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Home My WebLink About18060112 CorrespondenceLEASE BETWEEN LAWNDALE PLAZA, LLC AND JASON UPTON D/B/A F45 INDEX Introduction Article I - Leased Premises and Common Areas Section 1.01 - Leased Premises Section 1.02 - Use of Common Areas Section 1.03 - Roof and Walls Section 1.04 - Basic Lease Provisions Article II - Lease Term Section 2.01 - Term Section 2.02 - Construction of Improvements and Possession Section 2.03 - Holding Over Section 2.04 - Option to Extend Article III - Rent Section 3.01 - Minimum Annual Rent Section 3.02 - Records Section 3.03 – Percentage Rent Section 3.04 - Place of Payments Section 3.05 - Past Due Payment Article IV - Use of Leased Premises Section 4.01 - Permissible Use Section 4.02 - Opening for Business Section 4.03 - Operation of Business Section 4.04 - Prohibited Uses Section 4.05 - Hazardous Materials Article V - Signage Section 5.01 - Approval Section 5.02 - Canopy Sign Design Section 5.03 - Installation Section 5.04 - Illumination Section 5.05 - Removal Section 5.06. Monument Signage Article VI - Operating Costs Section 6.01 - Common Areas Section 6.02 - Taxes Section 6.03 - Insurance Obtained by Landlord Section 6.04 - Payment of Operating Costs Article VII - Utilities Section 7.01 - Utility Lines Section 7.02 - Tenant's Obligations Section 7.03 - Discontinuance of Services Article VIII - Maintenance and Repairs Section 8.01 - Limitation Section 8.02 - Maintenance by Landlord Section 8.03 - Maintenance by Tenant Section 8.04 - Notice Section 8.05 - Alterations and Additions Section 8.06 - Mechanic's Liens Article IX - Insurance and Indemnification Section 9.01 - Public Liability Insurance - Tenant Section 9.02 - Insurance on Tenant's Property Section 9.03 - Waiver of Subrogation Section 9.04 - Certificates of Insurance Section 9.05 - Indemnification Section 9.06 - Waiver of Claims Article X - Fire and Other Casualty Article XI - Eminent Domain Article XII - Assignment and Subletting Section 12.01 - Requirement of Landlord's Consent Section 12.02 - Assignment by Operation of Law Section 12.03 - Licensees or Concessionaires Article XIII – Bankruptcy Section 13.01 – Bankruptcy Article XIV - Default and Remedies Section 14.01 - Events and Default by Tenant Section 14.02 - Landlord's Rights Upon Tenant’s Default Section 14.03 - Re-Letting Section 14.04 - Damages Upon Termination Section 14.05 - Indemnification Upon Default Section 14.06 - Default of Landlord Section 14.07 - Status of Landlord Article XV - Access to Lease Premises Article XVI - Surrender Article XVII - Estoppel Certificates, Attornment and Subordination Section 17.01 - Initial Estoppel Certificate Section 17.02 - Subsequent Estoppel Certificates Section 17.03 - Attornment Section 17.04 - Subordination ii Article XVIII - Miscellaneous Provisions Section 18.01 - Covenant of Quite enjoyment Section 18.02 - Accord and Satisfaction Section 18.03 - No Option Section 18.04 - Memorandum of Lease Section 18.05 - Relationship of Parties Section 18.06 - Waivers Section 18.07 - Remedies Cumulative Section 18.08 - Severability Section 18.09 - Benefit of Persons Affected Section 18.10 - Construction Section 18.11 - Entire Agreement; Amendments Section 18.12 - Governing Law Section 18.13 - Captions Section 18.14 - Notices Section 18.15 - Counterparts Section 18.16 - Authority Section 18.17 - Deposit Section 18.18 - Force Majeure Section 18.19 - Submission for Review Section 18.20 - Security Measures Section 18.21 - Relocation Section 18.22 - Financing Contingency iii 1 LEASE THIS LEASE, made this _______ day of _____________ , 2018, by and between Lawndale Plaza, LLC ("Landlord"), and Jason Upton d/b/a F45 ("Tenant"), WITNESSETH: ARTICLE I LEASED PREMISED AND COMMON AREAS Section 1.01. Leased Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord a portion of a shopping center building on certain real estate located in Hamilton County, Carmel, Indiana, which real estate is described on Exhibit A, attached hereto and incorporated herein by reference (the "Shopping Center"). Such real estate is part of an integrated shopping center commonly known as West Carmel Shoppes. The portion of the building hereby leased to Tenant is shown on Exhibit B, attached hereto and incorporated herein by reference ("Leased Premises"), containing a gross leasable area of approximately 2,500 square feet ("Gross Leasable Area"). Landlord shall be entitled to make additions, modifications or alterations to, and modify the plans of, the Shopping Center provided that neither the size of Leased Premises nor the parking