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LEASE
1. PARTIES. This Lease, made at Fort Wayne, Indiana, the 8th day of August,
2000, by and between ROGERS MARKETS, INC. (hereafter called "Lessor") and Tower
Bank (hereafter called "Lessee").
WITNESSETH:
2. PREMISES. a. In consideration of the rent reserved and of the covenants to be
performed by Lessee, Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, a portion of a commercial center, known as The Shops at Scott Road
situated in Allen County, Indiana, described in Exhibit "A." b. As used in this
Lease, "Premises" means the portion of the Shopping Center described in Exhibit
"B" (the "Shopping Center") totaling approximately 2,400 square feet, and
includes all improvements now or hereafter located or constructed on the
Premises, including the fixtures and equipment therein which are the property of
Lessor as above described. "Improvements" means all buildings and other
Improvements now or hereafter located or constructed on the Premises.
3. TERM. Ten (10) years with two five-year renewal options commencing on the
earlier of one hundred twenty (120) days after the Lessor completes its
construction on the Premises and the parking areas to be used by Lessee and its
patrons or when the Lessee opens for business. The first and last months' rent
shall be prorated.
This lease is contingent upon lessee receiving State and Federal Regulatory
approval. If lessee does not receive these approvals, then lessee may terminate
this Lease Agreement. Lessor is not obligated to begin its improvements on
Exhibit C until Lessee gives Lessor notice of its receiving these approvals. If
Lessee has not received State and Federal Regulatory approval within 120 days
from the lease execution date, then Lessor shall have the right to cancel the
lease with written notice to Lessee.
4. RENT. Lessee shall pay to Lessor at its office, as rent, in advance, on
the first day of each calendar month as follows:
Year 1 $12.00 per square foot per year ($28,800.00/year payable in monthly
installments of $2,400.00)
Year 2 $12.25 per square foot per year ($29,400.00/year payable in monthly
installments of $2,450.00)
Year 3 $13.00 per square foot per year ($31,200.00/year payable in monthly
installments of $2,600.00)
Year 4 $13.25 per square foot per year ($31,800.00/year payable in monthly
installments of $2,650.00)
Year 5 $13.50 per square foot per year ($32,400.00/year payable in monthly
installments of $2,700.00)
Year 6 $14.50 per square foot per year ($34,800.00/year payable in monthly
installments of $2,900.00)
Year 7 $14.75 per square foot per year ($35,400.00/year payable in monthly
installments of $2,950.00)
Year 8 $15.00 per square foot per year ($36,000.00/year payable in monthly
installments of $3,000.00)
Year 9 $15.25 per square foot per year ($36,600.00/year payable in monthly
installments of $3,050.00)
Year 10 $15.50 per square foot per year ($37,200.00/year payable in monthly
installments of $3,100.00)
b, Rent, and any other sums required by the Lease to be paid by Lessee to
Lessor, shall be paid by check, payable to Rogers Markets, Inc., until Lessee is
further notified in writing by Lessor, and shall be mailed to 528 West
'Washington Boulevard, P.O. Box 10359, Fort Wayne, Indiana 46851, until Lessee
is further notified in writing by Lessor or the then-payee.
5. RENEWAL. If Lessee is not in default under the terms of this Lease, Lessee
shall have the right or option to renew this Lease for two (2) additional
successive periods of five (5) period shall be subject to all the conditions and
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agreements herein contained. The renewal periods shall automatically renew
unless Lessee notifies Lessor of its election not to renew the Lease by giving
Lessor written notice of such election on or before six (6) months prior to the
expiration of the initial term hereof or any renewal hereof. (A)The rental rate
during the first five (5) year option periods shall be adjusted as follows: Year
II: $16.00 per square foot per year Year 12: $16.25 per square foot per year
Year 13: $16.50 per square foot per year Year 14: $16.75 per square foot per
year Year 15: $17.00 per square foot per year (B) The rental rate during the
second of said five (5) year option periods shall be as follows: Year 16: $17.50
per square foot per year Year 17: $17.75 per square foot per year Year 18:
$18.00 per square foot per year Year 19: $18.25 per square foot per year Year
20: $18.50 per square foot per year
6. PURPOSE. It is understood and agreed that the Premises are to be used and
occupied by Lessee for banking purposes.
