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EXHIBIT 10.06
LEASE AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇▇ PARTNERS
(LESSOR)
AND
THE BANK OF NASHVILLE
(LESSEE)
THE GLENDALE SHOPPING CENTER
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
AUGUST 1, 1996
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TABLE OF CONTENTS
Article 1. Demised Premises, Etc..............................................1
Article 2. Base Rent and Common Area Charge...................................1
Article 3. Use and Occupancy..................................................2
Article 4. Signs..............................................................3
Article 5. Sales Tax on Rents.................................................3
Article 6. Utilities..........................................................3
Article 7. Repairs by Lessor..................................................3
Article 8. Repairs by Lessee..................................................4
Article 9. Lessee Improvements, Advertising, Decor and Signs..................4
Article 10. Compliance with Laws and Regulations.............................. 4
Article 11. Taxes..............................................................4
Article 12. Insurance..........................................................4
Article 13. Description of Lessee's Public Liability Insurance.................5
Article 14. Waiver of Subrogation..............................................5
Article 15. Damage or Destruction to the Premises..............................5
Article 16. Assignment and Subletting..........................................5
Article 17. Eminent Domain.....................................................6
Article 18. Lessor Services....................................................6
Article 19. Sidewalks, Parking Area and Common Areas...........................6
Article 20. Estoppel Certificate...............................................7
Article 21. Default. ..........................................................7
Article 22. Further Rights of Lessor Upon Default. ............................8
Article 23. Exculpation of Lessor from Personal Liability
Under Lease ...........................................8
Article 24. Surrender of Possession............................................9
Article 25. Covenant of Peaceful Possession................................... 9
Article 26. No Liens...........................................................9
Article 27. Notices. ..........................................................9
Article 28. Subordination and Attornment. .....................................9
Article 29. Memorandum of Lease. .............................................10
Article 30. Applicable Law....................................................10
Article 31. Captions..........................................................10
Article 32. Construction of Terms.............................................10
Article 33. Cross Easement....................................................10
Article 34. Miscellaneous.....................................................10
Article 35. Force Majeure.....................................................12
Article 36. Options to Renew..................................................13
SIGNATURES ...................................................................13
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this 1st day of August, 1996,
by and between ▇▇▇▇▇▇▇ Partners, a Tennessee Partnership (herein called
"Lessor"), and The Bank of Nashville, a Tennessee banking corporation (herein
called "Lessee").
WITNESSETH:
Article 1. Demised Premises, Etc.
Article 1.1 Demised Premises. In consideration of the Premises and the
mutual covenants, conditions and agreements herein contained and the rent
hereinafter agreed to be paid, Lessor does hereby lease to Lessee, and Lessee
does hereby accept from Lessor, certain Premises in Nashville, Davidson County,
Tennessee, consisting of approximately 41,600 gross square feet (computed from
measurements to the exterior of outside walls of the building and to the center
of demising walls), which space is outlined in red on Exhibit "C" (said space
herein called the "Premises"), and located in the Shopping Center more
particularly described on Exhibit "A ". For purposes of calculating percentages
as hereinafter provided, the portion of the Shopping Center which is the subject
of this Lease shall consist of 4,670 square feet. Lessor owns the Shopping
Center and/or otherwise has good right to lease the same and to bind the
owner(s) thereof. To the best of the Lessor's knowledge, and based solely on
letters and agreements with architects, engineers, and the attached letters from
the Metropolitan Government of Nashville, Davidson County, Tennessee, dated
October 28, 1994 and January 30, 1991, (A) the Shopping Center and the Premises
are in material compliance with all local, state, and federal requirements,
including the Americans With Disabilities Act, etc., (B)(1) the Premises have
been constructed, in all material respects, in accordance with applicable codes,
laws, rules, and regulations, and (2) the Premises are zoned to permit the
conduct of the permitted uses herein specified.
The following Exhibits are attached hereto and incorporated into this Lease
by reference as if fully copied herein:
Exhibit A: Legal Description of the Shopping Center (2.322 acres+)
Exhibit B: Site or Plot Plan of the Shopping Center
Exhibit C: Lessee Space Exhibit
Exhibit D. Locations of Signs and ATMs
Exhibit E: Signage Criteria Exhibit
Exhibit F: Rules and Regulations
Article 1.2 Construction of Premises.
Article 1.2.1. Lessor has erected on the Shopping Center a building
suitable for multi-lessee use.
TO HAVE AND TO HOLD the said Premises with all the rights and privileges
thereto appertaining unto the Lessee for the term hereof (subject, as herein
provided, to all existing or future mortgages, deeds of trust, ground leases,
parking agreements, utility and other rights and privileges previously granted
and/or which may be now or in the future recorded in the Register's Office for
Davidson County, Tennessee), upon the following covenants, conditions and
agreements:
Article 1.3 Initial Term. The initial term of this Lease shall be for 60
calendar months commencing August 1, 1996 and ending August 1, 2001.
Article 2. Base Rent and Common Area Charge. Lessee agrees to pay as base
rent (herein "Base Rent") and common area charge (herein "Common Area Charge")
for the Premises the following sum, due and payable in advance on the first day
of each and every month:
First sixty months Base Rent Per Month: $ 9,845.91
Estimated Common Area
Charge Per Month: $ 1,342.40
Total Per Month: $11,188.32
Said Common Area Charge represents an estimate of Lessee's proportionate
share of the real property taxes, liability and hazard insurance premiums, a
market rate management fee to Lessor, landscaping maintenance, parking lot and
sidewalk maintenance and cleaning, signage, lighting, electricity, maintenance
fees and utility services. Therefore, said Common Area Charge ("C.A.M.") is
subject to adjustment at the end of each calendar year when the actual cost of
the above-referenced items is known. As additional minimal guaranteed rental due
hereunder, Lessee shall pay to the Lessor Lessee's pro rata share (as defined in
the later paragraphs dealing with taxes and insurance) of any of Lessor's
hazard,
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casualty or liability insurance premiums which fall due after the earlier of:
Lessee's occupancy or the completion of the improvements to be constructed upon
the Premises by Lessor for Lessee's occupancy. This shall be payable to Lessor
within thirty (30) days after Lessor sends Lessee a statement for such pro rata
share. Lessor agrees to provide reasonable documentation establishing the amount
of C.A.M. charges.
Lessor advises Lessee that Lessee's proportionate share of the Shopping
Center based on the above-stated square footage is Eleven and 41/100s percent
(11.41%).
In addition, Lessee agrees to pay the other amounts required to discharge
its obligations under the succeeding conditions and provisions of this Lease.
Automated Teller Machines ("ATMs"). The Lessor consents to the placement of
an ATM at the sites indicated on Exhibit "D" at Lessee's cost. However, the
Lessee acknowledges that such consent is specifically limited by the rights of
the existing tenant known as Pier One to restrict the placement of ATMs in the
main (upper level) parking area of the Shopping Center. The Lessor agrees to
cooperate and support the Lessee's efforts to obtain the consent of Pier One and
the Metropolitan Government of Nashville Davidson County, Tennessee for such the
establishment of the said ATMs as indicated on said Exhibit "D". The dimensions
of the ATMs acceptable to the Lessor are indicated on said Exhibit "D".
Free-Standing or Other Drive-Through Teller Windows. The Lessor will
support the Lessee's efforts to locate a free-standing or other drive-through
teller position(s) in the Shopping Center at Lessee's cost. However, the Lessee
acknowledges that such consent is specifically limited by the rights of the
existing tenant known as Pier One to restrict the placement of such
drive-throughs in the main (upper level) parking area of the Shopping Center.
The Lessor agrees to cooperate and support the Lessee's efforts to obtain the
consent of Pier One and the Metropolitan Government of Nashville Davidson
County, Tennessee for such the establishment of the said position(s) as
reasonably requested from time to time. Any such construction or positions shall
be subject to Lessor's prior approval as to location, size, design, and so
forth, all of which shall be reasonable and consistent with the general design
and appearance of the Shopping Center. Such drive-through space shall be the
basis for additional rent at a market rate and other charges (consistent with
this Agreement).
Alarms, Etc. The Lessee is hereby granted permission to install such alarm
systems as are typical in the banking industry and/or as are required by law,
rule or regulation.
Vaults, Etc. The Lessee is hereby granted permission to install such vaults
as are typical for this type of branch in the banking industry and/or as are
required by law, rule or regulation. Lessor has received a copy of the
specifications of the vaults to be used by the Lessee. Lessee is to determine
that the same may safely be used in the space.
Wiring, Etc. The Lessee is hereby granted permission to install such wiring
and plumbing as may be required to prepare and maintain the space for the
permitted uses.
Article 3. Use and Occupancy. Lessee will maintain regular business hours,
as follows: No set hours. It is a condition hereto that the Lessee be granted a
use and occupancy (and any comparable) permit without undue expense.
Lessee will use the Premises for the sole purpose of: Banking and financial
services and for no other purpose unless written consent of Lessor is first
obtained. Lessor may withhold such consent in its reasonable discretion.
Further, Lessee shall not conduct within the Premises any fire, auction or
bankruptcy sales or operate within the Premises a "wholesale" or "factory
outlet" store, a cooperative store, a "second hand" store, a "surplus" store, or
a store commonly referred to as a "discount house." Lessee shall not permit any
objectionable or unpleasant odors to emanate from the Premises, nor place or
permit any signage, radio, television, loud-speaker or amplifier on the roof or
outside the Premises or where the same can be seen or heard from outside the
building or in the Common Area, nor place an antenna, awning or other projection
on the exterior of the Premises (except a small satellite dish placed on the
roof of the Shopping Center so that it is unobtrusive); nor solicit business or
distribute leaflets or other advertising material in the Common Area; nor take
any other action which in the exclusive judgment of Lessor would constitute a
nuisance or would disturb or endanger other tenants of the Shopping Center or
unreasonably interfere with their use of their respective Premises, in or do
anything whicl1 would tend to injure the reputation of the Shopping Center.
Lessee at all times shall keep said Premises in a neat and orderly condition and
keep the entry ways and sidewalks and delivery areas adjoining the demised
Premises clean and free from rubbish and dirt. (The Lessor shall take reasonable
steps to remove snow and ice). Lessee shall take reasonable steps to keep the
Premises clean and free of rodents, bugs and vermin and at the request of Lessor
participate and cooperate in carrying out any reasonable program of
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extermination that Lessor may direct, and Lessee shall bear the cost thereof.
Lessee shall not use or permit the use of any portion of said Premises as
sleeping or living quarters or as lodging rooms or keep or harbor therein any
live animals, fish, or birds, or use the same for any illegal purpose. Lessee
shall not permit, allow or cause the sinks, toilets, or urinals in the Premises
to be used for any purpose except that for which they were designed and
installed. The expense of repairing any breakage, or damage or removal of any
stoppage thereof, as a result of improper use shall be paid for by Lessee.
Lessee agrees to permit no waste of the property but on the contrary take good
care of same.
Article 4. Signs. Lessee shall have the right to have signage over Lessee's
storefront at locations, sizes and designs that are reasonably approved in
writing by Lessor. Lessee shall pay for such signage. (See Exhibit "E" "Signage
Criteria"). Periodic promotionals that include sidewalk and parking lot displays
and obstructions shall require written approval in its reasonable discretion.
Lessee agrees at all times thereafter during the term hereof, to promptly repair
and at all times maintain in good condition such signs as are approved in
writing by lessor. The Lessor consents to signs on all locations (three sides
of the building and the "tombstone" sign at the entrance) designated on the
attached Exhibit "D" as well as reasonable window and door signs hung inside the
Premises. The Lessee's exterior signs shall be consistent with the current
appearance of the existing "▇▇▇▇'▇ Nook" signs and no larger than such existing
signs. In addition, it shall be the Lessee's obligation to obtain appropriate
municipal approval of the signs. The Lessor will provide reasonable assistance
and support in obtaining such approvals so long as the Lessee bears all expense
therefor.
Article 5. Sales Tax on Rents. In the event any sales, use or other
nonincome tax be levied upon the Base Rent paid by Lessee reserved in this Lease
by the State of Tennessee, the City of Nashville or Davidson County, or any
other governmental entity having jurisdiction, all such taxes attributable
thereto shall be paid by Lessee in addition to its obligations hereunder.
Article 6. Utilities. Lessee shall pay for utilities rendered or furnished
to the Premises during the term of this Lease, including gas, electricity,
telephone service and water and sewer services. All utilities, except water and
sewer services, shall be separately metered. In the case of water and sewer
services, Lessee shall pay his pro rata share of water and sewer services as a
part of C.A.M. charges in accordance with Article 2 herein. Lessor shall not be
liable for any interruption whatsoever in utility services not furnished by
Lessor, nor for interruptions in utility services furnished by Lessor which are
due to fire, accident, strike, acts of God, or other causes beyond the control
of Lessor or in order to make alterations, repairs or improvements unless such
interruption is due to the negligence or willful misconduct of Lessor, its
employees, agents or contractors. In the event that a tenant other than the
Lessee uses substantially more water on a consistent basis than the Lessee, the
charges to the Lessee shall be reasonably adjusted downward in the reasonable
discretion of the Lessor.
Article 7. Repairs by Lessor. Lessor agrees to maintain in good condition
the roof, exterior walls, gutters, sprinkler system (if any), parking areas and
hallways and sidewalks which make up the "common areas" outlined in blue in
Exhibit "B". The term "exterior walls" shall not include glass windows, entrance
doors, service doors or other glass inserts or panels (or window and door
frames, openers and closers). In the event said glass windows, entrance doors,
service doors or other glass inserts or panels (or window and door frames,
openers and closers) are broken, destroyed or must be replaced for any reason
except for the negligence or the willful misconduct of the Lessor, its
employees, agents or contractors in which case the expense shall be borne by
Lessor. The same shall be done at Lessee's expense and in like kind (or as
nearly like kind as can reasonably be obtained by either Lessor or Lessee) as
existed before. Lessor gives to Lessee exclusive control of the Premises and
shall be under no obligation to inspect the Premises. Lessee shall at once
report in writing to Lessor any defective condition actually known to Lessee
which Lessor is required to repair, and failure to so report such defect shall
make Lessee responsible to Lessor for any liability incurred by Lessor by reason
of such defect to the extent that Lessee's delay caused such liability. Lessee
agrees to give Lessor immediate written notice if known to Lessee of any fire or
other casualty in the Premises, or the building of part. Notwithstanding the
foregoing, Lessor shall not be liable for any damage caused by the sprinkler
system or any water leakage, including, but not limited to, damage to Lessee's
merchandise, unless due to the negligence or willful misconduct of Lessee, its
employees, agents or contractors or if such damage occurs after written notice
to Lessor raising specific concerns about such sprinkler(s), water pipe(s),
and/or any other such matters. Any funds spent by Lessor on maintenance will be
charged back on a pro rata basis to Lessee on its common area maintenance.
Lessor shall not be liable for any latent defect in the demised Premises or in
the building of which they form a part except for a period of one (1) year from
the date Lessee takes possession of the demised Premises. All property of Lessee
kept or stored on the demised Premises shall be so kept or stored at the risk of
Lessee only and Lessee shall hold Lessor harmless from any and all claims
arising out of damage to same, including subrogation claims by Lessee's
insurance carriers unless due to the negligence or willful misconduct of Lessee,
its employees, agents, or contractors.