facilities serving the Shopping Center shall be materially changed. Section 1.02. Use of Common Areas. Landlord grants to Tenant, its agents, employees, customers, invitees, licensees and concessionaires the non-exclusive right during the Lease Term to use the parking areas and ingress, egress and access roads and other facilities in the common areas (hereinafter defined) of the Shopping Center, subject to the provisions of this Lease including, but not limited to, Article V herein. Section 1.03. Roof and Walls. Landlord shall have the exclusive right to use all or any part of the roof and exterior walls of the Leased Premises for any purpose; to erect additional stories or other structures over all or any part of the Leased Premises; and to install, maintain, use, repair and replace pipes, ducts, conduits, and wires leading through the Leased Premises provided Landlord does so in a manner reasonably calculated to minimize any interference with Tenant's use of the Leased Premises. Section 1.04. Basic Lease Provisions: A. Leased Premises Address: 4335 106th Street, Suite 750 City, State: Carmel, Indiana 46032 B. Gross Leasable Area: 2,500 Square Feet (25 x 100 deep) C. Leased Premises Percentage: 8.6% (2,500 SF / 29,250 SF = 8.6 %) 2 D. Minimum Annual Rent: Period Following Minimum Minimum Per Rental Comm. Date Annual Rent Monthly Rent Square Foot Year 1 $51,250.00 $4,270.83 $20.50 Year 2 $52,500.00 $4,375.00 $21.00 Year 3 $53,750.00 $4,479.17 $21.50 Year 4 $55,000.00 $4,583.33 $22.00 Year 5 $56,250.00 $4,687.50 $22.50 Year 6 $56,250.00 $4,687.50 $22.50 Year 7 $56,250.00 $4,687.50 $22.50 Year 8 $56,250.00 $4,687.50 $22.50 Year 9 $57,500.00 $4,791.67 $23.00 Year 10 $57,500.00 $4,791.67 $23.00 E. Option Periods: Minimum Minimum Per Option Period Annual Rent Monthly Rent Square Foot Year 1 $61,250.00 $5,104.17 $24.50 Year 2 $61,250.00 $5,104.17 $24.50 Year 3 $61,250.00 $5,104.17 $24.50 Year 4 $61,250.00 $5,104.17 $24.50 Year 5 $61,250.00 $5,104.17 $24.50 F. Estimated Operating Costs Per Square Foot: Common Area Maintenance: $ 2.75 Insurance $ 0.30 Real Estate Taxes $ 2.94 G. Lease Term: Ten (_10_) years H. Permissible Use: Exercise Studio I. Deposit: $ 5,520.83 J. Address For Payments And Notices As Follows: Landlord Notices: Lawndale Plaza, LLC c/o Veritas Realty, LLC 6440 Westfield Blvd Indianapolis, IN 46220 (317) 472-1800 3 Landlord Payments: Lawndale Plaza LLC c/o Veritas Realty, LLC 6440 Westfield Blvd Indianapolis, IN 46220 Tenant: Jason Upton d/b/a F45 Jason & Lori R. Upton 4331 Cherry Court Zionsville, IN 46077 Phone:_317-442-3245 Jup3245@yahoo.com O. Guarantor: Jason & Lori Upton ARTICLE II LEASE TERM Section 2.01. Term. The term of this Lease shall be for the period commencing on the Commencement Date (as hereafter defined) and continuing for Ten years from (i) the Rental Commencement Date, if such date is the first day of a calendar month, or (ii) the first day of the calendar month immediately following the Rental Commencement Date, if such date is not the first day of a calendar month ("Original Term"). The Commencement Date shall be March 1, 2018. The Rental Commencement Date shall be Five (5) months after the Commencement Date. Landlord may provide notice to Tenant of the actual Commencement Date, Rental Commencement Date and/or expiration of the Original Term of the Lease which notice, absent manifest error, shall be presumed correct. As used in this Lease, the term "Lease Year" shall mean a calendar year, the first Lease Year commencing on the first day of January following the Rental Commencement Date and each succeeding Lease Year, commencing on the anniversary of the first Lease Year. A "Fractional Lease Year" is defined to mean the period of the Lease Term preceding the first Lease Year and following the last full calendar Lease Year, whether the Lease expires by its terms or otherwise. The term "Lease Term" shall mean the Original Term and any renewal or extension thereof. Section 2.02. Construction of Improvements and Possession. (a) Landlord's Obligations. Landlord agrees to perform and complete the work on the improvements described as Landlord's Work in Exhibit C subject to events and delays beyond Landlord's reasonable control and shall notify Tenant when such work is substantially completed. Landlord shall select all architects, contractors, material suppliers or others which may be required in connection with the completion of Landlord’s Work. (b) Tenant's Obligations. Upon delivery of possession of the Leased Premises to Tenant and after obtaining Landlord's written approval of the improvements to be made