7. ZONING. Lessor covenants and agrees that the Premises are properly zoned for
the uses hereinbefore described. If, at any time during the term hereof, there
shall be any zoning laws, statutes or ordinances regulating the use of said
Premises which shall make it unlawful or impracticable for Lessee to conduct its
business on the demised Premises, Lessee shall have the option of ten-ninating
this Lease by notice to such effect to Lessor; and, in the event this Lease is
so terminated, Lessee shall not be liable to Lessor on account of any covenants
or obligations I herein contained. Upon Lessee's election to terminate this
Lease under the provisions of this paragraph, the ten-nination date shall be the
30th day after the giving of notice as provided in the paragraph of this Lease
entitled "Notices."
8. TITLE. Lessor warrants that it has lawful title and right to make this Lease
for the term hereof.
9. HOLDING OVER. Should Lessee, or any party claiming under Lessee, hold over in
possession at the expiration of the term, such holding over shall not be deemed
to extend the term or renew this Lease, and such holding over shall be an
unlawful detainer and such parties shall be subject to immediate eviction and
removal. Lessee shall pay, upon demand, to Lessor during any period while Lessee
shall hold the Premises after expiration of the term, as liquidated damages, a
sum equal to one hundred fifty percent of the monthly rate of minimum rent in
effect for the last month of the term, and Lessee shall also pay all direct
damages sustained by Lessor by reason of such holding over.
10. POSSESSION PRIOR TO COMPLETION. Prior to the date of completion of any work
to be performed by Lessor and commencement of the lease term and Lessee's
obligation for rent, Lessee shall be permitted a reasonable period within which
to install its . fixtures, machinery and equipment and to perform such other
acts as may be necessary to prepare the Premises for the conduct of its
business, provided such may be done without interference with any construction
in progress and provided such shall be at Lessee's risk. Lessee shall hold
Lessor harmless from all loss, cost and damages to Lessor's property directly
resulting from the installation of such fixtures, machinery and equipment.
11. CONDITION OF PREMISES. Lessor shall deliver and Lessee shall accept the
Premises in "Cold Shell" as defined in Exhibit "C." Lessee shall take good care
of the Premises. Lessee may make alterations in and to the Premises and building
thereon, only upon prior written approval of Lessor which approval shall not be
unreasonably withheld. All repairs and alterations shall be in quality at least
equal to the original construction. At the termination of this Lease, Lessee
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shall deliver the Premises to Lessor in as good condition as when delivered to
Lessee, reasonable wear and tear, changes and alterations authorized under this
Lease, loss and damage by fire or other casualty excepted.
12. LIENS AND ENCUMBRANCES. Lessee shall not permit any mechanic's or similar
liens to remain upon the Premises for labor or materials furnished to Lessee in
connection with work of any character performed or claimed to have been
performed on the Premises at the direction or with the consent of Lessee,
whether such work was performed or materials furnished before or after the
commencement of the term of this Lease. Lessee may, however, contest the
validity of any such lien or claim, provided Lessee shall, if required by
Lessor, give to Lessor reasonable security to insure payment and to prevent any
sale, foreclosure or forfeiture of the Premises by reason of such nonpayment.
Upon a final determination of the validity of any such lien or claim, Lessee
shall immediately pay any judgment or decree rendered against Lessee or Lessor
with all proper costs and charges and shall cause such lien to be released of
record without cost to Lessor. Upon payment of any such lien, Lessor shall
release any security held on account of such lien.
13. MAINTENANCE. a. Lessor agrees to keep and maintain, in good condition and
repair, all structural components of said building, including walls and roof.
Lessor also agrees to keep the paving of the driveway and parking area of the
Premises in good repair throughout the term of the Lease. All other repairs and
maintenance, both interior and exterior, shall be the responsibility of Lessee
b. Lessee agrees, at its own expense, to keep the interior of the Premises in
good repair and to take care of all repairs and replacements which may be
necessary to the building equipment that services only the Premises, such as the
Lessee also agrees to furnish all light bulbs and tubes which require
replacement due to ordinary use and wear. Lessee agrees to maintain regular
service of the heating and air conditioning equipment at approximately six-month
intervals or as the condition of such equipment necessitates, and will furnish
evidence of service upon request of Lessor.