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Article 8. Repairs bY Lessee. Lessee shall make all repairs and carry out
all maintenance, other than that set forth in Article 7 above, upon the Premises
during the term of this Lease, at Lessee's expense, but subject only to Lessor's
prior written approval. This obligation shall include maintenance, repair and/or
replacement of all glass windows, entrance doors, service doors and other glass
paneling or inserts in the walls of said building; maintenance, which approval
shall not be unreasonably withheld. Lessee is responsible for repair and
replacement of heating and cooling systems, plumbing, wiring and their
components. Lessor agrees to transfer to Lessee on the date of the commencement
of this Lease any manufacturer's warranties which Lessor may have relating to
Premises.
Article 9. Lessee Improvements, Advertising, Decor and Signs. Lessee may
make such alterations and improvements to the interior of the Premises, as may
be proper and necessary for the conduct of Lessee's business and for the full
beneficial use of the Premises; provided, however, Lessee shall obtain Lessor's
prior written consent and approval, and provided Lessee shall pay all costs and
expenses thereof and make such alterations, changes and Improvements in a good
and workmanlike manner. Without limiting the foregoing, Lessor's right of
approval shall specifically include the right to approve Lessee's decor, window
dressing(s) and signs, either permanent or temporary, for which Lessee hereby
completely and fully indemnifies Lessor against any mechanic's lien or other
lien or claims in connection with the making of any alterations, changes and
improvements. Lessor does not consent to any such lien.
Lessee shall indemnify and hold Lessor harmless for all loss or damages
growing out, or as a result, of any Lessee improvements, including installation
of fixtures and the vault.
Except as otherwise provided, all signs, furnishings, trade fixtures and
other removable equipment installed in the Premises by Lessee and paid for by
Lessee, shall remain the property of Lessee and shall be removed by Lessee upon
termination of this Lease, provided that (a) any of such as are affixed to the
Premises and require severance may be removed only if Lessee shall repair any
damage caused by such removal, and (b) Lessee shall have fully performed all of
the covenants and agreements required to be performed by Lessee under the
provisions of this Lease in all material respects. Lessor's cost of removal,
and/or storage plus 10 percent, shall be immediately payable by Lessee.
Article 1O. Compliance with Laws and Regulations. Lessee shall comply with
all existing and future laws and regulations affecting the Lessee's use of the
Premises which have been or which may be adopted, passed or issued by any
government or governmental authority, such compliance to be at Lessee's expense.
However, Lessee shall have the right, at its expense to contest the validity or
applicability of any such order or regulation. Lessee shall provide Lessor with
a cash or other bond reasonably satisfactory to Lessor during the period of such
contest, and for a reasonable period thereafter. Further, if such changed or new
laws, rules and regulations materially impair the ability of the Lessee to use
the space without, in Lessee's good faith judgment, undue expense or cost, then
the Lessee may terminate this Lease on six months' prior written notice and upon
the payment of rent, C.A.M. and other applicable charges for six months
accompanied by the prompt evacuation of the space by Lessee.
Article 11. Taxes. Lessee shall pay any taxes or charges assessed against
the Leased Premises and its contents and/or Lessee's proportionate share
("Lessee's Share") of all taxes, assessments or levies of every kind or
character, general or special, whicl1 may be assessed or imposed upon the
Shopping Center by any taxing authority or governmental authority with power to
tax. Lessee's share shall be the percentage created by the leased square footage
of the Premises as shown on page one hereof to the total leasable square footage
of the Shopping Center. Said amount is included in the Common Area Charge and is
payable in accordance with the provisions of, and subject to adjustment as
provided in, Article 2 hereof. All income taxes payable primarily by Lessor,
direct and indirect, are excluded from this provision and shall be the sole
obligation of the Lessor or other responsible taxpayer.
Article 12. Insurance. Lessor shall keep the replacement cost of buildings
and other improvements located upon Lessor's portion of the Shopping Center
insured against loss or damage by fire and extended coverage. Lessee shall pay
Lessee's share of any and all premiums or other charges made for such insurance.
Lessee's share shall be the percentage created by the leased square footage of
the Premises as shown on page one hereof to the total leasable square footage of
the Shopping Center. Said amount is included in the Common Area Charge and is
payable in accordance with the provisions of, and subject to adjustment as
provided in, Article 2 hereof. Lessee shall not keep anything within the
Premises for any purpose which increases the insurance premium cost or
invalidates any insuring Center or the Premises. Lessee shall pay, in addition
to its other obligations hereunder, upon demand of Lessor, any such increased
premium cost due to Lessee's use or occupation of the Premises. Lessor agrees
that
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Lessee's stated use of the Premises as set forth on page 1 hereof will not, in
and of itself, be the basis for any such increased premium costs. Lessee agrees
to maintain insurance upon all of Lessee's improvements including fixtures and
furnishings as well as Lessee's inventory and merchandise in an amount to be
determined by Lessee.
Article 13. Description of Lessee's Public LiabilitY Insurance. Lessee
shall indemnify Lessor and save it harmless from and against any and all claims,
actions, damages, liability and expense (including court cost and attorneys
fees) in connection with loss of life, personal injury and/or damage to property
arising from or out of any occurrence inside the demised Premises, or the
occupancy or use by Lessee of the demised or any part thereof, or occasioned
wholly or in part by any act or omission of Lessee, its agents, contractors,
employees, servants, Lessees or concessionaires. In the case Lessor shall be
made a party to any litigation commenced by or against Lessee, then Lessee shall
protect and hold Lessor harmless and shall pay all costs, expenses and
reasonable attorneys' fees incurred or paid by Lessor in connection with such
litigation. Lessee shall also pay all costs, expenses and reasonable attorneys'
fees that may be incurred or paid by Lessor in enforcing the covenants and
agreements in this Lease against Lessee if Lessor is the party in any such
action. For these purposes, Lessee shall, at its expense, procure liability
insurance issued by a company or companies reasonably acceptable to Lessor,
giving comprehensive coverage of the Premises for all hazards as are normally
insurable for which the Lessor might be held liable, such insurance to have a
limit of ONE MILLION ($1,000,000.00) DOLLARS for each occurrence for public
liability and at least TWENTY-FIVE THOUSAND ($25,000.00) DOLLARS for property
damage for each occurrence. The policy or policies shall be written so as to
indemnify and protect both the Lessor and the Lessee, as their respective
interests may appear, and shall provide that they may not be canceled except
upon not less than ten (10) days' prior written notice to Lessor and Lessee.
Lessee will furnish Lessor, at all times, with an exact copy of all policies
purchased in compliance with this Article. The amounts of insurance specified
herein shall be adjusted upward, if required at the date hereof by the terms of
the existing deed of trust in favor of the existing mortgagee of record in the
Register's Office of Davidson County, Tennessee ("RODC"), at Book 9990, page 29
(the "Deed of Trust").
Article 14. Waiver of Subrogation. Lessor and Lessee agree, provided such
agreement does not invalidate or prejudice any policy of insurance, or
materially increase the cost thereof, that, in the event the Premises or the
fixtures or merchandise therein are damaged or destroyed by fire or other
casualty that is covered by insurance of Lessor or Lessee, the rights, if any,
of any party against the other, or against the employees, agents or licensees of
any party, with respect to any loss resulting therefrom, including public
liability and property liability damage and/or the interruption of the business
of any of the parties, are hereby waived of the extent of the coverage of such
insurance. Lessor and Lessee agree, further, that all policies of fire, extended
coverage, business interruption and other insurance covering the Premises or the
contents, fixtures and improvements therein, shall, if obtainable, contain a
clause or endorsement providing in substance that the insurance shall not be
prejudiced if the assureds have waived right of recovery from any person or
persons prior to the date and time of loss or damage, if any.
Article 15. Damage or Destruction to the Premises. In the event that the
Premises are totally destroyed or so damaged by fire or other casualty that the
same cannot be repaired or restored, in the opinion of Lessor, within three (3)
months from the date of such occurrence, this Lease shall absolutely cease and
terminate, and all rent and other charges shall ▇▇▇▇▇ as of the date of such
damage or destruction for the balance of the term.
If the damage caused as above be only partial and/or such that the Premises
can be restored, in Lessor's opinion, to its then condition within three (3)
months, then the Lessor shall restore the Premises with reasonable promptness,
having the right to enter upon the premises for that purpose whenever necessary,
even though the effect of such entry may be to render the Premises untenantable.
During the period after any destruction or damage, rent shall be apportioned, if
Lessee, in its option is able to operate its business, or suspended during the
time which Lessee in its option is unable to operate its business at all at this
Premises. Notwithstanding anything contained in this Article, Lessor shall not
be required to restore the Premises if the cost of such restoration exceeds the
extent of insurance proceeds available, and in this event, Lessor may at its
option, terminate this Lease, upon thirty (30) days' notice to Lessee. Pursuant
to this Article, Lessor shall have (30) days after any destruction or damage in
which to notify Lessee of its intent.
Article 16. Assignment and Subletting. Lessee shall have no right to assign
this Lease nor to sublet the Premises, without the prior consent in writing of
Lessor, nor shall this Lease nor the Leasehold interest described herein ever be
assignable or transferable by operation of any applicable state or federal law,
or by reason of assignment or subletting of all or part of the Leased Premises
shall automatically result in a termination of the Lessee's interest in this
Lease as of the day immediately preceding such assignment or subletting, at the
option of Lessor. However, the Lessee is hereby authorized to sublet or
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license space to a "Bean Central" or "Joe's Coffee" venture led by ▇▇▇ ▇▇▇▇▇▇▇▇▇
and to one or more financial services providers such as securities brokers and
others deemed closely related to banking by banking regulators. A corporate
merger or reorganization shall not constitute an assignment or subletting.
In the event of the transfer and assignment by Lessor of its interest in
this Lease and in the building containing the Premises to a person expressly
assuming Lessor's obligations under this Lease, and provided that such a
conveyance does not operate as a fraudulent conveyance as to the Lessee (and
Lessee being granted standing to contest the same as a fraudulent conveyance in
accordance with law), Lessor shall thereby be released from any further
obligations hereunder, and Lessee agrees to look solely to such successor in
interest of the Lessor for performance of such obligations.
Article 17. Eminent Domain. In the event of the taking of at least twenty
(20%) percent of the total land area of the Shopping Center or any portion of
the Premises by eminent domain or as the result of any law, order, regulation or
ordinance or any government or governmental agency, neither party shall be
liable to the other in any respect on account thereof, and such taking shall not
constitute an eviction. In the event of any such taking, with rent abatement as
of this date of such taking, Lessor may terminate this Lease, at its option, by
notice in writing duly given within thirty (30) days following the effective
date of the taking. If Lessor elects to so terminate this Lease, Lessor shall be
entitled to receive and retain the entire proceeds paid in the taking, including
any amounts paid for the land and Premises taken, as well as any amounts paid on
account of the diminution in value of the leasehold estate. Lessee shall be
entitled to receive and retain only such amounts as may be paid on account of
its moving expenses of its movable fixtures to a location within fifteen (15)
miles of the Shopping Center. If, on the other hand, Lessor does not elect to
terminate this Lease on account of such taking, then Lessor shall apply so much
of the condemnation award as may be necessary in order to restore the Shopping
Center to a condition comparable to its condition immediately prior to taking
and the Premises to a condition as originally delivered to Lessee. Further, in
the event Lessor does not elect to terminate this Lease, the rent and all other
charges shall be reduced in proportion to the reduction in the square footage of
the Premises and all common areas. If by reason of any taking, Lessee in its
opinion is unable to reasonably conduct its business, this Lease shall
terminate.
Article 18. Lessor Services. Lessor agrees to provide, as Lessor deems
necessary, (a) reasonable sweeping and janitor service for the common areas, (b)
trash and garbage service (c) proper lighting for the parking and mall area of
the Shopping Center, (d) maintenance of the landscaping, and (e) the keeping of
sidewalks and parking area reasonably clear of ice and snow. All charges for the
foregoing services (including a reasonable supervisory and/or management fee to
Lessor or to a management company) will be prorated between the various tenants,
including Lessee, of the Shopping Center and paid in accordance with and subject
to adjustment as provided in Article 2 hereof. If Lessor should determine, in
its reasonable discretion that Lessee, or any of Lessee's contractors, agents,
employees or invitees, is responsible for more than Lessee's share of the said
cost, then Lessor may charge Lessee an reasonable extra charge for the
additional cost allocable to Lessee's responsibility.
Article 19. Sidewalks, Parking Area and Common Areas. Lessee shall neither
encumber nor obstruct the sidewalks, parking area or other common areas
adjoining the Premises, nor allow the same to be obstructed or encumbered in any
manner by its employees, agents or contractors, Lessee shall not place, or cause
to be placed, any merchandise, vending machine or anything on the sidewalk,
parking area or ether common areas.
The parking area shall be reserved for the exclusive use of the customers
of Lessee and the customers of other tenants of the Shopping Center. Lessee
shall direct its employees to park in the parking garage during the hours prior
to sunset. At all other times when the Shopping Center is open, Lessee's
employees shall park in the middle of the parking areas shown on Exhibit A in
hours after sunset. Anything herein to the contrary notwithstanding, Lessee
shall be permitted to park up to two (2) delivery vehicles on a temporary,
short-term basis in front of the Premises during business hours. After business
hours, such delivery vehicles may be parked in front of the Premises.
"Temporary" shall mean temporary parking of up to no more than thirty (30)
minutes per delivery or loading. The Lessor at his sole cost and expense shall
grade and pave the parking area, together with the sidewalks, driveways and
service area, and shall provide and maintain proper and adequate water drainage
and provide and maintain an adequate and suitable lighting system for said
parking lot.
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Parking, Etc. The parking area shall not be disturbed without Lessee's
consent. Lessor agrees not to use or permit the use of the common area for any
purpose other than parking and passage of vehicles and the movement of
pedestrian traffic, lighting, landscaping, directional and traffic control
signals. The Lessor will not construct, locate or allow construction or location
of any fence, barricade, structure, buildings or other construction which would
interfere with the visibility and/or with the intended uses thereof.
The Lessee agrees to pay, within thirty (30) days of receipt of notice from
the Lessor, Lessee's share (as defined above) of costs incurred by the Lessor in
maintenance, and repair and replacement of the parking and other common areas of
the Shopping Center. Said fees shall encompass, without limitation, all costs of
maintaining lighting, cleaning, snow removal, landscaping, the repair of
sidewalks, pavement and curbs, and providing adequate drainage, as may be
necessary to maintain the Premises in adequate condition and good repair.
Patching and repaving the parking lot, repairing the curbing, and restriping the
parking lot in the ordinary course of maintaining the Shopping Center shall be
considered a part of the C.A.M. Lessee is not and shall not become responsible
for Lessor's remodeling, construction, reconstruction or other comparable
building in the Shopping Center unless Lessee requests or approves the same in
writing.
