SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
Amendment No. 1 to Annual Report pursuant to Section 13 or 15(d) of the
SECURITIES AND EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1996
Commission File Number 0-27878
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FIRST FINANCIAL CORP.
---------------------
(Exact Name of registrant as specified in its charter)
Rhode Island 05-0391383
------------ ----------
(State of Incorporation) (I.R.S. Employer I.D. No.)
180 Washington Street
Providence, Rhode Island 02903
------------------------ -----
(Address of Principal Executive Offices) (Zip Code)
(401) 421-3600
--------------
(Registrant's Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $1.00 per share
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
3. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Reference Number Description
- --------- ------ -----------
<S> <C> <C>
(1) 3.1 Amended and Restated Articles of Incorporation of the Registrant.
(1) 3.2 By-Laws of Registrant.
(1) 4.1 Specimen Certificate for Shares of the Registrant's Common
Stock, $1.00 par value.
(1) 10.1 Lease Agreement between the Bank and Angelo Archetto
regarding Cranston, Rhode Island property dated as of May 14,
1974.
(1) 10.2 Acquisition Agreement between the Registrant, Maurice C.
Paradis, receiver for Chariho-Exeter Credit Union, and The
Rhode Island Depositers Economic Protection Corporation
("DEPCO") dated as of May 1, 1992.
(1) 10.3 Senior Debenture issued by Registrant to DEPCO dated as of
May 1, 1992.
(1) 10.4 Amended and Restated Employment Agreement
between Registrant and Patrick J. Shanahan, Jr. dated as of
February 6, 1996.
(1) 10.5 Stock Option Agreement between Registrant and Patrick J.
Shanahan, Jr. dated as of November 24, 1996, and Form of
Amendment No. 1 thereto, dated February22, 1996.
(1) 10.6 Supplemental Executive Retirement Plan.
(1) 10.7 Financial Institutions Retirement Fund Defined Pension Plan -
Summary Plan Description.
(1) 10.8 Form of Deferred Compensation Agreement regarding
Directors' Fees.
(1) 10.9 Data Processing Contract between the Bank and NCR
Corporation dated as of December 11, 1990, as amended.
(3) 10.10 Financial Institutions Thrift Plan--Summary Plan Description.
(3) 10.11 Lease Agreement(s) between Bank and Wal-Mart Stores, Inc.
dated as of January 27, 1997.
(1) 21.1 Subsidiaries of Registrant.
(2) 27.1 Financial Data Schedule.
</TABLE>
(1) Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (Registration Statement No. 333-1654), as amended, which was initially
filed with the Securities and Exchange Commission on February 26, 1996.
(2) Previously filed.
(3) Filed herewith.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this amendment
to its Annual Report on Form 10-K to be signed on its behalf by the undersigned,
thereunto duly authorized..
FIRST FINANCIAL CORP.
Date: April 28, 1997 By: /s/ Patrick J. Shanahan, Jr.
-----------------------------
Patrick J. Shanahan, Jr.
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this amendment to the Registrant's Annual Report on Form 10-K has been signed
below by the following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Patrick J. Shanahan, Jr.
- --------------------------- President and Chief April 28, 1997
Patrick J. Shanahan, Jr. Executive Officer; Director
Chairman of the Board April 28, 1997
- ---------------------------
William A. Carroll(Deceased)
/s/ Peter L. Mathieu, Jr. M.D. Director April 28, 1997
- ---------------------------
Peter L. Mathieu, Jr., M.D.
/s/ Joseph A. Keough
- --------------------------- Director April 28, 1997
Joseph A. Keough
/s/ Raymond F. Bernardo
- --------------------------- Director April 28, 1997
Raymond F. Bernardo
/s/ William P. Shields
- --------------------------- Director April 28, 1997
William P. Shields
/s/ Joseph V. Mega
- --------------------------- Director April 28, 1997
Joseph V. Mega
- --------------------------- Director April 28, 1997
Dr. John Nazarian
/s/ Artin Coloian
- --------------------------- Director April 28, 1997
Artin Coloian
/s/ John A. Macomber Vice President, Treasurer April 28, 1997
- --------------------------- and Chief Financial Officer
John A. Macomber
</TABLE>
Exhibit 10.10
FINANCIAL INSTITUTIONS THRIFT PLAN
AS ADOPTED BY
FIRST BANK & TRUST COMPANY
SUMMARY PLAN DESCRIPTION
108 CORPORATE PARK DRIVE O WHITE PLAINS, NY 10604
SUMMARY PLAN DESCRIPTION
FIRST BANK & TRUST COMPANY
PROVIDENCE, RHODE ISLAND
JANUARY 1, 1997
FINANCIAL INSTITUTIONS THRIFT PLAN
108 CORPORATE PARK DRIVE
WHITE PLAINS, NY 10604
TO OUR MEMBERS:
We are pleased to present this booklet so that you may better understand and
appreciate the savings plan which is provided by your employer through its
participation in the Financial Institutions Thrift Plan (the "Plan").
The Plan is a tax-exempt, trusteed savings plan which was created in 1970. It is
administered by a professional staff under the direction of a Board of Directors
(the "Board") comprised of persons who are officers of Federal Home Loan Banks
or participating financial institutions and the President of the Plan.
The Plan enables financial institutions to make it possible for their employees
to save and invest on a regular, long term basis. All contributions to the Plan
(a defined contribution type plan) are paid to the Trustee to be invested for
the benefit of all members. An individual account is maintained for each member.
Under certain conditions, a member may make withdrawals from his account based
on its market value.
The Plan offers federal income tax advantages. The employee does not pay taxes
on employer contributions or investment income until he withdraws them. An
employer subject to income tax may deduct its contributions.
This booklet highlights the main features of the Plan. The Plan and Declaration
of Trust contain the governing provisions and should be consulted as official
text in all cases.
BOARD OF DIRECTORS,
FINANCIAL INSTITUTIONS THRIFT PLAN
TABLE OF CONTENTS
Page
Employee Eligibility 2
Plan Contributions 3
Allocation of Contributions 3
Plan Salary 4
Investment of Contributions 5
Valuation of Accounts 7
Reporting to Members 7
Vesting 8
Account Withdrawal 9
--While Employed 9
--Upon Termination of Employment 10
--Upon Disability 11
--Upon Death 11
Reenrollment 11
Rollovers 11
Loans 12
Negative Cash Flow Provision 13
Plan Limitations 14
Top Heavy Information 15
Disputed Claims Procedure 15
Statement of Member's Rights 16
Other Plan Information 17
EMPLOYEE ELIGIBILITY
Each employee shall be enrolled as a member when eligible. You will be eligible
for membership in the Plan on the first day of the month after you complete 1
year of employment and attain age 21.
In order for you to complete 1 year of employment, you must complete at least
1,000 hours of employment in a 12 consecutive month period. The initial 12
consecutive month period is measured from your date of employment, and (if you
do not complete at least 1,000 hours of employment in such period) subsequent 12
month periods are measured on a calendar year basis from the January 1
immediately following your date of employment.
In counting hours you will be credited with an hour of employment for every hour
you have a right to be paid. This includes vacation, sick leave, jury duty,
etc., and any hours for which back pay may be due.
You will become a member as soon as a properly executed enrollment application
is received by the Board. Your membership will continue until the earlier of (a)
your termination of employment and payment to you of your entire account or (b)
your death.
NOTE: Your employer will notify you of your right to become
a member when you are eligible and will furnish you with an
enrollment application. If, for any reason, you are not so
notified, you will be retroactively enrolled as of the date
you first became eligible. In this event, both you and your
employer will be required to make the contributions (without
plan earnings thereon) each would have made had you been
enrolled on such earlier date, and your account will then
consist solely of the units credited to you as a result of
these contributions.
Establishment of Rollover Accounts
- ----------------------------------
Notwithstanding the above, any employee may establish a "rollover" account
within the Plan, regardless of whether the employee has satisfied the employer's
eligibility requirement(s). However, the existence of a "rollover" account will
not constitute active membership in the Plan, such participation being available
only after satisfaction of the employer's eligibility requirement(s) described
above.
2
PLAN CONTRIBUTIONS
Employee - You may elect to make a monthly contribution of 1%, 2%, 3%, 4%, 5%,
6%, 7%, 8%, 9%, 10%, 11%, 12%, 13%, 14% or 15% of monthly Plan Salary (see "Plan
Salary" section of this booklet). You may elect not to make any contributions.
You may change the rate at which you are contributing as of the first day of any
month. You may suspend your contributions at any time, but suspended
contributions may not be subsequently made up.
Emplover - Your employer will contribute on a monthly basis an amount equal to
50% of your monthly contribution.
The above percentage rate shall apply to only the first 6% of your
monthly Plan Salary (see "Plan Salary" section of this booklet).
ILLUSTRATION
Employee Employer's 50%
Contribution Rate Matching Contribution
----------------- ---------------------
2% 1.0%
3% 1.5%
4% 2.0%
5% 2.5%
6-15% 3.0%
Please refer to the "Account Withdrawal" section of this booklet to determine if
there are any restrictions on employer contributions on account of a withdrawal.
ALLOCATION OF CONTRIBUTIONS
Your employer has established a Regular account and a 401(k) account for each
member. The total of the value of your Regular and 401 (k) accounts represents
your interest in the Thrift Plan.
Employee
- --------
All of your contributions will be allocated to your 401 (k) account.
Employer
- --------
All employer contributions will be allocated to your Regular account.
3
Internal Revenue Service Nondiscrimination Rules
- ------------------------------------------------
If you are a highly compensated employee, a portion of your contributions
allocated to your 401(k) account and/or employer contributions allocated to your
Regular account may have to be returned to you in order to comply with special
Internal Revenue Service (IRS) nondiscrimination rules (see "Plan Limitations"
section of this booklet for other limitations). In general, a highly compensated
employee is an employee who at any time during the current or preceding year:
(a) was a 5% owner,
(b) received annual compensation from the employer in excess of $75,000
(indexed for cost-of-living adjustments, if any),
(c) received annual compensation from the employer in excess of $50,000
(indexed for cost-of-living adjustments, if any) and was in the top 20%
of employees by compensation in such year, or
(d) was an officer of the employer and received annual compensation from the
employer in excess of $45,000 (indexed for cost-of-living adjustments, if
any).
(W2)
PLAN SALARY
Plan Salary is defined as total compensation as reported on your Form W-2,
exclusive of any compensation deferred from a prior year, plus pre-tax
contributions which you make to an Internal Revenue Code Section 401 (k) plan or
Section 125 cafeteria plan. However, Plan Salary for any year may not exceed
$150,000 (indexed for cost-of-living adjustments, if any).
4
(Standard)
INVESTMENT OF CONTRIBUTIONS
Contributions are invested by the Trustee at your direction in one or more of
the following five investment funds:
INVESTMENT FUND A - A passively managed, diversified equity portfolio with
the objective of simulating the performance of the
Standard & Poor's Composite Index of 500 stocks, selected
by Bankers Trust Company, New York, as Trustee. An
investment in Fund A provides an opportunity for
investment growth generally consistent with that of
widely traded common stocks, but with a corresponding
risk of decline in value.
INVESTMENT FUND B - A portfolio of fixed income contracts primarily managed
by Bankers Trust Company with the objective of maximizing
income at minimum risk of capital. Contributions are
invested in fixed income instruments including but not
limited to group annuity contracts issued by insurance
companies.
INVESTMENT FUND C - A passively managed, diversified portfolio of stocks with
the objective of replicating the performance of the S&P
MidCap Index, managed by State Street Asset Management.
An investment in Fund C provides an opportunity for
investment return generally consistent with that of
smaller to medium sized company stocks, with an above
average potential for increase or decrease in value.
INVESTMENT FUND D - A government instrument fund with the objective of
maximizing income at minimum risk of capital with
underlying investments in obligations issued or
guaranteed by the United States government or agencies or
instrumentalities thereof, selected by Bankers Trust
Company as Trustee.
INVESTMENT FUND E - A portfolio of high quality treasury, agency, corporate
and asset/mortgage-backed securities managed by State
Street Asset Management with the objective of replicating
the total performance of the Lehman Brothers Aggregate
Bond Index.
5
Contributions made by you and on your behalf are invested at your direction in
one or more of these funds in any combination of multiples of 5%. You may apply
different investment instructions to amounts already accumulated as opposed to
future contributions. Changes in investment instructions may be made by
submitting a properly completed form or by use of Pentegra by Phone.
Any changes received by 4 PM Eastern Time (Stock Market Closing) will be
processed at the day's current business price. Transaction changes received
after 4 PM Eastern Time (Stock Market Closing) will be processed on the next
business day. Your Plan allows for a change of investment direction on a daily
basis.
Amounts invested in Fund B may not be transferred directly to Fund D or Fund E.
Fund B amounts must first be transferred to Fund A and/or Fund C and remain in
Fund A and/or Fund C for some minimum period of time (currently three months)
before such amounts may be transferred to Fund D or Fund E. Amounts transferred
from Fund A and/or Fund C to Fund B will be deemed to have first come from
amounts, if any, which could not be transferred directly to fund D or Fund E at
that time.
Each investment instruction may apply to either future contributions or your
already accumulated account, or both. Each change is effective on the valuation
date (see "Valuation of Accounts" section of this booklet) coinciding with or
next following the day on which your written notice of change is received by the
Board (except to the extent described in the "Negative Cash Flow Provision"
section of this booklet).
If no investment direction is given, all contributions credited to a member's
account will be invested in Fund D.
(Daily Changes)
6
VALUATION OF ACCOUNTS
The Plan uses a unit value system for valuing each member's account. Under this
system each member's share in an Investment Fund is represented by units. The
number of new units credited to a member in an Investment Fund is determined by
dividing the total amount of contributions (both employee and employer) invested
in the Fund by the unit value of the Fund as of the next valuation date. The
total value of a member's share in an Investment Fund as of any valuation date
is determined by multiplying the total number of units to the member's credit by
the unit value of the Fund on that date.
The sum of your shares in the available investment funds would represent the
value of your plan account.
NOTE: If for some reason (such as the shut down of the financial markets) the
underlying portfolios of any Investment Fund cannot be valued on the last
business day of a month, the valuation date for such Investment Fund shall be
the next subsequent date on which the underlying portfolios can be valued.
REPORTING TO MEMBERS
As soon as practicable after the end of each calendar quarter you will receive a
Personal Statement from the Plan. This Statement provides information about your
account including its market value, the number of units you have in Funds A, B,
C, D and E, the unit value of each Fund as of the end of the quarter and the
amount of contributions you have made.
7
(5YR)
VESTING
"Vesting" is the process under which you earn a non-forfeitable right to the
units in your account. You are always 100% vested (i.e., you will not give up
any units when you terminate employment) in any contributions you make to the
Thrift Plan.
With respect to any employer contributions credited to your account, the
following schedule will dictate when vesting will occur:
Years of Service Vesting Percentage
---------------- ------------------
0-4 0%
5 or more 100%
You will also become 100% vested in the employer contributions and earnings
thereon credited to your account upon your death, approved disability or
attainment of age 65 while employed with this employer.
If you terminate employment with this employer prior to completing 5 years of
service, you will forfeit all of the employer contributions and earnings thereon
credited to your account. However, if you are reemployed by this employer prior
to incurring 5 consecutive 1-year breaks in service, measured from your date of
termination, you are eligible to have the amount of the forfeiture and your
corresponding vesting service restored to your account.
8
(K2/3)
ACCOUNT WITHDRAWAL
You may make a total or partial withdrawal of the vested portion of your account
by filing the apprnpriate form with your employer or the Thrift Plan Office. A
withdrawal is based on the unit values on the valuation date (see "Valuation of
Accounts" section of this booklet) coinciding with or next following the date
that written notice is received by the Thrift Plan Office (except to the extent
described in the "Negative Cash Flow Provision" section of this booklet).
Under current law, an excise tax of 10% is generally imposed on the taxable
portion of withdrawals occurring prior to your attainment of age 59 1/2. There
are certain exceptions to the 10% excise tax. For example, the 10% excise tax
will not apply to withdrawals made on account of separation from service at or
after attainment of age 55, death or disability.
WHILE EMPLOYED
A. From the Regular Account:
Not more than one voluntary withdrawal may be made from your Regular account
in a calendar year unless it is limited to your own contributions, if any,
made prior to January 1, 1987 ("pre 1987 contributions") without earnings.
When you make a withdrawal, you may continue making contributions to the
Plan.
No partial withdrawal of less than $1,000 will be permitted unless it is for
either the full amount of (a) your own "pre-1987 contributions" without
earnings, (b) your own contributions (pre-1987 plus post-1986) and earnings
on them or (c) the total vested balance of your Regular account.
In general, employer contributions credited on your behalf will not be
available for in-service withdrawal until such employer contributions have
been invested in the Plan for at least 24 months (2 years) or you have been
a participant in the Plan for at least 60 months (5 years) or the attainment
of age 59 1/2.
B. From the 401 (k) Account:
Not more than one withdrawal may be made from your 401 (k) account in a
calendar year.
As required by Internal Revenue Service Regulations, a withdrawal from your
401 (k) account prior to age 59 1/2 or termination of employment can only be
made on account of hardship. The existence of an immediate and heavy
financial need, and the lack of any other available financial resources to
meet this need, must be demonstrated for a hardship withdrawal. The
following situations will be considered to constitute an immediate and heavy
financial need:
1 ) Medical expenses (other than amounts paid by insurance).
2) The purchase of a principal residence (mortgage payments are excluded).
9
3) Post-secondary education tuition (for the next semester or quarter).
4) The prevention of the eviction from a principal residence or foreclosure
on the mortgage of a principal residence.
You will be reguired to receive a distribution of the remaining available
vested balance, if any, of your Regular account and your Rollover account,
if any, prior to making a hardship withdrawal from your 401 (k) account. In
no event may the maximum amount of a hardship withdrawal from your 401 (k)
account exceed the value of your 401 (k) account as of December 31, 1988
plus the amount of any 401(k) contributions which you make to the Plan on or
after January 1, 1989 reduced by the amount of any hardship withdrawals
which you make from your 401 (k) account on or after January 1, 1989. No
partial withdrawal of less than $1,000 will be permitted unless it is for
either (a) the amount necessary to satisfy your hardship or (b) the total
vested balance of your 401 (k) account.
In general, employer contributions credited on your behalf will not be
available for in-service withdrawal until such employer contributions have
been invested in the Plan for at least 24 months (2 years) or you have been
a participant in the Plan for at least 60 months (5 years) or the attainment
of age 59 1/2.
C. From the Rollover Account
Not more than one withdrawal may be made from your Rollover account in a
calendar year. No partial withdrawal of less than S1,000 will be permitted
unless it is for the total balance of your Rollover account.
(Revised 12/93)
UPON TERMINATION OF EMPLOYMENT
You may leave your account with the Thrift Plan and defer receipt of your vested
balance until April 1 of the calendar year following the calendar year in which
you attain age 70 1/2, except to the extent that your vested account balance as
of the date of your termination is less than $500, in which case your interest
in the Plan will be cashed out and payment sent to you.
Except as provided above, you may make one withdrawal per account each calendar
year or defer withdrawal from your account until the April 1 of the calendar
year following the calendar year in which you attain age 70 1/2. You may
continue to change the investment instructions (see "Investment of
Contributions" section of this booklet) with respect to your remaining account
balance.
If your total vested account equals or exceeds $500, you may elect, in lieu of a
lump sum payment, to be paid in annual installments over a period of 2-10, 15 or
20 years with the right to take in a lump sum the vested balance of your account
at any time during such payment period. If your life expectancy is actuarialy
determined to be less than the period you elect, the maximum period over which
you can receive annual installments will be the next lower payment period.
(Revised 9/93)
10
UPON DISABILITY
If you are disabled in accordance with the definition of disability under the
Thrift Plan, you will be entitled to the same withdrawal rights as if you had
terminated your employment (see "Account Withdrawal - Upon Termination of
Employment" section of this booklet).
You are disabled under the Thrift Plan if you are eligible to receive (i)
disability insurance benefits under Title II of the Federal Social Security Act
or (ii) disability benefits under the Financial Institutions Retirement Fund or
any other Internal Revenue Service qualified employee benefits plan or long-term
disability plan of your employer.
UPON DEATH
If you die when you are a member of the Plan, the value of your entire account
will be payable to your beneficiary. This payment will be made in the form of a
lump sum, unless the payment would exceed $500, and you had elected prior to
your death that the payment be made in annual installments over a period not to
exceed 5 years (10 years if your spouse is your beneficiary). If such an
election is not in effect at the time of your death, your beneficiary may elect
to receive the benefit in the form of annual installments over a period not to
exceed 5 years (10 years if your spouse is your beneficiary) or make withdrawals
as often as once per year, except that any balance remaining must be withdrawn
by the 5th anniversary (10th anniversary if your spouse is your beneficiary) of
your death.
If you are married, your spouse will be your beneficiary unless your spouse
consents in writing to the designation of a different beneficiary.
REENROLLMENT
If you terminate employment and are subsequently reemployed by the same or
another participating employer, you will be eligible for immediate reenrollment.
ROLLOVERS
If you are eligible to participate in the Plan, you may make a rollover
contribution of an eligible rollover distribution from any other Internal
Revenue Service qualified retirement plan or an individual retirement
arrangement (IRA). These funds will be maintained in a separate rollover account
in which you will have a nonforfeitable vested interest. Your withdrawal rights
while in service and upon termination of employment are generally the same as
with respect to your Regular account under the Thrift Plan (see "Account
Withdrawal" section of this booklet).
(Revised 9/93)
11
(K-R/K)
LOANS
You may borrow from the vested portion of your Regular account and/or 401 (k)
account and/or your Rollover account, if you have one, any amount between $1,000
and $50,000 (reduced by your highest outstanding loan balance(s) from the Thrift
Plan during the preceding 12 months), subject to the following further
limitation:
In no event may you borrow more than 50% of the combined vested balance of
your Regular account, your 401 (k) account and your Rollover account, if
any.
You may borrow only once in each calendar year from your Regular and/or 401 (k)
account and once in each calendar year from your Rollover account, if any. Each
loan must be for at least $1,000. With respect to a loan from your 401 (k)
and/or Regular accounts, you may choose to borrow first from either your Regular
or 401 (k) account. Whichever account you borrow from first, such account must
be exhausted before you may borrow any amount from the other account. A loan
from your Rollover account, if you have one, will be considered a separate loan.
The amount of your loan will first be deducted from the taxable portion of your
account and then from the after-tax portion, if any.
The amount of your loan will be deducted on the valuation date (see "Valuation
of Accounts" section of this booklet) coinciding with or next following the date
the Thrift Plan Office receives your properly executed Loan Application,
Promissory Note and Disclosure Statement (except to the extent described in the
"Negative Cash Flow Provision" section of this booklet). On request, your
employer or the Thrift Plan Office will provide you with the application form.
The loan will not affect your right to continue making contributions or to
receive the corresponding employer matching contributions.