by Tenant in the Leased Premises, Tenant shall have the right and privilege of going onto the Leased Premises and at its sole cost and expense to cause the construction of the leasehold improvements and the installation of trade fixtures and equipment in accordance with the construction obligations set forth as Tenant’s Work in Exhibit C, and to stock the Leased Premises with merchandise. Tenant's possession and occupancy of the Leased Premises shall indicate and be deemed to be Tenant's acceptance of the Leased Premises "as is" without representation or warranty by 4 Landlord of any kind and with the understanding that Landlord shall have no additional responsibility with respect thereto. All Tenant's trade fixtures and equipment installed in the Leased Premises may be removed by Tenant upon the expiration or earlier termination of this Lease, provided that (i) Tenant shall repair any damage to the Leased Premises or the Shopping Center caused by such removal and (ii) all rents and other amounts then due and payable hereunder are paid in full. After the expiration or earlier termination of this Lease, Landlord shall have the right to remove Tenant's leasehold improvements, trade fixtures and equipment and to have any damage from such removal repaired, all at Tenant's sole cost and expense. Tenant's obligation to pay such expense to Landlord shall survive the expiration or earlier termination of this Lease. (c) Period Prior to Commencement Date. Landlord shall have no responsibility or liability whatsoever for any loss or damage to any of Tenant's leasehold improvements, trade fixtures, equipment or merchandise installed or left in the Leased Premises prior to the Commencement Date. Tenant's entry upon and occupancy of the Leased Premises prior to the Commencement Date shall be only with Landlord's prior written approval. Tenant shall not interfere with the performance of work by Landlord in the Leased Premises. Notwithstanding anything contained herein to the contrary, Tenant agrees to be bound by the terms and conditions of this Lease from the date of execution hereof. Section 2.03. Holding Over. If Tenant holds over and remains in possession of the Leased Premises after the expiration or earlier termination of the Lease Term, such holding over and continued possession shall, if all rental due hereunder is paid by Tenant as provided in this Section 2.03 and accepted by Landlord, create a tenancy from month to month upon the terms (other than the amount of rent and length of term) herein specified, which may at any time be terminated by either party upon thirty (30) days written notice given to the other party. In the event Tenant holds over and remains in possession of the Leased Premises after the expiration of the Lease Term, the Minimum Monthly Rent during any month in which Tenant holds over ("Holdover Month") shall be an amount equal to one hundred fifty percent (150%) of the Minimum Monthly Rent for the last full calendar month of the Lease Term. Section 2.04. Option to Extend Term of Lease. If Tenant is not in default hereunder at either the time of exercise of such Option Period, or at the time of commencement of such Option Period, then Tenant shall have the option to renew the Term of this Lease for One (_1_) additional term(s) of Five (5_) years each (“Option Period(s)”). Such renewal shall be upon the same terms and conditions contained in the Lease for the Original Term except for this provision giving the renewal option and subject to an adjustment of the rent as provided in Article III hereof. Such option(s) shall be exercised by the occurrence of each of the following events: (i) Tenant’s giving written notice to Landlord of its intention to renew the Term of this Lease no later than six (6) months prior to the expiration of the Original Term or the Option Period then in effect, whichever is applicable; and (ii) Tenant’s giving written notice to Landlord of its acceptance of the rent as adjusted herein within ten (10) days following receipt of Landlord’s written notification of the rent for the Option Period. Tenant’s failure to exercise any option to renew shall extinguish its right and option for any subsequent renewal period. Such renewal right is personal to Tenant and may not be transferred to any subsequent assignee, sublessee, successor or other transferee of Tenant. 