Article 20. Estoppel Certificate. Lessee, upon Lessor's reasonable request,
shall certify in writing that Lessor is not in default under the terms of this
Lease, and that the same is unmodified and in full force and effect (or if there
have been modifications, that the same is in full force and effect as so
modified) or if there has been a default by Lessor, specifying the default. The
exact date of commencement, current rent, current term and other lease
particulars shall also be certified by Lessee.
Article 21. Default. Upon the happening of any one or more of the events of
default set out below in paragraphs (a) through (c) inclusive, Lessor shall have
the right, at Lessor's option, to terminate this Lease, provided that Lessor
shall give to the Lessee fifteen (15) days' written notice in the case of
default as set out in paragraph (d) below (no notice being required in case of
default as set out in paragraphs (a), (b), (c) below), such notice to be sent,
in either event, by certified mail, return receipt requested, to the Lessee (it
being stipulated that the failure of Lessor to give notice after default shall
not constitute a waiver of Lessor's right upon any subsequent default); and at
any time after the expiration of such notice period, or immediately upon the
occurrence of a default as set out in paragraphs (a), (b), and (c) below, to
reenter and relet the Premises or parts or parcels thereof, and such reentry
and/or reletting shall not discharge Lessee from any liability or obligation
hereunder, except that net rents collected from others as a result of such
reletting shall be a credit on the Lessee's liability for rents payable under
the terms of this Lease as provided hereinabove and Lessor shall be required to
mitigate its damages.
(a) If Lessee should fail to pay any installment within fifteen (15) days
of the due date thereof;
(b) If Lessee or any guarantor is adjudged a bankrupt or a Receiver or
Trustee be appointed for the Lessee's or any guarantor's property, or any other
execution or legal process is levied upon all or substantially all of the
property and effects of the Lessee or any other guarantor located upon the
Premises, which adjudication, appointment or execution be not set aside or
discharged of record, as the case may be, within forty-five (45) days; subject
only to the rights of the Federal Deposit Insurance Corporation (its successors
and assigns) to affirm and to reject leases in accordance with federal law);
(c) In the event the Lessee or any guarantor makes a general assignment for
the benefit of its creditors or files a petition for a reorganization, or an
arrangement, under the appropriate provisions of the National Bankruptcy Act, or
any other act substantially similar thereto;
(d) In the event the Lessor delivers possession of the premises to the
Lessee to open for business and/or fixturing, and if Lessee fails to open for
business on a regular basis within sixty (60) days from the date Lessor delivers
the unencumbered possession of the Premises to Lessee; or
(e) If Lessee would assign or sublet its interest herein without Lessor's
written consent, as prohibited in Article 16, hereof; or if Lessee should cease
doing business (as specifically authorized hereunder) upon the Premises for a
period in excess of thirty (30) continuous days; or
(f) In the event Lessee violates any of the terms, covenants and conditions
of this Lease other than those mentioned in (a) through (c) above, in any
material respect and such default is not cured by the Lessee within fifteen (15)
days after the giving of written notice thereof to the Lessee by certified mail,
return receipt requested, at the Leased Premises, or if the Lessee fails to
proceed promptly, after such notice, to procure the curing of such default with
all due diligence (it being agreed that, in connection with
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a default not reasonably susceptible of being cured within fifteen (15) days,
the time of the Lessee within which to cure the same shall be extended for such
additional period as may be reasonably necessary to complete the same); then, in
any of such cases, the Lessor may give to the Lessee notice of election to end
the term hereof, which notice shall likewise be given by certified mail, return
receipt requested, at the Leased Premises, and the term of this Lease shall
expire upon the mailing of such notice.
Nothing herein, however, shall be construed to require the Lessor to
reenter and relet in any such event or events, nor shall anything herein be
construed to postpone the right of Lessor to ▇▇▇ for rent, whether past due or
whether matured by acceleration or otherwise; provided, however, that the Lessee
shall have the right, within the period of any notice above provided, to cure
any default or defaults, and if such default is cured by Lessee within such
period, dating from the mailing of said certified letter, the Lessor shall not
have the right to proceed with forfeiture or reentry.
Failure to give any of the notices above provided shall not constitute a
waiver of any right as to any different or subsequent breach. Time is of the
essence of Lessee's obligations hereunder. All of the above Events of Default
are bargained for and go to the consideration given for the granting of this
Lease by the Lessor. While some or all of such material Events of Default may
result in a forfeiture or a so-called unconscionable loss to the Lessee as a
result of any such default, the parties expressly agree that such material
Events of Default may result in a forfeiture and/or unconscionable loss to the
Lessee thereunder.
If Lessee should not pay its rent or any additional rents or other charges
due the Lessor hereunder, when the same are due, and if such non-payment should
continue for ten (10) days thereafter, then Lessee shall pay Lessor, as
additional rent, a sum equal to 5% of the unpaid rent (or additional rents or
the charges), computed from the due date thereof, regardless of whether Lessee
is entitled to written notice of any defaults hereunder. Further, if this Lease
grants Lessee any option to extend the term hereof, such option may be extended
only and is expressly conditioned upon Lessee not being in payment or other
material default hereunder and/or Lessee not paying any rent, additional rent or
other charges later than within the time allowed for payment thereof.
Article 22. Further Rights of Lessor Upon Default. If this Lease shall be
for any reason terminated for a violation of its terms by Lessee, as above
provided, then the Lessor shall have the right forthwith to reenter the
Premises, by legal process or otherwise (without any liability for trespass or
damage to the Premises), and to remove all their effects not previously removed
by them, to alter all locks and other security devices at the Premises, and to
hold said Premises as if this Lease had not been made, in addition to the other
rights secured by this Lease to Lessor, or secured to Lessor by the law
applicable hereto. Lessee hereby expressly waives any service of notice to
proceed hereunder, except as expressly provided in Article 21, and waives notice
of the proposed institution of legal proceedings to secure the rights of Lessor
hereunder. In the event of termination of this Lease by reason of violation of
its terms by the Lessee, in addition to any other remedies Lessor may have,
Lessor shall be entitled to prove, claim for and obtain judgment against Lessee
for the balance of the rent agreed to be paid for the term herein provided, plus
all expenses of Lessor in regaining possession of the Premises (including
removal of all improvements and trade fixtures and, under appropriate
supervision for removal thereof, inventory) and the reletting, remodeling, and
improving for a new lessee, including reasonable attorneys' fees and court
costs, crediting against such claim, however, any amount obtained by reason of
any such reletting, remodeling, and improving for a new lessee. Anything
contained in this Lease to the contrary notwithstanding, Lessor may, at its
option, exhaust any one or more of the rights and remedies granted hereunder in
addition to all rights and remedies that Lessor may have at law or equity,
either concurrently or independently, and in such order as it may determine, and
no act of Lessor shall be construed as an election to proceed under any one
provision contained herein to the exclusion of any others or as an election of
remedies to the bar of any other remedy allowed at law or in equity. Lessee's
banking and financial services records that are covered by the Tennessee Bank
Privacy Act may be removed by the Lessee at any time, however, even after
default, termination, or other such condition. No term of this Lease is intended
or designed as an authorization to violate any of the Lessee's software
licenses. Further, Lessee may remove at any time any collateral pledged by
customer of the Bank, the contents of any safe deposit boxes, and any property
beneficially held for one or more of the Bank's customers.
Article 23. Exculpation of Lessor from Personal Liability Under Lease.
Lessee shall look solely to the then interest of Lessor in the premises, or
of any successor in interest to Lessor, as owner of said premises, for the
satisfaction of any remedy of Lessee for failure to perform any of Lessor's
obligations under this Lease, express or implied, or under any law or for any
condition of the Premises or the Shopping Center. Neither Lessor nor any
disclosed or undisclosed principal of Lessor (or officer, director, stockholder,
partner or agent of Lessor or of any such principal),
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nor any successor of any of them, shall have any personal liability for any such
failure under this Lease or otherwise. The provisions of this article shall not
apply to any sum which shall be paid or payable to or on behalf of Lessor or any
party claiming through Lessor if such payment shall be based on an event (which
had previously occurred) whicl1 shall give rise to a duty on Lessor's part to
repair, restore or replace any part of the demised premises, including any
structures thereon. The provisions of this article shall apply only to Lessor
and the parties above-described. They shall not be for the benefit of any
insurance company nor any third party.
Article 24. Surrender of Possession. Lessee agrees to surrender peaceable
and quiet possession of the Premises to the Lessor upon the expiration or
termination of this Lease for any reason, and at any time, in good order and
condition, ordinary wear and tear excepted. If Lessee holds over, Lessee shall
be a Lessee at will of Lessor, and such holdover shall not create a new term.
Article 25. Covenant of Peaceful Possession. Lessor agrees, under the
terms of this Lease, to keep Lessee in quiet and peaceable, uninterrupted
possession of the Premises, subject and subordinate to Lessee's material
compliance with all of the terms, covenants and conditions of this Lease.
Article 26. No Liens. In its use of the Premises and in the performance of
its duties to maintain and finish the same, if applicable, Lessee will not,
under any circumstances, suffer or permit any lien to attach to the Premises, or
any portion thereof. Anything herein to the contrary notwithstanding, Lessor
does not consent to any work or materials for improvements to be performed on
the Premises without Lessor's prior written consent and approval. If a lien
attributable to the Lessee is filed, the Lessee shall have five days to post a
bond to remove the same.
Article 27. Notices. Unless otherwise provided elsewhere in this Lease, any
notice required or permitted to be made by either party under the terms of this
Lease shall be given in writing and shall be forwarded by certified mail,
first-class postage prepaid or by FedEx (shipping charges prepaid). Notices to
the Lessor shall, unless the Lessor otherwise advises the Lessee in writing
strictly under the Notice provision hereof, be addressed to Lessor at the
address shown on the signature page. Initially, the Lessee requests that notices
be sent to the Lessee at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention: President.
Notices to the Lessee shall, unless the Lessee otherwise advises the Lessor
in writing strictly under the Notice provision hereof, be addressed to Lessee at
the Leased Premises.
In the event this Lease contains an option to extend, it must be exercised
in writing at least 120 days prior to the termination of the then-existing term.
Notices shall be deemed to have been given when said certified mail is
deposited in any United States Post Office which accepts certified mail
first-class postage prepaid.
Article 28. Subordination and Attornment. This Article is subject to
paragraph 15 of the Deed of Trust. At such time as Lessor and any first
mortgagee or proposed first mortgagee of the Premises in writing request the
same, the Lessee agrees to subject and subordinate its interest herein to the
lien of any deed of trust (which term shall include all security instruments) of
the demised Premises made by the Lessor, or the Shopping Center made by Lessor,
subject to the following: so long as Lessee shall faithfully discharge the
obligations on its part to be kept, this Lease shall not be affected by any
default under such deed of trust, and in the event of foreclosure or enforcement
by any such deed of trust, the rights to mortgagee, Lessee shall attorn to such
mortgagee, its successors and assigns, and this Lease shall in all respects
continue in full force and effect, provided, however, that Lessee fully performs
all of its obligations hereunder, and provided further that Lessee shall not
have prepaid any rent, except as the same become due under the terms of this
Lease. Lessor will use its best efforts to cause its first mortgagee and any
other mortgagee whose interest is superior to that of this Lease to enter into
appropriate subordination and attornment agreements with the Lessee to protect
this Lease in the event of a default by the Lessor under such mortgagee(s).
Except as otherwise provided herein, Lessee agrees that except in an
emergency it will not exercise any right herein arising out of Lessor's breach
of any agreement herein contained or institute any judicial or other proceedings
as a consequence thereof, except after giving notice to any first mortgagee of
the demised Premises the name and address of which has been furnished in writing
to Lessee and affording such mortgagee reasonable opportunity to cure such
breach. Lessee agrees that Lessee will not terminate the Lease, or make any
expenditures hereunder as a result of Lessor's failure to perform obligations
imposed upon him by the Lease until Lessee has given Lessor's mortgagee, or the
assigns or successors in interest of such mortgagee: (1) notice of Lessor's
failure to perform; and (2) a reasonable
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time, without allowance for events beyond mortgagee's control, to undertake
performance of such obligations by mortgagee. Provided that, however, all such
obligations that can be performed within sixty (60) days, shall be performed
within sixty (60) days after notice is given to said mortgagee or mortgagee's
assigns or successors in interest, and after such sixty (60) day period if such
obligations have not been performed, then Lessee may avail itself of remedies
provided for elsewhere in this Lease.
Article 29. Memorandum of Lease. A Memorandum of Lease describing the
Premises, giving the term of this Lease and referring to this Lease, may be
prepared and recorded upon request of either party.
Article 30. Applicable Law. The laws of the State of Tennessee shall govern
the validity, performance and enforcement of this Lease and any provision of
this Lease which is contrary to a law which the parties cannot legally waive or
contract against, is and shall be void and not binding on any party hereby;
provided, however, that the invalidity or unenforceability of any provision of
this Lease shall not affect or impair any other provisions.
Article 31. Captions. The headings of the Articles contained herein are for
the convenience only of the parties and do not define, limit or construe the
contents of such Articles.
Article 32. Construction of Terms. The words "Lessor" and "Lessee" as used
herein shall include the Lessor and the Lessee and their respective heirs,
executors, administrators, legal representatives, and successors, together with
any permitted assigns of the parties hereto, and all those holding under either
of them. The pronouns used herein shall include, when appropriate, either gender
and both singular and plural.
Unless the context clearly denotes to the contrary, the word "rent" or
"rental" as used in this Lease not only includes cash rental, but also all other
payments and obligations to pay assumed by Lessee, whether such obligations to
pay run to the Lessor or other parties.
Article 33. Cross Easement. Lessee agrees that it will abide by and not
violate any existing Cross Easement Agreements and Maintenance Agreements
reflected on Exhibit "B" (including that recorded at Book 9990, page 5, RODC
(the "Recorded Cross Easement"), as to which Lessee is hereby granted the right
to enforce the Lessor's rights in the same if the Lessor declines to enforce the
same within a reasonable time after written notice) and agrees to abide by and
not violate the same. Lessor agrees that all such amendments shall be reasonable
and not adversely and materially affect the rights of the Lessee hereunder. In
accordance with paragraph 8 of the Recorded Cross Easement, the Lessor (as owner
of the Shopping Center) grants to the Lessee (as a tenant) and its subtenants
the privileges and benefits of the easements, rights and privileges of the
Recorded Cross Easement for the duration of the Lessee's tenancy (including
renewals covered by this Lease). The Lessor will not consent to any cross
easements or other encumbrances, or to any changes in existing cross-easements,
that do, or are likely, to adversely and materially affect the Lessee.
Article 34. Miscellaneous.
(1) Any amendment to this Lease must be in writing and signed by Lessor and
Lessee.
(2) Time is of the essence of this Agreement.
