xxxxxxx.
Section 1.04. Construction Responsibilities.
Xxxxxxx agrees that it will, at its own cost and expense,
cause the construction of such necessary walls, roof and
floor, to create the separate space for the Sublet
Premises, which construction shall, except as otherwise
mutually agreed, be according to the approved plans and
specifications of the Sublet Premises. Xxxxxxx also will
provide all heating and air conditioning systems,
electrical system and sprinkler system. The electrical
system shall include hook-up facilities for Bank's
fixtures and banking equipment at locations mutually
agreeable. Bank will furnish and install its own trade
fixtures including, but not limited to, all special
banking equipment, safes, alarm system and other security
devices, interior finish work, furnishings and
5
decorations, all of which shall remain the property of
the Bank. Bank may not change or alter the Sublet
Premises in a manner which will adversely affect
Xxxxxxx'x operation without Xxxxxxx'x prior approval and
any approvals required by the Master Sublease.
Section 1.05. Signs. Subject to provisions in the
Master Lease and Master Sublease, the Bank shall have the
right to erect appropriate signs on the exterior of
Xxxxxxx'x store, over any walk-up window and at the lobby
entrance in the interior of the Xxxxxxx'x store;
provided, however, that no such sign shall be erected
until drawings depicting the sign together with
specifications of the methods by which such sign is to be
affixed to the building (as well as approval of location
of each sign), shall have been submitted to and approved
by Xxxxxxx, the Master Lessor and Master Sublessor, as
may be required.
Section 1.06. Interior Development. Xxxxxxx agrees
that it will not locate its displays of merchandise or
shelving closer to the interior walk--up facilities of
the Bank than the lobby area of the Sublet Premises and
will not block access to the Sublet Premises from
Xxxxxxx'x store.
Section 1.07. Taxes. Xxxxxxx agrees that during
the Term of this Sublease, Xxxxxxx will pay all real
estate taxes and assessments accruing against the Sublet
6
Premises to the extent Xxxxxxx shall be responsible for
payment of same under the Master Lease or Master
Sublease. Bank shall pay all such taxes accruing upon
personal property placed thereon by Bank, including trade
fixtures, furniture and equipment.
ARTICLE II
TERM
Section 2.01. The Original Term. The initial term
of this Sublease is for a period of five (5) years
beginning on the Commencement Date, which shall be
referred to hereinafter as the "Original Term."
Section 2.02. Commencement Date. The Commencement
Date of the Original Term shall be July 25, 1996.
Section 2.03. Options for Extensions. If the Bank
shall comply with and not be in default of any of the
terms, provisions and conditions of this Sublease, then,
subject to the terms and conditions of the Master Lease
and Master Sublease, Bank shall have an option to extend
this Sublease for (i) an additional consecutive term
beginning on the next succeeding day after the expiration
of the Original Term and ending on January 29, 2008
("First Extended Term"); (ii) an additional consecutive
term of five (5) years commencing at the expiration of
the First Extended Term ("Second Extended Term"); and an
additional consecutive term of five (5) years commencing
at the expiration of the Second Extended Term ("Third
7
Extended Term"). The extended term or terms also may be
referred to hereinafter collectively as the "Extended
Term or Extended Terms". The Original Term and any
Extended Term may be referred to hereinafter collectively
as the "Granted Term". Notice of intention to exercise
any extension above described shall be given by Bank to
Xxxxxxx in writing at least one hundred eighty (180) days
before the expiration of the Original Term or the prior
Extended Term, and if the Bank fails to give any such
notice within the time limited, any subsequent option or
options to extend shall expire and be of no force or
effect. Notwithstanding the foregoing, the Bank's right
to extend this Sublease shall be subject to the renewal
or extension by Xxxxxxx of the Master Sublease. The
Extended Terms granted herein shall not obligate Xxxxxxx
to extend the term of the Master Sublease.
Section 2.04. Termination Option. In the event
that the Master Lease or Master Sublease is terminated
for any reason, or if Xxxxxxx should make an assignment
of its Master Sublease to any other firm or corporation
other than an affiliated entity, the Xxxxxxxx Xxxxxxx
Real Estate Trust or a business successor for the
continued operation of a retail grocery business, or if
business operations in that portion of the Leased
Premises occupied by Xxxxxxx should be discontinued for
any period of time longer than one (1) month, except in
8
the instance of fire or other casualty, the Bank shall
have the right to terminate this Sublease upon thirty
(30) days' notice to Xxxxxxx. Should Xxxxxxx Tell Homes
Company under the Master Lease or Kmart Corporation under
the Master Sublease elect to terminate either the Master
Lease or Master Sublease, nothing herein shall prevent
Bank from entering into a new lease arrangement with
Xxxxxxx Tell Homes Company or Kmart Corporation or from
assuming Xxxxxxx'x obligation under the Master Sublease,
subject to the terms and provisions therein.