Your loan will be deducted proportionately from the Funds in which the account
(from which you are taking the loan) is invested. Your loan repayments will be
credited in accordance with your investment instructions in effect at the time
of each repayment.
The rate of interest for the term of the loan will be established as of the loan
date, and shall be a reasonable rate of interest generally comparable to the
rates of interest then in effect at a major banking institution (e.g., the
Barron's Prime Rate [base rate] plus 1 %).
Repayments are made through salary deductions and will be transmitted along with
regular monthly contribution reports. The repayment period is between 1 and 15
years for loans used exclusively for the purchase of a primary residence or 1
and 5 years for all other loans, at your option. After 12 monthly payments have
been made, you may repay the outstanding balance of the loan. If a loan includes
any amounts from your 401 (k) account, you will not be permitted to default on
the loan repayment while employed. Your employer is required to withhold the
loan repayments from your monthly salary.
12
Crediting of repayments will take the following form: As you repay the loan, the
principal portion, together with the interest, will be credited to your account,
after deducting 2% of the outstanding balance to cover administrative expense.
In this way, you will be paying interest to yourself.
In the event that you leave employment or die before repaying the loan, the
outstanding balance will be due and, if not paid within 60 days, will be deemed
a distribution, unless you elect to continue to repay the loan on a monthly
basis directly to the Thrift Plan office.
(Revised 9/93)
NEGATIVE CASH FLOW PROVISION
In the event that there is a negative cash flow (which may be caused by a large
number of withdrawals, loans and/or investment direction changes out of
Investment Funds A, B, C, D or E) coupled with a decline in the stock market
shortly after a month-end valuation, the lesser of the month-end unit value or
the sale date estimated unit value will be used to value that portion of the
withdrawals, loans and/or investment direction changes which must be provided
through the sale of existing units.
(Revised 1/93)
13
(K)
PLAN LIMITATIONS
o Internal Revenue Service ("IRS") requirements impose certain limitations on
the amount of contributions that may be made to this and other qualified
plans. In general, the annual "contributions" made to a defined contribution
plan such as this Plan, in respect of any member, may not exceed the lesser
of 25% of the member's total compensation or $30,000. (This amount may be
subject to periodic adjustment by the IRS at some time in the future.) For
this purpose, "contributions" include employer contributions, member 401 (k)
contributions and member after-tax contributions. The annual member
contributions allocated to a member's 401 (k) account may not exceed the
lesser of 25% of the member's total compensation or $7,000 (indexed for
cost-of-living adjustments, if any). Further, if your employer has another
tax-qualified plan in effect, these limits are subject to additional
restrictions.
o Each member and beneficiary assumes the risk in connection with any decrease
in the market value of his account. The benefit to which you may be entitled
upon your withdrawal of account cannot be determined in advance.
o As a defined contribution plan, the Plan is not covered by the plan
termination insurance provisions of Title IV of the Employee Retirement
Income Security Act of 1974 ("ERISA") Therefore, your benefits are not
insured by the Pension Benefit Guaranty Corporation in the event of a plan
termination.
o The Trustee is empowered to charge against and pay out of the Trust Fund, to
the extent not paid by the employers, all proper costs of operation and
administration of the Plan, including the expenses and compensation of the
Trustee, expenses of the Board and compensation for its agents.
o Except as may otherwise be required by applicable law or pursuant to the
terms of a Qualified Domestic Relations Order, amounts payable by the Plan
generally may not be assigned, and if any person entitled to a payment
attempts to assign it, his interest in the amount payable may be terminated
and held for the benefit of that person or his dependents.
o If the Board cannot locate any person entitled to a payment from the Plan
and if 5 years have elapsed from the due date of such payment, the Board may
cancel all payments due him to the extent permitted by law.
o Membership in the Plan does not give you the right to continued employment
with your employer or affect your employer's right to terminate your
employment.
o Your employer's continued participation is subject to IRS approval and any
requirements the IRS may impose.
o An employer may terminate its participation in the Plan at any time. In
addition, the Board retains the right to terminate the Plan or an employer's
participation in the Plan in certain circumstances. If the Plan is
terminated or if your employer's participation in the Plan is terminated,
there will be no further contributions to the Plan for your account.
14
Std
TOP HEAVY INFORMATION
A "top heavy" plan is a plan under which more than 60% of the accrued benefits
(account values) are for key employees. Key employees generally include officers
and shareholders earning more than $45,000 (indexed for cost-of-living
adjustments, if any) per year. If your employer's plan is top heavy for a
particular plan year, you may be entitled to a minimum employer contribution
equal to the lesser of 3% of your Plan Salary or the greatest percentage
contributed by the employer for any key employee. This minimum contribution
would be offset by the regular contribution made by your employer tsee "Plan
Contributions" section of this booklet).
In order to receive the minimum contribution for any plan year, you must be
employed on the last day of the plan year (December 31). If your employer also
provides a defined benefit or another defined contribution plan, your minimum
benefit may be provided under such plan.
DISPUTED CLAIMS PROCEDURE
If you disagree with respect to any benefit to which you feel you are entitled,
you should make written claim to the President of the Plan. If your claim is
denied, you will receive written notice explaining the reason for the denial
within 90 days after the claim is filed.
The President's decision shall be final unless you appeal such decision in
writing to the Board of Directors of the Plan at 108 Corporate Park Drive, White
Plains, NY 10604, within 60 days after receiving the notice of denial. The
written appeal should contain all information you wish to be considered. The
Board will review the claim within 60 days after the appeal is made. Its
decision shall be in writing, shall include the reason for such decision and
shall be final.
15
Std
STATEMENT OF MEMBER'S RIGHTS
.
As a member of the Plan, you are entitled to certain rights and protections
under ERISA which provides that all members shall be entitled to:
o Examine, without charge, at the Plan Administrator's office or at other
specified locations, all plan documents, and copies of all documents filed
by the Plan with the U. S. Department of Labor such as detailed annual
reports and plan descriptions.
o Obtain copies of all plan documents and other plan information upon written
request to the Plan Administrator. The Administrator may make a reasonable
charge for the copies.
o Receive a summary of the Plan's annual financial report. The Plan
Administrator is required by law to furnish each member with a copy of such
summary.
In addition to creating rights for Plan members, ERISA imposes duties upon the
people who are responsible for the operation of the Plan. The people who operate
your Plan, called "fiduciaries", have a duty to do so prudently and in the
interest of you and other plan members and beneficiaries. No one may fire you or
otherwise discriminate against you in any way to prevent you from obtaining a
benefit or exercising your rights under ERISA. If your claim for a benefit is
denied in whole or in part, you will receive a written explanation of the reason
for the denial. As already explained, you also have the right to have your claim
reconsidered.
Under ERISA, there are steps you can take to enforce the above rights. For
instance, if you request materials from the Plan and do not receive them within
30 days, you may file suit in a federal court. In such a case, the court may
require the Plan Administrator to provide the materials and pay you up to $100
a day until you receive them, unless such materials were not sent for reasons
beyond the Administrator's control. If you have a claim for benefits which is
denied or ignored, in whole or in part, you may file suit in a state or federal
court.
If it should happen that Plan fiduciaries misuse the Plan's money, or if you are
discriminated against for asserting your rights, you may seek assistance from
the U. S. Department of Labor or you may file suit in a federal court. The court
will decide who should pay court costs and legal fees. If you are successful,
the court may order the person you have sued to pay these costs and fees. If you
lose, the court may order you to pay such costs and fees (for example, if it
finds your claim is frivolous).
If you have any questions about your Plan, you should contact the Plan
Administrator. If you have any questions about this statement or your rights
under ERISA, you should contact the nearest Area Office of the U.S.
Labor-Management Services Administration, Department of Labor.
This Statement of ERISA Rights is required by federal law and regulation.
16
Std
OTHER PLAN INFORMATION
PLAN SPONSOR
The Plan is sponsored by the --
Financial Institutions Thrift Plan
108 Corporate Park Drive
White Plains, NY 10604
Telephone (914) 694-1300
Employer Identification Number- 13 6321489
Plan Number 002
Plan Year End December 31
PLAN ADMINISTRATOR:
The Plan Administrator is the President of the Plan whose place of business is
the office of the Financial Institutions Thrift Plan. The President is also the
person designated as agent for service of legal process. Service of legal
process may also be made upon the Plan Trustee.
BOARD OF DIRECTORS:
The make-up of the Board changes from year to year, but you may refer to the
most recent Annual Report (which is sent to your employer) for a current listing
of the Board members and their places of business.
TRUSTEE:
The name and address of the current Trustee(s) of the Plan may be found in the
Annual Report. A Trustee may be changed from time to time by the Board.
PARTICIPATING EMPLOYERS:
A listing of employers participating in the Plan is available upon request.
17
Exhibit 10.11
WAL*MART LEASE AGREEMENT
THIS LEASE is entered into as of the 27th day of January, 1997, and
between Landlord and Tenant as hereinafter defined.
WHEREAS, in consideration of the obligation of Tenant to pay Rent as
herein provided and in consideration of the Standard Terms and Conditions set
forth herein, Landlord hereby demises and leases to Tenant, and Tenant hereby
takes from Landlord, the Demised Premises, TO HAVE AND TO HOLD said Demised
Premises for the Lease Term specified below, and upon the terms and conditions
set forth in this Lease.
BASIC PROVISIONS
1. Landlord: WAL-MART STORES, INC., 701 SOUTH WALTON BOULEVARD,
BENTONVILLE, AR 72716
2. Tenant: FIRST BANK AND TRUST COMPANY, 180 Washington Street,
Providence, Rl 02903
3. Tenant's Trade Name(s): FIRST BANK AND TRUST
4. "Demised Premises": The space occupied by Tenant's Financial Service
Facility ("FSF") in WAL-MART No. 2261 in the City of N. KINGSTOWN, RI
(the "Store").
5. Targeted Commencement Date: June 20,1997
6. Lease Term: Commencing on the Commencement Date as defined in Section
1.3 below, and continuing until 12:00 Midnight local time on the fifth
anniversary of the Commencement Date (the "Termination Date").
7. Rent: Payable as specified in Article III:
<TABLE>
<CAPTION>
Annually Monthly
-------- -------
<S> <C> <C>
Initial Term $25,000.00 $2,083.33
First Renewal Term $31,250.00 $2,604.17
Second Renewal Term $39,062.50 $3,255.21
</TABLE>
8. Prepaid Rent: $2,083.33 being Rent for the last month of the Lease
Term, due within thirty (30) days after the Commencement Date.
9. Key Money: A one-time nonrefundable fee of $25,000.00 for the right to
operate an FSF in the Store. Payment is to be made within thirty (30)
days after the Commencement Date.
10. Landlord's Construction Payment: A one-time payment of $10,000.00 for
Landlord's work related to the design, construction and finishing of
the Demised Premises. Payment is to be made within thirty (30) days
after the Commencement Date.
11. Special Utility Charge: $1,500 per term, if Landlord permits Tenant to
have an illuminated exterior sign, payable in advance within thirty
(30) days after the Commencement Date of the initial term, and upon
commencement of any renewal term.
EXECUTED AS OF THE DATE HEREIN ABOVE STATED.
LANDLORD: WAL-MART STORES, INC. TENANT: FIRST BANK AND TRUST COMPANY
By: By:
----------------------------- ---------------------------------
Anthony L. Fuller
Vice President Title: Chairman, President and CEO
Wal-Mart Realty Company ---------------------------
WAL*MART LEASE AGREEMENT
THIS LEASE is entered into as of the 27th day of January, 1997, and between
Landlord and Tenant as hereinafter defined.
WHEREAS, in consideration of the obligation of Tenant to pay Rent as herein
provided and in consideration of the Standard Terms and Conditions set forth
herein, Landlord hereby demises and leases to Tenant, and Tenant hereby takes
from Landlord, the Demised Premises, TO HAVE AND TO HOLD said Demised Premises
for the Lease Term specified below, and upon the terms and conditions set forth
in this Lease.
BASIC PROVISIONS
1. Landlord: WAL-MART STORES, INC., 701 SOUTH WALTON BOULEVARD,
BENTONVILLE, AR 72716
2. Tenant: FIRST BANK AND TRUST COMPANY, 180 Washington Street,
Providence, RI 02903
3. Tenant's Trade Name(s): FIRST BANK AND TRUST
4. "Demised Premises": The space occupied by Tenant's Financial Service
Facility ("FSF") in WAL-MART No. 2261 in the City of N. KINGSTOWN, RI
(the "Store").
5. Targeted Commencement Date: June 20, 1997
6. Lease Term: Commencing on the Commencement Date as defined in Section
1.3 below, and continuing until 12:00 Midnight local time on the fifth
anniversary of the Commencement Date (the "Termination Date").
7. Rent: Payable as specified in Article III:
<TABLE>
<CAPTION>
Annually Monthly
-------- -------
<S> <C> <C>
Initial Term $25,000.00 $2,083.33
First Renewal Term $31,250.00 $2,604.17
Second Renewal Term $39,062.50 $3,255.21
</TABLE>
8. Prepaid Rent: $2,083.33 being Rent for the last month of the Lease
Term, due within thirty (30) days after the Commencement Date.
9. Key Money: A one-time nonrefundable fee of $25,000.00 for the right to
operate an FSF in the Store. Payment is to be made within thirty (30)
days after the Commencement Date.
10. Landlord's Construction Payment: A one-time payment of $10,000.00 for
Landlord's work related to the design, construction and finishing of
the Demised Premises. Payment is to be made within thirty (30) days
after the Commencement Date.
11. Special Utility Charge: $1,500 per term, if Landlord permits Tenant to
have an illuminated exterior sign, payable in advance within thirty
(30) days after the Commencement Date of the initial term, and upon
commencement of any renewal term.
EXECUTED AS OF THE DATE HEREIN ABOVE STATED.
LANDLORD: WAL-MART STORES, INC. TENANT: FIRST BANK AND TRUST COMPANY
By: By:
---------------------------- ---------------------------------
Anthony L. Fuller
Vice President Title: Chairman, President and CEO
Wal-Mart: Realty Company ------------------------------
STANDARD TERMS AND CONDITIONS FOR WAL*MART LEASE AGREEMENT
ARTICLE I. GENERAL PROVISIONS
1.1 Quiet Possession: Landlord further agrees that if Tenant shall
perform all of the covenants and agreements herein required to be performed by
Tenant, Tenant shall, subject to the terms of this Lease, at all times during
the continuance of this Lease have peaceful and quiet possession of the Demised
Premises.
1.2 Renewal Terms: Provided Tenant has conducted its business in an
efficient, high-class and reputable manner and is not in default hereunder,
Tenant shall have the option(s) to extend the term of this Lease for up to two
(2) consecutive terms of Five (5) years each by giving Landlord written notice
of its exercise of the respective option at least one hundred eighty (180) days
prior to the expiration of the original Lease Term or the expiration of the then
existing term. References to the "Lease Term" shall refer to the original term
and any extensions or renewals thereof.
1.3 Commencement Date: The latest to occur of (i) the ninetieth (9Oth)
day after Tenant's receipt of all necessary regulatory approvals; (ii) the
ninetieth (90th) day after the date on which Landlord tenders possession of the
Demised Premises to Tenant for completion of Tenant's work; and (iii) the date
on which the Store opens for business. Landlord and Tenant agree to execute and
deliver a "Commencement Agreement," in the form attached hereto as Exhibit "A"
within thirty (30) days after the FSF opens for business. Notwithstanding the
foregoing, the Commencement Date shall be no earlier than the Targeted
Commencement Date set forth in Section 5 of the Basic Provision, unless Tenant
actually opens for business in the Demised Premises before the Targeted
Commencement Date.
1.4 Permitted Use: A banking facility staffed with one or more bank
employees whose functions include, without limitation, opening new deposit
accounts, accepting loan applications, closing loans, and performing customary
teller transactions, such as cashing checks and taking deposits. An FSF may be
equipped with an ATM, vault, safe deposit boxes, a night depository, and one or
more self-service or interactive banking terminals. Tenant shall have the
exclusive right to operate an FSF within the Store and may also offer, on a
non-exclusive basis, such ancillary products and services as may be permitted by
applicable law and regulations; provided, however, that Tenant shall not offer
insurance, investment products and travel agency services, except for the
insurance and investment products and services listed on Exhibit "B," without
Landlord's prior written consent, which consent shall not be unreasonably
withheld. Tenant may not trade merchandise that conflicts with Landlord's
merchandise without Landlord's written approval.
1.5 Automated Teller Machine ("ATM"):
(a) Tenant shall have the exclusive right to operate one ATM within the
Store, and a first refusal right to operate additional ATMs within the Store.
Any additional ATMs shall be subject to the terms of this Lease and to the
following additional conditions: (i) Tenant shall pay ATM rental of $500 per
month for each additional ATM; (ii) the location(s) of additional ATM(s) will be
as determined by Landlord; and (iii) all additional ATM(s) must be front-loading
ATMs.
(b) Tenant shall not charge a Terminal Usage Fee or other fee for use
of Tenant's ATMs in the Store, other than normal and customary interchange fees
and fees customarily assessed by Tenant to its account holders (none of which
shall be considered "Terminal Usage Fees" for the purposes of this Agreement)
without Landlord's prior written consent. Landlord's consent to Tenant's
imposition of Terminal Usage Fees shall not be unreasonably withheld, and shall
be based upon Landlord's analysis of Terminal Usage Fees charged by ATMs
operated by Tenant and other ATM operators within the Store's market area,
including freestanding ATMs, parking lot ATMs, ATMs in retail locations operated
by Landlord, and retail locations operated by Landlord's competitors, it being
Landlord's intention to ensure that Landlord's "everyday low prices" philosophy
applies to charges imposed on customers of Tenant's ATMs.
(c) In the event Tenant is permitted to charge Terminal Usage Fees, and
elects to do so, Tenant shall pay Landlord an ATM transaction fee (the "ATM
Transaction Fee"), in addition to any other ATM fees payable hereunder, equal to
fifty percent (50%) of the Terminal Usage Fees received by Tenant by reason of
transactions conducted at Tenant's ATM(s) in the Store. ATM Transaction Fees
shall be paid monthly in arrears, commencing on the fifteenth (15th) day of the
month after the month in which the ATM commences operation. Tenant shall keep
and maintain full and accurate records of Terminal Usage Fees charged to
customers of Tenant's ATM(s). Landlord shall have the right during Tenant's
business hours and upon reasonable notice to Tenant to inspect, copy and audit
such records, and Tenant will produce the same on Landlord's request. If any
such inspection and audit discloses a liability for ATM Transaction Fees in
excess of ATM Transaction Fees theretofore paid by Tenant, Tenant shall
promptly, upon demand, pay to Landlord such
S-1
liability. If the audit discloses that Tenant's statements underreported ATM
Transaction Fees by more than two percent (2%), then Tenant shall, in addition,
pay the reasonable cost of Landlord's audit.
ARTICLE II. ACCEPTANCE OF DEMISED PREMISES; REMODELING
2.1 Acceptance of Demised Premises: By opening for business in the
Demised Premises, Tenant shall be deemed to have accepted the same "as is" and
to have acknowledged that the same comply fully with Landlord's covenants and
obligations hereunder.
2.2 Possession: If this Lease is executed before the Demised Premises
becomes vacant, or if any present tenant or occupant of the Demised Premises
holds over, and Landlord cannot acquire possession of the Demised Premises prior
to the Targeted Commencement Date, Landlord shall not be deemed to be in default
hereunder, and Tenant agrees to accept possession of the Demised Premises at
such time as Landlord is able to tender the same. Landlord hereby waives the
payment of Rent covering any period prior to tender of possession of the Demised
Premises to Tenant hereunder. If Landlord, in Landlord's sole discretion,
determines that it will be unable to acquire possession of the Demised Premises
within a reasonable time after the Targeted Commencement Date by reasonable
commercial efforts, short of litigation, Landlord shall have the right to
terminate this Agreement by written notice to Tenant, whereupon neither party
shall have any further rights, duties or obligations hereunder.
2.3 Construction of Store: If this Lease is executed before Landlord
has commenced construction of the Store and Landlord does not tender possession
of the Demised Premises to Tenant for completion of Tenant's work by the
Targeted Commencement Date, as above defined, Landlord shall not be deemed to be
in default hereunder, and Tenant agrees to accept possession of the Demised
Premises at such time as Landlord tenders the same. Notwithstanding the
foregoing, if Landlord, in Landlord's sole discretion (i) determines it will be
unable to deliver possession of the Demised Premises to Tenant within a
reasonable time after the Targeted Commencement Date, by reason of construction
or regulatory delays or otherwise, or (ii) elects not to construct the Store,
Landlord shall have the right to terminate this Agreement by written notice to
Tenant, whereupon neither party shall have any further rights, duties or
obligations hereunder.
2.4 Store Renovation: Tenant recognizes that Landlord may, from time to
time, wish to remodel, rearrange or enlarge the Store to accommodate changes in
retailing patterns. If the remodeling/rearranging/enlargement involves
relocation of the Demised Premises, Landlord shall pay the actual costs of such
relocation, but no more than $100,000.00 if the remodeling occurs during the
first year of the lease term; no more than $80,000.00 if within the second year
of the lease term; no more than $60.000.00 if within the third year of the lease
term; no more than $40,000.00 if within the fourth year of the lease term; no
more than $20,000.00 if within the fifth year of the lease term; and nothing
thereafter. Tenant shall pay all costs that Landlord has not agreed to pay. In
no event will Landlord be responsible for "loss of business," "lack of trade,"
or any other claim resulting out of such renovation. Notwithstanding any
remodeling of the Store, the Demised Premises shall always be comparable in
configuration and overall size to the original Demised Premises, and shall be
located at the front of the Store, convenient to checkout stands and plainly
visible to customers. Landlord agrees that Tenant may temporarily close the
Demised Premises if Tenant reasonably determines that its ability to operate is
materially impaired due to work associated with Store construction, remodeling,
moving or enlargement. Rent shall be abated during periods in which the Demised
Premises is closed by reason of work associated with Store construction,
remodeling, moving or enlargement.
ARTICLE III. RENT
3.1 Address for Payment of Rent: Rent shall be payable to Landlord in
care of:
Wal-Mart Stores, Inc.
P.O. Box 500620
St. Louis, MO 63150-0620
3.2 Time of Payment of Rent: Tenant shall pay Rent to Landlord in
monthly installments. The first such monthly installment shall be due and
payable on or before the earlier of (i) the date on which Tenant first opens for
business in the Demised Premises and (ii) the Commencement Date, and subsequent
installments shall be due and payable on or before the first day of each
succeeding calendar month during the Lease Term. Rent shall be prorated on a
daily basis for any partial month in the Lease Term that results from the Lease
Term beginning on a day other than the first day of a calendar month or ending
on a day other than the last day of a calendar month.