(3) No act or thing done by Lessor or his agent during the term hereby
granted shall be deemed an acceptance of a surrender of the demised Premises,
and no agreement to accept a surrender of said demised Premises shall be valid
unless the same be made in writing and subscribed by Lessor. The provisions in
this Lease of any particular remedy shall not preclude Lessor from any other
remedy Lessor might have, either in law or in equity, nor shall the waiver of or
redress for any violation of any covenant or condition in this Lease contained
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of any original violation. In case it
should be necessary or proper for Lessor to bring any action under this Lease or
to place said Lease, for any amount payable by Lessee thereunder, with an
attorney concerning or for the enforcement of any of Lessor's rights hereunder,
then Lessee agrees in each and any such case to pay to Lessor a reasonable
attorney's fee. All past due rent shall bear interest at the rate of ten percent
(10%) per annum from the eleventh day after the due date until paid. The receipt
by Lessor of rent with knowledge of the default of any covenant in this Lease
contained, shall not be deemed a waiver of such default as to future defaults.
The failure of the Lessor to enforce any of the rules and regulations set forth
herein, against the Lessee and/or any other Lessee in the building shall not be
deemed a waiver of such rules and regulations as to future breaches. The
receipt by Lessor of rent from any assignee, underlessee or occupant of said
Premises shall not be
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deemed a waiver of the covenants in this Lease contained, against assignment,
and sub-letting or an acceptance of the assignee, sub-lessee or occupant as
Lessee or a release of Lessee from the further observance or performance by
Lessee of the covenants in this Lease contained, on the part of the Lessee to be
observed and performed. No provision of this Lease shall be deemed to have been
waived by Lessor or Lessee unless such waiver is in writing signed by the
parties hereto.
(4) Inspection of and Access to Premises. Lessee agrees to permit the
Lessor, his agents and employees, at all reasonable times to enter the demised
Premises or any part thereof for the purpose of inspection, repairs, maintenance
or repairs to Lessor's adjoining property, and, during the last four (4) months
of this Lease or any renewals thereof, to allow Lessor to post upon the exterior
of the Premises the usual notices advertising the Premises "for Lease." However,
Lessor acknowledges that there may be reasonable limitations placed upon any
inspection or repair due to security concerns related to the fact that the
Lessee is a commercial bank which, among other items, has a stock of cash and
other instruments that must be safeguarded at all times.
Lessor may post upon the exterior of the Premises and/or in the common
areas usual notices advertising the Premises "For Sale" at any time so long as
such signs do not adversely affect the Premises or the Lessee's business. Such
signs shall not be overly obtrusive or impact the Lessee in any materially
adverse fashion.
Lessee further agrees to permit Lessor to install and maintain in the
demised Premises all pipes for water, drainage, gas heating, fixtures and
electric wiring and all other appliances and mechanical equipment and systems
necessary for the operation of the demised Premises, and Lessor shall have
access to the Premises at any time in case of any emergency for the purpose of
examining same and for making such repairs or changes in the equipment and
systems referred to above as Lessor may deem necessary. However, Lessor
acknowledges that there may be reasonable limitations placed upon any inspection
or repair due to security concerns related to the fact that the Lessee is a
commercial bank that, among other items, has a stock of cash and other
instruments that must be safeguarded at all times.
Severability. Invalidation of any one of the covenants or restrictions by
judgment or court order shall in no way affect any other provisions whicl1 shall
remain in full force and effect.
If any provision of the Lease, or any section, sentence, clause, phrase,
work, or the application thereof in any circumstance, is held invalid, the
validity of the remainder of this Lease and of the application of any other
circumstances shall not be affected thereby and the remainder of this Lease
shall be construed as if such invalid part was never included therein.
Past-Due Rent, Etc. The past due rent in the amount of $20,657.69 of the
▇▇▇▇'▇ Nook, Inc. must be paid at the execution hereof and acceptance of such
rent shall constitute the Lessor's agreement (and consideration for such
agreement) to terminate such lease. However, such existing tenant must consent
to this Lease by agreeing in a written instrument that it consents hereto and to
the termination of the current lease. In addition, such existing tenant will be
authorized to erect at his expense on the exterior wall of his area of the
Shopping Center (facing the main parking lot adjacent to Hillsboro Road) a
reasonable sign with the name of such business.
Lessee must receive regulatory approval before this Lease is binding on the
Lessee. Lessee agrees to use its reasonable best efforts to obtain this consent
and represents that it has filed its branch application and given public notice
in order to obtain such approval. The Lessor may terminate this Lease if such
approval is not obtained by the Lessee prior to September 30, 1996.
It is a condition to the Lessee's obligations hereunder that the Premises
are properly zoned for Lessee's intended use as a full-service commercial
banking branch office.
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Exclusion of Certain CAM Charges - Tenant's proportionate share of CAM
charges shall not include:
- Separate outparcels;
- Office buildings;
- Undeveloped land or future phases; and/or
- Additional parking or land arising out of destruction of The Glendale
Shopping Center buildings or condemnation of same.
Future Expansion. The Lessee shall have the right of first refusal to
expand or to move into additional contiguous space within the Shopping Center as
space becomes available, whicl1 right of first refusal shall be a continuing
one.
Exclusive. Lessor agrees not to lease any space in The Glendale Shopping
Center to any other tenant which is engaged in the sale or provision of
financial services, or permit any of their electronic banking or other remote
facilities (including, without limitation, ATMs other than those of The Bank of
Nashville). As used in this paragraph, "financial services" means, whether done
directly or indirectly, any lending or loan origination business, any trust
business, any check cashing or pawn broking business, and/or any business
engaged as a primary part of its business in making loans and/or taking deposits
including, without limitation, any bank, savings bank, savings association,
thrift, and/or credit union. In addition to the foregoing, the Lessor agrees not
to lease any space in the Shopping Center to any insurance agency or insurance
brokerage business or to any business that provides investment services or
investment advice without the prior written consent of the Lessee, which consent
the Lessee shall not withhold unreasonably.
The Lessee will he given the name of reasonable repair and maintenance
services to contact for repairs and maintenance, particularly for use after
hours and in emergencies. In the event that an item for which the Lessor is
responsible must be repaired repeatedly in such a fashion that it must
reasonably be concluded that it should be replaced or subjected to a major
overhaul, then the Lessor will upon written request by Lessee replace the same
or perform such major overhaul.
Lessee Signage. The Lessor agrees to allow a reasonable "The Bank of
Nashville Coming Soon" sign on this site. Lessee acknowledges that it must
obtain appropriate local governmental approvals for all signage as a condition
to placing such signage into use.
Any permissions herein which relate to signage or the like are subject to
conditions in the cross easement of Pier One and municipal approvals, and any
limitations included expressly in the Recorded Cross Easement.
Article 35. Force Majeure. Lessor shall not be held responsible for and is
expressly relieved from all liability by reason of any injury, loss or damage to
any person or property in or about the demised Premises or the Shopping Center,
however caused, whether the loss, injury or damage be to the personal property
of the Lessee or any other person, except damage caused by the failure of the
Lessor to perform hereunder within a reasonable time after written notice of
default received from Lessee. This provision shall apply especially (but not
exclusively) to damage caused by water, snow, frost, steam, sewage, illuminating
glass, sewer gas, or odors, or by the bursting or leaking of pipes of plumbing
or neglect or willful misconduct of other Lessees, occupants or janitors of
Lessor, or of any other person, or by act of God, casualty, or earthquake, or
earth settlement and/or subsidence, or foundation collapse, or whether such
damage be caused or occasioned by anything above-mentioned or referred to, or by
any other thing or circumstances, whether of a like nature, or of a wholly
different nature. If any such damage shall be caused by the acts of neglect or
willful misconduct of the Lessee, Lessor may, at his option, repair such damage,
whether caused to the surrounding structures or the Lessee thereof, of such
damage both to the building and to the Lessees thereof, of such damage both to
the building and to the tenants thereof, the Lessee further agrees that all
personal property upon the demised premises shall be a the risk of the Lessee
only and that the Lessor shall not be liable for any damage thereto or theft
thereof. Nor shall the Lessor be liable for delays in delivery of or
interruptions of possession, or for the stoppage or interruption of water,
light, heat, air conditioning, janitor service, caused by riot, strike,
accident, the making of repairs, the failure to make repairs, or any cause over
which the Lessor has no control. Any failure, delay or default shall not be
construed or considered as an actual or constructive eviction or the Lessee nor
shall it in any way operate to release the Lessee from the performance of each
and all of the other covenants herein contained by the Lessee to be performed.
Notwithstanding anything else to the contrary, Lessor shall be liable for the
negligence or willful misconduct of Lessor and its employees, agents and
contractors.
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However, interruption of any material service that the Lessor agrees herein to
provide in any material respect for a period of thirty (30) consecutive days
after written notice from the Lessee, and where Lessor has not commenced
corrective action, shall entitle the Lessee either to obtain (at Lessor's
expense) such service elsewhere or (2) to terminate this Lease upon ten (10)
days notice.
Article 36. Options to Renew. Upon giving 120 days notice to Lessor as to
each option period, the Lessee retains three (3) options to renew for three (3)
additional periods of sixty (60) months with all terms and conditions of this
lease remaining the same with the exception of rent. The new base rent for the
first option period will be $10,830.50 per month plus CAM pass-throughs as
outlined in this lease. The second option period base rent will be $11,913.55
per month plus CAM pass-througl1s as outlined in this lease. The base rent for
the third option period will be a market rate for the Premises as reasonably
determined by the parties through negotiation plus CAM pass-throughs as
outlined in this lease. A 120 day notice will be required for the each of the
second and third renewal periods.
SIGNATURES
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS LEASE AGREEMENT ON
AUGUST 15, 1996, TO BE EFFECTIVE AUGUST 1, 1996.
LESSOR:
▇▇▇▇▇▇▇ PARTNERS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, for the Joint Venture
By:
-----------------------------------------
LESSEE:
THE BANK OF NASHVILLE
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., President and CEO
NOTARIES
STATE OF TENNESSEE )
COUNTY OF DAVIDSON )
Before me, the undersigned, a Notary Public in and for said County and
State, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, with whom I am personally
acquainted (or proved to me on the basis of satisfactory evidence) and who, upon
oath, acknowledged himself to be a JOINT VENTURER IN THE JOINT VENTURE KNOWN AS
▇▇▇▇▇▇▇ PARTNERS, the within named bargainor, a Tennessee joint venture, and
that he as such Joint Venturer, being authorized
13
16
to do so, executed the foregoing instrument for the purpose therein contained,
by signing the name of the Joint Venture by himself as such Joint Venturer.
Witness my hand and seal, at office in Nashville, Tennessee, this 14th day
of August, 1996.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Notary Public
My Commission Expires: June 23, 1998.
STATE OF TENNESSEE )
COUNTY OF DAVIDSON )
Before me, ▇▇▇▇ ▇. ▇▇▇▇▇▇ of the state and county aforesaid, personally
appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., with who I am personally acquainted, or proved
to me on the basis of satisfactory evidence and who, upon oath, acknowledged
himself to be President (or other officer authorized to execute the instrument)
of THE BANK OF NASHVILLE, the within name bargainor, a Tennessee Banking
Corporation and that he as such PRESIDENT executed the foregoing instrument for
the purpose therein contained, by signing the name of the corporation by himself
as PRESIDENT.
Witness my hand and seal, at office in Nashville, Tennessee, this 15th day
of August, 1996.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Notary Public
My Commision Expires: My Commission Expires May 24, 1997
----------------------------------
14
17
CASHIERS CHECK
20265
REMITTER The Bank of Nashville Aug. 15, 1996 87-388/640
___________________________ _____________
PAY TO THE ▇▇▇▇▇▇▇ Partners** $ 11,188.32**
ORDER OF________________________________________________________________________
-THE BANK-
OF NASHVILLE 11,188dol's 32 cts
________________________________________________________________________DOLLARS
[THE BANK OF NASHVILLE LOGO]
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ ________________________________
00020265 :064003881: 0000019
CASHIERS CHECK
20266
REMITTER The Bank of Nashville Aug. 15, 1996 87-388/640
___________________________ ____________
PAY TO THE ▇▇▇▇▇▇▇ Partners** $20,657.69**
ORDER OF________________________________________________________________________
-THE BANK-
OF NASHVILLE 20,657 dol'S 69 cts
________________________________________________________________________DOLLARS
[THE BANK OF NASHVILLE LOGO]
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________________
00020266 :064003881: 0000019
18
SUBLEASE OF COMMERCIAL SPACE
BY AND BETWEEN
THE BANK OF NASHVILLE
(AS SUBLESSOR)
AND
JOE'S COFFEE, LLC
(AS SUBLESSEE)
EFFECTIVE AUGUST 1, 1996 THROUGH JULY 31, 2001
THE GLENDALE SHOPPING CENTER
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
19
TABLE OF CONTENTS
Article 1 The Lease............................................................. 1
Article 2 Demised Premises, Etc. ............................................... 1
Article 2.1 Demised Premises............................................ 1
Article 2.2 Initial Term ............................................... 1
Article 2.3 Options to Renew............................................ 1
Article 2.4 Relocations. ............................................... 2
Article 2.5 Termination ................................................ 2
Article 3 Base Rent, Secured Indebtedness, and Security Interest, Etc........... 2
Article 4 Other Primary Lease Obligations; Indemnity to Sublessor............... 2
Article 5 Primacy of Primary Lease ............................................. 3
Article 6 Attempted Holdovers, Etc ............................................. 3
Article 7 Services and Utilities, Etc .......................................... 3
Article 8 Prior Lease, Termination Payment, Etc................................. 3
Article 9 Permitted Use, Prohibited Use, Etc.................................... 3
Article 10 Certain Regulations, Etc ............................................ 3
Article 11 ..................................................................... 4
Article 12 Buildout Expenses.................................................... 4
Article 13 Background of this Sublease, Etc .................................... 4
Article 14 No Waste, Nuisance, or Illegal Use, Etc.............................. 4
Article 15 Alterations, Additions, and Improvements, Etc........................ 4
Article 16 Liens, Etc .......................................................... 4
Article 17 Signs, Etc .......................................................... 5
Article 18 Access for Inspection and Repairs; Security, Etc .................... 5
Article 19 Sublessee Repairs and Maintenance ................................... 5
Article 20 Public Liability Insurance. ......................................... 5
Article 21 Damage or Destruction, Etc. ......................................... 5
Article 22 Eminent Domain Proceedings (Condemnation)............................ 5
Article 23 Waiver of One Breach Not Waiver of Others. .......................... 6
Article 24 Default by Sublessee................................................. 6
Article 24.2 Time to Cure . ............................................ 8
Article 24.3 Remedies .................................................. 8
ii
20
TABLE OF CONTENTS (Cont'd)
Article 24.4 Responsibility of the Sublessor for Property
or Collateral in Possession ............................... 8
Article 24.5 Application of Proceeds from Sale of Collateral............ 9
Article 24.6 Power of Attorney ......................................... 9
Article 25 Default by Lessor or Sublessor. ..................................... 9
Article 26 Termination and Reentry, Etc......................................... 9
Article 27 "For Rent," "For Lease," or "For Sale" Signs. ....................... 9
Article 28 Surrender of Premises and Keys at Termination........................ 10
Article 29 Disposition of Assets, Etc. ......................................... 10
Article 30 Notices.............................................................. 10
Article 31 Binding Effect, Conditions Precedent, Etc............................ 10
Article 32 No Assignment or other Sublease...................................... 10
Article 33 General Terms and Provisions......................................... 10
Article 33.1 Notices .......................... ........................ 10
Article 33.2 Deviation from Agreements or Covenants;
Amendments; Course of Dealing; Waivers .................... 11
Article 33.3 Survival of Agreements, Invalidity, Etc ................... 11
Article 33.5 Renewal, Extension, or Rearrangement ...................... 11
Article 33.6 Cumulative Rights and Remedies . . ........................ 11
Article 33.7 Construction .............................................. 11
Article 33.8 Time of Essence ........................................... 11
Article 33.9 Nature of Commitment . .................................... 11
Article 33.10 Disclosures .............................................. 12
Article 33.11 Indemnification .......................................... 12
Article 33.12 Titles of Articles, Sections and Subsections.............. 12
Article 33.13 Counterparts ............................................. 12
Article 33.14 Exhibits and Appendices .................................. 12
Article 33.15 Computations ............................................. 12
Article 33.16 Sublessor's Discretion or Judgment........................ 12
Article 33.17 Jurisdiction and Venue.................................... 13
Article 33.18 No Third Party Beneficiary................................ 13
Article 33.19 Mutual Release............................................ 13
Article 33.20 Costs, Expenses and Taxes................................. 13
Article 33.21 Representations and Warranties of Sublease................ 13
Article 33.22 Access, Gates Etc......................................... 13
iii
21
This Instrument Prepared By:
▇▇▇▇▇▇ ▇. Small
Attorney at Law
Suite 250, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SUBLEASE OF COMMERCIAL SPACE
THIS SUBLEASE OF COMMERCIAL SPACE ("Sublease") is entered into by and
between THE BANK OF NASHVILLE, a Tennessee banking corporation, whose business
address is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ of Tennessee (the
"Sublessor"), and JOE'S COFFEE, LLC, a Tennessee limited liability company whose
business address is ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ of
Tennessee 37203 (the "Sublessee").