14. CONTROL OF COMMON AREAS. All automobile parking areas, driveways, entrances
and exits thereto, and other facilities furnished by Lessor from time to time in
or near the Shopping Center, including employee and customer parking areas, the
truck way or ways, loading docks, package pick-up stations, Shopping Center
signs, pedestrian sidewalks and ramps, landscaped areas, exterior stairways,
hallways, display and exhibit areas and other areas and improvements provided by
Lessor for the general use, in common, of Lessee of the Shopping Center, their
officers, agents, employees and customers, shall at all times be subject to the
exclusive control and management of Lessor or its designees, and Lessor shall
have the right, from time to time, to establish, modify and enforce reasonable
rules and regulations with respect to all facilities and areas mentioned in this
paragraph. All such facilities and areas, together with the foundations,
concrete floors, exterior walls and roofs of all buildings within the Shopping
Center and all ducts, conduits and similar items, heating, ventilating, air
conditioning, plumbing, security and fire protection systems and storm, sanitary
drainage and other utility systems not installed by or exclusively serving a
single Lessee of the Shopping Center, are hereinafter collectively called the
"Common Areas." Lessor, or its designees, shall have the right to construct,
maintain and operate lighting and parking facilities on all Common Areas; police
the same; from time to time change or reduce the area, level, location, size and
arrangement of parking areas and other facilities hereinabove referred to as
long as the number of parking spaces complies with all applicable laws and
ordinances; restrict parking by lessee, their officers, agents and employees to
employee parking areas; close all or any portion of said areas or facilities to
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g, air conditioning, plumbing, electric wiring, due to normal use and operation
of said building equipment such extent as may, in the opinion of Lessor's
counsel, be legally sufficient to prevent a dedication thereof or the accrual of
any rights to any person or the public therein; close temporarily all or any
portion of the parking areas of facilities; erect improvements or buildings on
such parking areas and other Common Areas and improvements; discourage
noncustomer parking; and do and perform such other acts in and to said areas and
improvements as, in the use of good business judgment, Lessor shall determine to
be advisable with a view to the improvement of the convenience and use thereof
by tenants of the Shopping Center, their officers, agents, employees and
customers; provided that no such changes shall deny or materially interfere with
reasonable visibility of, ingress to or egress from the Premises.
15. MAINTENANCE CHARGES. Lessee agrees to pay, as additional rent, monthly or
less frequently as directed by Lessor, Lessee's Proportionate Share of the
Shopping Center's Common Area Maintenance Cost (as hereinafter defined). Such
payments shall be based on Lessor's reasonable estimates subject to adjustment
from time to time on determination of the actual amount of the Shopping Center's
Common Area Maintenance Cost. The failure of Lessee to pay any portion of
Lessee's proportionate share of the Shopping Center's Common Area Maintenance
Cost on or before the 15th day after notice from Lessor shall constitute a
material default under this Lease and shall be treated for all purposes as a
default in the payment of rent. Lessee, at its option, may pay in advance
monthly installments with rent, and if so paid, this default provision shall not
apply. To the extent that the Common Areas serve facilities or persons occupying
outlets of the Shopping Center who are not tenants of the Shopping Center,
Landlord shall assess and collect from such facilities or persons fees for the
use of the Common Areas, which fees shall reduce the Shopping Center's Common
Area Maintenance Cost. b. "Shopping Center's Common Area Maintenance Cost shall
be the total of all items of cost and expense reasonably expended (including
appropriate reserves) in operating, managing, equipping, protecting, policing,
lighting, repairing, insuring, replacing and maintaining the Common Areas and
their facilities (less any insurance proceeds collected with respect to any such
repair or replacement) including, but not limited to, all costs and expenses of:
i. maintaining and repairing the Common Areas as shall be required, in Lessor's
judgment, to preserve the utility and condition of the Common Areas in
substantially the same condition and status as the Common Areas were in as of
the commencement date; ii. security, fire protection and traffic direction and
control; iii. cleaning and removal of rubbish, dirt, debris, snow and ice
(including removal of snow and ice from rooftops); iv. planting, replanting and
replacing flowers and landscaping; v. water, drainage and sewerage; vi.
liability, property damage, fire, extended coverage, flood, rent loss, malicious
mischief, vandalism, worker's compensation, replacement insurance of the
Shopping Center and employees' liability and any other casualty and liability
insurance; vii. wages, health and welfare benefits, pension benefits, union
dues, vacations, unemployment taxes and social security taxes; viii. real and
personal property taxes for the Common Areas as well as the Retail Shopping
Center; ix. Permits and licenses; x. supplies; xi. the operation of loudspeakers
and any other equipment supplying music; xii. utility services and lighting
(including the cost of light bulbs and electric replacement of filters in the
heating, ventilation and air conditioning xiv. replacement of any broken glass
or fixtures on the exterior of the Shopping Center; xv. depreciation of
machinery and equipment used in the operation of the Common Areas (but not
including depreciation of the original cost of acquiring Common Areas of the
Shopping Center; xvi. administrative charges in an amount not to exceed 15
percent of the Shopping Center's Common Area Maintenance Cost (exclusive of such
administrative charges); xvii. the charges of any independent contractor who,
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under contract with the Lessor or its representatives, does any of the work of
operating, maintaining or repairing the Common Areas; xviii. sees fit; and
insuring the Shopping Center against casualty and any liability as Lessor sees
fit; and xix. any other expense or charge, whether or not hereinabove mentioned
which, in accordance with generally accepted accounting and management
principles, would be considered as an expense of managing, operating,
maintaining or repairing the Common Areas.