5 ARTICLE III RENT Section 3.01. Minimum Annual Rent. Tenant shall pay to Landlord as minimum rent for the Leased Premises the following sums per year ("Minimum Annual Rent") payable in equal monthly installments ("Minimum Monthly Rent"): Period Following Minimum Minimum Per Rental Comm. Date Annual Rent Monthly Rent Square Foot Year 1 $51,250.00 $4,270.83 $20.50 Year 2 $52,500.00 $4,375.00 $21.00 Year 3 $53,750.00 $4,479.17 $21.50 Year 4 $55,000.00 $4,583.33 $22.00 Year 5 $56,250.00 $4,687.50 $22.50 Year 6 $56,250.00 $4,687.50 $22.50 Year 7 $56,250.00 $4,687.50 $22.50 Year 8 $56,250.00 $4,687.50 $22.50 Year 9 $57,500.00 $4,791.67 $23.00 Year 10 $57,500.00 $4,791.67 $23.00 The Minimum Monthly Rent shall be payable in advance commencing on the Rental Commencement Date and thereafter on the first day of each calendar month during the Lease Term, without offset for any amount due or claimed to be due from Landlord to Tenant and without relief from valuation or appraisement laws. If the Rental Commencement Date is not the first day of a calendar month, Tenant shall pay on the Rental Commencement Date a prorated portion of the Minimum Monthly Rent for the first partial calendar month of the Lease Term during which the Minimum Monthly Rent is due. Hereafter the term "Minimum Rent" shall refer to either Minimum Annual Rent or Minimum Monthly Rent as appropriate. Addendum to Section 3.01. Minimum Rent During Option Period(s). In the event Tenant properly elects to exercise its option to extend the Term of the Lease, the Minimum Rent for the Option Period(s) shall be the following sums per year payable in equal monthly installments at the same time and in the same manner as otherwise provided in the Lease: Minimum Minimum Per Option Period Annual Rent Monthly Rent Square Foot Year 1 $61,250.00 $5,104.17 $24.50 Year 2 $61,250.00 $5,104.17 $24.50 Year 3 $61,250.00 $5,104.17 $24.50 Year 4 $61,250.00 $5,104.17 $24.50 Year 5 $61,250.00 $5,104.17 $24.50 Section 3.02. Records. Tenant shall furnish to Landlord within thirty (30) days following the end of each calendar month of each Lease Year or fractional Lease Year a statement (hereinafter referred to as the "Monthly Report") of Gross Sales (as hereinafter defined) in such form and containing such detail as Landlord may reasonably require, made during the period covered by such Monthly Report. On or before sixty (60) days after the last day of each Lease Year or fractional Lease Year, Tenant shall submit to Landlord a report of Gross Sales of the preceding Lease Year or fractional Lease Year certified by the chief financial officer of Tenant (hereinafter referred to as the "Annual Report"). As used in this Lease, the term "Gross Sales" shall mean the 6 sales price of all merchandise and services sold, rented or rendered in, on, about or from the Leased Premises by Tenant or any subtenants, licensees or concessionaires, whether cash or on a charge, credit, exchange, time basis, or otherwise, and all other receipts from all business conducted in or from the Leased Premises. Tenant shall furnish to Landlord within ninety (90) days following the end of each Lease Year during the Original Term and any Option Period, financial statements of Tenant and any Guarantor of this Lease and statements of profit and loss for the Leased Premises. Section 3.03. Percentage Rent. Intentionally deleted. Section 3.04. Place of Payments. All rent and other payments required to be paid, and all statements required to be rendered by Tenant to Landlord shall be delivered to Landlord at its address set forth in Section 18.14 or to such other address as Landlord specifies to Tenant in accordance with such section. Section 3.05. Past Due Payments. In addition to the payment of Rent as provided in this Article III, Tenant shall pay to Landlord as "additional rent" all other sums of money and charges required to be paid by Tenant to Landlord under this Lease whether or not the same are designated "additional rent" including, but not limited to, Tenant's proportionate share of all Operating Costs as provided in Article VI hereof. If any such sum or charge is not paid at the time provided in this Lease, it shall nevertheless be collectible as additional rent with the next installment of Minimum Annual Rent, provided that nothing contained herein shall be deemed to suspend or delay the payment of such sum or charge or to limit any remedy of Landlord in respect to its nonpayment. In the event any installment of Rent or additional rent required to be paid by Tenant to Landlord under this Lease is not received in full by Landlord within five (5) days of the date the same shall be due and payable, Tenant shall pay an interest charge to Landlord in the amount of five percent (5%) of such overdue amount. If such amount is still unpaid thirty (30) days after the same is