WITNESSETH:
Article 1 The Lease. Sublessor represents that it entered into a lease with
▇▇▇▇▇▇▇ Partners (the "Lessor") dated August 15, 1996, providing for an initial
term of sixty (60) calendar months commencing August 1, 1996 and ending August
1, 2001 (as amended or otherwise changed, supplemented and/or replaced, the
"Primary Lease"), a copy of certain portions of which is attached hereto as
EXHIBIT "A" and incorporated herein by reference. As used herein, the
"Commencement Date" is five (5) days after the date that the Sublessee obtains
possession of the space (the "Leased Space") pursuant to the Primary Lease.
The Leased Space is located in the Glendale Shopping Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Shopping Center") where The ▇▇▇▇'▇ Nook, Inc.
is currently located (the "▇▇▇▇'▇ Nook Space"). As evidenced by its signature
below, the ▇▇▇▇'▇ Nook, Inc. consents to the Primary Lease and to this Sublease.
Article 2 Demised Premises, Etc.
Article 2.1 Demised Premises. Sublessor leases to Sublessee and Sublessee
leases from Sublessor, for the purpose of operating a coffee shop, approximately
seven hundred fifty (750) square feet of space, which space is outlined in red
on EXHIBIT "B" (said space hereinafter referred to as the "Premises"), located
in the Shopping Center more particularly described on EXHIBIT "C". Common areas
shall be available to Sublessee during the Sublessee's regular business hours as
established from time to time.
Article 2.2 Initial Term. The initial term of this Sublease shall be for
the period commencing August 1, 1996 and ending July 31, 2001. However, the
Sublease shall terminate immediately upon the termination, expiration, or
surrender of the Primary Lease. The Sublessee shall be entitled to take
possession of the Premises only after the Sublessor has taken possession of its
space in the Shopping Center (as defined herein).
Article 2.3 Options to Renew. Subject to the other provisions hereof, the
Sublessee shall have three (3) options to renew. Each option shall be for five
(5) years and subject to the terms and provisions of the Primary Lease, as
amended from time to time, and of this Sublease, as amended from time to time.
The Sublessee may not exercise any option to renew unless:
(a) There is no default under this Sublease;
(b) The Sublessee gives at least 90 days prior written notice to the
Sublessor prior to the end of the then current term stating that the
Sublessee intends to exercise its option to renew the Sublease. No
such notice shall be effective if given more than 180 days prior to
the end of such then current term;
(c) There is mutual agreement on rentals and other payments. It is
expressly agreed that neither party shall be required to agree to any
rental, C.A.M., or other charge that is not satisfactory to it; and
(d) The Sublessor determines to exercise its option to renew, and actually
does renew and extend, the Primary Lease.
22
Article 2.4 Relocations. The Sublessor may relocate and/or expand within
the Shopping Center or be relocated within the Shopping Center on one or more
occasions. In such event(s), the Sublessee hereby agrees to have its Premises
relocated by the Sublessor. Such new area shall then become the "Premises." The
Sublessor shall pay the reasonable costs of such relocation and for the buildout
of the new "Premises." The Sublessor shall not be liable for loss of business
related to such relocation. The Sublessee shall continue to be responsible for
the costs of the Initial Buildout covered elsewhere in this Sublease.
Article 2.5 Termination. At the option of the Sublessor, the initial term
shall expire, among other reasons, if there is a foreclosure of the real
property on which the Premises are located or for any other termination of the
Primary Lease by the Lessor.
Article 3 Base Rent, Secured Indebtedness, and Security Interest, Etc. The
Sublessee shall pay a rental (herein "Base Rent") of Ninety-Three Thousand Seven
Hundred Fifty Dollars ($93,750.00) in sixty (60) equal monthly installments.
This equals approximately Twenty-Five Dollars ($25.00) per square foot per year
for the space. Each installment of the Base Rent for the Premises shall be paid
on or before the first calendar day of each month during the term hereof (pro
rated for any partial months based on the actual number of days in such month).
The rentals and all other amounts due hereunder are sometimes referred to herein
as the "Secured Indebtedness". All amount due hereunder, if not sooner paid,
shall be due and payable at the same time as the last monthly rental payment.
This includes the costs of the Initial Buildout, utilities, and all other
charges in addition to rentals.
The Sublessee grants to the Sublessor a first lien on and a first priority
security interest in all of the Collateral to secure the payment of the rentals
and all other Secured Indebtedness. As used herein, the "Collateral" is all of
Sublessee's inventory, equipment, accounts, accounts receivable, chattel paper,
leasehold interests, fixtures, leases (including this Sublease), contracts,
contract rights, copyrights and trademarks (and all other intellectual
property), general intangibles and all other intangibles related to the
operation of Sublessee at the Premises. Such collateral shall not be removed
unless sold, replaced, or discarded in the ordinary course of business and shall
not be permitted to be transferred to another location to avoid this security
interest.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Guarantor") shall guaranty the payment and performance of
the Sublessee hereunder, including all rentals, buildouts, and all other costs.
However, his liability for rentals is subject to reduction as follows: For each
month during the term hereof that the Sublessee timely and fully pays and
performs its monthly rental installment and all other amounts and duties due
under this Sublease, the Guarantor's liability for rental installments shall
decrease by that month plus one additional month. Accordingly, by way of example
only, if the Sublessee timely and fully pays the first ten months of rental
installments, then the Guarantor's liability for rental installments shall be
deemed to have decreased by twenty rental installments (out of the 60
installments scheduled hereunder). Again, by way of example only, if the
Sublessee timely and fully pays the first thirty months of rental installments,
then the Guarantor's liability for rental installments shall be deemed to have
decreased by sixty rental installments (out of the 60 installments scheduled
hereunder) and, as to that term, the Guarantor shall have no further liability
for rental installments as a result of this guaranty. (On the other hand, there
shall be no reduction related to any month(s) when amounts and duties owed
hereunder are not fully and timely paid and performed.) This process shall be
reinstated as to any option terms. The Guarantor shall be fully liable for all
rentals related to any holdover periods.
Article 4 Other Primary Lease Obligations; Indemnity to Sublessor.
Sublessee agrees to perform and observe the covenants, conditions, and terms of
the Primary Lease on the part of the Sublessor (and any other lessee thereunder)
to be performed and observed, except the covenant for the payment of rent (and
all other charges including, without limitation, C.A.M. charges) reserved in the
Primary Lease, and to indemnify Sublessor on demand from and against all claims,
damages, and expenses arising out of nonperformance or nonobservance of such
covenants, conditions, and terms. Such compliance is enforceable by both the
Sublessor and the Primary Lessor (▇▇▇▇▇▇▇ Partners, its successor and permitted
assigns).
2
23
Article 5 Primacy of Primary Lease. Sublessee agrees that the terms of the
Primary Lease govern over and supersede any conflicting terms, and supplement
any other terms, of this Sublease (other than as to rentals). The Sublessee
agrees that it shall neither have nor claim any rights superior to those of the
Sublessor contained in the Primary Lease and that this Sublease is subject and
subordinate to the Primary Lease in all respects.
Article 6 Attempted Holdovers, Etc. Sublessee shall NOT holdover in the
Premises after the termination or expiration of this Sublease or after the
expiration, termination, or surrender of the Primary Lease. Any holdover at the
expiration or termination of this Sublease with Sublessor's prior written
consent shall be on a week-to-week basis, which tenancy may then be terminated
as provided by the laws of the State of Tennessee. During any such expressly
permitted holdover tenancy, Sublessee agrees to pay monthly to Sublessor an
amount equal to 150% of the last monthly installment of the Base Rent (and all
other charges) as in effect at the time of such termination or expiration and
agrees to be bound by the terms of this Sublease insofar as they are applicable.
Article 7 Services and Utilitie, Etc. At no additional expense to Sublessee
other than amounts actually charged to or paid by the Sublessor that are
specifically attributable to the Sublessee's coffee shop business, the Sublessee
shall receive as a part of the rental consideration the water, electrical, and
gas services and utilities as set forth in the Primary Lease, with the exception
of the following utility services which Sublessee shall provide at its own
expense: telephone, maintenance, janitorial, pest control, and related types of
services, and insurance. Sublessee shall keep the bathrooms spotless clean and
shall assure the attractiveness and cleanliness of the other common areas as
they are affected by Sublessee's business. (Said another way, Sublessee shall
keep the bathrooms spotless and clean up its own messes.) Sublessee shall pay
twenty-five percent (25%) of the cost of pest control.
Article 8 Prior Lease, Termination Payment, Etc. The Sublessee hereby
agrees that effective August 1, 1996, the Sublessor shall be entitled to lease
from the Lessor the space in the Shopping Center currently known as the ▇▇▇▇'▇
Nook's Space. The execution of this instrument shall be deemed to be the
termination of the Sublessee's interest in the ▇▇▇▇'▇ Nook Space. The ▇▇▇▇'▇
Nook, Inc. executes this Sublease to reflect its consent to such termination and
to evidence a reaffirmation of its agreement to pay all amounts due and payable
under its lease with ▇▇▇▇▇▇▇ Partners and to pay all amounts owed to The Bank of
Nashville. The ▇▇▇▇'▇ Nook is not insolvent and will not be rendered insolvent
by virtue of the termination of its lease in the shopping center or the other
transactions provided for herein.
Article 9 Permitted Use, Prohibited Use, Etc. The subleased Premises are to
be used solely for the "Permitted Use" described herein, and for no other use,
and for no other purpose without first obtaining the written consent of the
Sublessor (which consent can be withheld by the Sublessor in its sole and
exclusive discretion). As used herein, the term "Permitted Use" shall mean the
operation at retail of a coffee shop combined with a cyber cafe. In no event
shall the Sublessee do, permit, or suffer as a part of its business or
operations anything that casts or portrays the Sublessor in a negative manner,
that knowingly advances the operations of a competitor financial institution (or
corporate affiliate thereof), or that brings scandal or condemnation on the
Sublessee, the Sublessor, the Lessor, the Premises, or any affiliated person.
Article 10 Certain Regulations, Etc. The following apply to the Sublessee's
operations in the Premises:
The following apply to the Sublessee's operations in the Premises:
Sublessee shall immediately clean up the Premises and assure that it
remains at all times clean and attractive for the use of its customers and the
customers of the Sublessor. The Sublessee shall direct its employees to promptly
remedy any problems specified by the Sublessor's employees or agents. The
Sublessee shall operate within rules and regulations reasonably promulgated by
the Sublessor including, without limitation, those attached hereto.
3
24
Throughout the term of the Sublease, Sublessee shall continuously conduct
in the Premises, with a full stock of inventory and full staff of personnel, the
Permitted Use during reasonable business hours.
Article 11 Right to Construct Wall; Termination by Sublessee. Sublessor
reserves the right to erect at any time during the term hereof a wall or other
barrier between the spaces occupied by the Sublessee and Sublessor, including
the common areas other than the bathroom(s). Sublessee waives any rights it may
have for loss of business or other damages resulting from such construction.
However, on or before 180 days after the date that construction of any such wall
is completed the Sublessee may give notice of termination of this Sublease and
may cease making payments for any unpaid amounts of the rentals and buildouts on
the 61st day after sending such notice. Sublessor shall not be responsible for
any damages or costs incurred by Sublessee as a result of such construction by
Sublessor or termination by Sublessee. If the Sublessee terminates the Sublease
because of such wall, the Sublessor shall retain all fixtures, equipment and
inventory in the Premises for its own uses.
Article 12 Buildout Expenses. The Sublessor will initially fund all
mutually agreed buildout cost(s) in connection with this Sublease of the
Premises (the "Initial Buildout"). The Sublessor will control and perform the
Initial Buildout. The Initial Buildout will be constructed as reasonably
requested by Sublessee, but the costs for the Initial Buildouts to be funded by
the Sublessor shall not exceed $25,000 in the aggregate. The Sublessee will be
responsible for reimbursing the Sublessor for the cost(s) of the Initial
Buildout funded by the Sublessor, by paying in equal monthly installments, in
addition to the rent, an amount sufficient to repay the buildout cost(s) over
the five (5) year term of this Sublease.
Article 13 Background of this Sublease, Etc. The subleased Premises are
presently used by The ▇▇▇▇'▇ Nook, Inc., which has negotiated with the Sublessor
to have the Sublessor take over its space and, thus, free The ▇▇▇▇'▇ Nook, Inc.
from its obligations under the said lease. The Sublessor has paid The ▇▇▇▇'▇
Nook, Inc. a substantial sum for the right to lease such space and for its
termination. By their signatures below, ▇▇▇ ▇▇▇▇▇▇▇▇▇ and Joe's Coffee, LLC
acknowledge and agree that they are not being required by The Bank of Nashville
to sublet any portion of the space but have negotiated at arm's length with The
Bank of Nashville and The ▇▇▇▇'▇ Nook, Inc. to obtain such rights.
Article 14 No Waste, Nuisance, or Illegal Use, Etc. Sublessee shall not
commit waste on the Premises demised, nor maintain, commit, or permit the
maintenance or commission of a nuisance on the Premises, or use such Premises
for an unlawful purpose. Sublessee shall conform to all applicable laws and
ordinances respecting the use and occupancy of the space sublet here relating to
matters not covered elsewhere in this instrument, provided that it shall not be
required to make alterations, additions, or improvements to such Premises in
order to conform with such laws and ordinances.