16. TRADE FIXTURES. Trade fixtures, machinery and other equipment, which are
supplied and used by Lessee in the conduct of its business and which are not
necessary for the general operation and maintenance of the Premises, shall be
the property of Lessee and may be removed by Lessee at any time prior to or upon
termination of the Lease. If required by Lessor, Lessee shall, at its expense,
remove such trade fixtures at the expiration of the term and repair any damage
caused by such removal.
17. DESTRUCTION OF PREMISES. In case the building shall be more than 50 percent
destroyed by the elements, fire or other causes, either Lessor or Lessee may
cancel this Lease within 45 days after such destruction, by giving notice to the
opposite party as provided in the paragraph of this Lease entitled "Notices,"
stating such intention to terminate this Lease. In the event either party
exercises such option, this Lease shall cease upon the mailing of such I notice,
and Lessee shall surrender possession of the Premises. But in the event neither
Lessor nor Lessee elects to cancel within 45 days after more than 50 percent
destruction of the building, or in the event the building is destroyed 50
percent or less, Lessor shall at once proceed to make the repairs in accordance
with all then-existing building codes, laws or ordinances and said Lease shall
not terminate, but during the time in which such repairs are being made, no rent
shall be payable except pro rata for such parts of said Premises as may be then
used and occupied by Lessee.
18. EMINENT DOMAIN. If, under the power of eminent domain, there shall be a
permanent taking of the whole or any portion of the Premises, or of the access
gas, telephone, and other utility services furnished to the Premises. of the
Premises so as to materially affect Lessee's business operation on the Premises,
the term of this Lease shall cease as of the date that, pursuant thereto, title
shall be taken by the appropriating authority. Except as hereinabove provided,
in the event of any taking of a portion of the Premises which does not
materially affect Lessee's business operation on the Premises, this Lease shall
continue in full force and effect, except that the rent shall be equitably
reduced and Lessor shall make all necessary repairs or alterations to the
Premises so as to constitute the remaining portion of the Premises as a complete
architectural unit. All compensation awarded for any taking under the power of
eminent domain, whether for the whole or a portion of the Premises, shall be the
property of Lessor, whether such damages shall be awarded as compensation for
diminution in the value of, or loss of, the Premises, or for the diminution in
the value of, or loss of, the fee of the Premises, or otherwise, and Lessee
hereby assigns to Lessor all of Lessee's right, title and interest in and to any
and all such compensation, provided, however, that Lessor shall not be entitled
to any award made to Lessee for the value of the Leasehold, including loss of
business, relocation, or depreciation of or cost of removal of stock and
fixtures.
19. PERSONAL PROPERTY TAXES. Lessee shall pay all personal property taxes and
license fees assessed against it or its property on said Premises.
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20. UTILITIES. Lessee shall pay all separately metered charges for water,
electricity,
21. INSURANCE. Lessee shall carry insurance on its own leasehold fixtures,
equipment and inventory. Lessee shall also carry liability insurance protecting
both Lessor and Lessee, as their interest may appear, in the following amounts:
Personal liability insurance in the minimal amount of $1,000,000 for personal
injury to any person and $3,000,000 for any one incident, and $500,000 property
damage. Lessee shall provide Lessor with proof of said insurance, from time to
time, being in continuation of this Lease.
22. INDEMNIFICATION OF LESSOR. Lessee shall defend, indemnify and save harmless
Lessor, its agents and employees against any liability or claim thereof whether
for injury to persons, including death, or damage to property arising out of the
condition of the Premises after delivery of exclusive possession when such
condition is solely attributable to any act or omission to act upon the part of
Lessee, its agents or employees, or arising out of or connected with Lessee's
use and occupancy of said Premises.
23. CONFORMITY WITH GOVERNMENT REGULATIONS. Lessee agrees to fully comply with
and obey all legally enforceable laws, ordinances, rules, regulations and
requirements of all legally constituted authorities in any way affecting the
uses of said Premises. Any new installations in said building that may be
necessary to conform to any applicable Government order, whether local or
otherwise, shall be at the sole expense of Lessor. Lessee shall not have any
responsibility for new installations in the Common Areas.
24. SIGNS. Lessee shall have the right to affix appropriate identification signs
to the exterior walls of the Premises subject to Lessor's prior written
approval, and in accordance with the requirements of appropriate governmental
authorities.