3.3 Electronic Payment: It is understood that the Rent, Key Money,
Landlord's Construction Payment and all other payments hereunder are payable at
the times stated herein without offset or deduction
S-2
of any nature. If requested by Landlord, all payments shall be made
electronically by Fedwire or through an Automated Clearing House (ACH). In the
event any payment is not received within ten (10) days of the due date, it is
agreed that the amount thus due shall bear interest at the rate of one and
one-half percent (1 1/2%) per month, such interest to accrue continuously on any
unpaid balance due to Landlord by Tenant during the period commencing with the
due date and terminating with the date on which Tenant makes full payment of all
amounts owing to Landlord at the time of said payment. Any such interest shall
be payable as additional Rent hereunder and shall be payable immediately on
demand.
3.4 Quarterly Payment of Rent at Landlord's Option: If Tenant fails in
two (2) consecutive months to make payments of Rent within ten (10) days after
due, Landlord, in order to reduce its administrative costs, may require by
giving written notice to Tenant (and in addition to any interest accruing
pursuant to Section 3.3 above, as well as any other rights and remedies accruing
pursuant to Article XVIII or Article XIX, or any other term, provision or
covenant of this Lease), that Rent is to be paid quarterly in advance instead of
monthly.
ARTICLE IV. REPORTS AND RECORDS
4.1 Loans and Deposits: Promptly following the end of each calendar
quarter during the term of the Lease, Tenant shall deliver to Landlord
information concerning loans and deposits for the Demised Premises in the form
attached as Exhibit "C" or in such other form as may be mutually acceptable to
Landlord and Tenant. Landlord acknowledges that such reports contain sensitive
and confidential information and shall use reasonable business efforts to
maintain the confidentiality of the information contained therein, both during
and after the expiration of the Lease Term.
ARTICLE V. COMMON AREAS
5.1 Common Areas: The term "Common Area" is defined for all purposes of
this Lease as that part of the Store as well as certain adjoining property owned
or leased by Landlord and intended for the common use of all tenants, including
among other facilities (as such may be applicable), parking area, private
streets and alleys, landscaping, curbs, loading area, floors, doors, side walks,
food court, malls and promenades (enclosed or otherwise), lighting facilities,
drinking fountains, meeting rooms, public toilets and the like but excluding
space in buildings (now or hereafter existing) designed for rental or commercial
purposes, as the same may exist from time to time, and further excluding streets
and alleys maintained by a public authority. Landlord reserves the right to
change from time to time the dimensions and locations of the Common Area.
Tenant, and its employees and customers, and when duly authorized pursuant to
the provisions of this Lease, its subtenants, licensees and concessionaires,
shall have the nonexclusive right to use the Common Area as constituted from
time to time, such use to be in common with Landlord, other tenants of the Store
and other persons permitted by Landlord to use the same, and subject to such
reasonable rules and regulations governing use as Landlord may from time to time
prescribe, including the designation of specific areas in which automobiles
owned by Tenant, its employees, subtenants, licensees and concessionaires shall
be parked. Landlord may temporarily close any part of the Common Area for such
periods of time as may be necessary to make repairs or alterations to prevent
the public from obtaining prescriptive rights. Landlord shall be responsible for
the operation, management, and maintenance of the Common Area, the manner of
maintenance and the expenditures therefor to be in the sole discretion of
Landlord.
ARTICLE Vl. USE AND CARE OF DEMISED PREMISES
6.1 Operation: The Demised Premises may be used only for the purpose or
purposes specified in Section 1.4, and for no other purposes without the prior
written consent of Landlord. Tenant shall not at any time leave the Demised
Premises vacant, but shall in good faith continuously throughout the Lease Term
operate an FSF in the Demised Premises. Tenant shall operate its business in an
efficient, high class and reputable manner, and shall, except during reasonable
periods for repairing, cleaning, and decorating, keep the Demised Premises open
to the public for business with adequate personnel in attendance, for a minimum
of fifty (50) hours a week allocated over six (6) days, two (2) of which shall
be Friday and Saturday; provided, however, that such minimum hours of operation
shall be shortened for any week during which a bank holiday occurs. In addition,
Tenant agrees to provide a level and quality of services to its customers in the
Store that equals or exceeds Landlord's standards for the level and quality of
services Landlord provides to its customers in the Store, and will conduct its
banking business at the FSF in conjunction with and abiding by Landlord's
philosophies, culture and standards, subject to sound banking practices and
applicable banking laws, rules and regulations.
6.2 Customer Service Telephone: Tenant shall provide, at its sole
expense, a customer service "Hot Line" notice including the Tenant's local or
other toll free number at the Demised Premises. The notice shall be in a
conspicuous location in full view of all customers at all times the Store is
open for business. Letters
S-3
and numbers are to be a minimum of four inches (4") in scale with a background
color which highlights the color of the characters.
6.3 Increased Risk: Tenant shall not, without Landlord's prior written
consent, keep anything within the Demised Premises or use the Demised Premises
for any purpose which increases the insurance premium cost or invalidates any
insurance policy carried on the Demised Premises or the Store or the Common
Area. All property kept, stored or maintained within the Demised Premises by
Tenant shall be at Tenant's sole risk.
6.4 Care of Demised Premises: Tenant shall take good care of the
Demised Premises and keep the same free from waste at all times. Tenant shall
keep the Demised Premises neat, clean and free from dirt or rubbish at all
times. Receiving and delivery of goods and merchandise and removal of garbage
and trash from the Demised Premises shall be made only in the manner and areas
prescribed by Landlord. Tenant shall not operate an incinerator or burn trash or
garbage within the Store or Common Area. Tenant shall not permit any
objectionable or unpleasant odors to emanate from Demised Premises; nor place or
permit any radio, television, loudspeaker or amplifier on the roof or outside
the Demised Premises or where the same can be seen or heard from outside the
building; nor place any antenna, awning or other projection on the exterior of
the Demised Premises; nor take any other action which would constitute a
nuisance or would disturb or endanger other tenants of the Store or unreasonably
interfere with their use of their respective premises; nor do anything which
would tend to injure the reputation of the Store.
6.5 Display Windows: Tenant shall maintain all display windows in a
neat, attractive condition and shall keep all display windows lighted during all
business hours as defined above.
6.6 Permits: Tenant shall procure at its sole expense any permits and
licenses required for the transaction of business in the Demised Premises and
shall otherwise comply with all applicable laws, ordinances, and governmental
regulations.
6.7 Tenant's Employees:
(a) All persons employed by Tenant in or about, or in connection with,
the operation of the FSF shall be Tenant's employees for all purposes under this
Agreement. Tenant's employees and agents and employees of companies which
service the FSF who are not Tenant employees or agents shall be granted access
to the Store for the purpose of servicing, maintaining, and otherwise performing
services in connection with the FSF. Landlord agrees to cooperate with Tenant in
providing access to the Demised Premises during periods of time the Store may
not be open for business.
(b) Employees of Tenant, while working at the FSF, shall be permitted
to park their automobiles in spaces designated by Landlord for parking by
Landlord employees. Tenant shall furnish to Landlord upon request a complete
list of license numbers of all automobiles operated by Tenant, its employees,
subtenants, licensees or concessionaires, and Tenant agrees that if any
automobile or other vehicles owned by Tenant or any of its employees,
subtenants, licensees or concessionaires shall be parked in any part of the
Common Area other than the specified areas designated for employee parking while
performing services at the Demised Premises, Tenant shall pay to Landlord as
additional Rent upon demand an amount equal to the daily rate or charge for such
parking as may be reasonably established by Landlord from time to time for each
day, or part thereof, such automobile or other vehicle is so parked. Landlord
may from time to time substitute for any parking area other areas reasonably
accessible to Tenant, which areas may be elevated, surface or underground.
6.8 Advertising and Promotion:
(a) Tenant may advertise the existence and location of the FSF by media
as per manner approved by Landlord at the on-site operations level, which
approval will not be unreasonably withheld or delayed. Aside from notices of the
existence and location of the FSF, neither Landlord nor Tenant will use the
other's name, trademark, servicemark, or logo in any advertising, marketing,
or solicitation materials without the other's consent. In no event will either
party advertise or otherwise represent that it has any relationship with the
other other than the relationship of landlord and tenant arising out of Tenant's
occupying space in the Store.
(b) Subject to Landlord's approval on the on-site operations level,
which will not be unreasonably withheld or delayed, Tenant may promote its
products and services outside the FSF within the Store itself; provided,
however, such products and services shall be those offered at the FSF and shall
not compete with the grocery products or services offered by Landlord.
(c) Subject to Landlord approval on the on-site operations level, which
will not be unreasonably withheld or delayed, Tenant shall have access to the
intercommunication system ("intercom") within the Store
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to promote the products and services offered at the FSF. The use of the intercom
shall be coordinated and approved between the Store Manager and the FSF Manager.
(d) All promotions conducted by Tenant in the Store shall be conducted
in a professional manner by trained employees of Tenant or an Affiliate (as
defined in Section 16.2, below) working at the FSF.
(e) Landlord, as approved at the on-site operations level, shall permit
Tenant to place signs identifying its operations inside the Store at locations
to be agreed upon by the parties. Tenant will submit to Landlord for its
approval, which will not be unreasonably withheld or delayed, a signage package
detailing the appearance and size of all signs to be installed.
6.9 Trade Name: Tenant hereby acknowledges that Tenant's business
reputation, intended use of the Demised Premises and ability to generate
patronage to the Demised Premises and the Store were all relied upon by Landlord
and served as significant and material inducements contributing to Landlord's
decision to execute this Lease with Tenant. Tenant hereby covenants and agrees:
(i) to operate in the Demised Premises only under the trade name(s) set forth in
the Basic Provisions, and under no other name or trade name whatsoever without
Landlord's prior written consent, provided (A) such consent by Landlord shall
not be unreasonably withheld and (B) if Tenant is acquired by, or acquires,
whether by merger or other means, a bank or bank holding company having assets
equal to fifty percent (50%) or more of the assets of Tenant, Tenant may, upon
prior notice to Landlord, adopt the name or trade name used by such other bank
or bank holding company in its banking business, provided in either case such
name is not obscene and does not contain the name of any of Landlord's
competitors.
ARTICLE Vll. MAINTENANCE AND REPAIR OF DEMISED PREMISES
7.1 Landlord's Responsibility: Landlord shall keep the foundation, the
exterior walls, heating, air conditioning and roof (except plate glass; windows,
doors, door closure devices and other exterior openings; window and door frames,
molding, locks and hardware; special storefronts; lighting, plumbing and other
electrical, mechanical and electromotive installations, equipment and fixtures;
signs, placards, decorations or advertising media of any type; and interior
painting or other treatment of exterior walls) of the Demised Premises in good
repair. Landlord, however, shall not be required to make any repairs occasioned
by the act or negligence of Tenant or Tenant's agents, employees, subtenants,
licensees and concessionaires; and the provisions of the previous sentence are
expressly recognized to be subject to the provisions of Article XIV (Casualty)
and Article XV (Condemnation) of this Lease. In the event that the Demised
Premises should become in need of repairs required to be made by Landlord
hereunder, Tenant shall give prompt written notice thereof to Landlord, and
Landlord shall not be responsible in any way for failure to make any such
repairs until a reasonable time shall have elapsed after receipt by Landlord of
such written notice.
7.2 Tenant's Responsibility: Tenant shall keep the Demised Premises in
good, clean and habitable condition and shall at its sole cost and expense keep
the Demised Premises free of insects, rodents, vermin and other pests and make
all needed repairs and replacements, including replacement of cracked or broken
glass, except for repairs and replacements required to be made by Landlord under
the provisions of Section 7.1, Article XIV (Casualty) and Article XV
(Condemnation). Without limiting the coverage of the previous sentence, it is
understood that Tenant's responsibilities therein include the repair and
replacement of all of Tenant's lighting, plumbing and other electrical,
mechanical and electromotive installation, equipment and fixtures and also
include all utility repairs in ducts, conduits, pipes, wiring, and any sewer
located in, under or above the Demised Premises and serving the Demised
Premises. If any repairs required to be made by Tenant hereunder are not made
within ten (10) days after written notice delivered to Tenant by Landlord,
Landlord may at its option make such repairs without liability to Tenant for any
loss or damage which may result to its stock or business by reason of such
repairs; and Tenant shall pay to Landlord upon demand, as additional Rent
hereunder, the cost of such repairs plus ten percent (10%) thereof as an
administrative fee to Landlord plus interest at the rate of one and one-half
percent (1 1/2%) per month, such interest to accrue continuously from the date
of payment by Landlord until repayment by Tenant. At the expiration of this
Lease, Tenant shall surrender the Demised Premises in good condition, excepting
reasonable wear and tear and losses required to be restored by Landlord in
Section 7.1, Article XIV and Article XV of this Lease.
ARTICLE VIII. ALTERATIONS
8.1 Improvements by Tenant: Tenant shall not make any alterations,
additions or improvements (collectively, "Improvements") to the Demised Premises
without the prior written consent of Landlord, which consent will not be
unreasonably withheld or delayed, except for the installation of unattached,
movable trade fixtures ("Fixtures") which may be installed without drilling,
cutting or otherwise defacing the Demised Premises.
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8.2 Removal of Improvements and Fixtures: At any time during the Lease
Term, or upon expiration of the Lease Term, Tenant shall have the right to
remove the FSF and all other Improvements and Fixtures which Tenant makes or
installs upon the Demised Premises, provided Tenant completes such removal
within thirty (30) days of termination of the Lease. All Improvements and
Fixtures which may be made or installed upon the Demised Premises that are not
removed by Tenant within thirty (30) days of termination of this Lease shall
remain upon and be surrendered with the Demised Premises and become the property
of Landlord at the termination of this Lease, unless Landlord requests their
removal in which event Tenant shall remove the same and restore the Demised
Premises to their original condition, subject to reasonable wear and tear, at
Tenant's expense. Tenant shall repair any damage to the Store caused by removal
of Tenant's Improvements and Fixtures.
8.3 All construction work done by Tenant within the Demised Premises
shall be performed in a good and workmanlike manner, in compliance with all
governmental requirements, and in such manner as to cause a minimum of
interference with other construction in progress and with the transaction of
business in the Store. Tenant agrees to indemnify Landlord and hold Landlord
harmless against any loss, liability or damage resulting from such work and
Tenant shall, if requested by Landlord, furnish a bond or other security
satisfactory to Landlord against any such loss, liability or damage.
ARTICLE IX. LANDLORD'S RIGHT OF ACCESS: USE OF ROOF
9.1 Landlord's Right of Access: Landlord shall have the right to enter
upon the Demised Premises at any time upon reasonable notice to Tenant (except
for emergencies) and subject to Tenant's security requirements, for the purpose
of inspecting the same or of making repairs, alterations or additions to
adjacent premises, or of showing the Demised Premises to prospective purchasers,
lessees or lenders. Landlord shall endeavor to minimize interference with
Tenant's business.
9.2 "For Rent" Signs: Tenant will permit Landlord to place and maintain
"For Rent" or "For Lease" signs on the Demised Premises during the last ninety
(90) days of the Lease Term, it being understood that such signs shall in no way
affect Tenant's obligations pursuant to any provision of this Lease.
9.3 Use of Roof: Use of the roof above the Demised Premises is reserved
to Landlord.
ARTICLE X. SIGNS: STOREFRONTS
10.1 Signs; Storefronts: Tenant shall not, without Landlord's prior
written consent: (a) make any changes to the storefront or (b) install any
exterior lighting, decorations, paintings, awnings, canopies or the like or (c)
erect or install any signs, window or door lettering placards, decorations or
advertising media of any type which can be viewed from the exterior of the
Demised Premises. All signs, lettering, placards, decorations and advertising
media shall conform in all respects to the sign criteria established by Landlord
from time to time in the exercise of its sole discretion, and shall be subject
to the prior written approval of Landlord as to construction, method of
attachment, size, shape, height, lighting, color and general appearance,
pursuant to the procedures outlined on Exhibit "D". attached hereto. All signs
shall be kept in good condition and in proper operating order at all times at
Tenant's expense. Subject to the foregoing restrictions, Tenant agrees to
install and maintain a first-class sign on the front of the Demised Premises
during the Lease Term.
ARTICLE Xl. UTILITIES
11.1 Utility Charge: Landlord shall pay all charges for electricity,
water, gas, and sewerage service furnished to the Demised Premises. Tenant shall
pay for telephone service and other utility services, including the Special
Utility Charge set forth in the Basic Provisions.
11.2 Interruption of Utilities: Landlord shall not be liable for any
interruption whatsoever in utility services not furnished by Landlord nor for
interruptions in utility services furnished by Landlord which are due to fire,
accident, strike, acts of God or other causes beyond the control of Landlord or
in order to make alterations, repairs or improvements. Landlord shall provide
reasonable heating, cooling and lighting to the building in which the Demised
Premises are located and the Common Areas at all times during which the Store is
open for business.
ARTICLE XII. INDEMNITY AND PUBLIC LIABILITY INSURANCE
12.1 Injury and Damage: Landlord shall not be liable to Tenant or to
Tenant's employees, agents, or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the Demised Premises or
the Common Area caused by the negligence or misconduct of Tenant, its employees,
subtenants, licensees or concessionaires, or of any other person entering the
Store under express or implied
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invitation of Tenant, or arising out of the use of the Demised Premises by
Tenant and the conduct of its business therein, or arising out of any breach or
default by Tenant in the performance of its obligations hereunder; and Tenant
hereby agrees to defend, indemnify and hold Landlord harmless from any loss,
expense, including reasonable attorney expenses, or claims arising out of such
damage or injury.
12.2 Liability Insurance: Tenant shall procure and maintain throughout
the Lease Term a policy or policies of insurance, at its sole cost and expense,
insuring both Landlord and Tenant against all claims, demands or actions arising
out of or in connection with Tenant's use or occupancy of the Demised Premises,
the limits of such policy or policies to be in an amount not less than
$1,000,000.00 in respect of injuries to or death of any one person, and in an
amount not less than $5,000,000.00 in respect of any one accident or disaster,
and in an amount not less than $1,000,000.00 in respect of property damaged or
destroyed, and to be written by insurance companies satisfactory to Landlord.
Tenant shall obtain a written obligation on the part of each insurance company
to notify Landlord at least ten (10) days prior to cancellation of such
insurance. Such policies or duly executed certificates of insurance and renewals
thereof as required shall be delivered to Landlord at least thirty (30) days
prior to cancellation or the expiration of the respective policy terms of such
insurance. If Tenant should fail to comply with the foregoing requirements
relating to insurance, Landlord may obtain such insurance and Tenant shall pay
to Landlord on demand as additional Rent hereunder the premium cost thereof plus
ten percent (10%) as an administrative fee to Landlord plus interest at the rate
of one and one-half percent (1 1/2%) per month from the date of payment by
Landlord until repaid by Tenant.
12.3 Workers' Compensation Insurance: Tenant agrees to maintain and
keep in force, during the Lease Term, all workers' compensation insurance
required under applicable Workers' Compensation Acts.
ARTICLE XIII. NON-LIABILITY FOR CERTAIN DAMAGES
13.1 Defects, etc.:
(a) Landlord and Landlord's agents and employees shall not be liable to
Tenant for any injury to person or damage to property caused by the Demised
Premises becoming out of repair, or by defect or failure of any structural
element of the Demised Premises or of any equipment, pipes or wiring, or broken
glass installed by Tenant in the Demised Premises, or by the backing up of
drains constructed by Tenant, or by gas, water, steam, electricity or oil
leaking, escaping or flowing from equipment, pipes or wiring installed by Tenant
into the Demised Premises, nor shall Landlord be liable to Tenant for any loss
or damage that may be occasioned by or through the acts or omissions of other
tenants of the Store or of any other persons whomsoever, excepting only duly
authorized employees and agents of Landlord.
(b) Tenant and its agent and employees shall not be liable to Landlord
for any injury to person or damage to property caused by the Demised Premises or
other portions of the Store becoming out of repair or by defect or failure of
any structural element of the Demised Premises or of any equipment, pipes or
wiring, or broken glass, or by the backing up of drains, or by gas, water,
steam, electricity or oil leaking, escaping or flowing out of the Demised
Premises, nor shall Tenant be liable to Landlord for any losses or damage that
may be occasioned by or through the acts or omissions of other tenants of the
Store or of any other persons whomsoever, excepting only duly authorized
employees and agents of Tenant.
13.3 Mutual Waiver of Subrogation: Landlord and Tenant each hereby
release the other from any and all liability or responsibility to the other or
to any other party claiming through or under them by way of subrogation or
otherwise, for any loss or damage to property caused by a casualty which is
customarily insured under standard fire and extended coverage insurance;
provided, however, that this mutual waiver shall be applicable only with respect
to a loss or damage occurring during the time when standard fire and extended
coverage insurance policies contain a clause or endorsement to the effect that
any such release shall not adversely affect or impair the policy or the right of
the insured party to receive proceeds under the policy.
ARTICLE XIV. CASUALTY
14.1 Notice to Landlord: Tenant shall give prompt written notice to
Landlord of any damage caused to the Demised Premises by fire or other casualty.
14.2 Landlord's Repair of Casualty Damage: In the event that the Store
shall be damaged or destroyed by fire or other casualty, then Landlord may elect
either to terminate this Lease or to proceed to rebuild and repair the Store.
Landlord shall give written notice to Tenant of such election within sixty (60)
days after the occurrence of such casualty, and if Landlord elects to rebuild
and repair, shall proceed to do so with reasonable diligence and at its sole
cost and expense. As it relates to the Demised Premises, Landlord's work under
this Article XIV shall be limited to restoring the Demised Premises to
substantially the condition in which
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the same existed prior to such casualty, exclusive of any alterations,
additions, improvements, fixtures and equipment installed by Tenant.
14.3 Tenant's Repair of Casualty Damage: Tenant agrees that promptly
after completion of such work by Landlord, Tenant will proceed with reasonable
diligence and at Tenant's sole cost and expense to restore, repair and replace
all alterations, additions, improvements, fixtures, signs and equipment
installed by Tenant.
14.4 Operation of FSF After Casualty: Tenant agrees that during any
period of reconstruction or repair of the Demised Premises, it will continue the
operation of its business within the Demised Premises to the extent practicable.
During the period from the occurrence of the casualty until Tenant's repairs are
completed, the Rent shall be reduced to such extent as may be fair and
reasonable under the circumstances.
14.5 Property Insurance: Tenant will secure at Tenant's sole cost
Property Insurance Coverage normally covered in a Fire and Extended Coverage
Policy for Tenant's Fixtures and Improvements.
ARTICLE XV. CONDEMNATION
15.1 Condemnation: If such portion of the Store (including the Common
Area) shall be taken for any public or quasi-public use under any governmental
law, ordinance or regulation or by right of Eminent Domain or by private
exercise in lieu thereof that, in the sole opinion of Landlord, the continued
operation of the Store is undesirable, Landlord may elect to terminate this
Lease, such termination to be effective as of the date Landlord ceases to
operate the Store. All compensation awarded for any taking (or the proceeds of
private sale in lieu thereof) of the Demised Premises or Common Area shall be
the property of Landlord, and Tenant hereby assigns its interest in any such
award to Landlord; provided, however, Landlord shall have no interest in any
award made to Tenant for Tenant's moving and relocation expenses or for the loss
of Tenant's fixtures and other tangible personal property if a separate award
for such items is made to Tenant.