Section 2.05. Approval of IDFI. Following the
execution of this Sublease, Bank shall prepare and submit
to the Indiana Department of Financial Institutions
("IDFI") its application for approval to open a branch
office at the Kmart Shopping Center and shall prosecute
same with all due diligence. If Bank is unable to secure
such approval from the IDFI within a period of one
hundred twenty (120) days from the execution of this
Sublease, Bank shall be entitled to cancel this Sublease
by notice given in the manner provided herein at any time
within the eighteen (18) month period following the
initial 120-day period.
9
ARTICLE III
RENT
Section 3.01. Rent. The Bank shall pay Xxxxxxx, at
its principal office, or at such other place as Xxxxxxx
shall designate from time to time in writing, rental:
(a) During the first two (2) years of the Original
Term, Seven Thousand Eight Hundred Dollars ($7,800.00)
per year, payable in advance in equal monthly
installments of Six Hundred Fifty Dollars ($650.00) per
month, on the first day of each month. If the Bank
should be open for business prior to the Commencement
Date, the Bank shall pay a pro rata portion of the rental
for the part of the month prior to the Commencement Date;
and
(b) After the first two (2) years and during the
next three (3) years of the Original Term, Nine Thousand
Three Hundred Dollars ($9,300.00) per year, payable in
advance in equal monthly installments of Seven Hundred
Seventy-Five Dollars ($775.00) per month, on the first
day of each month.
(collectively referred to as "Rent")
Section 3.02. Rent During Extended Terms. In the
event Bank should elect to exercise its option to extend
this Sublease, as provided by Section 2.03, Bank shall
pay rent to Xxxxxxx during the First Extended Term as
follows: (i) in an annual amount during the first two
10
(2) years of Nine Thousand Three Hundred Dollars
($9,300.00) per year payable in advance in equal monthly
installments of Seven Hundred Seventy-Five Dollars
($775.00) per month, on the first day of each month, and
(ii) in an annual amount during the remainder of the
First Extended Term of Ten Thousand Eight Hundred Dollars
($10,800.00) per year, payable in advance in equal
monthly installments of Nine Hundred Dollars ($900.00)
per month, on the first day of each month. In the event
the Bank should elect to exercise its option to extend
this Sublease for the Second Extended Term, as provided
by Section 2.03, Bank shall pay rent to Xxxxxxx during
the Second Extended Term in an annual amount of Fourteen
Thousand Four Hundred Dollars ($14,400.00), which sum
shall be payable in advance in equal monthly installments
of One Thousand Two Hundred Dollars ($1,200.00) per month
in the same manner provided in Section 3.01 hereof. In
the event the Bank should elect to exercise its option to
extend this Sublease for the Third Extended Term, as
provided by Section 2.03, Bank shall pay rent to Xxxxxxx
during the Third Extended Term in an annual amount of
Eighteen Thousand Dollars ($18,000.00), which sum shall
be payable in advance in equal monthly installments of
One Thousand Five Hundred Dollars ($1,500.00) per month
in the same manner provided in Section 3.01 hereof.
11
ARTICLE IV
USE OF THE PREMISES
Section 4.01. Business Use. The Sublet Premises
are to be used and occupied for the operation of a branch
banking facility, said operation being conducted in a
manner consistent with accepted banking practices, and
for no other purpose. The Bank will be entitled to
further underlet the Sublet Premises to another bank or
a saving association or any other financial institution
with Xxxxxxx'x prior written approval and subject to the
approval and consent of Xxxxxxx Tell Homes Company and
Kmart Corporation.
Section 4.02. Hours of Operation. Bank shall open
the Subleased Premises for the transaction of regular
banking business in the Sublet Premises for at least the
same number of hours per week and on the same number of
days per week that a majority of other branch facilities
of the Bank are open for banking business of the same
character (excluding operation of an ATM machine) as that
conducted in the Sublet Premises.