25. OUTDOOR FIXTURES AND PROMOTIONS. Lessee may not place any personal property
or fixtures, or conduct any sales or promotional activity, on any Common Area,
as defined in the paragraph entitled "Trade Fixtures," without the written
approval of Lessor, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Lessee shall be entitled to store or display
merchandise or seasonal items in the Common Areas described in Exhibit "E"
adjacent to the Premises provided that such display or storage does not
unreasonably detract from the appearance of the Shopping Center or unreasonably
interfere with ingress or egress.
26. BUSINESS HOURS. Lessee will operate the Premises and have the same fully
open and available for business for a minimum of five (5) business days per
week, except during any week that includes a legal holiday. During all such time
as Lessee may be open for business, Lessee will provide adequate personnel and
sales force to service the customers of such business; provided, however, if
Lessee is unable to comply herewith by reason of shortage of material, strikes,
acts of God, destruction of the premises by fire, or any other reason or cause
beyond Lessee's control (financial inability of Lessee excepted), Lessee shall
not be deemed to be in default hereunder.
27. SUBORDINATION. Lessee agrees to subordinate this Lease to any mortgage,
trust deed or other encumbrance in the nature of a mortgage which currently
exists, or may hereafter be placed on the Premises, provided that such mortgage,
trust deed or other encumbrance shall assure to Lessee, its successors and
assigns, the right to freely, peaceably and quietly occupy and enjoy the full
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possession and use of the Premises so long as Lessee shall not be in default of
this Lease as defined in the paragraph of this Lease entitled "Remedies of
Lessor." If at or prior to the time of delivery of possession of the entire
Premises, the Premises are subject to any mortgage, trust deed or other
encumbrance in the nature of a mortgage which is prior to or superior to this
Lease, Lessor shall furnish to Lessee an agreement executed by such mortgagee or
trustee obligating any party acquiring title or the right of possession under
and by virtue of such mortgage, trust deed or other encumbrance to be bound by
this Lease and all Lessee's rights hereunder, provided that Lessee is not then
in default of this Lease as defined in the paragraph entitled "Remedies of
Lessor."
28. ENTRY BY LESSOR. Lessee agrees that Lessor, its agents or representatives
shall, at all reasonable times, have free access to the Premises for the purpose
of examining and inspecting the condition of the same, or for making repairs or
exercising any right or power reserved to Lessor under the terms of this Lease,
provided, however, that Lessor shall schedule and conduct any visits in a manner
designed to minimize any interference with the operation of Lessee's business
and Lessor shall be accompanied by an officer of the Lessee.
29. ASSIGNMENT AND SUBLETTING. Lessee may, from time to time, assign or reassign
this Lease or sublease the whole or any part of the Premises for lawful
purposes, if written consent is given by Lessor, which consent shall not be
unreasonably withheld. In the event of any such assignment or sublease, Lessee
shall nevertheless remain primarily liable to Lessor for the payment of all rent
and for the full performance of all of the covenants and conditions of this
Lease.
30. REMEDIES OF LESSOR. In the event Lessee shall be in default in the payment
of rents or other charges hereunder for a period of (IO) days and such default
is not cured, or, if Lessee otherwise shall breach its covenants or obligations
hereunder, and shall remain in default for a period of thirty (30) days after
written notice from Lessor of such default, Lessor shall have the right and
privilege of terminating this Lease and declaring the same at an end, and of
entering upon and taking possession of said Premises, and shall have all legal
remedies for recovery of rent, including acceleration of all future rents owing,
repossession of the Premises, and damages suffered.
31. REMEDIES OF LESSEE. In the event Lessor shall breach or be in default in the
performance of its covenants or obligations, and shall remain in default for a
period of 30 days after written notice to it of such default, Lessee shall have
the right and privilege of terminating this Lease and shall have all legal
remedies for the recovery of damages suffered by it and shall not be liable for
any rentals accruing after the date of termination.
32. EMPLOYEE PARKING AREA. Lessee and its employees shall park their motor
vehicles in such areas as Lessor shall, from time to time, designate as employee
parking areas. Lessee agrees that all loading and unloading of goods shall be
made at such reasonably convenient and accessible places as are designated by
Lessor and that said loading and unloading operations shall be conducted so as
to minimize any interference with the operation of the businesses of the other
tenants in the Shopping Center. Lessee shall not unreasonably block or obstruct
any street, sidewalk or right-of-way adjacent to or comprising part of the
Shopping Center. Lessee further agrees that all loading and unloading of goods
shall be done in compliance with the agreement attached hereto as Exhibit "D."