ARTICLE XVI. ASSIGNMENT AND SUBLETTING
16.1 Landlord's Consent: Tenant shall not, without the prior written
consent of Landlord (i) assign, mortgage, pledge, hypothecate, encumber, or
permit any lien to attach to, or otherwise transfer, this Lease or any interest
hereunder, (ii) permit any assignment or other such foregoing transfer of this
Lease or any interest hereunder by operation of law, (iii) sublet the Demised
Premises or any part thereof, or (iv) permit the use of the Demised Premises by
any persons other than Tenant, its employees and its invitees (each of the
foregoing actions for which Landlord's consent is required is hereinafter
sometimes referred to as a "Transfer" and any person to whom any Transfer is
made or sought to be made is hereinafter sometimes referred to as a
"Transferee"). If Tenant shall desire Landlord's consent to any Transfer, Tenant
shall notify Landlord in writing, which notice shall include: (a) the proposed
effective date (which shall not be less than forty-five (45) days nor more than
one hundred eighty (180) days after the Tenant's notice), (b) all of the terms
of the proposed Transfer and the consideration therefor, the name and address of
the proposed Transferee, and a copy of all documentation pertaining to the
proposed Transfer, and (c) current audited financial statements of the proposed
Transferee, and any other information necessary to enable Landlord to determine
the financial responsibility, character, and reputation of the proposed
Transferee, and (d) such other information as Landlord may reasonably require.
Landlord's consent to any Transfer shall not be unreasonably withheld, but any
Transfer made without Landlord's prior written consent shall, at Landlord's
option, be null, void, and of no effect, and any acceptance of Rent by Landlord
from any purported Transferee shall not be deemed a consent to a Transfer or a
waiver of any of Landlord's rights or remedies hereunder.
16.2 Permitted Transfers: "Transferee" as used herein shall not include
a subsidiary, affiliate, division, corporation or other entity controlled by,
controlling or under common control with Tenant (each of which shall be an
"Affiliate" for purposes of the Lease), provided that the Affiliate is a federal
or state-chartered financial institution whose deposits are insured by the
Federal Deposit Insurance Corporation, and that the Affiliate will continue to
operate a full-service FSF in the Demised Premises. Landlord shall be deemed to
consent to a Transfer to such an Affiliate and no prior consent shall be
required thereto, provided that Tenant shall give prior written notice thereof
to Landlord for informational purposes only. Moreover, a merger or consolidation
in which Tenant is the surviving entity or in which the shareholders of Tenant
maintain control of the surviving entity shall not be deemed a Transfer.
16.3 Corporate Consolidation: For purposes of this Lease, the term
"Transfer" shall also include the dissolution or the merger or consolidation of
Tenant (other than with an Affiliate), or within a twelve (12) month period: (i)
the sale or other transfer of more than an aggregate of fifty percent (50%) of
the voting shares of Tenant (other than, in the case of a closely held
corporation, to immediate family members by reason of gift
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or death), or (ii) the sale, mortgage, hypothecation or pledge of more than an
aggregate of fifty percent (50%) of the value of the unencumbered assets (as of
the date hereof) of Tenant.
16.4 Transfer Premium: If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
Landlord fifty percent (50%) of any Transfer Premium received by Tenant in
connection with such Transfer. "Transfer Premium" shall mean all Rent,
additional Rent or other consideration payable by such Transferee in any monthly
period in excess of the Rent payable by Tenant under this Lease (on a monthly
basis during the Term). If part of the consideration for such Transfer shall be
payable other than in cash, Landlord's share of such non-cash consideration
shall be in such form as is reasonably satisfactory to Landlord. Such percentage
of the Transfer Premium shall be paid promptly by Tenant upon Tenant's receipt
from time to time of periodic payments from such Transferee or at such other
time as Tenant shall realize a Transfer Premium. In lieu of accepting such
percentage of the Transfer Premium, Landlord may elect in writing within ninety
(90) days after Tenant's notice, to increase the Rent hereunder during the Term
of the Transfer by an amount equal to Landlord's share of the monthly amount of
such Transfer Premium. The provisions of this Subparagraph 16.4 shall not apply
to a Transfer to an Affiliate and shall not apply to payments made by a
Transferee for (i) Tenant's customer deposits, loans and related assets; or (ii)
the FSF or Tenant's furniture, fixtures and equipment contained therein.
16.5 Effect of Landlord Consent: If Landlord consents or is deemed to
consent to a Transfer: (a) the terms and conditions of this Lease, including
among other things, Tenant's (which term, for purposes hereof, shall mean the
transferring Tenant and any predecessor) liability for the Demised Premises
(including, without : limitation, Rent and other sums due with respect thereto),
shall in no way be deemed to have been waived or modified so that
notwithstanding such Transfer, the Tenant, its predecessors and the Transferee
shall be jointly and severally liable with respect to the Demised Premises, (b)
such consent shall not be deemed consent to any further Transfer by either
Tenant or a Transferee, (c) as a condition thereto Tenant shall first deliver to
Landlord an original executed copy of all documentation pertaining to the
Transfer, including but not limited to an assumption agreement by the
Transferee, in form reasonably acceptable to Landlord, and (d) Tenant shall
furnish upon Landlord's request a complete statement, certified by an
independent certified public accountant, or Tenant's chief financial officer,
setting forth in detail the computation of any Transfer Premium Tenant has
derived and shall derive from such Transfer. Landlord or its authorized
representatives shall have the right at all reasonable times to audit the books,
records and papers of Tenant relating to any Transfer Premium, and shall have
the right to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found understated, Tenant shall within thirty (30) days after
demand pay the deficiency, and Landlord's costs of such audit, and if
understated by more than five percent (5%), Landlord shall have the right to
cancel this Lease upon thirty (30) days notice. Any sublease hereunder shall be
subordinate and subject to the provisions of this Lease, and if this Lease shall
be terminated during the term of any sublease, Landlord shall have the right to
(i) treat such sublease as canceled and repossess the Demised Premises by any
lawful means or (ii) require that such subtenant attorn to and recognize
Landlord as its landlord under such sublease.
16.6 Landlord's Lease (if any): If this Lease is in fact a sublease,
Tenant accepts this Lease subject to all of the terms and conditions of the
underlying Lease under which Landlord holds the Store as lessee. Tenant
covenants that it will do no act or thing which would constitute a violation by
Landlord of his obligation under such underlying Lease; provided, however, that
Tenant's agreement in this regard is premised on Landlord's assurances to the
effect that the terms of this Lease do not violate such underlying Lease.
16.7 Transfer by Landlord: In the event of the Transfer by Landlord of
its interest in this Lease to a Transferee expressly assuming Landlord's
obligation under this Lease, Landlord shall thereby be released from any further
obligations hereunder, and Tenant agrees to look solely to such Transferee of
Landlord for performance of such obligations. Any security given by Tenant to
secure performance of Tenant's obligations hereunder may be assigned and
transferred by Landlord to such Transferee, and Landlord shall thereby be
discharged of any further obligation relating thereto.
ARTICLE XVII. TAXES
17.1 Tenant's Responsibility for Taxes: Tenant shall be liable for all
taxes levied against personal property and trade fixtures placed by Tenant in
the Demised Premises. If any such taxes are levied against Landlord or
Landlord's property, and if Landlord elects to pay the same or if the assessed
value of Landlord's property is increased by inclusion of personal property and
trade fixtures placed by Tenant in the Demised Premises, and Landlord elects to
pay the taxes based on such increase, Tenant shall pay to Landlord upon demand
that part of such taxes for which Tenant is primarily liable hereunder.
17.2 Landlord's Responsibility for Taxes: Except as provided in Section
17.1, Landlord shall pay or cause to be paid all general real estate taxes,
general and special assessments, parking surcharges and
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other governmental charges (hereinafter collectively referred to as the "General
Taxes") levied against the store and the Common Area for each real estate tax
year.
17.3 Rent Taxes, etc.: If at any time during the Lease Term, a tax or
excise on rents or other tax however described (except any franchise, estate,
inheritance, capital stock, income or excess profits tax imposed upon Landlord)
is levied or assessed against Landlord by any lawful taxing authority on account
of Landlord's interest in this Lease or the Rent or other charges reserved
hereunder, as a substitute in whole or in part, or in addition to the General
Taxes described in Section 17.2 above, Tenant agrees to pay to Landlord upon
demand, and in addition to the Rent and other charges prescribed in this Lease,
the amount of such tax or excise. In the event any such tax or excise is levied
or assessed directly against Tenant, then Tenant shall be responsible for and
shall pay the same at such times and in such manner as the taxing authority
shall require.
ARTICLE XVIII. DEFAULT BY TENANT AND REMEDIES
18.1 Events of Default: The following shall be events of default by
Tenant under this Lease:
(a) Tenant shall fail to pay any installment of Rent or any other
regularly scheduled monetary obligations hereunder involving the payment of
money and such failure shall continue for a period of ten (10) days after
written notice to Tenant (or if notice of non-payment shall have been given to
Tenant within the same calendar year, such failure shall continue, whether or
not Landlord gives Tenant notice, for a period of ten (10) days).
(b) Tenant shall fail to comply with any term, provision or covenant of
this Lease other than as described in subsection (a) above and shall not cure
such failure within thirty (30) days after written notice thereof to Tenant, or,
as to matters which cannot be remedied within thirty (30) days if Tenant fails
to commence efforts to remedy such default within such thirty (30) day period
and thereafter diligently prosecute such efforts so that such default is cured
within a reasonable time.
(c) Tenant or any guarantor of Tenant's obligations under this Lease
shall become insolvent, or shall make a transfer in fraud of creditors, or shall
make an assignment for the benefit of creditors.
(d) Tenant or any guarantor of Tenant's obligations under this Lease
shall file a petition under any section or chapter of the National Bankruptcy
Act, as amended, or under any similar law or statute of the United States or any
State thereof, or Tenant or any guarantor of Tenant's obligations under this
Lease shall be adjudged bankrupt or insolvent in proceedings filed against
Tenant or any guarantor of Tenant's obligations under this Lease thereunder.
(e) A receiver or trustee shall be appointed for the Demised Premises
or for all or substantially all of the assets of Tenant or any guarantor of
Tenant's obligations under this Lease.
(f) Tenant shall desert or vacate or shall commence to desert or vacate
the Demised Premises or any substantial portion of the Demised Premises prior to
termination of this Lease.
(g) Tenant shall do or permit to be done anything which creates a lien
upon the Demised Premises.
18.2 Landlord's Remedies: Upon the occurrence of any such events of
default, Landlord shall have the option to pursue either of the following
alternative remedies:
(a) Without any notice or demand whatsoever, Landlord may take any one
or more of the actions permissible at law to insure performance by Tenant of
Tenant's covenants and obligations under this Lease. In this regard, it is
agreed that if Tenant deserts or vacates the Demised Premises, Landlord may
enter upon and take possession of the Demised Premises in order to protect them
from deterioration and continue to demand from Tenant the monthly rentals and
other charges provided in this Lease, without any obligation to relet; but that
if Landlord does, at its sole discretion, elect to relet the Demised Premises,
such action by Landlord shall not be deemed as an acceptance of Tenant's
surrender of the Demised Premises unless Landlord expressly notifies Tenant of
such acceptance in writing pursuant to Subsection (b) of Section 18.2 Tenant
hereby acknowledges that Landlord shall otherwise be reletting as Tenant's agent
and Tenant furthermore hereby agrees to pay to Landlord on demand any deficiency
that may arise between the monthly rentals and other charges provided in this
Lease and that actually collected by Landlord. It is further agreed in this
regard that in the event of any default described in Subsection (b) of Section
18.1, Landlord shall have the right to enter upon the Demised Premises without
being liable for prosecution of any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease; and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under
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this Lease; and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action.
(b) Landlord may terminate this Lease by written notice to Tenant, in
which event Tenant shall immediately surrender the Demised Premises to Landlord,
and if Tenant fails to do so, Landlord may, without prejudice to any other
remedy which Landlord may have for possession or arrearages in Rent (including
any interest which may have accrued pursuant to Article III of this Lease),
enter upon and take possession of the Demised Premises and expel or remove
Tenant and any other person who may be occupying said premises or any part
thereof, without being liable for prosecution or any claim for damages therefor.
Landlord agrees to provide ten (10) days written notice and Tenant has ten (10)
days to correct, modify and make whole any obligation. Tenant hereby waives any
statutory requirement of prior written notice for filing eviction or damage
suits for nonpayment of Rent. In addition, Tenant agrees to pay to Landlord on
demand the amount of all loss and damage which Landlord may suffer by reason of
any termination effected pursuant to this Subsection 18.2(b), said loss and
damage to be determined by either of the following alternative measures of
damage.
(c) Until Landlord is able, through reasonable efforts, the nature of
which efforts shall be at the sole discretion of Landlord, to relet the Demised
Premises, Tenant shall pay to Landlord on or before the first day of each
calendar month, the Rent and other charges provided in this Lease. After the
Demised Premises have been relet by Landlord, Tenant shall pay to Landlord on
the twentieth day of each calendar month the difference between the Rent and
other charges provided in this Lease for the preceding calendar month and that
actually collected by Landlord for such month. If it is necessary for Landlord
to bring suit in order to collect a deficiency, Landlord shall have a right to
allow such deficiencies to accumulate and to bring an action on several or all
of the accrued deficiencies at one time. Any such suit shall not prejudice in
any way the right of Landlord to bring a similar action for any subsequent
deficiency or deficiencies. Any amount collected by Landlord from subsequent
tenants for any calendar month, in excess of the Rent and other charges provided
in this Lease, shall be credited to Tenant in reduction of Tenant's liability
for any calendar month for which the amount collected by Landlord will be less
than the Rent and other charges provided in this Lease; but Tenant shall have no
right to such excess other than the above described credit.
(d) When Landlord desires, Landlord may demand a final settlement. Upon
demand for a final settlement, Landlord shall have a right to, and Tenant hereby
agrees to pay, the difference between the total of all Rent and other charges
provided in this Lease for the remainder of the term and the reasonable rental
value of the Demised Premises for such period, such difference to be discounted
to present value at the rate of eight percent (8%) per annum).
(e) If Landlord elects to compute damages in the manner prescribed by
Subsection (c) above, this election shall in no way prejudice Landlord's right
at any time thereafter to demand a final settlement in accordance with
Subsection (d) above. Pursuit of any of the above remedies shall not preclude
pursuit of any other remedies prescribed in other sections of this Lease and any
other remedies provided by law. Forbearance by Landlord to enforce one or more
of the remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default.
18.3 Landlord's Expenses: It is further agreed that, in addition to
payments required pursuant to Subsections 18.2(a) and 18.2(b), Tenant shall
compensate Landlord for all expenses incurred by Landlord in repossession
(including among other expenses, any increase in Insurance Premiums caused by
the vacancy of the Demised Premises), all expenses incurred by Landlord in
reletting (including among other expenses, repairs, remodeling, replacements,
advertisements and brokerage fees), all concessions granted to a new tenant upon
reletting (including among other concessions, renewal options), all losses
incurred by Landlord as a direct or indirect result of Tenant's default
(including among other losses, any adverse reaction by Landlord's mortgagee or
by other tenants or potential tenants of the Store), and a reasonable allowance
for Landlord's administrative efforts, salaries and overhead attributable
directly or indirectly to Tenant's default and Landlord's pursuing the rights
and remedies provided herein and under applicable law. Notwithstanding the
foregoing, Tenant shall not be obligated to make payments by reason of a default
in an amount exceeding the total Rent in this Lease for the remainder of the
Lease Term.
18.4 Injunction: Landlord may restrain or enjoin any breach or
threatened breach of any covenant, duty or obligation of Tenant herein contained
without the necessity of proving the inadequacy of any legal remedy or
irreparable harm. The remedies of Landlord hereunder shall be deemed cumulative
and not exclusive of each other.
18.5 Attorney's Fees: If on account of any breach or default by Tenant
in its obligations hereunder. Landlord shall employ an attorney to present,
enforce or defend any of Landlord's rights or remedies hereunder. Tenant agrees
to pay any reasonable attorney's fees incurred by Landlord in such connection.
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18.6 Tenant's Insolvency: Notwithstanding any other provision of this
Lease, in the event the Tenant or its successors or assignee shall become
insolvent, bankrupt, or make an assignment for the benefit of creditors, or if
it or their interest hereunder shall be levied upon or sold under execution or
other legal process, or in the event the FSF to be operated on the Demised
Premises is closed, or is taken over by a bank supervisory authority, the
Landlord may terminate this Lease only with the concurrence of such bank
supervisory authority, and any such authority shall in any event have the
election to either continue or terminate this Lease, provided, that in the event
this Lease is terminated, the maximum claim of Landlord against such bank
supervisory authority for damages or indemnity for injury resulting from the
rejection or abandonment of the unexpired lease shall in no event be in an
amount exceeding the Rent reserved by this Lease, without acceleration, for the
year next succeeding the date of the surrender of the Demised Premises to the
Landlord, or the date of re-entry of the Landlord, whichever first occurs,
whether before or after the closing of the FSF, plus an amount equal to the
unpaid Rent accrued without acceleration up to such date. This paragraph shall
limit the liability of the FDIC but not affect Landlord's other rights or
remedies under law.
ARTICLE XIX. LANDLORD'S CONTRACTUAL SECURITY INTEREST
19.1 Landlord's Security Interest: In addition to the statutory
Landlord's Lien, Landlord shall have at all times a valid security interest to
secure payment of Rent and other sums of money becoming due hereunder from
Tenant and to secure payment of any damages or losses which Landlord may suffer
by reason of the breach by Tenant of any covenant, agreement or condition
contained herein, upon all goods, wares, equipment, fixtures, furniture,
improvements and other tangible personal property of Tenant presently, or which
may hereafter be, situated on the Demised Premises, and all proceeds therefrom,
and such property shall not be removed without the consent of Landlord until all
arrearages in Rent as well as any and ail other sums of money then due to
Landlord or to become due to Landlord hereunder shall first have been paid and
discharged and all the covenants, agreements and conditions hereof have been
fully complied with and performed by Tenant. Upon the occurrence of an event of
default by Tenant, Landlord may, in addition to any other remedies provided,
enter upon the Demised Premises and take possession of any and all goods, wares,
equipment, fixtures, furniture, improvements and other tangible personal
property of Tenant situated on the Demised Premises, without liability for
trespass or conversion, and sell the same at public or private sale, with or
without having such property at the sale, after giving Tenant reasonable notice
of the time and place of any public sale or of the time after which any private
sale is to be made, at which sale Landlord or its assigns may purchase unless
otherwise prohibited by law. Unless otherwise provided by law, and without
intending to exclude any other manner of giving Tenant reasonable notice, the
requirement of reasonable notice shall be met if such notice is given in the
manner prescribed in this Lease at least seven (7) days before the time of sale.
Any sale made pursuant to the provision of this paragraph shall be deemed to
have been a public sale conducted in a commercially reasonable manner if held in
the above-described premises or where the property is located after the time,
and place and method of sale and a general description of the types of property
to be sold have been advertised in a daily newspaper published in the county in
which the property is located for five (5) consecutive days before the date of
the sale. The proceeds from any such disposition, less any and all expenses
connected with the taking of possession, holding and selling of the property
(including reasonable attorney's fees and legal expenses), shall be applied as a
credit against the indebtedness secured by the security interest granted in this
paragraph. Any surplus shall be paid to Tenant or as otherwise required by law;
Tenant shall pay any deficiencies forthwith. Upon request by Landlord, Tenant
agrees to execute and deliver to Landlord a financing statement in form
sufficient to perfect the security interest of Landlord in the aforementioned
property and proceeds thereof under the provision of the Uniform Commercial Code
(or corresponding state statute or statutes) in force in the state in which the
property is located, as well as any other state the laws of which Landlord may
at any time consider to be applicable.
19.2 Subordination of Landlord's Security Interest: Notwithstanding
Section 19.1, (i) Landlord agrees that it will subordinate its security interest
and Landlord's Lien to the security interest of Tenant's supplier or
institutional financial source, provided that Landlord approves the transaction
as being reasonably necessary for Tenant's operations at the Demised Premises,
and further provided that the subordination must be limited to a specified
transaction and specified items of the fixtures, equipment or inventory involved
in the transaction. and (ii) Landlord agrees that its lien shall be limited to
Tenant's equipment, fixture, furniture, improvements and other personal property
of Tenant situated on the Demised Premises and shall not apply to banking
records, money, accounts, deposits or any property of Tenant's customers.
ARTICLE XX. HOLDING OVER
20.1 Holdover Status: In the event Tenant remains in possession of the
Demised Premises after the expiration of this Lease and without the execution of
a new lease, it shall be deemed to be occupying the Demised Premises as a tenant
from month to month at a monthly rental rate equal to the current Rent plus
other charges herein provided plus fifty percent (50%) of such amount and
otherwise subject to all the conditions, provisions and obligations of this
Lease insofar as the same are applicable to a month to month tenancy.
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Notwithstanding the foregoing, if Landlord and Tenant are engaged in good faith
negotiations to extend the term of the lease or to enter into a new lease,
Tenant shall be permitted to continue paying monthly rental at a rate equal to
the current Rent, without the fifty percent (50%) additional charge, while such
negotiations continue; provided, however, that in the event Landlord and Tenant
do not extend the term of this Lease or enter into a new Lease within three (3)
months after termination of this Lease, Landlord may, at any time, require
Tenant to commence paying Rent plus fifty percent (50%) of such amount as set
forth in this Section 20.1.
ARTICLE XXI. SUBORDINATION AND ATTORNMENT
21.1 Mortgages, etc.: Tenant accepts this Lease subject and subordinate
to any mortgage, deed of trust or other lien presently existing or hereafter
placed upon the Demised Premises or the Store and Common Area as a whole and to
any renewals and extensions thereof. Tenant agrees that any such mortgagee shall
have the right at any time to subordinate such mortgage, deed of trust or other
lien to this Lease; provided, however, notwithstanding that this Lease may be
(or made to be) superior to mortgage, deed of trust or other lien, the
provisions of mortgage, deed of trust or other lien relative to the rights of
the mortgagee with respect to proceeds arising from an eminent domain taking
(including a voluntary conveyance by Landlord) and/or arising from insurance
payable by reason of damage to or destruction of the Demised Premises shall be
prior and superior to any contrary provisions contained in this instrument with
respect to the payment or usage thereof. Landlord is hereby irrevocably vested
with full power and authority to subordinate this Lease to any mortgage, deed of
trust or other lien hereafter placed upon the Demised Premises or the Store and
Common Area as a whole, and Tenant agrees upon demand to execute such further
instruments subordinating this Lease as Landlord may request; provided, however,
that upon Tenant's written request and notice to Landlord, Landlord shall use
good faith efforts to obtain from any such mortgagee a written agreement that
the rights of Tenant shall remain in full force and effect during the Lease Term
as long as Tenant shall continue to recognize and perform all of the covenants
and conditions of this Lease.