Article 15 Alterations, Additions, and Improvements, Etc. Sublessee shall
not make alterations, additions, or improvements on the Premises without first
obtaining the written consent of Sublessor. All alterations, additions, and
improvements that shall be made shall be at Sublessee's expense, shall become
Sublessor's property, and shall remain on and be surrendered with the Premises
as a part of the Premises at the termination of this Sublease without
disturbance, molestation, or injury. Nothing contained in this paragraph shall
prevent Sublessee from removing all office machines and equipment and trade
fixtures customarily used in its business. The Sublessor shall have the right to
conduct, oversee, and direct all alterations, improvements, fixturing, and
changes to the Premises at all times.
Article 16 Liens, Etc. Sublessee shall keep the leased Premises free and
clear of liens arising out of any work performed, materials furnished, or
obligations incurred by Sublessee, including mechanics' liens.
4
25
Article 17 Signs. Etc. Sublessor agrees to use its diligent best efforts to
reasonably accommodate the signage needs of the Sublessee on the exterior area
of the Premises facing the parking lot but without impairing or limiting the
Sublessor's signage design and plans in such area. Sublessor shall not be
required to bring suit against any other tenant or against the Lessor to
accommodate the the Sublessee nor shall Sublessor be required to downsize its
own sign plans in this regard. Any expense in accommodating the Sublessee's
requests shall be at Sublessee's cost and subject to the guarantee by ▇▇▇
▇▇▇▇▇▇▇▇▇.
The Sublessor hereby consents to a sign comparable to, and of substantially
the same size and shape as, the "Total Image Salon" sign currently in the
Shopping Center on the face of the building. Said sign shall commence on the
corner adjacent to and to the left of the existing "Cooks Nook" sign, shall be
at a level below the "Cooks Nook" sign but above the level of the arch, shall be
subject to Codes, and shall be at the end of the wall.
Sublessee covenants and agrees that no signs or symbols shall be placed in
the windows or doors of the Premises, or on any exterior part of the building
without the Sublessor's prior written approval, which approval may be withheld
by the Sublessor in the exercise of its discretion and/or if so directed or
requested by the Lessor. Any sign or symbol placed on the exterior of the
building or in the windows or doors of the building so as to be visible from the
street that is not satisfactory to Sublessor, shall be removed promptly upon
request by an employee of the Sublessor.
Article 18 Access for Inspection and Repairs; Security, Etc. Sublessee
shall allow Lessor and Sublessor, and their agents, free access at all
reasonable times to the Premises sublet for the purpose of inspecting or of
making repairs, additions, or alterations to the Premises or any property owned
by or under the control of Lessor or Sublessor. Sublessee acknowledges and
agrees that because the Sublessor is a commercial bank, the issue of security is
paramount. Consequently, the Sublessee shall permit the Sublessor to take all
steps deemed necessary, convenient and/or appropriate to protect its space
and/or the Premises and the Sublessee shall comply with such rules and
regulations as the Lessor and the Sublessor shall establish from time to time.
Certain rules and regulations are attached hereto as EXHIBIT "D" and shall be
complied with by the Sublessee at all times in all material respects.
Article 19 Sublessee Repairs and Maintenance. Subject to the Lessor's
obligations under the Primary Lease, Sublessee shall maintain the subleased
Premises in good repair and tenantable condition during the continuance of this
Sublease, except in case of damage arising from the wilful misconduct of
Sublessor or its agents.
Article 20 Public Liability Insurance. Sublessee agrees to carry liability
insurance insuring Sublessee, Sublessor, and Lessor against all claims for
personal injury or property damage caused by conditions or activities on the
subleased Premises in amounts to be approved by Sublessor, but not less than One
Million Dollars ($1,000,000.00) or such greater amount as may be required by the
Primary Lease and/or as may reasonably be required by the Sublessor and/or
requested by the Lessor.
Article 21 Damage or Destruction, Etc. In the event that the Premises are
rendered untenantable in whole or in substantial part as result of destruction
or damage by fire, acts of war, or acts of God this Lease shall cease, provided,
nevertheless, that the Sublessee shall have the option of rebuilding or
repairing the Premises if Sublessee elects so to do and gives written notice of
such election to rebuild or repair to the Sublessor within sixty (60) days after
such damage or destruction. If Sublessee elects to rebuild or repair the
Premises and does so without unnecessary delay, Sublessor shall be bound by the
terms of this Sublease, except that during the period of repair or rebuilding,
the rent under this Sublease shall be abated in the same proportion as the
portion of the Premises rendered unfit for occupancy by Sublessee shall bear to
the whole of the subleased Premises. Sublessor shall have the right to declare
this Sublease terminated when more than ninety (90) days after the destruction
or damaging of the Premises as shall have elapsed without the Sublessee having
elected to repair or rebuild. Further, if Sublessor gives notice that it
intends to repair or rebuild after such destruction or damage, then this
Sublease shall, at the option of the Sublessor, continue in full force and
effect subject only to the rent abatement specified in this Article. If the
damage or destruction is not caused by the Sublessee (or any of
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its employees, agents, owners, or representatives), and if the damage or
destruction materially and adversely affect the Sublessee's business for a
period of not less than sixty (60) days, then the Sublessee may terminate the
Sublease without obligation for future rentals or for any unpaid costs of
buildout. Such termination releases the Sublessor from the Sublease and
Sublessor shall not be responsible to Sublessee for loss of business or the
costs of relocation.
Article 22 Eminent Domain Proceedings (Condemnation). If the Premises or
any part are condemned for public or semi-public use by eminent domain
proceedings, or if by reason of law, ordinance, regulation or court judgment,
Sublessee's use of the subleased Premises for any of the specific purposes
referred to in this instrument shall be prohibited, Sublessee shall have the
right to terminate this Lease on written notice to Sublessor, and rental shall
be paid only to the time when Sublessee surrenders possession of the Premises.
In the event of condemnation of only part of the subleased Premises, Sublessee
may elect to continue in possession of that part of the Premises not so
appropriated or condemned under the same terms and conditions of this Sublease,
except that in such cases Sublessee shall be entitled to an equitable reduction
of the rental payment. Any rental paid in advance beyond such time shall be
returned by Sublessor to Sublessee on demand. Sublessee does not waive any right
it may have to recover from the condemnation authority for such damage as it may
suffer by reason of such condemnation. If the condemnation materially and
adversely affects the Sublessee's business for a period of not less than sixty
(60) days, then the Sublessee may terminate the Sublease without obligation for
future rentals or for any unpaid costs of buildout. Such termination releases
the Sublessor from the Sublease and Sublessor shall not be responsible to
Sublessee for loss of business or the costs of relocation. Sublessor is not
responsible for damages related to any exercise or the powers of eminent domain
or other condemnation of all or any part of the Premises or the Shopping Center.
Article 23 Waiver of One Breach Not Waiver of Others. Waiver of one breach
of a term, condition, or covenant of this Sublease by either party to this
Sublease shall be limited to the particular instance and shall not be construed
as a waiver of past or future breaches of the same or other terms, conditions,
or covenants. Waivers must be in writing and signed by both the Sublessee and
the Sublessor to be binding on either party.
Article 24 Default by Sublessee.
Article 24.1 Defaults. The following are defaults ("Defaults) under this
Sublease:
Nonpayment. Failure to pay each and every rental installment when due; or
Other Payments. The Sublessee fails for any reason to make payment within
five (5) calendar days of the due date of any installment or ▇▇▇▇ for any other
amounts due hereunder; or
Representations and Warranties. Any representation or warranty made by the
Sublessee in this Sublease and/or in any financial statement presented to the
Sublessor by the Sublessee, ▇▇▇ ▇▇▇▇▇▇▇▇▇, and/or The ▇▇▇▇'▇ Nook, Inc., proves
to have been incorrect in any material respect as of the date thereof; or any
representation, statement (including any financial statements), certificate or
data furnished or made by any of such persons (or any accountant, agent or
attorney thereof) in connection herewith proves to have been untrue in any
material respect, as of the date as of which the facts therein set forth were
stated or certified; or
Covenants; Agreements. Unless subject to another Default provision, the
Sublessee fails to comply with any of the covenants or agreements contained in
this Sublease and such failure or violation continues unremedied or is not
waived for a period of twenty (20) days after the earlier of (i) notice thereof
has been given by the Sublessor to the Sublessee, or (ii) such failure or
violation otherwise has become known to any Person who is a Sublessee; or
Dissolution; Merger. The Sublessee is liquidated or dissolved, or otherwise
terminated, or merges with or into any person or entity; or
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Unauthorized Transfer, Etc. The Sublessee transfers, or seeks or attempts
to transfer, or suffers a transfer, voluntarily or otherwise, any of the
Sublessee's interest in the Premises, this Sublease, or any of its material
assets; or
Unauthorized Lien, Etc. Any lien or encumbrance on all or any part of the
Premises or any of the other Collateral, which lien or encumbrance is not
removed or fully bonded within twenty (20) days after attachment, except for
taxes due but not in default, or for taxes which are being contested in good
faith and for which the Sublessee provides sufficient assurance to the Sublessor
on demand and from time to time that such reserves are adequate; or
Loss of Privilege, Etc. The Sublessee forfeits or in any manner loses any
right to do business in any locality or jurisdiction that has or could have any
impact on the Premises, the construction of the buildout, the construction,
opening, operating, or maintaining the Sublessor's intended coffee shop
business, or any other Materially Adverse Effect; or
Bankruptcy or Receivership Proceedings. A receiver, custodian, liquidator
or trustee of the Sublessee or of any Property of the Sublessee is appointed by
the order or decree of any court or agency or supervisory authority having
jurisdiction, and such decree or order remains in effect for more than sixty
(60) days; or the Sublessee files, threatens to file, or authorizes the filing
of a petition in bankruptcy or for purposes of reorganization or insolvency; or
the Sublessee is adjudicated bankrupt or insolvent; or any of the Property of
the Sublessee is sequestered by court order and such order remains in effect for
more than sixty (60) days; or a petition is filed against the Sublessee under
any state or federal (or other applicable) bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution, liquidation or
receivership law of any jurisdiction, whether now or hereafter in effect, and is
not dismissed within sixty (60) days after such filing; or
Assignments for Benefit of Creditors, Etc. The Sublessee makes an
assignment for the benefit of such Sublessee's creditors, or admits in writing
Sublessee's inability to pay Sublessee's debts generally as they become due, or
consents to the appointment of a receiver, trustee, or liquidator of the
Sublessee of all or any part of the Premises; or
Discontinuance of Business, Etc. The Sublessee discontinues such
Sublessee's coffee shop business or fails to operate the said business
continuously during reasonable business hours during each week during the term
hereof; or fails to operate the business in a clean and reasonable manner under
the circumstances; but the requirement that said business be conducted
continuously shall NOT be satisfied by being "open" on the internet or some
other "virtual" location but must be physically open and staffed in the
Premises; or
Default on Other Debt or Security. Sublessee fails to make any payment due
on any indebtedness or any event shall occur or any condition shall exist in
respect of any indebtedness of the Sublessee or under any agreement securing or
relating to such indebtedness, the effect of which is to cause or to permit any
holder of such indebtedness or other security or a trustee to cause (whether or
not such holder or trustee elects to cause) such indebtedness, or a portion
thereof, to become due prior to its stated maturity or prior to its regularly
scheduled dates of payment and the default exceeds, when aggregated with all
other such defaults, Twenty-Five Thousand Dollars ($25,000.00); or
Undischarged Judgments; Criminal Prosecutions, Etc. If any one or more
judgments (in the aggregate at any one time outstanding) for the payment of
money in excess of Twenty-Five Thousand Dollars ($25,000.00) are rendered by any
court or other governmental body against the Sublessee which is not fully
covered by valid collectible insurance and the Sublessee does not discharge the
same or provide for its discharge in accordance with its terms, or procure a
stay of execution thereof within the applicable appeal period and within said
appeal period following the date of entry thereof or such longer period during
which execution of such judgment shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal while providing such
reserves therefor as may be required under GAAP; or the Sublessee (or any
Directors or executive officer thereof), is indicted for or convicted of any
felony or imprisoned for any reason for more than five (5) days; or
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Materially Adverse Effect. The occurrence of any amendment, termination,
default under, violation of, of any other impairment of any one or more
contracts, materially and adversely affecting the Premises or the Sublessee's
right or ability to engage in its business or owning and operating the coffee
shop as intended at the date hereof; or
Substantial Change in Equity Ownership. Any material adverse change (ten
percent (10%) or more) in the equity ownership accounts of the Sublessee as of
the date hereof; or
Change in Control. The occurrence of a change in the Members, or in the
control of the Sublessee, or in the Sublessor's executive management from the
identity of the ownership and management as in existence at the time of closing;
provided, that this provision shall not be violated or triggered so long as ▇▇▇
▇▇▇▇▇▇▇▇▇ (and, so long as he is married to his present spouse), his wife, own
and control not less than 51% of the voting equity interests in the Sublessee
and control the governing body thereof, subject to no limitation or derogation
(such as, for example, by charter, bylaw, management contract, or operating
agreement) of his (or, with such spouse, their) authority to run the Sublessee
and to make operative and binding decisions for the Sublessee; or
Article 24.2 Time to Cure. Upon the happening of any Default specified in
this Sublease, and except for payment Defaults, and except where a specific time
frame is specified above, the Sublessee shall have thirty (30) days to cure a
default under this Sublease from the date that Sublessor sends notice thereof to
Sublessee.
Article 24.3 Remedies. Upon the happening of any Default specified in this
Sublease, (i) the Sublessor may declare the entire principal amount (or any
part(s) or installment(s) thereof) of all Secured Indebtedness then outstanding
including interest accrued thereon to be immediately due and payable without
presentment, demand, protest, notice of protest or dishonor or other notice of
default of any kind, all of which are hereby expressly waived by the Sublessee,
and/or (ii) terminate this Sublease or (in its discretion, without terminating
this Sublease, change the locks, lock the Sublessee out of the Premises, and on
behalf of the Sublessee for the sole purpose of reletting the Premises, enter
into and secure the Premises, show and relet the same upon terms and conditions
deemed appropriate to the Sublessor without consulting with or obtaining the
permission of the Sublessee. The Sublessee agrees that the occurrence of any
Default shall permit the Sublessor, without any notice to the Sublessee or to
any other Person, to accelerate the due date(s) of installments of rental and
all other parts of the Secured Indebtedness. The Sublessee agrees that no action
or failure to act, and no pursuit of any particular remedy or remedies, shall
constitute a waiver, novation or election of remedies by the Sublessor.