due, such unpaid amount shall bear interest from the due date thereof to the date of payment at the rate of eighteen percent (18%) per annum. In addition, in the event that any check or other deposit item given by Tenant to Landlord is returned unpaid or dishonored by the financial institution upon which it is drawn, Tenant shall pay to Landlord, upon demand, a service charge of One Hundred Dollars ($100.00). Landlord and Tenants agree that the above-stated charges are designed to reimburse Landlord for additional costs and expenses incurred by Landlord in connection with the collection, handling and processing of overdue installments of Rent and additional rent and of returned deposit items, and are fair and reasonable estimates of the costs Landlord will incur by reason of such late payment. In the event Tenant is late in paying the rent or any other charges due under this Lease on two (2) or more occasions within any twelve (12) month period during the term or any extensions of the term of this Lease, then all subsequent payments shall be made by ACH electronic transfers, and Tenant shall execute any and all required forms or authorizations for such ACH payments within five (5) days of Landlord’s request. Should Tenant fail to execute any and all required forms or authorizations within such five (5) day period, Tenant shall be in default under this Lease. 7 ARTICLE IV USE OF LEASED PREMISES Section 4.01. Permissible Use. The Leased Premises shall be occupied and used solely for the purpose of conducting the business of Exercise Studio and for no other purpose without Landlord's prior written consent. Section 4.02. Opening for Business. Tenant shall proceed with due diligence to open for business in the Leased Premises on or prior to the Rental Commencement Date, and shall thereafter continuously, actively and diligently operate its business on the whole of the Leased Premises in a reputable manner, maintaining in the Leased Premises a full staff of employees and a full proper stock of merchandise during Regular Business Hours (hereafter defined) throughout the Lease Term unless prevented from so doing by fire, strikes or other contingencies beyond Tenant's control. In the event Tenant fails to open for business within thirty (30) days after the Rental Commencement Date or fails thereafter to remain open for business at least during Regular Business Hours throughout the remainder of the Lease Term, then Landlord, in addition to any other remedies provided herein, may at its option charge Tenant as rent for each month the Leased Premises are not continuously open for business during Regular Business Hours of such month, an amount equal to twice the Minimum Monthly Rent provided herein. Section 4.03. Operation of Business. Tenant shall, at Tenant’s expense, comply with and obey all federal, state, municipal and other applicable laws, regulations, or orders of any governmental authority or agency relating to the operating, managing, insuring, equipping, lighting, fixturing, repairing, replacing and maintaining the Leased Premises, or shall cause the Leased Premises to be in compliance with all federal, state, municipal and other applicable laws; shall not do or permit anything to be done in or about the Leased Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Shopping Center or injure or annoy them; and shall not do or permit anything to be done which will invalidate the fire and extended coverage, public liability and property damage insurance on or as to the Leased Premises and/or the Shopping Center, or increase the premium rates therefor. Tenant shall comply with all reasonable requests of any carrier of the foregoing insurance risks. Landlord shall not be responsible to Tenant for non- performance by any other tenant or occupant of the Shopping Center of any of the Shopping Center rules and regulations promulgated by Landlord, but agrees to take reasonable measures to assure such other tenants’ performance. Tenant covenants and agrees to the following: (a) Tenant shall not conduct any auction, fire, liquidation, relocation, sheriff’s, receiver’s, distress, going-out-of-business or bankruptcy sale in the Leased Premises without the prior written consent of Landlord; (b) Tenant shall not vacate or abandon the Leased Premises, allow any waste, damage or nuisance on the Leased Premises, or use or permit the use of the Leased Premises for any unlawful purpose or for any activity of a type which is not generally considered appropriate for shopping centers conducted in accordance with good and generally accepted standards of