21.2 Notice to Mortgagee: At any time when the holder of an outstanding
mortgage, deed of trust or other lien covering Landlord's interest in the
Demised Premises has given Tenant written notice of its interest in this Lease,
Tenant may not exercise any remedies for default by Landlord hereunder unless
and until the holder of the indebtedness secured by such mortgage, deed of trust
or other lien shall have received written notice of such default and a
reasonable time for curing such default shall thereafter have elapsed.
21.3 Estoppel Certificates: Tenant agrees that it will from time to
time upon request by Landlord execute and deliver to Landlord a written
statement addressed to Landlord (or to a party designated by Landlord), which
statement shall identify Tenant and this Lease, shall certify that this Lease 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), shall confirm that
Landlord is not in default as to any obligations of Landlord under this Lease
(or if Landlord is in default, specifying any default), shall confirm Tenant's
agreements contained above in this Article XXI, shall confirm the Commencement
and Termination Dates of this Lease, and shall contain such other information or
confirmations as Landlord may reasonably require. Landlord is hereby irrevocably
appointed and authorized as the agent and attorney-in-fact of Tenant to execute
and deliver any such written statement on Tenant's behalf if Tenant fails to do
so within seven (7) days after the delivery of a written request from Landlord
to Tenant. Landlord may treat such failure as an event of default.
21.4 Attornment: Tenant shall attorn to and be bound to any of
Landlord's successors under all the terms, covenants and conditions of this
Lease for the balance of any remaining Lease Term.
ARTICLE XXII. NOTICES & CORRESPONDENCE
22.1 Notices: Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered when actually received or
rejected by the designated addressee and shall be given by United States
certified mail return receipt requested, postage prepaid or by recognized
national courier (such as Federal Express), addressed to the parties hereto at
the respective addresses set forth above, or such other addresses as may be
specified by written notice.
ARTICLE XXIII. REGULATIONS
23.1 Compliance With Regulations: Landlord and Tenant acknowledge that
there are in effect, and may hereafter be enacted or put into effect, federal,
state, county and municipal laws, orders, rules, directives and regulations
(collectively referred to hereinafter as the "Regulations"), relating to or
affecting the Demised Premises or the Store and Common Area, and concerning the
impact on the environment of construction, land use, maintenance and operation
of structures, and conduct of business. Subject to the express rights granted to
Tenant under the terms of this Lease, Tenant will not cause, or permit to be
caused, any act or practice, by negligence, omission, or otherwise, that would
adversely affect the environment, or do anything to permit
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anything to be done that would violate any Regulations. Moreover, Tenant shall
have no claim against Landlord by reason of any changes Landlord may make in the
Store, Common Area or the Demised Premises which may be required to comply with
such Regulations.
23.2 Applications: Tenant shall file applications with the appropriate
regulatory authorities for authority to establish a branch office in the Demised
Premises and shall keep Landlord advised of the processing of the applications.
The obligations of the Tenant under this Lease are subject to the condition
precedent that the Tenant shall receive authority to establish a branch office
to the Demised Premises. In the event such authority is not received on or
before the Targeted Commencement Date, either Landlord or Tenant shall have the
right, upon notice to the other, to terminate this Lease. In such event, neither
party hereto shall have any further rights, duties or obligations hereunder.
ARTICLE XXIV. MISCELLANEOUS
24.1 No Partnership: Nothing herein contained shall be deemed or
construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of computation of Rent, nor any other provision contained herein, nor any
acts of the parties hereto, shall be deemed to create any relationship between
the parties hereto other than the relationship of Landlord and Tenant.
24.2 No Offset: Tenant shall not for any reason withhold or reduce
Tenant's required payments of Rent and other charges provided in this Lease, it
being agreed that the obligations of Landlord hereunder are independent of
Tenant's obligations except as may be otherwise expressly provided. In this
regard it is specifically understood and agreed that in the event Landlord
commences any proceedings against Tenant for nonpayment of Rent or any other sum
due and payable by Tenant hereunder, Tenant will not interpose any counterclaim
or other claim against Landlord of whatever nature or description in any such
proceedings (other than a compulsory counterclaim under Rule 13(a) of the
Federal Rules of Civil Procedure, or any analogous rule in a state court
proceeding); and in the event that Tenant interposes any such counterclaim or
other claim against Landlord in such proceedings, Landlord and Tenant stipulate
and agree that, in addition to any other lawful remedy of Landlord, upon motion
of Landlord, such counterclaim or other claim asserted by Tenant shall be
severed from the proceedings instituted by Landlord. Landlord may proceed to
final judgment separately and apart from and without consolidation with or
reference to the status of such counterclaim or any other claim asserted by
Tenant.
24.3 Landlord's Liability: The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited to the
greater of (i) two million dollars ($2,000,000.00) or (ii) the proceeds of sale
on execution of the interest of Landlord in the Store. Landlord shall remain
personally liable to account to Tenant for any security deposited hereunder.
This clause shall not be deemed to limit or deny any remedies which Tenant may
have in the event of default by Landlord hereunder, which do not involve the
personal liability of Landlord.
24.4 Consents: Any clause referring to Landlord approval refers to
written consent. Except as may be otherwise herein provided, in all
circumstances under this Lease where prior consent or permission of one party
("First Party"), whether it be Landlord or Tenant, is required before the other
party ("Second Party") is authorized to take any particular type of action, the
matter of whether to grant such consent or permission shall be within the sole
and exclusive judgment and discretion of the First Party; and it shall not
constitute any nature of breach by the First Party hereunder or any defense to
the performance of any covenant, duty or obligation of the Second Party
hereunder that the First Party delayed or withheld the granting of such consent
or permission, whether or not the delay or withholding of such consent or
permission was, in the opinion of the Second Party, prudent or reasonable or
based on good cause.
24.5 Waivers: One or more waivers of any covenant, term, or condition
of this Lease by either party shall not be construed as a waiver of a subsequent
breach of the same covenant, term or condition. The consent or approval by
either party to or of any act by the other party requiring such consent or
approval shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent similar act.
24.6 Force Majeure: Whenever a period of time is herein prescribed for
an action to be taken, the party required to take such action (other than
payment of money) shall not be liable or responsible for, and there shall be
excluded from the computation of any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, governmental
laws, regulations or restrictions or any other causes of any kind whatsoever
which are beyond the reasonable control of such party.
24.7 Governing Law: The laws of the state in which the Demised Premises
are located shall govern the interpretation, validity, performance and
enforcement of this Lease. If any provision of this Lease should be
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held to be invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Lease shall not be affected thereby. Venue for any
action under this Lease shall be the county in which the Store is located.
24.8 Captions: The captions used herein are for convenience only and do
not limit or amplify the provisions hereof.
24.9 Number; Gender: Whenever here the singular number is used, the
same shall include the plural, and words of any gender shall include each other
gender.
24.10 Successors: The terms, provisions and covenants contained in this
Lease shall apply to, inure to the benefit of and be binding upon the parties
hereto and their respective heirs, successors in interest and legal
representatives except as otherwise herein expressly provided.
24.11 Entire Agreement: This Lease contains the entire agreement
between the parties, and no agreement shall be effective to change, modify or
terminate this Lease in whole or in part unless such is in writing and duly
signed by the party against whom enforcement of such change, modification or
termination is sought. Landlord and Tenant hereby acknowledge that they are not
relying on any representation or promise of the other, except as may be
expressly set forth in this Lease. Oral agreements in conflict with any of the
terms of this Lease shall be without force and effect.
24.12 Exhibits: This Lease consists of twenty-four (24) Articles and
Exhibits A through D (any space I left blank will be deemed to have been
completed with the word "none"). In the event any provision of an Exhibit or
other attached page shall be inconsistent with a provision in the body of the
Lease, the provision as set forth in the Exhibit shall be deemed to control. All
Exhibits referred to herein, whether or not physically attached to this Lease,
shall be deemed incorporated herein by reference.
24.13 Store Closing: Notwithstanding anything herein to the contrary,
Tenant agrees to the cancellation of this Lease and agrees to vacate the Demised
Premises on the date Landlord ceases doing business in the Store unless a longer
period is required by federal or state law, or unless this Lease is transferred
by Landlord, as contemplated by Article XVI above. Landlord agrees to give
Tenant as much notice as is practicable under the circumstances of Landlord's
decision to cease doing business in the Shopping Center.
S-15
EXHIBIT A
COMMENCEMENT AGREEMENT
Re: Store Lease Agreement dated ________ between Wal*Mart Stores,
Inc. ("Landlord") and the undersigned financial institution
("Tenant") concerning Wal*Mart Supercenter No. ____,
___________(the "Store").
Landlord and Tenant confirm the following information with respect to
the Store (capitalized terms not otherwise defined in this Agreement shall have
the meaning given to them in the Store Lease Agreement), as of __________, 19_.
1. The Store Lease Agreement is in full force and effect and has not
been modified, superseded or changed, except as follows:
2. Tenant accepted the Demised Premises and opened its Financial
Service Facility on ___________.
3. The initial Lease Term commenced on __________ and will expire on
_________. The first Renewal Term (if any) will commence on ___________ and will
expire on _____________. The second Renewal Term (if any) will commence on
__________ and will expire on _______________.
4. Tenant's obligation to make payments of Rent commenced on
__________. Tenant's $_______ payment for Landlord's Work is due on or before
_________ . Tenant's $_________ Key Money payment is due on or before ________.
(See Payment Summary below).
5. LANDLORD REQUESTS THAT TENANT'S ACCOUNTING DEPARTMENT ESTABLISH
AUTOMATIC PAYMENTS TO ENSURE RENT IS RECEIVED BY THE FIRST OF EACH MONTH.
LANDLORD WILL NOT ISSUE INVOICES FOR RENT. RENT AND OTHER PAYMENTS SHOULD BE
SENT TO: WAL*MART STORES, INC., P.O. BOX 500620, ST. LOUIS, MO 63150-0620.
PAYMENT SUMMARY
<TABLE>
<CAPTION>
MONTHLY RENT PAYMENT DUE FOR
DESCRIPTION INITIAL PAYMENT DUE INITIAL TERM EFFECTIVE ____ 1997
- ------------ ------------------- ---------------------------------
<S> <C> <C>
Landlord's Work $_______
Key Money _______
Prorated ____ Rent Payment _______ $________
TOTAL AMOUNT DUE $
=======
</TABLE>
EXECUTED BY LANDLORD AND TENANT AS OF THE DATE SET FORTH ABOVE:
Wal-Mart Stores, Inc. Tenant
By:__________________ By:________________________
Title:_______________ Title:_____________________
MONTHLY RENTAL PAYMENTS ARE DUE THE 1ST OF EACH MONTH.
LATE PAYMENT CHARGES WILL BE IN ACCORDANCE WITH LEASE.
EXHIBIT 8
ANCILLARY PRODUCTS AND SERVICES
INVESTMENT PRODUCTS
Mutual Funds
U.S. Government and Agency Securities
Municipal Bonds
Unit Investment Trusts
Equities
Fixed Annuities
Variable Annuities
INSURANCE PRODUCTS:
Term Life
Credit Life
Credit Disability
Universal Life
Variable Life
SERVICES:
Self-Directed IRAs
Insurance Plan Review
Stock and Bond Research
Mutual Fund Performance Evaluations
Retirement and Education Planning
INTERNATIONAL BANKING TECHNOLOGIES
QUARTERLY/MONTHLY IN-STORE BRANCH PERFORMANCE
TRACKING REPORT
FINANCIAL
INSTITUTION:______________________ UNIT # ______________________
RETAILER/STORE #: ________________ MANAGER: ____________________
BRANCH ADDRESS:___________________ BRANCH TELEPHONE:____________
BRANCH FAX:__________________
CITY, STATE: _____________________ QUARTER/MONTH ENDING: Jan Feb
Mar Apr May Jun Jul Aug Sep
BRANCH OPENING DATE:______________ Oct Nov Dec
YEAR: 97 98 99 00 01 02
(Please circle)
<TABLE>
<CAPTION>
NEW DEPOSIT
NEW ACCOUNTS DURING THIS AMOUNTS THIS TOTAL AMOUNT ON
QUARTER/MONTH QTR/MONTH DEPOSIT AT BRANCH
------------------------- ---------- -----------------
<S> <C> <C> <C>
DDA ACCOUNTS $ $
TIME ACCOUNTS $ $
TOTALS $ $
</TABLE>
<TABLE>
<CAPTION>
TOTAL # OF NEW LOANS TOTAL AMOUNT
DURING NEW LOAN AMOUNT OF LOANS WRITTEN AT
THIS QUARTER/MONTH DURING THIS QTR/MONTH BRANCH
------------------ --------------------- -------------------
<S> <C> <C> <C>
LOAN ORIGINATIONS $ $
(only loans initiated
at your branch)
</TABLE>
Average Number of Monthly Tellerline Transactions:__________________________
MONTHLY ATM TRANSACTIONS: Foreign ____________________ On-us _________________
AVERAGE WEEKLY STORE CUSTOMER COUNT: ____________ (This # only needed once
yearly) (Please ask the manager of the store for a round number, and assure the
manager that it will be held confidentially and used only for branch activity
purposes.)
Please mail or fax this form to:
MARKET RESEARCH
International Banking Technologies
1770 Indian Trail Road, Suite 300
Norcross, GA 30093
770/279-4422 (fax)770/381-2123
(Please make additional copies of this form as needed)
WAL-MART SIGNAGE POLICY
Contacts (War-Mart Vestibule Leasing Department): Randy Lillard (301)273-8005
1. BUILDING SIGNAGE. Exterior signage will be one sign with a maximum of 20 sq.
ft. stud- mounted, illuminated or non-illuminated letters or box approved by the
Vestibule Leasing Department. The sign will be installed in the location per the
attached drawing (Exhibit "D-1") on all store locations where Tenant branches
will reside.
2. INSTALLATION AND PERMITTING. The Wal-Mart Vestibule Leasing Department will
be responsible for coordinating all installations with the Tenant. The Tenant
will be responsible for all installation, permitting and costs.
3. EXISTING BANK-OCCUPIED STORES. The Tenant will be responsible for the entire
project. The Tenant shall supply the Wal-Mart Vestibule Leasing Department
with a confirmation letter stating that the Tenant sign has been installed at
the store location. Photographs of the sign shall accompany the letter.
4. NEW STORES, RELOCATIONS AND EXPANSIONS. The Wal-Mart Vestibule Leasing
Department will coordinate approval of the Tenant signage projects. The Tenant
will be allowed to begin the permitting process for its sign after the Wal-Mart
signing package has been approved. NOTE: WAL-MART SIGNAGE WILL WAVE PRIORITY AT
ALL PROJECTS. The Vestibule Leasing Department will notify the Tenant of the
proper date to begin its permitting process. This date is likely to be on, or
within a few days of, the announced possession date of the store, which is
usually 3 months prior to the opening of the store. The Tenant will be
responsible for all permitting and sign costs. The Tenant shall supply the
Wal-Mart Vestibule Leasing Department with a confirmation letter stating that
the Tenant sign has been installed at the store location. Photographs of the
sign shall accompany the letter.
5. RESTRICTIONS. No other Tenant signage, such as flags, floor decals, road
signs, road-sign banners, banners hanging on outside of building, shopping cart
signs, etc. will be permitted. All signage ideas must be submitted to and
approved by the Wal-Mart Vestibule Leasing Department before they can be
considered for being part of the Tenant signage in any store.
THIS IS THE APPROVED WAL-MART/BANK BRANCH SIGNAGE PACKAGE. NO ADDITIONAL SIGNAGE
IS AUTHORIZED.
EXHIBIT D-l
(GRAPHIC CHART OF EXTERIOR SIGNAGE)
ADDENDUM
TO
WAL-MART LEASE AGREEMENT ("LEASE")
TENANT: First Bank and Trust Company
Store: Wal-Mart No. 2261, Kingstown, Rhode Island
The provisions of the Lease are modified as follows:
1. Section 12.2. Change first sentence to read as follows:
Tenant shall procure and maintain throughout the Lease Term a policy
or policies of insurance, at its sole cost and expense, insuring
both Landlord and Tenant against all claims, demands or actions
arising out of or in connection with Tenant's use or occupancy of
the Demised Premises, the limits of such policy or policies to be in
an amount not less than $1,000,000.00 in respect of any one accident
or death of any one person, and in an amount not less than
$3,000,000.00 in respect of any one accident or disaster, and in an
amount not less than $1,000,000.00 in respect of property damaged or
destroyed, and to be written by insurance companies satisfactory to
Landlord.
Add the following language:
Any commercial insurer with a Best's A rating shall be satisfactory
to Landlord. Blanket "umbrella" policies held by Tenant or Tenant's
holding company may be used to satisfy the foregoing insurance
obligations.
2. Section 16.6. Deleted. [The Lease is not a sublease.]
WAL*MART LEASE AGREEMENT
THIS LEASE is entered into as of the 27th day of January, 1997, by and
between Landlord and Tenant as hereinafter defined.
WHEREAS, in consideration of the obligation of Tenant to pay Rent as
herein provided and in consideration of the Standard Terms and Conditions set
forth herein, Landlord hereby demises and leases to Tenant, and Tenant hereby
takes from Landlord, the Demised Premises, TO HAVE AND TO HOLD said Demised
Premises for the Lease Term specified below, and upon the terms and conditions
set forth in this Lease.
BASIC PROVISIONS
1. Landlord: WAL-MART STORES, INC., 701 South Walton Boulevard,
Bentonville, AR 72716
2. Tenant: FIRST BANK AND TRUST COMPANY, 180 Washington Street,
Providence, RI 02903
3. Tenant's Trade Name(s): FIRST BANK AND TRUST
4. "Demised Premises": The space occupied by Tenant's Financial Service
Facility ("FSF") in WAL-MART No. 2373 in the City of Warwick, Rhode
Island the "Store").
5. Targeted Commencement Date: June 29, 1997
6. Lease Term: Commencing on the Commencement Date as defined in Section
1.3 below, and continuing until 12:00 Midnight local time on the fifth
anniversary of the Commencement Date (the "Termination Date")
7. Rent: Payable as specified in Article III:
<TABLE>
<CAPTION>
Annually Monthly
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<S> <C> <C>
Initial Term $25,000.00 $2,083.33
First Renewal Term $31,250.00 $2,604.17
Second Renewal Term $39,062.50 $3,255.21
</TABLE>
8. Prepaid Rent: $2,083.33 being Rent for the last month of the Lease
Term, due within thirty (30) days after the Commencement Date.
9. Key Money: A one-time nonrefundable fee of $25,000.00 for the right to
operate an FSF in the Store. Payment is to be made within thirty (30)
days after the Commencement Date.
10. Landlord's Construction Payment: A one-time payment of $10,000.00 for
Landlord's work related to the design, construction and finishing of
the Demised Premises. Payment is to be made within thirty (30) days
after the Commencement Date.
11. Special Utility Charge: $1,500 per term, if Landlord permits Tenant to
have an illuminated exterior sign, payable in advance within thirty
(30) days after the Commencement Date of the initial term, and upon
commencement of any renewal term.
EXECUTED AS OF THE DATE HEREIN ABOVE STATED.
LANDLORD: WAL-MART STORES, INC. TENANT: FIRST BANK AND TRUST COMPANY
By: By:
- ------------------------------- --------------------------------
Anthony L. Fuller
Vice President Title: Chairman, President and CEO
Wal-Mart Realty Company -----------------------------
STANDARD TERMS AND CONDITIONS FOR WAL-MART LEASE AGREEMENT
ARTICLE I. GENERAL PROVISIONS
1.1 Quiet Possession: Landlord further agrees that if Tenant shall
perform all of the covenants and agreements herein required to be performed by
Tenant, Tenant shall, subject to the terms of this Lease, at all times during
the continuance of this Lease have peaceful and quiet possession of the Demised
Premises.
1.2 Renewal Terms: Provided Tenant has conducted its business in an
efficient, high-class and reputable manner and is not in default hereunder,
Tenant shall have the option(s) to extend the term of this Lease for up to two
(2) consecutive terms of Five (5) years each by giving Landlord written notice
of its exercise of the respective option at least one hundred eighty (180) days
prior to the expiration of the original Lease Term or the expiration of the then
existing term. References to the "Lease Term" shall refer to the original term
and any extensions or renewals thereof.
1.3 Commencement Date: The latest to occur of (i) the ninetieth (9Oth)
day after Tenant's receipt of all necessary regulatory approvals; (ii) the
ninetieth (9Oth) day after the date on which Landlord tenders possession of the
Demised Premises to Tenant for completion of Tenant's work; and (iii) the date
on which the Store opens for business. Landlord and Tenant agree to execute and
deliver a "Commencement Agreement," in the form attached hereto as Exhibit "A"
within thirty (30) days after the FSF opens for business. Notwithstanding the
foregoing, the Commencement Date shall be no earlier than the Targeted
Commencement Date set forth in Section 5 of the Basic Provision, unless Tenant
actually opens for business in the Demised Premises before the Targeted
Commencement Date.
1.4 Permitted Use: A banking facility staffed with one or more bank
employees whose functions include, without limitation, opening new deposit
accounts, accepting loan applications, closing loans, and performing customary
teller transactions, such as cashing checks and taking deposits. An FSF may be
equipped with an ATM, vault, safe deposit boxes, a night depository, and one or
more self-service or interactive banking terminals. Tenant shall have the
exclusive right to operate an FSF within the Store and may also offer, on a
non-exclusive basis, such ancillary products and services as may be permitted by
applicable law and regulations; provided, however, that Tenant shall not offer
insurance, investment products and travel agency services, except for the
insurance and investment products and services listed on Exhibit "8," without
Landlord's prior written consent, which consent shall not be unreasonably
withheld. Tenant may not trade merchandise that conflicts with Landlord's
merchandise without Landlord's written approval.
1.5 Automated Teller Machine ("ATM"):
(a) Tenant shall have the exclusive right to operate one ATM within the
Store, and a first refusal right to operate additional ATMs within the Store.
Any additional ATMs shall be subject to the terms of this Lease and to the
following additional conditions: (i) Tenant shall pay ATM rental of $500 per
month for each additional ATM; (ii) the location(s) of additional ATM(s) will be
as determined by Landlord; and (iii) all additional ATM(s) must be front-loading
ATMs.