Article 24.4 Responsibility of the Sublessor for Property or Collateral in
Possession. Should all or any part of the Premises and/or the Collateral come
into the possession of the Sublessor, whether before or after a Default, the
Sublessor may use or operate such Premises and other Collateral for the purpose
of preserving it or its value, or pursuant to the order of a court of
appropriate jurisdiction, or in accordance with any other rights held by the
Sublessor in respect of the same. The risk of accidental loss or damage (or of
malicious or other loss or damage not caused intentionally and wilfully by the
Sublessor) to the Premises and/or Collateral is and shall be on the Sublessee
and the Sublessor shall have no liability whatever for failure to obtain or
maintain insurance, nor to determine whether any insurance ever in force is
adequate as to amounts, coverage or as to the risks insured, nor to take any
active steps to protect or to maintain the Collateral, the Premises, or any
other property claimed by the Sublessee or any one else.
Article 24.5 Application of Proceeds from Sale of Collateral. The Sublessor
shall be entitled to apply the proceeds of any sale of all or any part of the
Collateral in the following order: first, to the payment of all of Sublessor's
expenses, including (without limitation) attorneys, receivers, trustees and
other fees and other legal expenses incurred in retaking, holding and preparing
all or any part of the Collateral for sale, in arranging for such sale, and in
actually selling the same; second, toward payment of the balance of the rentals
and/or any other portion of the Secured Indebtedness in such order and manner as
the Sublessor, in its sole discretion, may deem advisable and beneficial to the
Sublessor for the repayment and performance of the Obligations. If the proceeds
from any sale, applied in the manner set forth in this Article, are
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insufficient to pay the Secured Indebtedness in full, the Sublessee shall be
liable for any deficiency and shall pay such deficiency to the Sublessor as soon
as the Sublessor notifies the Sublessee of the amount of such deficiency.
Article 24.6 Power of Attorney. The Sublessee hereby irrevocably appoints
the Sublessor, and its designees, to do and to perform all acts that the
Sublessee itself could do and/or perform, to sign all things that the Sublessee
could have signed or caused to be signed, and to have power and dominion over,
all of the property of the Sublessee in order to do and to discharge all of the
Sublessee's Secured Indebtedness obligations and all other Obligations to the
Sublessor set forth in this Sublease. This appointment is intended to be, and
shall be understood to be, a power coupled with an interest. However, the
Sublessor shall not be required to use this power for any reason and the
Sublessor may at any time in writing reject this power. This power of attorney
shall terminate automatically when the Secured Indebtedness have been fully and
finally paid and performed by the Sublessee. The Sublessor is specifically
authorized to execute on Sublessee's behalf (as "Debtor"), at Sublessee's cost,
one or more financing statements in each State or jurisdiction in which the
Sublessee has an office or address and to charge Sublessee's accounts with the
Sublessor to pay amounts due in connection with any Obligations (including the
Secured Indebtedness).
Article 25 Default by Lessor or Sublessor. If Lessor fails and neglects to
perform the Lease for a period of thirty (30) consecutive days, or if Sublessor
fails to perform the Lease or this Sublease for such a period, Sublessee may, on
reasonable notice in writing of not less than ninety (90) days or such longer
time as may be permitted in the Primary Lease, terminate this Sublease unless
either the Lessor or the Sublessor has commenced curing the problem(s). The
Sublessor is not responsible for defaults caused entirely or in material part by
the Lessor.
Article 26 Termination and Reentry, Etc. If Sublessee abandons or vacates
the Premises or is dispossessed for cause by Sublessor before the termination of
this Sublease, or any renewal of this Sublease, Sublessor may, on giving five
(5) days' written notice to Sublessee, declare this Sublease forfeited and may
then make reasonable efforts to relet the Premises. Sublessee shall be liable to
Sublessor for all damages suffered by reason of such forfeiture. Such damages
shall include, but shall not be limited to, the following: (1) all actual
damages suffered by Sublessor until the property is relet, including reasonable
expenses incurred in attempting to relet; (2) the difference between the rent
received when the property is relet and the rent reserved under this Sublease;
and (3) all other costs, damages, injuries, and related matters that flow or
result from the Sublessee's Default and/or the Sublessor's exercise of any one
or more of its remedies.
Until the Premises have been relet, Sublessee agrees to pay to Sublessor,
on the same days as the rental payments are due under this Sublease, the actual
damages suffered by Sublessor since the last payment, either rent or damages,
was made. After the Premises have been relet, Sublessee agrees to pay to
Sublessor, on the last day of each rental period, the difference between the
rent received for the period from reletting and the rent reserved under or
applicable to this Sublease for that period.
Article 27 "For Rent," "For Lease," or "For Sale" Signs. If Sublessee has
not obtained the consent of the Sublessor to renew the Sublease or to holdover
in the space, Sublessor shall have the right to place and maintain on the
subleased Premises "For Rent," "For Lease," or "For Sale" signs during the last
six (6) months of the term of this Sublease.
Article 28 Surrender of Premises and Keys at Termination. Sublessee agrees
that at the expiration of this Sublease, Sublessee will quit and surrender the
subleased Premises without notice, and will deliver to Sublessor all keys
belonging to the Premises.
Article 29 Disposition of Assets. Etc. All alterations, additions, and
improvements made by Sublessee and/or affixed to the Premises, shall become
Sublessor's property as provided in that Article, and shall be surrendered with
the Premises as a part of the Premises as provided in that Article. Sublessee
may remove all personal property, trade fixtures, and office equipment, whether
attached to the Premises or not, provided that such may be removed without
serious damage to the building or Premises. All holes or damage to the building
or Premises caused by
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removal of such items shall be repaired and restored by Sublessee promptly after
removal of the property. The Sublessee shall be entitled to remove any
electrical service connections installed by it which were designed specifically
for the operation of electronic computing equipment.
Article 30 Notices. Except where otherwise required by statute, all notices
given pursuant to the provisions of this Sublease shall be in writing, addressed
to the party to whom the notice is given, and sent by registered or certified
mail to the last known mailing address of the party. However, notices to
Sublessee may be sent to the address of the subleased Premises.
Article 31 Binding Effect, Conditions Precedent, Etc. The terms,
conditions, and covenants of this Sublease shall inure to and be binding on the
heirs, successors, administrators, executors, and assigns of the parties to this
Sublease, except as otherwise provided. However, this Sublease shall not be
effective for any purpose (except termination of The ▇▇▇▇'▇ Nook, Inc. lease)
unless and until all conditions for the effectiveness of the Primary Lease are
fulfilled and the Sublessor actually becomes the Lessee under the Primary Lease.
Final approval of the Sublessor's branch application for the space in the
Shopping Center, as well as approval of the Primary Lease and this Sublease by
the Tennessee Department of Financial Institutions is expressly made a condition
precedent to the effectiveness of this Sublease but not of the termination of
The ▇▇▇▇'▇ Nook, Inc. lease of space in the Shopping Center.
Article 32 No Assignment or other Sublease. Sublessee shall not sell or
assign this Sublease or any part of this Sublease, or re-sublet the subleased
Premises in whole or in part without first obtaining the written consent of
Sublessor. This Sublease shall not be assigned by operation of law. If Sublessor
and Lessor once give consent to assignment of this Sublease or of any interest,
they shall not be barred from afterwards refusing to consent to any further
assignment. Any attempt to sell, assign, or re-Sublease without written consent
of Sublessor and Lessor shall be deemed sufficient grounds for dispossession and
shall entitle Sublessor to proceed pursuant to the terms of this Sublease if
Sublessor so elects as in the case of a Default.
Article 33 General Terms and Provisions.
Article 33.1 Notices. All communications under or in connection with this
Sublease, the rentals, and any other part of the Secured Indebtedness, shall be
in writing and shall be mailed by first class mail, postage prepaid, or
otherwise sent by telex, telegram, telecopy or other similar form of rapid
transmission confirmed by mailing (in the manner stated above) written
confirmation at substantially the same time as such rapid transmission, or
personally delivered to the receiving party or to a representative thereof. All
such communications shall be mailed, sent or delivered to the parties at their
respective addresses set forth on the signature page(s) hereof. Notices to the
Sublessee will be sent to the attention of the Sublessee at such address; and
notices to the Sublessor shall be sent to the Sublessor's President. Any party
may send notice in accordance with this Article of a new address to be used to
contact such Person.
Any communication so addressed and mailed by registered or certified mail
shall be deemed to be given three (3) Business Days after being so mailed.
Article 33.2 Deviation from Agreements or Covenants; Amendments; Course of
Dealing; Waivers. In order to amend or deviate from the terms of any of this
Sublease, the Sublessee must first obtain the prior written consent of the
Sublessor, which consent may be withheld or granted in the Sublessor's sole
discretion. No amendment(s), modification(s), deviations from agreements or
covenants, or waiver(s) of any provision of this Sublease shall in any event be
effective unless the same shall be in writing and signed by appropriate officers
of the Sublessor and by the Sublessee. No action or course of dealing on the
part of the Sublessor, its officers, employees, consultants or agents, nor any
failure or delay by the Sublessor with respect to exercising any right, power or
privilege of the Sublessor under this Sublease or any other operative document
or instrument shall operate as a waiver thereof, except as expressly provided in
writing in accordance with this Article.
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Article 33.3 Survival of Agreements, Invalidity, Etc. All representations
and warranties of the Sublessee herein, and all covenants and agreements herein
not fully performed before the Closing Date of this Sublease, shall survive such
date. In the event that any one or more of the provisions contained in the Note,
this Sublease shall, for any reason, be held invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Sublease.
Article 33.4 Successors and Assigns, Etc. All covenants and agreements
contained by or on behalf of the Sublessee in this Sublease and any other
operative document or instrument shall bind such Sublessee's successors and
assigns and shall inure to the benefit of the Sublessor and its successors and
assigns. The Sublessee shall not assign or seek to assign, or delegate or seek
to delegate, any of the Sublessee's rights or obligations under this Sublease.
Any assignment not approved by the Sublessor in advance in writing shall be of
no force or effect, and the fact that the Sublessor may receive (knowingly or
otherwise) any payments from any Person other than the Sublessee shall not
constitute a novation, a waiver of this provision, or be treated as the
Sublessor's consent to any attempted assignment.
Article 33.5 Renewal, Extension, or Rearrangement. All provisions of this
Sublease relating to the terms hereof and to the Secured Indebtedness shall
apply with equal force and effect to each and every succeeding sublease and/or
obligation of the Sublessee to the Sublessor, and any matter that may represent
a renewal, extension for any period, increase or rearrangement of any part of
the Secured Indebtedness originally created by this Sublease or of any part of
such Secured Indebtedness. No renewal Sublease or act of renewal shall in any
event release or constitute a novation in respect of this Sublease unless the
Sublessor executes a document specifically stating that the Sublessor intends
there to be a novation and in fact uses the word "novation." The parties
expressly agree that they do not intend, now or in the future, to cause or
permit any implicit or non-express novation or release.
Article 33.6 Cumulative Rights and Remedies. Rights and remedies of the
Sublessor under this Sublease shall be cumulative, and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of that or
any other right or remedy. All remedies provided for in this Sublease for the
Sublessor shall be in addition to all other remedies available to the Sublessor
under the principles of law and equity, and pursuant to any other body of law,
statutory or otherwise.
Article 33.7 Construction. This Sublease constitutes a contract made under
and shall be construed in accordance with and governed by the laws of the State
of Tennessee.
Article 33.8 Time of Essence. Time is of the essence with regard to each
and every provision of this Sublease.
Article 33.9 Nature of Commitment. With respect to the Sublease and the
amounts owed by the Sublessee to the Sublessor, the Sublessor's obligations
under the Sublease shall be deemed to be pursuant to a contract to make a loan
or extend debt financing or financial accommodations to or for the benefit of
the Sublessee within the meaning of the Bankruptcy Act of the United States, 11
U.S.C. section 101 et seq.
Article 33.10 Disclosures. Every reference in this Sublease to disclosures
of the Sublessee to the Sublessor in writing (except the Financial Statements),
to the extent that such references refer or are intended to refer to disclosures
at or prior to the execution of this Sublease, shall be deemed strictly to refer
only to written disclosures delivered to the Sublessor concurrently with the
execution hereof. It is the intention of the parties that such disclosures are
to be limited to those presented in an orderly manner at the time of entering
into this Sublease and are not to be deemed to include expressly or impliedly
any disclosures which may previously have been delivered from time to time to
the Sublessor, except to the extent that such previous disclosures are again
presented to the Sublessor in writing concurrently with the execution hereof.
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Article 33.11 Indemnification. In consideration of the execution and
delivery of this Sublease by the Sublessor, the Sublessee hereby indemnifies,
exonerates the Sublessor and each of the Sublessor's respective officers,
directors, employees, attorneys, and agents (collectively the "Sublessor
Parties" and, individually, a "Sublessor Party") free and harmless from and
against any and all actions, causes of action, suits, losses, costs,
liabilities, damages, and expenses actually incurred in connection therewith
(irrespective of whether such Sublessor Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys fees and
disbursements (the "Indemnified Liabilities"), incurred by the Sublessor Parties
or any of them as a result of, or arising out of, or relating to, or as a direct
or indirect result of any violation of this Sublease and/or any damage related
to the Premises related to the Sublessee's use and/or occupancy thereof, except
for any such Indemnified Liabilities arising for the account of a particular
Sublessor Party solely by reason of such Sublessor Party's willful misconduct or
breach by such Sublessor Party of its obligations under this Sublease, and if
and to the extent that the foregoing undertaking may be unenforceable for any
reason, Sublessee hereby agrees to make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law.
Article 33.12 Titles of Articles, Sections and Subsections. All titles or
headings to articles, sections, subsections or other divisions of this Sublease,
any appendix or appendices, or any exhibit(s) hereto are only for the
convenience of the parties and shall not be construed to have any effect or
meaning with respect to the other content of such articles, sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
Article 33.13 Counterparts. This Sublease may be executed in two or more
counterparts, and it shall not be necessary that the signatures of all parties
hereto be contained on any one counterpart hereof; each counterpart shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
Article 33.14 Exhibits and Appendices. All Exhibits referred to in this
Sublease shall be timely, accurately, and completely furnished to the Sublessor
as provided in the appropriate Article or, if not so provided, within ten (10)
calendar days of its creation, filing, or dissemination. The exhibits and
appendices attached to this Sublease are incorporated herein and shall be
considered a part of this Sublease.
Article 33.15 Computations. Where the character or amount of any asset or
liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for the
purpose of this Sublease, such determination or calculation shall, to the extent
applicable and except as otherwise specified in this Sublease, be made in
accordance with generally accepted accounting principles applied on a
consolidated basis consistent with those at the time in effect as at the date of
this Sublease.
Article 33.16 Sublessor's Discretion or Judgment. Where this Sublease
requires or permits the Sublessor to exercise its discretion or judgment, the
parties agree that the Sublessor is authorized, permitted and expected to
exercise such discretion or judgment with a view toward protecting its rights in
the Premises, in the Collateral, in this Sublease, and in the Lease, as well as
in obtaining full and timely repayment and performance of all Secured
Indebtedness.
Article 33.17 Jurisdiction and Venue. This Sublease was executed by the
Sublessor in Nashville, Davidson County, Tennessee, and all payments are due at
the Sublessor's address. Any dispute arising hereunder shall be litigated in a
forum located in such County and State.