operation; (c) Tenant shall keep the Leased Premises in a careful, safe, sanitary, clean and proper manner and condition in accordance with all directions, rules and regulations of the health, fire, building and other offices and governmental agencies having jurisdiction over the Leased Premises, and shall comply with all laws, ordinances, rules, regulations, orders and decrees of 8 any governmental entity or personnel now or hereafter affecting or relating to the Leased Premises or the use thereof; (d) Tenant shall not sell or display merchandise or otherwise conduct or solicit any business or distribute any handbills or other advertising material outside the Leased Premises nor in any manner obstruct the sidewalks or other areas adjacent to the Leased Premises; (e) The outside areas immediately adjoining the Leased Premises, including but not limited to the sidewalks in front of and in back of the Leased Premises, shall be kept clean and free from snow, ice, dirt, and rubbish by Tenant to the satisfaction of Landlord, and Tenant shall not permit or place any obstructions or merchandise in such areas. (f) Tenant shall not burn or place outside the Leased Premises garbage, trash, merchandise, containers or other materials incidental to Tenant's business except that Tenant shall store all refuse in proper rodent-proof, insect-proof and fireproof containers outside the Leased Premises in areas designated by Landlord; (g) Tenant shall not use, or permit the use of, loud speakers, sound amplifiers, radios, televisions, or other devices in a manner so as to be heard or seen outside the Leased Premises without the prior written consent of Landlord; (h) Tenant shall not cause or permit any odors to be smelled outside the Leased Premises; (i) Tenant shall load and unload all merchandise, supplies, trade fixtures, equipment and furniture and cause the collection of rubbish only through the rear service door or other doors of the Leased Premises designated by Landlord; (j) Tenant shall use its best efforts to cause the parking of trucks and delivery vehicles so as not to unreasonably interfere with, or suffer or permit any other use thereon to unreasonably interfere with, the use of any driveways, walks, roadways, highways, streets, malls or parking areas or other Common Areas; (k) Tenant shall not unreasonably interfere with the use of the Common Areas by Landlord or others entitled to the use thereof; (l) Tenant shall refer to the Shopping Center by name in all newspaper, radio, television or other advertising, on its stationery and in all other references to its business location; and Tenant shall include the address and identity of its business activity in the Leased Premises in all advertisements made by Tenant in which the address and identity of any other business activity of like character conducted by Tenant within the metropolitan area of the Shopping Center is mentioned; (m) Tenant shall not use or permit the use of the plumbing facilities for any purpose other than for the limited purpose for which such facilities were constructed and shall not place any foreign objects therein. Tenant shall keep the Leased Premises at a temperature sufficiently high to prevent freezing of water pipes and fixtures. The expense of any clogging, breakage or damage resulting from a violation of this provision shall be borne by Tenant; 9 (n) Tenant shall not make, paint, decorate, drill or in any way deface any glass, windows, walls, ceilings, partitions, awnings, canopies, roof, doors, floors, wood, stone or ironwork, without Landlord's written consent; (o) Tenant shall comply with all other reasonable rules and regulations established by Landlord from time to time for the benefit of the Shopping Center; (p) Tenant shall use its best efforts to cause its agents, employees, customers, invitees, licensees and concessionaires to comply with the reasonable rules and regulations from time to time established by Landlord for the benefit of the Shopping Center. Section 4.04. Prohibited Uses. Tenant shall not use or permit the use of the Leased Premises in whole or in part as a bar or tavern; theater of any kind; bowling alley, skating rink; amusement park or center; carnival; meeting hall; "disco" or other dance hall; funeral parlor; flea market; funeral home; massage parlor; sporting event or other sports facility; auditorium or any other like place of public assembly; warehouse, processing or rendering plant; factory; for any manufacturing operation or industrial usage; for any establishment selling cars (new or used), trailers or mobile homes; for the