ARTICLE V
SECURITY
Section 5.01. Security Equipment. The Bank shall
install such security equipment as is deemed by it to be
necessary or desirable for prevention of robberies and
thefts in the Sublet Premises. The expense of such
12
installation and maintenance shall be borne by the Bank
except that Xxxxxxx shall furnish the necessary
electricity for operation of such equipment. Xxxxxxx
shall not be responsible for attempts to penetrate the
Sublet Premises, even if such attempts occur through the
Xxxxxxx store. Xxxxxxx shall not furnish any additional
security not required for the protection of its business
solely due to the Bank's presence in the Xxxxxxx store.
The Bank shall have the right to retain security
personnel; provided that, if said security personnel are
to operate outside of the Sublet Premises, prior written
consent of Xxxxxxx shall be obtained. Xxxxxxx shall in
no event be liable for and the Bank hereby releases
Xxxxxxx, its successors and assigns, from any liability
for any direct, indirect or consequential losses or
damages suffered or incurred by the Bank due to its lease
of the Sublet Premises, whether by burglary, robbery,
theft, embezzlement, mysterious disappearance or
otherwise, and by reason of failure of the electrical
service supplied by Xxxxxxx for operation of the security
devices or equipment.
ARTICLE VI
DAMAGE BY FIRE OR OTHER CASUALTY
Section 6.01. Partial or Total Destruction of
Building. In the event of any damage to any improvement
on the Leased Premises described in the Master Sublease
13
by fire or other casualty, Xxxxxxx'x obligation to
rebuild and restore the Leased Premises, including the
Sublet Premises shall be subject to the terms and
provisions of the Master Lease and Master Sublease. In
the event that such damage renders it inadvisable for the
Bank to continue its business during such period of
restoration, all rental under this Sublease shall be
abated during that period in which Bank ceases operation
and until such restoration is completed. In the event
that any such damage should not directly affect the Bank,
but should cause the discontinuance of Xxxxxxx'x business
operations in the Leased Premises, the Bank shall have
the right to discontinue its operation in the Sublet
Premises until business operations are recommenced by
Xxxxxxx, and rental under this Sublease shall be totally
abated while the business operations of the Bank are
suspended. If the Leased Premises should be destroyed or
damaged due to casualty, and if the Master Lease or
Master Sublease should on such occasion be terminated,
then this Sublease also shall be terminated, effective on
the termination of the Master Sublease.
ARTICLE VII
INDEMNIFICATION AND INSURANCE
Section 7.01. Indemnification. Each party agrees
to indemnify and save harmless the other party against
and from any and all claims by or on behalf of any
14
person, firm or corporation arising from any breach or
default in the performance of any covenant or agreement
on its part to be performed under this Sublease. The
indemnification herein provided shall include all costs,
counsel fees, and expenses or liabilities incurred in
connection with any such claim or action or proceeding
brought thereon. Each party covenants and agrees to pay
and to indemnify the other party against all legal costs
and charges, including counsel fees, lawfully and
reasonably incurred in enforcing any covenant or
agreement contained in this Sublease. In the event of
any litigation between Xxxxxxx and the Bank with respect
to the terms of this Sublease or any matter arising
thereunder, the successful party in such litigation shall
be entitled to recover all of is costs, including
attorney's fees, for the other party as a party of the
judgment in such litigation.
Section 7.02. Waiver of Subrogation. Xxxxxxx and
the Bank each hereby release the other from any and all
liability or responsibility to the other or anyone
claiming through or under them by way of subrogation or
otherwise, for any loss or damage to property caused by
fire or other casualty, even if said fire or casualty
shall have been the fault or negligence of the other
party or anyone for whom such party may be responsible.
Each party agrees to cause its fire and other hazard
15
insurance policies to contain provisions recognizing this
release of liability and waiving all rights or
subrogation against the other party to this Sublease.
Section 7.03. Public Liability Insurance. Each
party shall procure and maintain during the Granted Term
such policies of general liability insurance against
claims, demands or actions for personal or bodily injury
or death and for damage to property arising from or
related to or connected with the occupancy of an conduct
of business in and about the Leased Premises and the
Sublet Premises as each party may deem adequate for its
own protection; provided, however, Xxxxxxx'x policies of
insurance shall comply with the requirements of the
Master Sublease and the Bank's policies of insurance
shall be in an amount not less than Five Hundred Thousand
Dollars ($500,000.00). Xxxxxxx Tell Homes Company, Kmart
Corporation and Xxxxxxx Foods, Inc. shall be named as an
additional party insured under the Bank's insurance
policy.