(b) Tenant shall not charge a Terminal Usage Fee or other fee for use
of Tenant's ATMs in the Store, other than normal and customary interchange fees
and fees customarily assessed by Tenant to its account holders (none of which
shall be considered "Terminal Usage Fees" for the purposes of this Agreement)
without Landlord's prior written consent. Landlord's consent to Tenant's
imposition of Terminal Usage Fees shall not be unreasonably withheld, and shall
be based upon Landlord's analysis of Terminal Usage Fees charged by ATMs
operated by Tenant and other ATM operators within the Store's market area,
including freestanding ATMs, parking lot ATMs, ATMs in retail locations operated
by Landlord, and retail locations operated by Landlord's competitors, it being
Landlord's intention to ensure that Landlord's "everyday low prices" philosophy
applies to charges imposed on customers of Tenant's ATMs.
(c) In the event Tenant is permitted to charge Terminal Usage Fees, and
elects to do so, Tenant shall pay Landlord an ATM transaction fee (the "ATM
Transaction Fee"), in addition to any other ATM fees payable hereunder, equal to
fifty percent (50%) of the Terminal Usage Fees received by Tenant by reason of
transactions conducted at Tenant's ATM(s) in the Store. ATM Transaction Fees
shall be paid monthly in arrears, commencing on the fifteenth (15th) day of the
month after the month in which the ATM commences operation. Tenant shall keep
and maintain full and accurate records of Terminal Usage Fees charged to
customers of Tenant's ATM(s). Landlord shall have the right during Tenant's
business hours and upon reasonable notice to Tenant to inspect, copy and audit
such records, and Tenant will produce the same on Landlord's request. If any
such inspection and audit discloses a liability for ATM Transaction Fees in
excess of ATM Transaction Fees theretofore paid by Tenant, Tenant shall
promptly, upon demand, pay to Landlord such
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liability. If the audit discloses that Tenant's statements underreported ATM
Transaction Fees by more than two percent (2%), then Tenant shall, in addition,
pay the reasonable cost of Landlord's audit.
ARTICLE II. ACCEPTANCE OF DEMISED PREMISES; REMODELING
2.1 Acceptance of Demised Premises: By opening for business in the
Demised Premises, Tenant shall be deemed to have accepted the same "as is" and
to have acknowledged that the same comply fully with Landlord's covenants and
obligations hereunder.
2.2 Possession: If this Lease is executed before the Demised Premises
becomes vacant, or if any present tenant or occupant of the Demised Premises
holds over, and Landlord cannot acquire possession of the Demised Premises prior
to the Targeted Commencement Date, Landlord shall not be deemed to be in default
hereunder, and Tenant agrees to accept possession of the Demised Premises at
such time as Landlord is able to tender the same. Landlord hereby waives the
payment of Rent covering any period prior to tender of possession of the Demised
Premises to Tenant hereunder. If Landlord, in Landlord's sole discretion,
determines that it will be unable to acquire possession of the Demised Premises
within a reasonable time after the Targeted Commencement Date by reasonable
commercial efforts, short of litigation, Landlord shall have the right to
terminate this Agreement by written notice to Tenant, whereupon neither party
shall have any further rights, duties or obligations hereunder.
2.3 Construction of Store: If this Lease is executed before Landlord
has commenced construction of the Store and Landlord does not tender possession
of the Demised Premises to Tenant for completion of Tenant's work by the
Targeted Commencement Date, as above defined, Landlord shall not be deemed to be
in default hereunder, and Tenant agrees to accept possession of the Demised
Premises at such time as Landlord tenders the same. Notwithstanding the
foregoing, if Landlord, in Landlord's sole discretion (i) determines it will be
unable to deliver possession of the Demised Premises to Tenant within a
reasonable time after the Targeted Commencement Date, by reason of construction
or regulatory delays or otherwise, or (ii) elects not to construct the Store,
Landlord shall have the right to terminate this Agreement by written notice to
Tenant, whereupon neither party shall have any further rights, duties or
obligations hereunder.
2.4 Store Renovation: Tenant recognizes that Landlord may, from time to
time, wish to remodel, rearrange or enlarge the Store to accommodate changes in
retailing patterns. If the remodeling/rearranging/enlargement involves
relocation of the Demised Premises, Landlord shall pay the actual costs of such
relocation, but no more than $100,000.00 if the remodeling occurs during the
first year of the lease term; no more than $80,000.00 if within the second year
of the lease term; no more than $60,000.00 if within the third year of the lease
term; no more than $40,000.00 if within the fourth year of the lease term; no
more than $20,000.00 if within the fifth year of the lease term; and nothing
thereafter. Tenant shall pay all costs that Landlord has not agreed to pay. In
no event will Landlord be responsible for "loss of business," "lack of trade,"
or any other claim resulting out of such renovation. Notwithstanding any
remodeling of the Store, the Demised Premises shall always be comparable in
configuration and overall size to the original Demised Premises, and shall be
located at the front of the Store, convenient to checkout stands and plainly
visible to customers. Landlord agrees that Tenant may temporarily close the
Demised Premises if Tenant reasonably determines that its ability to operate is
materially impaired due to work associated with Store construction, remodeling,
moving or enlargement. Rent shall be abated during periods in which the Demised
Premises is closed by reason of work associated with Store construction,
remodeling, moving or enlargement.
ARTICLE III. RENT
3.1 Address for Payment of Rent: Rent shall be payable to Landlord in
care of:
Wal-Mart Stores, Inc.
P.O. Box 500620
St. Louis, MO 63150-0620
3.2 Time of Payment of Rent: Tenant shall pay Rent to Landlord in
monthly installments. The first such monthly installment shall be due and
payable on or before the earlier of (i) the date on which Tenant first opens for
business in the Demised Premises and (ii) the Commencement Date, and subsequent
installments shall be due and payable on or before the first day of each
succeeding calendar month during the Lease Term. Rent shall be prorated on a
daily basis for any partial month in the Lease Term that results from the Lease
Term beginning on a day other than the first day of a calendar month or ending
on a day other than the last day of a calendar month.
3.3 Electronic Payment: It is understood that the Rent, Key Money,
Landlord's Construction Payment and all other payments hereunder are payable at
the times stated herein without offset or deduction
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of any nature If requested by Landlord, all payments shall be made
electronically by Fedwire or through an Automated Clearing House (ACM) In the
event any payment is not received within ten (10) days of the due date, it is
agreed that the amount thus due shall bear interest at the rate of one and
one-half percent (1 1/2%) per month, such interest to accrue continuously on any
unpaid balance due to Landlord by Tenant during the period commencing with the
due date and terminating with the date on which Tenant makes full payment of all
amounts owing to Landlord at the time of said payment. Any such interest shall
be payable as additional Rent hereunder and shall be payable immediately on
demand.
3.4 Quarterly Payment of Rent at Landlord's Option: If Tenant fails in
two (2) consecutive months to make payments of Rent within ten (10) days after
due, Landlord, in order to reduce its administrative costs, may require by
giving written notice to Tenant (and in addition to any interest accruing
pursuant to Section 3.3 above, as well as any other rights and remedies accruing
pursuant to Article XVIII or Article XIX, or any other term, provision or
covenant of this Lease), that Rent is to be paid quarterly in advance instead of
monthly.
ARTICLE IV. REPORTS AND RECORDS
4.1 Loans and Deposits: Promptly following the end of each calendar
quarter during the term of the Lease, Tenant shall deliver to Landlord
information concerning loans and deposits for the Demised Premises in the form
attached as Exhibit "C" or in such other form as may be mutually acceptable to
Landlord and Tenant. Landlord acknowledges that such reports contain sensitive
and confidential information and shall use reasonable business efforts to
maintain the confidentiality of the information contained therein, both during
and after the expiration of the Lease Term.
ARTICLE V. COMMON AREAS
5.1 Common Areas: The term "Common Area" is defined for all purposes of
this Lease as that part of the Store as well as certain adjoining property owned
or leased by Landlord and intended for the common use of all tenants, including
among other facilities (as such may be applicable), parking area, private
streets and alleys, landscaping, curbs, loading area, floors, doors, side walks,
food court, malls and promenades (enclosed or otherwise), lighting facilities,
drinking fountains, meeting rooms, public toilets and the like but excluding
space in buildings (now or hereafter existing) designed for rental or commercial
purposes, as the same may exist from time to time, and further excluding streets
and alleys maintained by a public authority. Landlord reserves the right to
change from time to time the dimensions and locations of the Common Area.
Tenant, and its employees and customers, and when duly authorized pursuant to
the provisions of this Lease, its subtenants, licensees and concessionaires,
shall have the nonexclusive right to use the Common Area as constituted from
time to time, such use to be in common with Landlord, other tenants of the Store
and other persons permitted by Landlord to use the same, and subject to such
reasonable rules and regulations governing use as Landlord may from time to time
prescribe, including the designation of specific areas in which automobiles
owned by Tenant, its employees, subtenants, licensees and concessionaires shall
be parked. Landlord may temporarily close any part of the Common Area for such
periods of time as may be necessary to make repairs or alterations to prevent
the public from obtaining prescriptive rights. Landlord shall be responsible for
the operation, management, and maintenance of the Common Area, the manner of
maintenance and the expenditures therefor to be in the sole discretion of
Landlord.
ARTICLE Vl. USE AND CARE Of DEMISED PREMISES
6.1 Operation: The Demised Premises may be used only for the purpose or
purposes specified in Section 1.4, and for no other purposes without the prior
written consent of Landlord. Tenant shall not at any time leave the Demised
Premises vacant, but shall in good faith continuously throughout the Lease Term
operate an FSF in the Demised Premises. Tenant shall operate its business in an
efficient, high class and reputable manner, and shall, except during reasonable
periods for repairing, cleaning, and decorating, keep the Demised Premises open
to the public for business with adequate personnel in attendance, for a minimum
of fifty (50) hours a week allocated over six (6) days, two (2) of which shall
be Friday and Saturday; provided, however, that such minimum hours of operation
shall be shortened for any week during which a bank holiday occurs. In addition,
Tenant agrees to provide a level and quality of services to its customers in the
Store that equals or exceeds Landlord's standards for the level and quality of
services Landlord provides to its customers in the Store, and will conduct its
banking business at the FSF in conjunction with and abiding by Landlord's
philosophies, culture and standards, subject to sound banking practices and
applicable banking laws, rules and regulations.
6.2 Customer Service Telephone: Tenant shall provide, at its sole
expense, a customer service "Hot Line" notice including the Tenant's local or
other toll free number at the Demised Premises. The notice shall be in a
conspicuous location in full view of all customers at all times the Store is
open for business. Letters
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and numbers are to be a minimum of tour inches (4") in scale with a background
color which highlights the color of the characters.
6.3 Increased Risk: Tenant shall not, without Landlord's prior written
consent, keep anything within the Demised Premises or use the Demised Premises
for any purpose which increases the insurance premium cost or invalidates any
insurance policy carried on the Demised Premises or the Store or the Common
Area. All property kept, stored or maintained within the Demised Premises by
Tenant shall be at Tenant's sole risk.
6.4 Care of Demised Premises: Tenant shall take good care of the
Demised Premises and keep the same free from waste at all times. Tenant shall
keep the Demised Premises neat, clean and free from dirt or rubbish at all
times. Receiving and delivery of goods and merchandise and removal of garbage
and trash from the Demised Premises shall be made only in the manner and areas
prescribed by Landlord. Tenant shall not operate an incinerator or burn trash or
garbage within the Store or Common Area. Tenant shall not permit any
objectionable or unpleasant odors to emanate from Demised Premises; nor place or
permit any radio, television, loudspeaker or amplifier on the roof or outside
the Demised Premises or where the same can be seen or heard from outside the
building; nor place any antenna, awning or other projection on the exterior of
the Demised Premises; nor take any other action which would constitute a
nuisance or would disturb or endanger other tenants of the Store or unreasonably
interfere with their use of their respective premises; nor do anything which
would tend to injure the reputation of the Store.
6.5 Display Windows: Tenant shall maintain all display windows in a
neat, attractive condition and shall keep all display windows lighted during all
business hours as defined above.
6.6 Permits: Tenant shall procure at its sole expense any permits and
licenses required for the transaction of business in the Demised Premises and
shall otherwise comply with all applicable laws, ordinances, and governmental
regulations.
6.7 Tenant's Employees:
(a) All persons employed by Jenant in or about, or in connection with,
the operation of the FSF shall be Tenant's employees for all purposes under this
Agreement. Tenant's employees and agents and employees of companies which
service the FSF who are not Tenant employees or agents shall be granted access
to the Store for the purpose of servicing, maintaining, and otherwise performing
services in connection with the FSF. Landlord agrees to cooperate with Tenant in
providing access to the Demised Premises during periods of time the Store may
not be open for business.
(b) Employees of Tenant, while working at the FSF, shall be permitted
to park their automobiles in spaces designated by Landlord for parking by
Landlord employees. Tenant shall furnish to Landlord upon request a complete
list of license numbers of all automobiles operated by Tenant, its employees,
subtenants, licensees or concessionaires, and Tenant agrees that if any
automobile or other vehicles owned by Tenant or any of its employees,
subtenants, licensees or concessionaires shall be parked in any part of the
Common Area other than the specified areas designated for employee parking while
performing services at the Demised Premises, Tenant shall pay to Landlord as
additional Rent upon demand an amount equal to the daily rate or charge for such
parking as may be reasonably established by Landlord from time to time for each
day, or part thereof, such automobile or other vehicle is so parked. Landlord
may from time to time substitute for any parking area other areas reasonably
accessible to Tenant, which areas may be elevated, surface or underground.
6.8 Advertising and Promotion:
(a) Tenant may advertise the existence and location of the FSF by media
as per manner approved by Landlord at the on-site operations level, which
approval will not be unreasonably withheld or delayed. Aside from notices of the
existence and location of the FSF, neither Landlord nor Tenant will use the
other's name, trademark, servicemark, or logo in any advertising, marketing, or
solicitation materials without the other's consent. In no event will either
party advertise or otherwise represent that it has any relationship with the
other other than the relationship of landlord and tenant arising out of Tenant's
occupying space in the Store.
(b) Subject to Landlord's approval on the on-site operations level,
which will not be unreasonably withheld or delayed, Tenant may promote its
products and services outside the FSF within the Store itself; provided,
however, such products and services shall be those offered at the FSF and shall
not compete with the grocery products or services offered by Landlord.
(c) Subject to Landlord approval on the on-site operations level, which
will not be unreasonably withheld or delayed, Tenant shall have access to the
intercommunication system ("intercom") within the Store
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to promote the products and services offered at the FSF. The use of the intercom
shall be coordinated and approved between the Store Manager and the FSF Manager.
(d) All promotions conducted by Tenant in the Store shall be conducted
in a professional manner by trained employees of Tenant or an Affiliate (as
defined in Section 16.2, below) working at the FSF.
(e) Landlord, as approved at the on-site operations level, shall permit
Tenant to place signs identifying its operations inside the Store at locations
to be agreed upon by the parties. Tenant will submit to Landlord for its
approval, which will not be unreasonably withheld or delayed, a signage package
detailing the appearance and size of all signs to be installed.
6.9 Trade Name: Tenant hereby acknowledges that Tenant's business
reputation, intended use of the Demised Premises and ability to generate
patronage to the Demised Premises and the Store were all relied upon by Landlord
and served as significant and material inducements contributing to Landlord's
decision to execute this Lease with Tenant. Tenant hereby covenants and agrees:
(i) to operate in the Demised Premises only under the trade name(s) set forth in
the Basic Provisions, and under no other name or trade name whatsoever without
Landlord's prior written consent, provided (A) such consent by Landlord shall
not be unreasonably withheld and (B) if Tenant is acquired by, or acquires,
whether by merger or other means, a bank or bank holding company having assets
equal to fifty percent (50%) or more of the assets of Tenant, Tenant may, upon
prior notice to Landlord, adopt the name or trade name used by such other bank
or bank holding company in its banking business, provided in either case such
name is not obscene and does not contain thename of any of Landlord's
competitors.
ARTICLE Vll. MAINTENANCE AND REPAIR OF DEMISED PREMISES
7.1 Landlord's Responsibility: Landlord shall keep the foundation, the
exteriorwalls, heating, air conditioning and roof (except plate glass; windows,
doors, door closure devices and other exterior openings; window and door frames,
molding, locks and hardware; special storefronts; lighting, plumbing and other
electrical, mechanical and electromotive installations, equipment and fixtures;
signs, placards, decorations or advertising media of any type; and interior
painting or other treatment of exterior walls) of the Demised Premises in good
repair. Landlord, however, shall not be required to make any repairs occasioned
by the act or negligence of Tenant or Tenant's agents, employees, subtenants,
licensees and concessionaires; and the provisions of the previous sentence are
expressly recognized to be subject to the provisions of Article XIV (Casualty)
and Article XV (Condemnation) of this Lease. In the event that the Demised
Premises should become in need of repairs required to be made by Landlord
hereunder, Tenant shall give prompt written notice thereof to Landlord, and
Landlord shall not be responsible in any way for failure to make any such
repairs until a reasonable time shall have elapsed after receipt by Landlord of
such written notice.
7.2 Tenant's Responsibility: Tenant shall keep the Demised Premises in
good, clean and habitable condition and shall at its sole cost and expense keep
the Demised Premises free of insects, rodents, vermin and other pests and make
all needed repairs and replacements, including replacement of cracked or broken
glass, except for repairs and replacements required to be made by Landlord under
the provisions of Section 7.1, Article XIV (Casualty) and Article XV
(Condemnation). Without limiting the coverage of the previous sentence, it is
understood that Tenant's responsibilities therein include the repair and
replacement of all of Tenant's lighting, plumbing and other electrical,
mechanical and electromotive installation, equipment and fixtures and also
include all utility repairs in ducts, conduits, pipes, wiring, and any sewer
located in, under or above the Demised Premises and serving the Demised
Premises. If any repairs required to be made by Tenant hereunder are not made
within ten (10) days after written notice delivered to Tenant by Landlord,
Landlord may at its option make such repairs without liability to Tenant for any
loss or damage which may result to its stock or business by reason of such
repairs; and Tenant shall pay to Landlord upon demand, as additional Rent
hereunder, the cost of such repairs plus ten percent (10%) thereof as an
administrative fee to Landlord plus interest at the rate of one and one-half
percent (1 1/2%) per month, such interest to accrue continuously from the date
of payment by Landlord until repayment by Tenant. At the expiration of this
Lease, Tenant shall surrender the Demised Premises in good condition, excepting
reasonable wear and tear and losses required to be restored by Landlord in
Section 7.1, Article XIV and Article XV of this Lease.
ARTICLE VIII. ALTERATIONS
8.1 Improvements by Tenant: Tenant shall not make any alterations,
additions or improvements (collectively, "Improvements") to the Demised Premises
without the prior written consent of Landlord, which consent will not be
unreasonably withheld or delayed, except for the installation of unattached,
movable trade fixtures ("Fixtures") which may be installed without drilling,
cutting or otherwise defacing the Demised Premises.
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8.2 Removal of Improvements and Fixtures: At any time during the Lease
Term, or upon expiration of the Lease Term, Tenant shall have the right to
remove the FSF and all other Improvements and Fixtures which Tenant makes or
installs upon the Demised Premises, provided Tenant completes such removal
within thirty (30) days of termination of the Lease. All Improvements and
Fixtures which may be made or installed upon the Demised Premises that are not
removed by Tenant within thirty (30) days of termination of this Lease shall
remain upon and be surrendered with the Demised Premises and become the property
of Landlord at the termination of this Lease, unless Landlord requests their
removal in which event Tenant shall remove the same and restore the Demised
Premises to their original condition, subject to reasonable wear and tear, at
Tenant's expense. Tenant shall repair any damage to the Store caused by removal
af Tenant's Improvements and Fixtures.
8.3 All construction work done by Tenant within the Demised Premises
shall be performed in a good and workmanlike manner, in compliance with all
governmental requirements, and in such manner as to cause a minimum of
interference with other construction in progress and with the transaction of
business in the Store. Tenant agrees to indemnify Landlord and hold Landlord
harmless against any loss, liability or damage resulting from such work and
Tenant shall, if requested by Landlord, furnish a bond or other security
satisfactory to Landlord against any such loss, liability or damage.
ARTICLE IX. LANDLORD'S RIGHT OF ACCESS: USE OF ROOF
9.1 Landlord's Right of Access: Landlord shall have the right to enter
upon the Demised Premises at any time upon reasonable notice to Tenant (except
for emergencies) and subject to Tenant's security requirements, for the purpose
of inspecting the same or of making repairs, alterations or additions to
adjacent premises, or of showing the Demised Premises to prospective purchasers,
lessees or lenders. Landlord shall endeavor to minimize interference with
Tenant's business.
9.2 "For Rent" Signs: Tenant will permit Landlord to place and maintain
"For Rent" or "For Lease" signs on the Demised Premises during the last ninety
(90) days of the Lease Term, it being understood that such signs shall in no way
affect Tenant's obligations pursuant to any provision of this Lease.
9.3 Use of Roof: Use of the roof above the Demised Premises is reserved
to Landlord.
ARTICLE X SIGNS: STOREFRONTS
10.1 Signs, Storefronts: Tenant shall not, without Landlord's prior
written consent: (a) make any changes to the storefront or (b) install any
exterior lighting, decorations, paintings, awnings, canopies or the like or (c)
erect or install any signs, window or door lettering placards, decorations or
advertising media of any type which can be viewed from the exterior of the
Demised Premises. All signs, lettering, placards, decorations and advertising
media shall conform in all respects to the sign criteria established by Landlord
from time to time in the exercise of its sole discretion, and shall be subject
to the prior written approval of Landlord as to construction, method of
attachment, size, shape, height, lighting, color and general appearance,
pursuant to the procedures outlined on Exhibit "D," attached hereto. All signs
shall be kept in good condition and in proper operating order at all times at
Tenant's expense. Subject to the foregoing restrictions, Tenant agrees to
install and maintain a first-class sign on the front of the Demised Premises
during the Lease Term.
ARTICLE Xl. UTILITIES
11.1 Utility Charge: Landlord shall pay all charges for electricity,
water, gas, and sewerage service furnished to the Demised Premises. Tenant shall
pay for telephone service and other utility services, including the Special
Utility Charge set forth in the Basic Provisions.
11.2 Interruption of Utilities: Landlord shall not be liable for any
interruption whatsoever in utility services not furnished by Landlord nor for
interruptions in utility services furnished by Landlord which are due to fire,
accident, strike, acts of God or other causes beyond the control of Landlord or
in order to make alterations, repairs or improvements. Landlord shall provide
reasonable heating, cooling and lighting to the building in which the Demised
Premises are located and the Common Areas at all times during which the Store is
open for business.
ARTICLE Xll. INDEMNITY AND PUBLIC LIABILITY INSURANCE
12.1 Injury and Damage: Landlord shall not be liable to Tenant or to
Tenant's employees, agents, or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the Demised Premises or
the Common Area caused by the negligence or misconduct of Tenant, its employees,
subtenants, licensees or concessionaires, or of any other person entering the
Store under express or implied
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invitation of Tenant, or arising out of the use of the Demised Premises by
Tenant and the conduct of its business therein, or arising out of any breach or
default by Tenant in the performance of its obligations hereunder; and Tenant
hereby agrees to defend, indemnify and hold Landlord harmless from any loss,
expense, including reasonable attorney expenses, or claims arising out of such
damage or injury.