Exhibit "F" highlights the recommended area for Employee parking. Lessor agrees
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to allow Lessee's employees to park immediately north of the Leased Premises as
is necessary for security purposes.
33. TENANTS' ASSOCIATION. Lessee shall join and be a member of a tenants'
association composed of the tenants of the Shopping Center, and Lessee agrees to
be bound by the rules and regulations adopted by said association and to pay its
pro rata share of any assessments and dues to said association, which may be
adopted and assessed against its members for the promotion of the Shopping
Center.
34. WAIVER OF SUBROGATION. Lessor hereby waives and releases all claims,
liabilities and causes of action against Lessee and its partners, officers,
agents, servants and employees for loss or damage to, or destruction of, the
buildings and other improvements situated on the Premises, resulting from fire
or other perils to the extent included in and paid for by the standard extended
coverage insurance to be obtained by Lessor, whether caused by the negligence of
any of said persons or otherwise. Likewise, Lessee hereby waives and releases
all claims, liabilities and causes of action against Lessor and its partners,
officers, agents, servants and employees for loss or damage to, or destruction
of, any of the improvements, fixtures, equipment, supplies, merchandise and
other property, whether that of Lessee or of others, in, upon or about the
Premises resulting from fire or other perils to the extent included in and paid
for by standard extended coverage insurance to be obtained by Lessee hereunder,
whether caused by the negligence of any said persons or otherwise. The waivers
and releases set forth herein are given on behalf of the waiving party and its
successors and assigns and its insurers, and these waivers shall remain in force
so long as the insuring party's insurer shall consent thereto without additional
premium; and if additional premium is charged, then the other party shall have
the option to pay the same to keep this waiver in force. The foregoing mutual
waivers are given in consideration of each other, and the termination or
suspension of one shall, with the like effect, terminate or suspend the other.
35. RECOVERY OF ATTORNEYS' FEES AND COSTS. In case suit shall be brought for
recovery of possession of the Premises, for the recovery of rent or any other
amount due under the provisions of this Lease, or because of any breach of any
other covenant herein contained on the part of Lessor or Lessee to be kept or
performed, the prevailing party shall be entitled to recover from the other
party all expenses incurred therefore, including all reasonable attorneys' fees
and costs.
36. SUCCESSORS. This Lease shall be binding upon and inure to the benefit of the
respective parties, their heirs, administrators, executors, legal
representatives, successors and assigns.
37. NOTICES. All notices given under this instrument shall be in writing, and
shall be given by depositing the notice in the United States certified or
registered mail, postage prepaid, enclosed in an envelope addressed to the party
to be notified, at such party's address as shown in this paragraph or at any
known address of any Lessor, if there be more than one; and shall be effective
three (3) days after the day upon which notice is so mailed. If there be more
than one Lessor, notice to any one of them shall constitute notice to all.
Subject to change by notice from the party to be charged with such notice,
notices to Lessor shall be addressed as follows: Lessor: .with a copy to: Rogers
Markets, 528 West Washington Boulevard, P. 0. Box 10359 Fort Wayne, Indiana
46851 with a copy to Daniel E. Serban, Shambaugh, Kast, Beek & Williams, LLP
P.O. Box 11648 Fort Wayne, IN 46859-1648 and notices to Lessee shall be
addressed as follows: Lessee: Tower Bank, Curt Brown, 116 E. Berry Fort Wayne,
Indiana 46802.
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38. RIGHTS NOT WAIVED. Failure of either party to insist upon the strict and
prompt performance of the terms, covenants, agreements and conditions herein
contained, or any of them, upon the other party imposed, shall not constitute or
be construed as a waiver or relinquishment of such party's right thereafter to
enforce any such term, covenant, agreement or condition, but the same shall
continue in full force and effect.
39. GOVERNING LAW. This Lease shall be construed and enforced in accordance with
the laws of the State of Indiana.
40. OUTLET ENJOYMENT. Lessor agrees that, contingent upon Lessee's compliance
with the terms and conditions of this Lease, Lessee shall quietly and peaceably
hold, possess and enjoy, for the purposes intended, the Premises for the full
term of this Lease without hindrance or molestation from Lessor or any person
claiming by, through or under it, and Lessor will defend the title to the
Premises against all persons or entities whomsoever or whatsoever, except those
claiming by or through Lessee.
41. CAPTIONS. The descriptive headings of this Lease are inserted for
convenience and reference only and do not constitute a part of this Lease.
42. TIME. Time is of the essence in each and every obligation, duty, covenant
and requirement of this Lease.