Section 7.04. Casualty Insurance. Xxxxxxx shall
procure and maintain during the Granted Term fire and
casualty insurance upon the Leased Premises, including
the Sublet Premises, as required under the Master Lease
and Master Sublease. Bank shall procure and maintain
casualty insurance for the personal property placed upon
the Sublet Premises by Bank.
16
ARTICLE VIII
REMEDIES
Section 8.01. Defaults. The happening of any one
or more of the following events shall be deemed an "Event
of Default":
(a) The institution of proceedings in a court of
competent jurisdiction or by the Indiana Department of
Financial Institutions or the Federal Deposit Insurance
Corporation or any other regulatory agency of state or
federal government for the reorganization, liquidation or
involuntary dissolution of the Bank, or for its
adjudication as being insolvent, or for the appointment
of a receiver or conservator of the property of the Bank,
and said proceedings are not dismissed, and any receiver,
conservator, trustee, or liquidator appointed therein
discharged, within thirty (30) days after the institution
of said proceedings; and
(b) the commission or omission by the Bank of any
act which results in the assertion of a mechanic's lien
claim against the land or building of which the Sublet
Premises is a part and the same is not released or
otherwise provided for by indemnification within sixty
(60) days; and
(c) the failure of the Bank to pay an installment
of rent when due and continuation of such default for ten
(10) days after notice; and
17
(d) or the failure of the Bank to perform any of
its other covenants under this Sublease and the
continuation of such default for a period of twenty (20)
days after notice. In the event that any such default
(other than a default that can be cured by the payment of
money) cannot be cured within the time limit, no event of
default shall be deemed to have occurred so long as the
Bank is diligently pursuing appropriate action to cure
the default, continues to diligently pursue such action
to cure, and if such action was commenced within the time
limit.
Section 8.02. Rights on Default. Upon the
occurrence of any Event of Default, Xxxxxxx may, at its
option, in addition to any other remedy or right it has
hereunder or by law;
(a) Re-enter the Sublet Premises, without demand,
and resume possession by an action in law or equity or by
force or otherwise and without being liable in trespass
or for any damages and without terminating this Sublease.
Xxxxxxx may remove all persons and property from the
Sublet Premises after giving Bank ten (10) days' notice.
If such property is not removed within such ten (10)
days, such property shall be deemed abandoned and shall
become the property of Xxxxxxx at its election. At any
time after said ten (10) day period, Xxxxxxx may remove
all persons and property from the Sublet Premises, with
18
or without process of law, and Bank shall be liable for
the costs of such removal and storage of same.
(b) Terminate this Sublease at any time upon the
date specified in a notice to Bank. Bank's liability for
damages shall survive such termination. Upon
termination, such damages recoverable by Xxxxxxx from
Bank shall, at Xxxxxxx'x option, be either an amount
equal to "liquidated damages" or an amount equal to
"indemnity payments". "Liquidated damages" means an
amount equal to the excess of the rentals provided for in
this Sublease which would have been payable hereunder by
Bank, had this Sublease not so terminated, for the period
commencing with such termination and ending with the date
set for the expiration of the Original Term granted
(hereinafter referred to as "unexpired term") over the
reasonable rental value of the Sublet Premises for such
unexpired term. "Indemnity payments" means an amount
equal to the rent and other payments provided for in this
Sublease which would have become due and owing thereunder
from time to time during the unexpired term plus the
costs and expenses paid or incurred by Xxxxxxx from time
to time in connection with:
(1) Obtaining possession of the Sublet
Premises; and
(2) removal and storage of Bank's property;
and
19
(3) care, maintenance and repair of the
Sublet Premises while vacant; and
(4) reletting the whole or any part of the
Sublet Premises; and
(5) making all repairs, alterations and
improvements to be made by Bank hereunder and
performing all covenants of the Bank relating to
the condition of the Sublet Premises, less the rent
and other payments, if any, actually collected and
allocable to the Sublet Premises or to the portions
thereof relet by Xxxxxxx. Bank shall make
indemnity payments monthly and Xxxxxxx can xxx for
all indemnity payments as they accrue. Xxxxxxx
shall have the duty to sublet the Sublet Premises
upon repossession and Bank shall not be liable for
any rental should Xxxxxxx allocate the Sublet
Premises for use as part of Xxxxxxx'x store.