Article 33.18 No Third Party Beneficiary. This Sublease is for the sole
benefit of the Sublessor and the Sublessee and it is not for the benefit of any
other Person or third party except as provided herein for enforcement of certain
provisions by the Lessor.
Article 33.19 Mutual Release. With the exception of the indemnity provision
contained in this Sublease, upon full and final payment and satisfaction of the
rentals and other parts of the Secured Indebtedness, the parties shall thereupon
automatically each be fully, finally and forever released and discharged from
any further claim, liability or obligation in connection with this
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Sublease, except that the Sublessee shall remain fully and completely liable for
any amounts that must be returned, surrendered, or otherwise disgorged (as a
preference or otherwise) pursuant to any bankruptcy or insolvency provision.
Article 33.20 Costs, Expenses and Taxes. The Sublessee agrees to pay on
demand all out-of-pocket costs and expenses of the Sublessor (including the
reasonable fees and out-of-pocket expenses of counsel for the Sublessor in
connection with the monitoring, administration, enforcement, and/or protection
of this Sublease, all Collateral, the Premises, and/or the Leased Space). All
obligations provided for in this Article shall survive any termination of this
Sublease.
Article 33.21 Representations and Warranties of Sublessee. The Sublessee
represents and warrants to the Sublessor, as an inducement to the Sublessor to
enter into this Sublease, that the Sublessee is a duly formed Tennessee limited
liability company, that ▇▇▇ ▇▇▇▇▇▇▇▇▇ has been authorized to sign the same, and
that the Sublessor is not insolvent and will not be rendered insolvent by the
execution or performance hereof.
Article 33.22 Access, Gates Etc. The Sublessee acknowledges and agrees that
the Sublessor is authorized to install and enforce such space restrictions,
doors, gates and access restrictions as it deems reasonable and prudent to
safeguard its commercial banking operations, customers, employees, and others.
BY THEIR SIGNATURES BELOW, ALL OF THE PARTIES HERETO, AFTER
CONSULTATION WITH COUNSEL, HEREBY KNOWINGLY WAIVE THEIR
RIGHTS TO A TRIAL BY JURY AND CONSENT TO A TRIAL TO THE COURT
SITTING WITHOUT A JURY, SUCH MUTUAL WAIVER HAVING BEEN
BARGAINED FOR BY THE PARTIES AND A MUTUAL INDUCEMENT TO THE
PARTIES TO ENTER INTO THIS SUBLEASE.
DATED TO BE EFFECTIVE, UPON SATISFACTION OF ALL TERMS AND CONDITIONS, THE
1ST DAY OF AUGUST, 1996.
JOE'S COFFEE, LLC, SUBLESSEE
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, as President of Joe's
Coffee, LLC, AND Individually
THE BANK OF NASHVILLE, SUBLESSOR
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Chairman and CEO
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CONSENT AND AGREEMENT OF THE ▇▇▇▇'▇ NOOK, INC. AND ▇▇▇ ▇▇▇▇▇▇▇▇▇
The ▇▇▇▇'▇ Nook, Inc. and ▇▇▇ ▇▇▇▇▇▇▇▇▇ hereby agree and consent to the
termination of the ▇▇▇▇'▇ Nook, Inc.'s lease at the Glendale Shopping Center and
agree to pay all amounts due under the said Lease and/or owed to The Bank of
Nashville. The Bank of Nashville agrees to pay, upon execution hereof, the
amounts specified in the letter of intent dated August 1, 1996 between The Bank
of Nashville and Joe's Coffee, LLC and The ▇▇▇▇'▇ Nook, Inc. The ▇▇▇▇'▇ Nook,
Inc. and ▇▇▇ ▇▇▇▇▇▇▇▇▇ hereby agree that The Bank of Nashville may lease the
space subject to the current ▇▇▇▇'▇ Nook, Inc. lease being terminated hereby and
consent thereto.
This 5th day of September, 1996.
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, President, for
The ▇▇▇▇'▇ Nook, Inc., AND
For Himself Personally
AGREEMENT OF ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, as owner of The ▇▇▇▇'▇ Nook, Inc. and of Joe's Coffee, LLC,
consents hereto and, further, hereby unconditionally and irrevocably guarantees
payment and performance of the Secured Indebtedness and all other obligations
set forth in the Sublease.
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, Individually
[NOTARIES FOLLOW ON SUCCEEDING PAGE(S)]
ACKNOWLEDGMENTS
STATE OF TENNESSEE )
COUNTY OF DAVIDSON )
Before me, the undersigned Notary Public of the state and county aforesaid,
personally appeared ▇▇▇ ▇▇▇▇▇▇▇▇▇, with whom I am personally acquainted, or
proved to me on the basis of satisfactory evidence and who, upon oath,
acknowledged himself to be Chief Manager (or other officer authorized to execute
the instrument) of JOE'S COFFEE, LLC, the within name bargainer, a Tennessee
limited liability company, and that he as such Chief Manager executed the
foregoing instrument for the purpose therein contained, by signing the name of
the corporation by himself as Chief Manager.
Witness my hand and seal, at office in Nashville, this the 5th day of
September, 1996.
/s/ ▇▇▇▇▇▇ ▇. Small
-----------------------------
Notary Public
My Commission Expires: ▇-▇▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ )
COUNTY OF DAVIDSON )
Before me, the undersigned Notary Public of the state and county aforesaid,
personally appeared ▇▇▇ ▇▇▇▇▇▇▇▇▇ with whom I am personally acquainted, or
proved to me on the basis of satisfactory evidence and who, upon oath,
acknowledged himself to be President (or other
14
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officer authorized to execute the instrument) of THE ▇▇▇▇'▇ NOOK, INC., the
within name bargainer, a Tennessee business corporation, and that he as such
President executed the foregoing instrument for the purpose therein contained,
by signing the name of the corporation by himself as President.
Witness my hand and seal, at office in Nashville, Tennessee, this the 5th
day of September, 1996.
/s/ ▇▇▇▇▇▇ ▇. Small
-----------------------------
Notary Public
My Commission Expires: ▇-▇▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ )
COUNTY OF DAVIDSON )
Before me, the undersigned Notary Public of the state and county aforesaid,
personally appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., with whom I am personally
acquainted, or proved to me on the basis of satisfactory evidence and who, upon
oath, acknowledged himself to be Chairman (or other officer authorized to
execute the instrument) of THE BANK OF NASHVILLE, the within name bargainor, a
Tennessee Banking Corporation, and that he as such Chairman executed the
foregoing instrument for the purpose therein contained, by signing the name of
the corporation by himself as Chairman.
Witness my hand and seal, at office in Nashville, Tennessee, this the 5th
day of September, 1996.
/s/ ▇▇▇▇▇▇ ▇. Small
-----------------------------
Notary Public
My Commission Expires: ▇-▇▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ )
COUNTY OF DAVIDSON )
Before me, the undersigned Notary Public of the state and county aforesaid,
personally appeared ▇▇▇ ▇▇▇▇▇▇▇▇▇, with whom I am personally acquainted, or
proved to me on the basis of satisfactory evidence and who acknowledged that he
executed the within instrument for the purposes herein contained.
Witness my hand and seal, at office in Nashville, Tennessee, this the 5th
day of September, 1996.
/s/ ▇▇▇▇▇▇ ▇. Small
-----------------------------
Notary Public
My Commission Expires: 1-20-99
15
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EXHIBIT "D"
RULES AND REGULATIONS
The following Rules and Regulations apply to the Sublease of Commercial
Space between The Bank of Nashville and Joe's Coffee, LLC, in respect of the
Glendale Shopping Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇. Terms used
in such Sublease shall be understood to apply herein and, unless other defined
herein, capitalized terms shall be understood to have the same meanings as are
ascribed to them in the Sublease.
RULE 1. No sign, picture, advertisement, or notice shall be displayed,
inscribed, painted, or affixed, on any part of the outside or inside of the
building in which the Premises are located ("Building"), or on or about the
Premises, except as expressly permitted in the Sublease between The Bank of
Nashville, as Sublessor, and JOE'S COFFEE, LLC, as Sublessee, and then only of
such color, size, style and materials as shall be first specified by the Lessor
or the Sublessor in a writing attached or appended to this Sublease. No "For
Rent" signs shall be displayed by Sublessee and no showcases, or obstructions,
signs, flags, ▇▇▇▇▇▇ poles, statuary, or any advertising device of any kind
whatever shall be placed in front of Building or in the passageways, halls,
lobbies, or corridors thereof by Sublessee; and Sublessor reserves the right to
remove all such showcases, obstructions, signs, flags, ▇▇▇▇▇▇ poles, statuary or
advertising devices and all signs other than those provided for, without notice
to Sublessee and at its expense.
RULE 2. Sublessee shall not without Sublessor's written consent put up or
operate any steam engine, boiler, machinery, stove or other devise upon the
Premises, or carry on any mechanical business thereof, or do any cooking
thereon, or use or allow to be used upon the Premises oil, burning fluids,
camphene, kerosene for heating, warming or lighting, or anything (except gas or
incandescent electric lights, and those only of such company or companies as may
be supplying the Building) for illuminating the Premises. No article deemed
unreasonably hazardous by the Sublessor or the Lessor (including, without
limitation, explosives and triggering devices) shall be brought into or near the
Premises. The Sublessor will not withhold unreasonably its consent to appliances
for the proposed coffee shop.
RULE 3. No additional locks shall be placed upon any doors of the Premises.
Upon the termination of the Lease, the Sublessee shall surrender to Sublessor
all keys to the Premises.
RULE 4. The Sublessor's executive officers, engineers, maintenance and
planning personnel, attorneys, auditors and examiners shall have access to, and
they are authorized to enter upon and to inspect, the Premises at all times.
RULE 5. Safes, furniture, boxes or other bulky articles shall be carried up
into the Premises only with written consent of Sublessor first obtained, and
then only by means of the elevators, by the stairways or through the windows of
Building as Sublessor may in writing direct, and at such times and in such
manner and by such persons as Sublessor may direct. Safes and other heavy
articles shall be placed by Sublessee in such places only as may be first
specified in writing by Sublessor, and any damage done to Building or to
Sublessee or to other persons taking a safe or other heavy article in or out of
the Premises, from overloading a floor, or in any other manner, shall be paid
for by Sublessee causing such damage.
RULE 6. Sublessor will furnish janitor service in the Premises only to the
extent generally furnished by Sublessor in the Building in which the Premises
are located. Any person employed by Sublessee to do janitor work, shall, while
in said Building and outside of said Premises, be subject to and under the
control and direction of the space director of the Sublessor as designated from
time to time (but not as agent or servant of said Sublessor or of the Lessor).
Both the Lessor and Sublessor may retain a pass key to the Premises and be
allowed admittance thereto at all times to enable its representatives to examine
the Premises from time to time.
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RULE 7. Sublessor reserves all vending rights not directly associated with
the Sublessee's coffee shop business. There shall be no vending machines of any
nature attached to or placed on or near the Premises by the Sublessee.
RULE 8. Sublessee shall have the nonexclusive right, along with other
Sublessees of the Building, to use the parking area located on the land upon
which the Building is located, except for portions of the parking area necessary
for entrances, exits, driveways, walkways, loading, and unloading areas.
Reference is here made to the rules and limitations contained in the Primary
Lease and Sublessee agrees to comply with such limitations and rules in all
respects and at all times. Sublessor shall have the authority at any time to
designate portions of the parking area for exclusive use by certain tenants in
the Building, or to regulate the use of the parking areas in general.
RULE 9. If Sublessee desires telegraphic, telephonic, or other
telecommunication connections, or the installation of any other electrical
wiring, Sublessor will, upon receiving and consenting to Sublessee's written
request, direct the electricians as to where and how the wires are to be
introduced and run, and without such directions, no boring, cutting, or
installations of wires will be permitted. Such work shall be at the Sublessee's
sole cost and expense.
RULE 10. Sublessee shall not allow anything to be placed against or near
the glass in the partitions between the Premises and the halls or corridors of
Building, which shall diminish the light in, or prove unsightly from the halls
or corridors or from outside. The Sublessee shall at all times maintain all of
the Premises and shared common areas clean, safe and attractive and shall not
permit any of its customers (or their families or guests) to interfere with the
Sublessor's business, employees, customers, visitors or guests.
RULE 11. No electric current, intended for light or power purposes, shall
be used by Sublessee, excepting that furnished or approved by Sublessor; nor
shall electric or other wires be brought into the Premises, except upon the
written consent and approval of Sublessor.
RULE 12. Sublessee, when closing his office for business, at any time,
shall see that all awnings are pulled up and the windows closed, thus avoiding
possible damage from fire, storm, rain, freezing, or other hazards or damages
attributable to the elements.
RULE 13. Sublessee shall not allow anything to be placed on the outside
window ledges of the Premises, nor shall anything be thrown by Sublessee, or its
employees, out of the windows of Building; nor shall Sublessee or its employees
undertake to regulate the thermostats. if any, which control the heat or air
conditioning.
RULE 14. No Sublessee shall have, allow, or authorize admittance into the
Building at any times other than operating hours, without the prior written
approval of the Building manager.
RULE 15. Key holders (including all types of "keying" devices such as
"security key cards" must obtain written approval from the Sublessor before
allowing any other persons to use their keys or similar devices. If any key or
other type of security card key holder violates this rule, the Sublessor may
immediately repossess that person's key or similar device, and may also void it
from the system and/or change the locks at the Sublessee's expense.
RULE 16 Food Preparation and Service. Sublessee shall be permitted to serve
a menu limited to baked and prepared foods and beverages excluding alcoholic
beverages.
RULE 17 Employee Dress and Conduct. Sublessee's employees shall at all
times be required to present a clean and well groomed appearance.
RULE 18 Complaints. All complaints against the Sublessee received by the
Sublessor shall be immediately and properly adjusted in a business like manner.
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RULE 19 Permits. Licenses and Approvals. Sublessee shall, and its sole
expense, obtain and conspicuously display any and all permits, licenses, or
approvals required by any applicable governmental authority for the operation of
its business.
RULE 20 Serviceware. Sublessee shall not use serviceware (cups, plates,
trays, paper goods and similar items) which are offensive, or which in any
manner detract from or compete with the Sublessor. Upon request, and for
reasonably limited periods of time, Sublessee agrees to use serviceware provided
by Sublessor bearing the name of, or advertising for, the Sublessor's business,
so long as it reasonably follows the design of Sublessee's business.
RULE 21 Trash. Sublessee shall store its garbage, trash, and other refuse
in rat-proof, insect-proof, and odorless containers inside the Premises, and
remove the same frequently and regularly and, if directed by the Sublessor, by
such means and methods and at such times and intervals as are designated by
Sublessor, at all Sublessee's sole cost and expense.
RULE 22 Hours of Operation. Throughout the term of the Sublease, Sublessee
shall continuously conduct in the Premises, with appropriate inventory and
staff~ the Permitted Use during Sublessee's posted business hours which shall in
any case include the hours of operation of Sublessee's Business.
[These rules and regulations supplement the rules of the Lessor in effect on the
date hereof. All of the Sublessor's and Lessor's rules and regulations are
subject to change from time to time in the discretion of each such person.]
18