43. ENTIRE AGREEMENT. This Lease and guaranty set forth all the covenants,
promises, agreements, conditions and understandings between Lessor and Lessee
concerning the Premises, and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between Lessor and Lessee
concerning the Premises except those herein set forth. Except as otherwise
provided herein, no subsequent alteration, amendment, change or addition to this
Lease shall be binding upon Lessor or Lessee unless reduced to writing and
signed by them.
44. RESTRICTIONS. Lessee agrees to honor all restrictions and exclusivity
agreements which have been recorded with regard to the Shopping Center, provided
that Lessee is provided copies of any such documents prior to execution of this
Lease. These are made part of lease as Exhibit "E."
45. PROPORTIONATE SHARE. "Proportionate Share" as used in this Lease shall be
defined as the fraction created by using a numerator determined by the amount of
square footage leased by Lessee and a denominator determined by the total square
footage of the leasable space in the Shopping Center. "Leasable space" shall
mean all interior space that is or is reasonably capable of being leased in the
Shopping Center.
46. VISIBILITY OF LEASED SPACE, Lessor agrees not to construct any buildings
north of the Leased Premises in the area highlighted on Exhibit "G."
47. INGRESS AND EGRESS. Lessor grants to Lessee ingress and egress for its
employees, customers and agents over the driveways serving the shopping center.
Lessor has the right to relocate the drives to Scott Road and/or Illinois Road
at its sole discretion as long as ingress and egress is still provided to Lessee
to these roads.
LESSOR: Rogers Markets, Inc. By: ss/John W. Rogers Its: Vice President
Date: 8/8/00
LESSEE: Tower Bank By: Kevin J. Himmelhaver, Its: CFO Date: 8/8/00
<PAGE> 10
STATE OF INDIANA
COUNTY OF ALLEN SS: Before me, a Notary Public, in and for said County and
State, this 8th day of August, 2000 and personally appeared John W. Rigers as
Vice President of Rogers Market and acknowledged the execution of the foregoing
lease.
My Commission Expires 1-14-2007
SS/Lori A. Brueggemann Notary Public Printed Name Lori A Brueggemann Resident of
Allen County
STATE OF INDIANA
COUNTY OF ALLEN SS:
Before me, a Notary Public, in and for said County and State, this 8th day of
August, 2000 personally appeared Kevin J. Himmelhaver and acknowledged the
execution of the foregoing lease.
My Commission Expires 1/14/2007
SS/Lori A. Brueggamann Notary Public Printed Name Lori A. Brueggemann Resident
of Allen County
<PAGE> 11
Exhibit A (map)
Exhibit B (maps, pages 1 and 2)
Exhibit C Improvements to be made by the landlord for Tower Bank
Drive-up window and night deposit box opening.
Vestibule Drive-up canopy with enclosed ceiling
Drive-up lanes paving and curb work HVAC unit size minimum of 380 square feet
per ton HVAC unit placed ready for Tenant to complete distribution
Concrete floor
Interior walls studded ready for drywall
Exterior complete with windows, brick, siding and canopy
Plumbing for rest room and break room
Drive-up lane curbing and islands and additional lane
Exhibit D (map)
<PAGE> 12
Exhibit E, 1 of 6
WRITTEN COMMITMENT
This Written Commitment ("Commitment") is made as of the _________ day of
October, 1999 by Rogers Markets, Inc. an Indiana corporation ("Developer").
RECITALS
A. On March 18, 1999, the Allen County Plan Commission ("Plan Commission")
approved, with conditions, a secondary development plan ("Development Plan") for
a neighborhood shopping center project known as "The Shops at Scott Road"
("Development"). The Development is proposed to be constructed on a parcel of
real estate located in Allen County, Indiana, which is legally described in the
addendum attached to this Commitment as Exhibit "A" ("Real Estate").
B. There currently is shown on the Development Plan a parcel, near the
Development's southeastern border, identified as "Outlot #4."
C. Under IC36-7-4-613, the Plan Commission may permit or require the owner of
real property to make a commitment concerning the use or development of the real
property.
D. Developer is willing to make certain commitments concerning use and
development of the Real Estate and Outlot #4.
COMMITMENT
Developer makes the following written commitments:
1. BUFFER. To provide screening of the Development to the south, the Developer
has constructed and shall maintain, a landscape buffer ("Buffer") consisting of
an earthen mound ("Mound") and plant material. The following commitments are
made with respect to the Buffer:
1.1 The Mound shall be maintained at no less than its existing height unless
otherwise approved by Plan Commission staff.
1.2 The top surface of the Mound will be landscaped in accordance with a
landscape plan approved by Plan Commission staff.