12.2 Liability Insurance: Tenant shall procure and maintain throughout
the Lease Term a policy or policies of insurance, at its sole cost and expense,
insuring both Landlord and Tenant against all claims, demands or actions arising
out of or in connection with Tenant's use or occupancy of the Demised Premises,
the limits of such policy or policies to be in an amount not less than
$1,000,000.00 in respect of injuries to or death of any one person, and in an
amount not less than $5,000,000.00 in respect of any one accident or disaster,
and in an amount not less than $1,000,000.00 in respect of property damaged or
destroyed, and to be written by insurance companies satisfactory to Landlord.
Tenant shall obtain a written obligation on the part of each insurance company
to notify Landlord at feast ten (10) days prior to cancellation of such
insurance. Such policies or duly executed certificates of insurance and renewals
thereof as required shall be delivered to Landlord at least thirty (30) days
prior to cancellation or the expiration of the respective policy terms of such
insurance. If Tenant should fail to comply with the foregoing requirements
relating to insurance, Landlord may obtain such insurance and Tenant shall pay
to Landlord on demand as additional Rent hereunder the premium cost thereof plus
ten percent (10%) as an administrative fee to Landlord plus interest at the rate
of one and one-half percent (1 1/2%) per month from the date of payment by
Landlord until repaid by Tenant.
12.3 Workers' Compensation Insurance: Tenant agrees to maintain and
keep in force, during the Lease Term, all workers' compensation insurance
required under applicable Workers' Compensation Acts.
ARTICLE XIII. NON-LIABILITY FOR CERTAIN DAMAGES
13.1 Defects, etc.:
(a) Landlord and Landlord's agents and employees shall not be liable to
Tenant for any injury to person or damage to property caused by the Demised
Premises becoming out of repair, or by defect or failure of any structural
element of the Demised Premises or of any equipment, pipes or wiring, or broken
glass installed by Tenant in the Demised Premises, or by the backing up of
drains constructed by Tenant, or by gas, water, steam, electricity or oil
leaking, escaping or flowing from equipment, pipes or wiring installed by Tenant
into the Demised Premises, nor shall Landlord be liable to Tenant for any loss
or damage that may be occasioned by or through the acts or omissions of other
tenants of the Store or of any other persons whomsoever, excepting only duly
authorized employees and agents of Landlord.
(b) Tenant and its agent and employees shall not be liable to Landlord
for any injury to person or damage to property caused by the Demised Premises or
other portions of the Store becoming out of repair or by defect or failure of
any structural element of the Demised Premises or of any equipment, pipes or
wiring, or broken glass, or by the backing up of drains, or by gas, water,
steam, electricity or oil leaking, escaping or flowing out of the Demised
Premises, nor shall Tenant be liable to Landlord for any losses or damage that
may be occasioned by or through the acts or omissions of other tenants of the
Store or of any other persons whomsoever, excepting only duly authorized
employees and agents of Tenant.
13.3 Mutual Waiver of Subrogation: Landlord and Tenant each hereby
release the other from any and all liability or responsibility to the other or
to any other party claiming through or under them by way of subrogation or
otherwise, for any loss or damage to property caused by a casualty which is
customarily insured under standard fire and extended coverage insurance;
provided, however, that this mutual waiver shall be applicable only with respect
to a loss or damage occurring during the time when standard fire and extended
coverage insurance policies contain a clause or endorsement to the effect that
any such release shall not adversely affect or impair the policy or the right of
the insured party to receive proceeds under the policy.
ARTICLE XIV. CASUALTY
14.1 Notice to Landlord: Tenant shall give prompt written notice to
Landlord of any damage caused to the Demised Premises by fire or other casualty.
14.2 Landlord's Repair of Casualty Damage: In the event that the Store
shall be damaged or destroyed by fire or other casualty, then Landlord may elect
either to terminate this Lease or to proceed to rebuild and repair the Store.
Landlord shall give written notice to Tenant of such election within sixty (60)
days after the occurrence of such casualty, and if Landlord elects to rebuild
and repair, shall proceed to do so with reasonable diligence and at its sole
cost and expense. As it relates to the Demised Premises, Landlord's work under
this Article XIV shall be limited to restoring the Demised Premises to
substantially the condition in which
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the same existed prior to such casualty, exclusive of any alterations,
additions, improvements, fixtures and equipment installed by Tenant.
14.3 Tenant's Repair of Casualty Damage: Tenant agrees that promptly
after completion of such work by Landlord, Tenant will proceed with reasonable
diligence and at Tenantts sole cost and expense to restore, repair and replace
all alterations, additions, improvements, fixtures, signs and equipment
installed by Tenant.
14.4 Operation of FSF After Casualty: Tenant agrees that during any
period of reconstruction or repair of the Demised Premises, it will continue the
operation of its business within the Demised Premises to the extent practicable.
During the period from the occurrence of the casualty until Tenant's repairs are
completed, the Rent shall be reduced to such extent as may be fair and
reasonable under the circumstances.
14.5 Property Insurance: Tenant will secure at Tenant's sole cost
Property Insurance Coverage normally covered in a Fire and Extended Coverage
Policy for Tenant's Fixtures and Improvements.
ARTICLE XV. CONDEMNATION
15.1 Condemnation: If such portion of the Store (including the Common
Area) shall be taken for any public or quasi-public use under any governmental
law, ordinance or regulation or by right of Eminent Domain or by private
exercise in lieu thereof that, in the sole opinion of Landlord, the continued
operation of the Store is undesirable, Landlord may elect to terminate this
Lease, such termination to be effective as of the date Landlord ceases to
operate the Store. All compensation awarded for any taking (or the proceeds of
private sale in lieu thereof) of the Demised Premises or Common Area shall be
the property of Landlord, and Tenant hereby assigns its interest in any such
award to Landlord; provided, however, Landlord shall have no interest in any
award made to Tenant for Tenant's moving and relocation expenses or for the loss
of Tenant's fixtures and other tangible personal property if a separate award
for such items is made to Tenant.
ARTICLE XVI. ASSIGNMENT AND SUBLETTING
16.1 Landlord's Consent: Tenant shall not, without the prior written
consent of Landlord (i) assign, mortgage, pledge, hypothecate, encumber, or
permit any lien to attach to, or otherwise transfer, this Lease or any interest
hereunder, (ii) permit any assignment or other such foregoing transfer of this
Lease or any interest hereunder by operation of law, (iii) sublet the Demised
Premises or any part thereof, or (iv) permit the use of the Demised Premises by
any persons other than Tenant, its employees and its invitees (each of the
foregoing actions for which Landlord's consent is required is hereinafter
sometimes referred to as a "Transfer" and any person to whom any Transfer is
made or sought to be made is hereinafter sometimes referred to as a
"Transferee"). If Tenant shall desire Landlord's consent to any Transfer, Tenant
shall notify Landlord in writing, which notice shall include: (a) the proposed
effective date (which shall not be less than forty-five (45) days nor more than
one hundred eighty (180) days after the Tenant's notice), (b) all of the terms
of the proposed Transfer and the consideration therefor, the name and address of
the proposed Transferee, and a copy of all documentation pertaining to the
proposed Transfer, and (c) current audited financial statements of the proposed
Transferee, and any other information necessary to enable Landlord to determine
the financial responsibility, character, and reputation of the proposed
Transferee, and (d) such other information as Landlord may reasonably require.
Landlord's consent to any Transfer shall not be unreasonably withheld, but any
Transfer made without Landlord's prior written consent shall, at Landlord's
option, be null, void, and of no effect, and any acceptance of Rent by Landlord
from any purported Transferee shall not be deemed a consent to a Transfer or a
waiver of any of Landlord's rights or remedies hereunder.
16.2 Permitted Transfers: "Transferee" as used herein shall not include
a subsidiary, affiliate, division, corporation or other entity controlled by,
controlling or under common control with Tenant (each of which shall be an
"Affliate" for purposes of the Lease), provided that the Affiiate is a federal
or state-chartered financial institution whose deposits are insured by the
Federal Deposit Insurance Corporation, and that the Affiliate will continue to
operate a full-service FSF in the Demised Premises. Landlord shall be deemed to
consent to a Transfer to such an Affiliate and no prior consent shall be
required thereto, provided that Tenant shall give prior written notice thereof
to Landlord for informational purposes only. Moreover, a merger or consolidation
in which Tenant is the surviving entity or in which the shareholders of Tenant
maintain control of the surviving entity shall not be deemed a Transfer.
16.3 Corporate Consolidation: For purposes of this Lease, the term
"Transfer" shall also include the dissolution or the merger or consolidation of
Tenant (other than with an Affiliate), or within a twelve (12) month period: (i)
the sale or other transfer of more than an aggregate of fifty percent (50%) of
the voting shares of Tenant (other than, in the case of a closely held
corporation, to immediate family members by reason of gift
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or death), or (ii) the sale, mortgage, hypothecation or pledge of more than an
aggregate of fifty percent (50%) of the value of the unencumbered assets (as of
the date hereof) of Tenant.
16.4 Transfer Premium: If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
Landlord fifty percent (50%) of any Transfer Premium received by Tenant in
connection with such Transfer. "Transfer Premium" shall mean all Rent,
additional Rent or other consideration payable by such Transferee in any monthly
period in excess of the Rent payable by Tenant under this Lease (on a monthly
basis duting the Term). If part of the consideration for such Transfer shall be
payable other than in cash, Landlord's share of such non-cash consideration
shall be in such form as is reasonably satisfactory to Landlord. Such percentage
of the Transfer Premium shall be paid promptly by Tenant upon Tenant's receipt
from time to time of periodic payments from such Transferee or at such other
time as Tenant shall realize a Transfer Premium. In lieu of accepting such
percentage of the Transfer Premium, Landlord may elect in writing within ninety
(90) days after Tenant's notice, to increase the Rent hereunder during the Term
of the Transfer by an amount equal to Landlord's share of the monthly amount of
such Transfer Premium. The provisions of this Subparagraph 16.4 shall not apply
to a Transfer to an Affiliate and shall not apply to payments made by a
Transferee for (i) Tenant's customer deposits, loans and related assets; or (ii)
the FSF or Tenant's furniture, fixtures and equipment contained therein.
16.5 Effect of Landlord Consent: If Landlord consents or is deemed to
consent to a Transfer: (a) the terms and conditions of this Lease, including
among other things, Tenant's (which term, for purposes hereof, shall mean the
transferring Tenant and any predecessor) liability for the Demised Premises
(including, without limitation, Rent and other sums due with respect thereto),
shall in no way be deemed to have been waived or modified so that
notwithstanding such Transfer, the Tenant, its predecessors and the Transferee
shall be jointly and severally liable with respect to the Demised Premises, (b)
such consent shall not be deemed consent to any further Transfer by either
Tenant or a Transferee, (c) as a condition thereto Tenant shall first deliver to
Landlord an original executed copy of all documentation pertaining to the
Transfer, including but not limited to an assumption agreement by the
Transferee, in form reasonably acceptable to Landlord, and (d) Tenant shall
furnish upon Landlord's request a complete statement, certified by an
independent certified public accountant, or Tenant's chief financial officer,
setting forth in detail the computation of any Transfer Premium Tenant has
derived and shall derive from such Transfer. Landlord or its authorized
representatives shall have the right at all reasonable times to audit the books,
records and papers of Tenant relating to any Transfer Premium, and shall have
the right to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found understated, Tenant shall within thirty (30) days after
demand pay the deficiency, and Landlord's costs of such audit, and if
understated by more than five percent (5%), Landlord shall have the right to
cancel this Lease upon thirty (30) days notice. Any sublease hereunder shall be
subordinate and subject to the provisions of this Lease, and if this Lease shall
be terminated during the term of any sublease, Landlord shall have the right to
(i) treat such sublease as canceled and repossess the Demised Premises by any
lawful means or (ii) require that such subtenant attorn to and recognize
Landlord as its landlord under such sublease.
16.6 Landlord's Lease (if any): If this Lease is in fact a sublease,
Tenant accepts this Lease subject to all of the terms and conditions of the
underlying Lease under which Landlord holds the Store as lessee. Tenant
covenants that it will do no act or thing which would constitute a violation by
Landlord of his obligation under such underlying Lease; provided, however, that
Tenant's agreement in this regard is premised on Landlord's assurances to the
effect that the terms of this Lease do not violate such underlying Lease.
16.7 Transfer by Landlord: In the event of the Transfer by Landlord of
its interest in this Lease to a Transferee expressly assuming Landlord's
obligation under this Lease, Landlord shall thereby be released from any further
obligations hereunder, and Tenant agrees to look solely to such Transferee of
Landlord for performance of such obligations. Any security given by Tenant to
secure performance of Tenant's obligations hereunder may be assigned and
transferred by Landlord to such Transferee, and Landlord shall thereby be
discharged of any further obligation relating thereto.
ARTICLE XVII. TAXES
17.1 Tenant's Responsibility for Taxes: Tenant shall be liable for all
taxes levied against personal property and trade fixtures placed by Tenant in
the Demised Premises. If any such taxes are levied against Landlord or
Landlord's property, and if Landlord elects to pay the same or if the assessed
value of Landlord's property is increased by inclusion of personal property and
trade fixtures placed by Tenant in the Demised Premises, and Landlord elects to
pay the taxes based on such increase, Tenant shall pay to Landlord upon demand
that part of such taxes for which Tenant is primarily liable hereunder.
17.2 Landlord's Responsibility for Taxes: Except as provided in Section
17.1, Landlord shall pay or cause to be paid all general real estate taxes,
general and special assessments, parking surcharges and
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other governmental charges (hereinafter collectively referred to as the "General
Taxes") levied against the Store and the Common Area for each real estate tax
year.
17.3 Rent Taxes, etc.: If at any time during the Lease Term, a tax or
excise on rents or other tax however described (except any franchise, estate,
inheritance, capital stock, income or excess profits tax imposed upon Landlord)
is levied or assessed against Landlord by any lawful taxing authority on account
of Landlord's interest in this Lease or the Rent or other charges reserved
hereunder, as a substitute in whole or in part, or in addition to the General
Taxes described in Section 17.2 above, Tenant agrees to pay to Landlord upon
demand, and in addition to the Rent and other charges prescribed in this Lease,
the amount of such tax or excise. In the event any such tax or excise is levied
or assessed directly against Tenant, then Tenant shall be responsible for and
shall pay the same at such times and in such manner as the taxing authority
shall require.
ARTICLE XVIII. DEFAULT BY TENANT AND REMEDIES
18.1 Events of Default: The following shall be events of default by
Tenant under this Lease:
(a) Tenant shall fail to pay any installment of Rent or any other
regularly scheduled monetary obligations hereunder involving the payment of
money and such failure shall continue for a period of ten (10) days after
written notice to Tenant (or if notice of non-payment shall have been given to
Tenant within the same calendar year, such failure shall continue, whether or
not Landlord gives Tenant notice, for a period of ten (10) days).
(b) Tenant shall fail to comply with any term, provision or covenant of
this Lease other than as described in subsection (a) above and shall not cure
such failure within thirty (30) days after written notice thereof to Tenant, or,
as to makers which cannot be remedied within thirty (30) days if Tenant fails to
commence efforts to remedy such default within such thirty (30) day period and
thereafter diligently prosecute such efforts so that such default is cured
within a reasonable time.
(c) Tenant or any guarantor of Tenant's obligations under this Lease
shall become insolvent, or shall make a transfer in fraud of creditors, or shall
make an assignment for the benefit of creditors.
(d) Tenant or any guarantor of Tenant's obligations under this Lease
shall file a petition under any section or chapter of the National Bankruptcy
Act, as amended, or under any similar law or statute of the United States or any
State thereof; or Tenant or any guarantor of Tenant's obligations under this
Lease shall be adjudged bankrupt or insolvent in proceedings filed against
Tenant or any guarantor of Tenant's obligations under this Lease thereunder.
(e) A receiver or trustee shall be appointed for the Demised Premises
or for all or substantially all of the assets of Tenant or any guarantor of
Tenant's obligations under this Lease.
(f) Tenant shall desert or vacate or shall commence to desert or vacate
the Demised Premises or any substantial portion of the Demised Premises prior to
termination of this Lease.
(g) Tenant shall do or permit to be done anything which creates a lien
upon the Demised Premises.
18.2 Landlord's Remedies: Upon the occurrence of any such events of
default, Landlord shall have the option to pursue either of the following
alternative remedies:
(a) Without any notice or demand whatsoever, Landlord may take any one
or more of the actions permissible at law to insure performance by Tenant of
Tenant's covenants and obligations under this Lease. In this regard, it is
agreed that if Tenant deserts or vacates the Demised Premises, Landlord may
enter upon and take possession of the Demised Premises in order to protect them
from deterioration and continue to demand from Tenant the monthly rentals and
other charges provided in this Lease, without any obligation to relet; but that
if Landlord does, at its sole discretion, elect to relet the Demised Premises,
such action by Landlord shall not be deemed as an acceptance of Tenant's
surrender of the Demised Premises unless Landlord expressly notifies Tenant of
such acceptance in writing pursuant to Subsection (b) of Section 18.2 Tenant
hereby acknowledges that Landlord shall otherwise be reletting as Tenant's agent
and Tenant furthermore hereby agrees to pay to Landlord on demand any deficiency
that may arise between the monthly rentals and other charges provided in this
Lease and that actually collected by Landlord. It is further agreed in this
regard that in the event of any default described in Subsection (b) of Section
18.1, Landlord shall have the right to enter upon the Demised Premises without
being liable for prosecution of any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease; and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under
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this Lease; and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action.
(b) Landlord may terminate this Lease by written notice to Tenant, in
which event Tenant shall immediately surrender the Demised Premises to Landlord,
and if Tenant fails to do so, Landlord may, without prejudice to any other
remedy which Landlord may have for possession or arrearages in Rent (including
any interest which may have accrued pursuant to Article III of this Lease),
enter upon and take possession of the Demised Premises and expel or remove
Tenant and any other person who may be occupying said premises or any part
thereof, without being liable for prosecution or any claim for damages therefor.
Landlord agrees to provide ten (10) days written notice and Tenant has ten (10)
days to correct, modify and make whole any obligation. Tenant hereby waives any
statutory requirement of prior written notice for filing eviction or damage
suits for nonpayment of Rent. In addition, Tenant agrees to pay to Landlord on
demand the amount of all loss and damage which Landlord may suffer by reason of
any termination effected pursuant to this Subsection 1 8.2(b), said loss and
damage to be determined by either of the following alternative measures of
damage.
(c) Until Landlord is able, through reasonable efforts, the nature of
which efforts shall be at the sole discretion of Landlord, to relet the Demised
Premises, Tenant shall pay to Landlord on or before the first day of each
calendar month, the Rent and other charges provided in this Lease. After the
Demised Premises have been relet by Landlord, Tenant shall pay to Landlord on
the twentieth day of each calendar month the difference between the Rent and
other charges provided in this Lease for the preceding calendar month and that
actually collected by Landlord for such month. If it is necessary for Landlord
to bring suit in order to collect a deficiency, Landlord shall have a right to
allow such deficiencies to accumulate and to bring an action on several or all
of the accrued deficiencies at one time. Any such suit shall not prejudice in
any way the right of Landlord to bring a similar action for any subsequent
deficiency or deficiencies. Any amount collected by Landlord from subsequent
tenants for any calendar month, in excess of the Rent and other charges provided
in this Lease, shall be credited to Tenant in reduction of Tenant's liability
for any calendar month for which the amount collected by Landlord will be less
than the Rent and other charges provided in this Lease; but Tenant shall have no
right to such excess other than the above described credit.
(d) When Landlord desires, Landlord may demand a final settlement. Upon
demand for a final settlement, Landlord shall have a right to, and Tenant hereby
agrees to pay, the difference between the total of all Rent and other charges
provided in this Lease for the remainder of the term and the reasonable rental
value of the Demised Premises for such period, such difference to be discounted
to present value at the rate of eight percent (8%) per annum).
(e) If Landlord elects to compute damages in the manner prescribed by
Subsection (c) above, this election shall in no way prejudice Landlord's right
at any time thereafter to demand a final settlement in accordance with
Subsection (d) above. Pursuit of any of the above remedies shall not preclude
pursuit of any other remedies prescribed in other sections of this Lease and any
other remedies provided by law. Forbearance by Landlord to enforce one or more
of the remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default.
18.3 Landlord's Expenses: It is further agreed that, in addition to
payments required pursuant to Subsections 18.2(a) and 18.2(b), Tenant shall
compensate Landlord for all expenses incurred by Landlord in repossession
(including among other expenses, any increase in Insurance Premiums caused by
the vacancy of the Demised Premises), all expenses incurred by Landlord in
reletting (including among other expenses, repairs, remodeling, replacements,
advertisements and brokerage fees), all concessions granted to a new tenant upon
reletting (including among other concessions, renewal options), all losses
incurred by Landlord as a direct or indirect result of Tenant's default
(including among other losses, any adverse reaction by Landlord's mortgagee or
by other tenants or potential tenants of the Store), and a reasonable allowance
for Landlord's administrative efforts, salaries and overhead attributable
directly or indirectly to Tenant's default and Landlord's pursuing the rights
and remedies provided herein and under applicable law. Notwithstanding the
foregoing, Tenant shall not be obligated to make payments by reason of a default
in an amount exceeding the total Rent in this Lease for the remainder of the
Lease Term.
18.4 Injunction: Landlord may restrain or enjoin any breach or
threatened breach of any covenant, duty or obligation of Tenant herein contained
without the necessity of proving the inadequacy of any legal remedy or
irreparable harm. The remedies of Landlord hereunder shall be deemed cumulative
and not exclusive of each other.
18.5 Attorney's Fees: If on account of any breach or default by Tenant
in its obligations hereunder. Landlord shall employ an attorney to present,
enforce or defend any of Landlord's rights or remedies hereunder, Tenant agrees
to pay any reasonable attorney's fees incurred by Landlord in such connection.
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18.6 Tenant's Insolvency: Notwithstanding any other provision of this
Lease, in the event the Tenant or its successors or assignee shall become
insolvent, bankrupt, or make an assignment for the benefit of creditors, or if
it or their interest hereunder shall be levied upon or sold under exeCution or
other legal process, or in the event the FSF to be operated on the Demised
Premises is closed, or is taken over by a bank supervisory authority, the
Landlord may terminate this Lease only with the concurrence of such bank
supervisory authority, and any such authority shall in any event have the
election to either continue or terminate this Lease, provided, that in the event
this Lease is terminated, the maximum claim of Landlord against such bank
supervisory authority for damages or indemnity for injury resulting from the
rejection or abandonment of the unexpired lease shall in no event be in an
amount exceeding the Rent reserved by this Lease, without acceleration, for the
year next succeeding the date of the surrender of the Demised Premises to the
Landlord, or the date of re-entry of the Landlord, whichever first occurs,
whether before or after the closing of the FSF, plus an amount equal to the
unpaid Rent accrued without acceleration up to such date. This paragraph shall
limit the liability of the FDIC but not affect Landlord's other rights or
remedies under law.