(c) Without terminating this Sublease, relet the
Sublet Premises without the same being deemed an
acceptance of the surrender of this Sublease nor a waiver
of Xxxxxxx'x right to remedies and Xxxxxxx shall be
entitled to indemnity payments, as heretofore defined
from Bank. Any reletting by Xxxxxxx may be for a period
equal to or less than or extending beyond the remainder
of the Original Term, for the whole or any part of the
Sublet Premises, separately or with other premises, or
20
for any sums, or to any lessee or for any use Xxxxxxx
deems appropriate subject to the terms and provisions of
the Master Sublease. Should Xxxxxxx allocate the Sublet
Premises to Xxxxxxx'x store operation, then Bank shall
not be liable for any rent due during that period of
time.
Section 8.03. Advances. In the event of any breach
hereunder by either party, the other party, after thirty
(30) day's written notice to the defaulting party, may
cure such breach for the account and at the expense of
the defaulting party. Any money spent or cost or expense
incurred by either party incurring such a breach or
default for the account of the other party shall be
reimbursed by the defaulting party on the first day of
the month following the payment, with interest at the
rate of twelve percent (12%) per annum, or at four
percent (4%) over the announced prime interest rate of
the Bank, whichever is higher. In the event of the
failure of Xxxxxxx to make prompt responses to emergency
notification of the need for immediate repairs in order
to maintain the usability of the Sublet Premises, such
advance may be made by the Bank without the thirty (30)
day written notice; provided, however, that Bank shall
within twenty-four (24) hours following such advance give
Xxxxxxx written notice thereof. In the event that
Xxxxxxx fails to reimburse the Bank for any such
21
expenditure as provided herein, the Bank may deduct such
amounts as it has properly expended pursuant to the terms
hereof from the rental payment or payments thereafter
due.
ARTICLE IX
ACCESS TO THE SUBLET PREMISES
Section 9.01. Inspection and Repairs. Xxxxxxx
shall have the right to enter upon the Sublet Premises
during all regular business hours for the purpose of
inspecting the same or of making repairs, additions or
alterations thereto. Except in the case of fire or other
emergency, Xxxxxxx shall not enter the Sublet Premises
for any purpose at any time other than when the Sublet
Premises are open for business except at a time agreed
upon the Bank, and only when accompanied by an employee
of the Bank. Said right of entry shall inure to the
benefit of the Xxxxxxx Tell Homes Company and Kmart
Corporation as well as to Xxxxxxx, and Xxxxxxx Tell Homes
Company and Kmart Corporation also shall have the right
to enter the Sublet Premises as contained in the Master
Lease and Master Sublease. Any entry shall, however, be
such as to maintain the effectiveness of Bank's security.
ARTICLE X
NOTICES
Section 10.01. Manner of Giving. Whenever under
this Sublease a provision is made for notice of any kind
22
such notice shall be given in writing and signed by or on
behalf of the party giving or making the same, and it
shall be deemed sufficient notice and service thereof if
such notice is to the Bank and is sent by first-class
mail, postage pre-paid, to the general offices of the
Bank at 000 Xxxx Xxxxxx, Xxxx Xxxx, Xxxxxxx 00000; and if
to Xxxxxxx, sent by first-class mail, postage pre-paid,
at 0000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxx 00000. Either
party hereto may change its address for notification
purposes by written notice to the other party. In the
event of the need for emergency notice to Xxxxxxx (e.g.,
failure of HVAC systems, casualty damage, serious roof
leakage, etc.), the Bank may notify one of Xxxxxxx'x
officers or the store manager by telephone, but shall
within twenty-four (24) hours thereafter give written
notice thereof in the manner above provided.
ARTICLE XI
SURRENDER OF POSSESSION
Section 11.01. Surrender in Good Condition. At the
expiration of the subtenancy created hereunder, whether
by lapse of time or otherwise, the Bank shall surrender
the Sublet Premises in good condition and repair,
reasonable wear and tear, loss by fire and other
casualty, and acts of God excepted. The Bank shall
remove its personal property from the Sublet Premises and
shall repair any damage to the Leased Premises and the
23
Sublet Premises caused by the installation or removal of
such property. All fixtures, partitions, equipment,
trade fixtures, alterations or changes in the Sublet
Premises installed by the Bank shall be and remain
personal property, regardless of the manner of their
annexation, and may be removed by the Bank, if it so
elects, and shall be removed by the Bank if Xxxxxxx,
Xxxxxxx Tell Homes Company or Kmart Corporation so
directs, in whole or in part, at the termination of the
Granted Term or the sooner expiration or termination of
the Sublease. Any damage to the Sublet Premises caused
by the installation or removal or any such property shall
be repaired by the Bank. Any such property remaining
with said consent shall become the sole property of
Xxxxxxx.