1.3 The Developer shall be responsible for maintenance of the Mound and
landscaping. Dead and diseased plant materials shall be replaced promptly,
weather permitting.
<PAGE> 13
Exhibit E 2 of 6
2. USE RESTRICTIONS
2.1 Real Estate. No part of the Real Estate shall be used for the
following purposes:
2.1.1 Sales or rental of x-rated videos;
2.1.2 Gun or rifle shop;
2.1.3 Bar or tavern;
2.1.4 Hotel, motel, private club, or lodge;
2.1.5 Telephone exchange or electrical substation; or
2.1.6 Amusement enterprises.
2.2 Outlot #4. Outlot #4 may be used only for the following purposes:
2.2.1 Professional services, including without limitation, the following:
2.2.1.1 Medical clinic, with related facilities such as prescription services;
2.2.1.2 Law office;
2.2.1.3 Professional engineering office:
2.2.1.4 Architect's office;
2.2.1.5 Accountant's office;
2.2.1.6 Real estate and related service;
2.2.1.7 Finance and insurance office;
2.2.1.8 Optometry service; or
2.2.1.9 Funeral home.
<PAGE> 14
Exhibit E, 3 of 6
2.2.2 Services and sales, but limited to the following uses
2.2.2.1 Photography and art studio;
2.2.2.2 Sale and repair of musical instruments;
2.2.2.3 Watch Repair shop,
2.2.2.4 Barber and beauty shop;
2.2.2.5 Commercial art studio
2.2.2.6 Advertising office;
2.2.2.7 Bank, Savings and loan, loan office, or other lending facility
2.2.2.8 Rental and sale of videos (except for videos which are x-rates);
2.2.2.9 Hardware store, garden equipment supply store, paint store;
2.2.2.10 Travel agency; or 2.2.2.11 Public utility customer service.
2.2.3 Commercial offices.
2.3 Additional Provisions Regarding Permitted Uses.
2.3.1 Nothing in section 1.1.1 shall be construed to prohibit the sale
or rental of videos which are not x-rated.
2.3.2 Nothing in section l.1.3 shall be construed to prohibit use of any
part of the Real Estate as a restaurant which serves alcoholic
beverages.
3. Deliveries and Trash Removal. Deliveries of goods and trash removal south of
the buildings depicted on the Development Plan shall be prohibited except
between the hours of 7:00 a.m. and 7:00 p.m. daily.
4. Binding effect. This Commitment shall run with the land, and shall be
binding upon Developer and its respective successors in title and assigns.
Exhibit E, 4 of 6
5. ENFORCEMENT RIGHTS. The Zoning Administrator of Allen County, Indiana shall
be entitled to all legal and equitable remedies available (including
specific performance and injunctive relief) for a violation of this
Commitment. Attorney fees and court costs shall be awarded to the prevailing
party in any litigation to enforce a provision in this Commitment.
6. EFFECTIVE DATE. This Commitment shall be effective upon the occurrence of
both of the following described events: 6.1 This Commitment is approved and
executed by the Executive Director of the Plan Commission. 6.2 This
Commitment (fully executed) is recorded in the Office of the Recorder of
7. Allen County, Indiana.
8. STATUTORY AUTHORITY. This Commitment is made pursuant to IC 36-7-4-613.
9. AMENDMENT. Amendment of this Commitment may only be made in accordance with
IC 36-7-4-613.
<PAGE> 15
Exhibit E, 5 of 6
ROGERS MARKETS, INC. By SS/John W. Rogers, Vice President
STATE OF INDIANA) ) COUNTY OF ALLEN ) SS:
Before me, the undersigned, a Notary Public, in and for said County and State,
on this 19th day of October, 1999, personally appeared John W. Rogers, Vice
President of Rogers Markets, Inc., an Indiana corporation, who acknowledged the
execution of the foregoing.
My Commission Expires: 12-15-00
/s/PATRICIA A. SABLIN
-----------------------
Notary Public
Resident of Allen County, Indiana
Exhibit E 6 of 6
This Written Document has been reviewed and approved by the Allen County Plan
Commission. The contents of this Written Commitment conform to the requirements
of the Allen County Zoning Ordinance, and this Written Commitment is now
eligible for recording. This certification does not extend to the form or
validity of the Written Commitment. The undersigned certifies that he has the
authority to sign this Written Commitment on behalf of the Allen County Plan
Commission.
Dated: 1999 Allen County Plan Commission
By: DENNIS A. GORDON
---------------------------
AICP Executive Director
This instrument prepared by Daniel J. Deeb, attorney at law. Mail to: Daniel J.
Deeb (Beckman Box).
Exhibit F (map)