ARTICLE XIX. LANDLORD'S CONTRACTUAL SECURITY INTEREST
19.1 Landlord's Security Interest: In addition to the statutory
Landlord's Lien, Landlord shall have at all times a valid security interest to
secure payment of Rent and other sums of money becoming due hereunder from
Tenant and to secure payment of any damages or losses which Landlord may suffer
by reason of the breach by Tenant of any covenant, agreement or condition
contained herein, upon all goods, wares, equipment, fixtures, furniture,
improvements and other tangible personal property of Tenant presently, or which
may hereafter be, situated on the Demised Premises, and all proceeds therefrom,
and such property shall not be removed without the consent of Landlord until all
arrearages in Rent as well as any and all other sums of money then due to
Landlord or to become due to Landlord hereunder shall first have been paid and
discharged and ail the covenants, agreements and conditions hereof have been
fully complied with and performed by Tenant. Upon the occurrence of an event of
default by Tenant, Landlord may, in addition to any other remedies provided,
enter upon the Demised Premises and take possession of any and all goods, wares,
equipment, fixtures, furniture, improvements and other tangible personal
property of Tenant situated on the Demised Premises, without liability for
trespass or conversion, and sell the same at public or private sale, with or
without having such property at the sale, after giving Tenant reasonable notice
of the time and place of any public sale or of the time after which any private
sale is to be made, at which sale Landlord or its assigns may purchase unless
otherwise prohibited by law. Unless otherwise provided by law, and without
intending to exclude any other manner of giving Tenant reasonable notice, the
requirement of reasonable notice shall be met if such notice is given in the
manner prescribed in this Lease at least seven (7) days before the time of sale.
Any sale made pursuant to the provision of this paragraph shall be deemed to
have been a public sale conducted in a commercially reasonable manner if held in
the above-described premises or where the property is located after the time,
and place and method of sale and a general description of the types of property
to be sold have been advertised in a daily newspaper published in the county in
which the property is located for five (5) consecutive days before the date of
the sale. The proceeds from any such disposition, less any and all expenses
connected with the taking of possession, holding and selling of the property
(including reasonable attorney's fees and legal expenses), shall be applied as a
credit against the indebtedness secured by the security interest granted in this
paragraph. Any surplus shall be paid to Tenant or as otherwise required by law;
Tenant shall pay any deficiencies forthwith. Upon request by Landlord, Tenant
agrees to execute and deliver to Landlord a financing statement in form
sufficient to perfect the security interest of Landlord in the aforementioned
property and proceeds thereof under the provision of the Uniform Commercial Code
(or corresponding state statute or statutes) in force in the state in which the
property is located, as well as any other state the laws of which Landlord may
at any time consider to be applicable.
19.2 Subordination of Landlord's Security Interest: Notwithstanding
Section 19.1, (i) Landlord agrees that it will subordinate its security interest
and Landlord's Lien to the security interest of Tenant's supplier or
institutional financial source, provided that Landlord approves the transaction
as being reasonably necessary for Tenant's operations at the Demised Premises,
and further provided that the subordination must be limited to a specified
transaction and specified items of the fixtures, equipment or inventory involved
in the transaction. and (ii) Landlord agrees that its lien shall be limited to
Tenant's equipment, fixture, furniture, improvements and other personal property
of tenant situated on the Demised Premises and shall not apply to banking
records, money, accounts, deposits or any property of Tenant's customers.
ARTICLE XX. HOLDING OVER
20.1 Holdover Status: In the event Tenant remains in possession of the
Demised Premises after the expiration of this Lease and without the execution of
a new lease, it shall be deemed to be occupying the Demised Premises as a tenant
from month to month at a monthly rental rate equal to the current Rent plus
other charges herein provided plus fifty percent (50%) of such amount and
otherwise subject to all the conditions, provisions and obligations of this
Lease insofar as the same are applicable to a month to month tenancy.
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Notwithstanding the foregoing, if Landlord and Tenant are engaged in good faith
negotiations to extend the term of the lease or to enter into a new lease,
Tenant shall be permitted to continue paying monthly rental at a rate equal to
the current Rent, without the fifty percent (50%) additional charge, while such
negotiations continue; provided, however, that in the event Landlord and Tenant
do not extend the term of this Lease or enter into a new Lease within three (3)
months after termination of this Lease, Landlord may, at any time, require
Tenant to commence paying Rent plus fifty percent (50%) of such amount as set
forth in this Section 20.1.
ARTICLE XXI. SUBORDINATION AND ATTORNMENT
21.1 Mortgages, etc.: Tenant accepts this Lease subject and subordinate
to any mortgage, deed of trust or other lien presently existing or hereafter
placed upon the Demised Premises or the Store and Common Area as a whole and to
any renewals and extensions thereof. Tenant agrees that any such mortgagee shall
have the right at any time to subordinate such mortgage, deed of trust or other
lien to this Lease; provided, however, notwithstanding that this Lease may be
(or made to be) superior to mortgage, deed of trust or other lien, the
provisions of mortgage, deed of trust or other lien relative to the rights of
the mortgagee with respect to proceeds arising from an eminent domain taking
(including a voluntary conveyance by Landlord) and/or arising from insurance
payable by reason of damage to or destruction of the Demised Premises shall be
prior and superior to any contrary provisions contained in this instrument with
respect to the payment or usage thereof. Landlord is hereby irrevocably vested
with full power and authority to subordinate this Lease to any mortgage, deed
of trust or other lien hereafter placed upon the Demised Premises or the Store
and Common Area as a whole, and Tenant agrees upon demand to execute such
further instruments subordinating this Lease as Landlord may request; provided,
however, that upon Tenant's written request and notice to Landlord, Landlord
shall use good faith efforts to obtain from any such mortgagee a written
agreement that the rights of Tenant shall remain in full force and effect during
the Lease Term as long as Tenant shall continue to recognize and perform all of
the covenants and conditions of this Lease.
21.2 Notice to Mortgagee: At any time when the holder of an outstanding
mortgage, deed of trust or other lien covering Landlord's interest in the
Demised Premises has given Tenant written notice of its interest in this Lease,
Tenant may not exercise any remedies for default by Landlord hereunder unless
and until the holder of the indebtedness secured by such mortgage, deed of trust
or other lien shall have received written notice of such default and a
reasonable time for curing such default shall thereafter have elapsed.
21.3 Estoppel Certificates: Tenant agrees that it will from time to
time upon request by Landlord execute and deliver to Landlord a written
statement addressed to Landlord (or to a party designated by LandIord), which
statement shall identify Tenant and this Lease, shall certify that this Lease 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), shall confirm that
Landlord is not in default as to any obligations of Landlord under this Lease
(or if Landlord is in default, specifying any default), shall confirm Tenant's
agreements contained above in this Article XXI, shall confirm the Commencement
and Termination Dates of this Lease, and shall contain such other information or
confirmations as Landlord may reasonably require. Landlord is hereby irrevocably
appointed and authorized as the agent and attorney-in-fact of Tenant to execute
and deliver any such written statement on Tenant's behalf if Tenant fails to do
so within seven (7) days after the delivery of a written request from Landlord
to Tenant. Landlord may treat such failure as an event of default.
21.4 Attornment: Tenant shall attorn to and be bound to any of
Landlord's successors under all the terms, covenants and conditions of this
Lease for the balance of any remaining Lease Term.
ARTICLE XXII. NOTICES & CORRESPONDENCE
22.1 Notices: Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered when actually received or
rejected by the designated addressee and shall be given by United States
certified mail return receipt requested, postage prepaid or by recognized
national courier (such as Federal Express), addressed to the parties hereto at
the respective addresses set forth above, or such other addresses as may be
specified by written notice.
ARTICLE XXIII. REGULATIONS
23.1 Compliance With Regulations: Landlord and Tenant acknowledge that
there are in effect, and may hereafter be enacted or put into effect, federal,
state, county and municipal laws, orders, rules, directives and regulations
(collectively referred to hereinafter as the "Regulations"), relating to or
affecting the Demised Premises or the Store and Common Area, and concerning the
impact on the environment of construction, land use, maintenance and operation
of structures, and conduct of business. Subject to the express rights granted to
Tenant under the terms of this Lease, Tenant will not cause, or permit to be
caused, any act or practice, by negligence, omission, or otherwise, that would
adversely affect the environment, or do anything to permit
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anything to be done that would violate any Regulations. Moreover, Tenant shall
have no claim against Landlord by reason of any changes Landlord may make in the
Store, Common Area or the Demised Premises which may be required to comply with
such Regulations.
23.2 Applications: Tenant shall file applications with the appropriate
regulatory authorities for authority to establish a branch office in the Demised
Premises and shall keep Landlord advised of the processing of the applications.
The obligations of the Tenant under this Lease are subject to the condition
precedent that the Tenant shall receive authority to establish a branch office
to the Demised Premises. In the event such authority is not received on or
before the Targeted Commencement Date, either Landlord or Tenant shall have the
right, upon notice to the other, to terminate this Lease. In such event, neither
party hereto shall have any further rights, duties or obligations hereunder.
ARTICLE XXIV. MISCELLANEOUS
24.1 No Partnership: Nothing herein contained shall be deemed or
construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of computation of Rent, nor any other provision contained herein, nor any
acts of the parties hereto, shall be deemed to create any relationship between
the parties hereto other than the relationship of Landlord and Tenant.
24.2 No Offset: Tenant shall not for any reason withhold or reduce
Tenant's required payments of Rent and other charges provided in this Lease, it
being agreed that the obligations of Landlord hereunder are independent of
Tenant's obligations except as may be otherwise expressly provided. In this
regard it is specifically understood and agreed that in the event Landlord
commences any proceedings against Tenant for nonpayment of Rent or any other sum
due and payable by Tenant hereunder, Tenant will not interpose any counterclaim
or other claim against Landlord of whatever nature or description in any such
proceedings (other than a compulsory counterclaim under Rule 13(a) of the
Federal Rules of Civil Procedure, or any analogous rule in a state court
proceeding); and in the event that Tenant interposes any such counterclaim or
other claim against Landlord in such proceedings, Landlord and Tenant stipulate
and agree that, in addition to any other lawful remedy of Landlord, upon motion
of Landlord, such counterclaim or other claim asserted by Tenant shall be
severed from the proceedings instituted by Landlord. Landlord may proceed to
final judgment separately and apart from and without consolidation with or
reference to the status of such counterclaim or any other claim asserted by
Tenant.
24.3 Landlord's Liability: The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited to the
greater of (i) two million dollars ($2,000,000.00) or (ii) the proceeds of sale
on execution of the interest of Landlord in the Store. Landlord shall remain
personally liable to account to Tenant for any security deposited hereunder.
This clause shall not be deemed to limit or deny any remedies which Tenant may
have in the event of default by Landlord hereunder, which do not involve the
personal liability of Landlord.
24.4 Consents: Any clause referring to Landlord approval refers to
written consent. Except as may be otherwise herein provided, in all
circumstances under this Lease where prior consent or permission of one party
("First Party"), whether it be Landlord or Tenant, is required before the other
party ("Second Party") is authorized to take any particular type of action, the
matter of whether to grant such consent or permission shall be within the sole
and exclusive judgment and discretion of the First Party; and it shall not
constitute any nature of breach by the First Party hereunder or any defense to
the performance of any covenant, duty or obligation of the Second Party
hereunder that the First Party delayed or withheld the granting of such consent
or permission, whether or not the delay or withholding of such consent or
permission was, in the opinion of the Second Party, prudent or reasonable or
based on good cause.
24.5 Waivers: One or more waivers of any covenant, term, or condition
of this Lease by either party shall not be construed as a waiver of a subsequent
breach of the same covenant, term or condition. The consent or approval by
either party to or of any act by the other party requiring such consent or
approval shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent similar act.
24.6 Force Majeure: Whenever a period of time is herein prescribed for
an action to be taken, the party required to take such action (other than
payment of money) shall not be liable or responsible for, and there shall be
excluded from the computation of any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, governmental
laws, regulations or restrictions or any other causes of any kind whatsoever
which are beyond the reasonable control of such party.
24 7 Governing Law: The laws of the state in which the Demised Premises
are located shall govern the interpretation, validity, performance and
enforcement of this Lease. If any provision of this Lease should be
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held to be invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Lease shall not be affected thereby. Venue for any
action under this Lease shall be the county in which the Store is located.
24.8 Captions: The captions used herein are for convenience only and do
not limit or amplify the provisions hereof.
24.9 Number; Gender: Whenever here the singular number is used, the
same shall include the plural, and words of any gender shall include each other
gender.
24.10 Suceessors: The terms, provisions and covenants contained in this
Lease shall apply to, inure to the benefit of and be binding upon the parties
hereto and their respective heirs, successors in interest and legal
representatives except as otherwise herein expressly provided.
24.11 Entire Agreement: This Lease contains the entire agreement
between the parties, and no agreement shall be effective to change, modify or
terminate this Lease in whole or in part unless such is in writing and duly
signed by the party against whom enforcement of such change, modification or
termination is sought. Landlord and Tenant hereby acknowledge that they are not
relying on any representation or promise I of the other, except as may be
expressly set forth in this Lease. Oral agreements in conflict with any of the
terms of this Lease shall be without force and effect.
24.12 Exhibits: This Lease consists of twenty-four (24) Articles and
Exhibits A through D (any space left blank will be deemed to have been completed
with the word "none"). In the event any provision of an Exhibit or other
attached page shall be inconsistent with a provision in the body of the Lease,
the provision as set forth in the Exhibit shall be deemed to control. All
Exhibits referred to herein, whether or not physically attached to this Lease,
shall be deemed incorporated herein by reference.
24.13 Store Closing: Notwithstanding anything herein to the contrary,
Tenant agrees to the cancellation of this Lease and agrees to vacate the Demised
Premises on the date Landlord ceases doing business in the Store unless a longer
period is required by federal or state law, or unless this Lease is transferred
by Landlord, as contemplated by Article XVI above. Landlord agrees to give
Tenant as much notice as is practicable under the circumstances of Landlord's
decision to cease doing business in the Shopping Center.
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EXHIBIT A
COMMENCEMENT AGREEMENT
Re: Store Lease Agreement dated __________ between Wal*Mart
Stores, Inc. ("Landlord") and the undersigned financial
institution ("Tenant") concerning Wal*Mart Supercenter No.
_____, _________________ (the "Store").
Landlord and Tenant confirm the following information with respect to
the Store (capitalized terms not otherwise defined in this Agreement shall have
the meaning given to them in the Store Lease Agreement), as of __________, 19_.
1. The Store Lease Agreement is in full force and effect and has not
been modified, superseded or changed, except as follows:
2. Tenant accepted the Demised Premises and opened its Financial
Service Facility on ___________.
3. The initial Lease Term commenced on __________ and will expire on
_________. The first Renewal Term (if any) will commence on ___________ and will
expire on _____________. The second Renewal Term (if any) will commence on
__________ and will expire on _______________.
4. Tenant's obligation to make payments of Rent commenced on
__________. Tenant's $_______ payment for Landlord's Work is due on or before
_________ . Tenant's $_________ Key Money payment is due on or before ________.
(See Payment Summary below).
5. LANDLORD REQUESTS THAT TENANT'S ACCOUNTING DEPARTMENT ESTABLISH
AUTOMATIC PAYMENTS TO ENSURE RENT IS RECEIVED BY THE FIRST OF EACH MONTH.
LANDLORD WILL NOT ISSUE INVOICES FOR RENT. RENT AND OTHER PAYMENTS SHOULD BE
SENT TO: WAL*MART STORES, INC., P.O. BOX 500620, ST. LOUIS, MO 63150-0620.
PAYMENT SUMMARY
<TABLE>
<CAPTION>
MONTHLY RENT PAYMENT DUE FOR
DESCRIPTION INITIAL PAYMENT DUE INITIAL TERM EFFECTIVE ____ 1997
- ------------ ------------------- ---------------------------------
<S> <C> <C>
Landlord's Work $_______
Key Money _______
Prorated ____ Rent Payment _______ $________
TOTAL AMOUNT DUE $
=======
</TABLE>
EXECUTED BY LANDLORD AND TENANT AS OF THE DATE SET FORTH ABOVE:
Wal-Mart Stores, Inc. Tenant
By:__________________ By:________________________
Title:_______________ Title:_____________________
MONTHLY RENTAL PAYMENTS ARE DUE THE 1ST OF EACH MONTH.
LATE PAYMENT CHARGES WILL BE IN ACCORDANCE WITH LEASE.
EXHIBIT 8
ANCILLARY PRODUCTS AND SERVICES
INVESTMENT PRODUCTS
Mutual Funds
U.S. Government and Agency Securities
Municipal Bonds
Unit Investment Trusts
Equities
Fixed Annuities
Variable Annuities
INSURANCE PRODUCTS:
Term Life
Credit Life
Credit Disability
Universal Life
Variable Life
SERVICES:
Self-Directed IRAs
Insurance Plan Review
Stock and Bond Research
Mutual Fund Performance Evaluations
Retirement and Education Planning
INTERNATIONAL BANKING TECHNOLOGIES
QUARTERLY/MONTHLY IN-STORE BRANCH PERFORMANCE
TRACKING REPORT
FINANCIAL
INSTITUTION:______________________ UNIT # ______________________
RETAILER/STORE #: ________________ MANAGER: ____________________
BRANCH ADDRESS:___________________ BRANCH TELEPHONE:____________
BRANCH FAX:__________________
CITY, STATE: _____________________ QUARTER/MONTH ENDING: Jan Feb
Mar Apr May Jun Jul Aug Sep
BRANCH OPENING DATE:______________ Oct Nov Dec
YEAR: 97 98 99 00 01 02
(Please circle)
<TABLE>
<CAPTION>
NEW DEPOSIT
NEW ACCOUNTS DURING THIS AMOUNTS THIS TOTAL AMOUNT ON
QUARTER/MONTH QTR/MONTH DEPOSIT AT BRANCH
------------------------- ---------- -----------------
<S> <C> <C> <C>
DDA ACCOUNTS $ $
TIME ACCOUNTS $ $
TOTALS $ $
</TABLE>
<TABLE>
<CAPTION>
TOTAL # OF NEW LOANS TOTAL AMOUNT
DURING NEW LOAN AMOUNT OF LOANS WRITTEN AT
THIS QUARTER/MONTH DURING THIS QTR/MONTH BRANCH
------------------ --------------------- -------------------
<S> <C> <C> <C>
LOAN ORIGINATIONS $ $
(only loans initiated
at your branch)
</TABLE>
Average Number of Monthly Tellerline Transactions:__________________________
MONTHLY ATM TRANSACTIONS: Foreign ____________________ On-us _________________
AVERAGE WEEKLY STORE CUSTOMER COUNT: ____________ This # only needed once
yearly) (Please ask the manager of the store for a round number, and assure the
manager that it will be held confidentially and used only for branch activity
purposes.)
Please mail or fax this form to:
MARKET RESEARCH
International Banking Technologies
1770 Indian Trail Road, Suite 300
Norcross, GA 30093
770/279-4422 (fax)770/381-2123
(Please make additional copies of this form as needed)
WAL-MART SIGNAGE POLICY
Contacts (War-Mart Vestibule Leasing Department): Randy Lillard (301)273-8005
1. BUILDING SIGNAGE. Exterior signage will be one sign with a maximum
of 20 sq. ft. stud- mounted, illuminated or non-illuminated letters or box
approved by the Vestibule Leasing Department. The sign will be installed in the
location per the attached drawing (Exhibit "D-1") on all store locations where
Tenant branches will reside.
2. INSTALLATION AND PERMITTING. The Wal-Mart Vestibule Leasing
Department will be responsible for coordinating all installations with the
Tenant. The Tenant will be responsible for all installation, permitting and
costs.
3. EXISTING BANK-OCCUPIED STORES. The Tenant will be responsible for
the entire project. The Tenant shall supply the Wal-Mart Vestibule Leasing
Department with a confirmation letter stating that the Tenant sign has been
installed at the store location. Photographs of the sign shall accompany the
letter.
4. NEW STORES, RELOCATIONS AND EXPANSIONS. The Wal-Mart Vestibule
Leasing Department will coordinate approval of the Tenant signage projects. The
Tenant will be allowed to begin the permitting process for its sign after the
Wal-Mart signing package has been approved. NOTE: WAL-MART SIGNAGE WILL WAVE
PRIORITY AT ALL PROJECTS. The Vestibule Leasing Department will notify the
Tenant of the proper date to begin its permitting process. This date is likely
to be on, or within a few days of, the announced possession date of the store,
which is usually 3 months prior to the opening of the store. The Tenant will be
responsible for all permitting and sign costs. The Tenant shall supply the
Wal-Mart Vestibule Leasing Department with a confirmation letter stating that
the Tenant sign has been installed at the store location. Photographs of the
sign shall accompany the letter.
5. RESTRICTIONS. No other Tenant signage, such as flags, floor decals,
road signs, road-sign banners, banners hanging on outside of building, shopping
cart signs, etc. will be permitted. All signage ideas must be submitted to and
approved by the Wal-Mart Vestibule Leasing Department before they can be
considered for being part of the Tenant signage in any store.
THIS IS THE APPROVED WAL-MART/BANK BRANCH SIGNAGE PACKAGE. NO ADDITIONAL SIGNAGE
IS AUTHORIZED.
EXHIBIT D-l
(GRAPHIC CHART OF EXTERIOR SIGNAGE)
ADDENDUM
TO
WAL-MART LEASE AGREEMENT ("LEASE")
TENANT: First Bank and Trust Company
Store: Wal-Mart No. 2261, Kingstown, Rhode Island
The provisions of the Lease are modified as follows:
1. Section 12.2. Change first sentence to read as follows:
Tenant shall procure and maintain throughout the Lease Term a policy or
policies of insurance, at its sole cost and expense, insuring both
Landlord and Tenant against all claims, demands or actions arising out
of or in connection with Tenant's use or occupancy of the Demised
Premises, the limits of such policy or policies to be in an amount not
less than $1,000,000.00 in respect of any one accident or death of any
one person, and in an amount not less than $3,000,000.00 in respect of
any one accident or disaster, and in an amount not less than
$1,000,000.00 in respect of property damaged or destroyed, and to be
written by insurance companies satisfactory to Landlord.
Add the following language:
Any commercial insurer with a Best's A rating shall be satisfactory to
Landlord. Blanket Umbrella" policies held by Tenant or Tenant's holding
company may be used to satisfy the foregoing insurance obligations.
2. Section 16.6. Deleted. [The Lease is not a sublease.]