Section 11.02. Holding Over. In the event the Bank
remains in possession of the Sublet Premises with the
consent of Xxxxxxx after the expiration of the Granted
Term, and without the execution of a new Sublease, it
shall be deemed to be occupying the Sublet Premises as a
subtenant from month to month at the same monthly rent
and subject to all other conditions and provisions of
this Sublease insofar as the same are applicable to a
month-to-month subtenancy.
24
ARTICLE XII
GENERAL PROVISIONS
Section 12.01. Remedies Cumulative - Non-Waiver.
The various rights and remedies herein contained and
reserved to each of the parties shall not be considered
as exclusive of any other right or remedy or such party,
which shall be construed as cumulative and shall be in
addition to every other remedy now or hereafter existing
at law, in equity, or by statute, and such rights and
remedies may be exercised and enforced concurrently and
whenever and as often as occasion therefor arises. No
delay or omission of the right to exercise any power by
either party shall impair any such right or power, or be
construed of a waiver of any default or as acquiescence
therein. One or more waivers of any covenants, term or
condition, of this Sublease by either party shall not be
construed by the other party as a waiver of subsequent or
continuing breaches of the same covenants, term or
condition. The consent or approval by either party to or
of any act by the other party of a nature requiring
consent or approval shall not be deemed to waive or
render unnecessary consent to or approval of any
subsequent similar act.
Section 12.02. Complete Agreement. The headings of
the several articles and sections contained herein are
25
for convenience only and do not define, limit or construe
the contents of such articles and sections. All
negotiations, considerations, representations and
understandings between the parties are incorporated
herein, and may be modified or altered only by agreement
in writing signed by the party to be bound.
Section 12.03. Agreement Binding on Successors.
The covenants, agreements and obligations herein
contained shall extend to, bind and inure to the benefit
not only of the parties hereto, but their successors and
assigns.
Section 12.04. Authorization. Each party hereto
executes this Sublease by its duly elected officers, who
have been authorized by said party's Board of Directors
to execute this instrument on behalf of that respective
party.
IN WITNESS WHEREOF, the parties have cause this
Sublease to be executed as of the day and year first
above set forth.
"XXXXXXX"
XXXXXXX FOODS, INC.
By/s/ Xxxxx X. Xxxxxxx
___________________________
Xxxxx X. Xxxxxxx,
President
ATTEST:
/s/ Xxxxxx X. Xxxxxxx, Secretary
_________________________________
Xxxxxx X. Xxxxxxx, Secretary
26
"BANK"
FIRST STATE BANK
By/s/ Xxxx X. Xxxxx
____________________________
Xxxx X. Xxxxx,
President
ATTEST:
/s/ Xxxxx X. Xxxxxx
_________________________
Xxxxx X. Xxxxxx
Vice President/Cashier
STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
Before me, the undersigned, a Notary Public in and for
said County and State, personally appeared the within named
XXXXX X. XXXXXXX and XXXXXX X. XXXXXXX. known to me to be the
President and Secretary, respectively, of XXXXXXX FOODS, INC.
who acknowledged the truth of the statements in the foregoing
instrument to be its voluntary act and deed.
WITNESS my hand and seal this 28 day of March, 1997.
/s/ Xxxxx X. Xxxx
______________________________
Notary Public
Xxxxx X. Xxxx
______________________________
Printed
County of Residence:
Xxxxxx
_________________________
My Commission Expires:
June 21, 1998
_________________________
27
STATE OF INDIANA )
) SS:
COUNTY OF PERRY )
Before me, the undersigned, a Notary Public in and for
said County and State, personally appeared the within named
XXXX X. XXXXX and XXXXX X. XXXXXX, known to me to be the
President and Vice President/Cashier, respectively, of FIRST
STATE BANK, who acknowledged the truth of the statements in
the foregoing instrument to be its voluntary act and deed.
WITNESS my hand and seal this 19th day of March, 1997.
/s/ Xxxx X. Xxxxx
______________________________
Notary Public
Xxxx X. Xxxxx
______________________________
Printed
County of Residence:
Perry
_________________________
My Commission Expires:
August 21, 2000
_________________________