operation of a so-called "off-track betting" operation; for a pinball or video games arcade; for pornographic, "adult" or live entertainment or for the sale or display of pornographic or "adult" materials. In addition, Tenant shall not use or permit the use of the Leased Premises in the manner or for the uses described in Exhibit D attached hereto and incorporated herein by reference. Section 4.05. Hazardous Materials. Tenant shall comply with all environmental laws relating to “Hazardous Materials” (as hereinafter defined) affecting the Leased Premises, the improvements thereon, the business conducted thereon by Tenant, or any activity or condition on or in the Leased Premises. Without limiting the generality of the foregoing, Tenant shall not cause or permit any Hazardous Material to be brought upon, kept, handled, used in or about, or disposed of on, about or beneath the Leased Premises by Tenant, its agents, employees, contractors or invitees, without the prior written consent of Landlord. If Tenant breaches the obligations stated in the preceding sentence, or if the presence of Hazardous Material on the Leased Premises caused or permitted by Tenant results in contamination of the Leased Premises, the Shopping Center, or any adjacent property, then Tenant shall indemnify, defend and hold Landlord harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Premises, the Shopping Center, and/or adjacent property), damages for the loss or restriction on use of rentable or usable space or of any amenity of the Leased Premises, the Shopping Center, and/or adjacent property, damages arising from any adverse impact on marketing of the Leased Premises, the Shopping Center, and/or adjacent property, and sums paid in settlement of claims, attorney’s fees, consultant fees and expert fees which arise during or after the Original Term or any Option Period of this Lease as a result of such contamination. This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground water on or under the Leased Premises, the Shopping Center, and/or adjacent property. Without limiting the foregoing, if the presence of any Hazardous Material on the Leased Premises caused or permitted by Tenant results in any contamination of the Leased Premises, the Shopping Center, and/or adjacent property, Tenant shall promptly take all actions at its sole expense as are necessary to return the Leased Premises, the Shopping Center, and/or adjacent property to the condition existing prior to the introduction of any such Hazardous Material to the Leased Premises, the Shopping Center, and/or adjacent property; provided that Landlord’s approval of such actions shall first be obtained. As used herein, the term “Hazardous Material” means any hazardous or toxic substance, material or waste which is or becomes regulated 10 by any local, state or federal governmental authority. The provisions of this Section 4.05 shall survive the expiration or earlier termination of this Lease and Tenant’s surrender of the Leased Premises to Landlord. On the first day of each calendar year during the term of this Lease (the “Disclosure Dates”), Tenant shall disclose to Landlord in writing the common and chemical names and the quantities of all Hazardous Materials, which were stored, used or disposed of on the Leased Premises during the preceding calendar year. Tenant shall immediately notify Landlord of Tenant’s receipt of any notice, citation or other communication received by Tenant relating to the presence, storage, use or release of any Hazardous materials in, on or about the Leased Premises. Landlord shall have the right, but not the duty, to inspect the Leased Premises and Tenant’s records at any time to determine whether Tenant is complying with the requirements of this Section 4.05. If Tenant is not in compliance with the requirements of this Section 4.05, Landlord shall have the right, but not the obligation, to immediately enter upon the Leased Premises to remedy any condition which is in violation of the terms of this Lease or caused by Tenant’s failure to comply with the requirements of this Lease. Landlord shall use reasonable efforts to minimize interference with Tenant’s business as a result of any such entry by Landlord, but shall not be liable for any interference caused thereby. ARTICLE V SIGNAGE Section 5.01. Approval. Tenant shall not place or permit to be placed or maintained in or on any portion of the Shopping Center outside the Leased Premises or on the glass of any window or door of the Leased Premises or anywhere visible from the exterior of the Leased Premises (including but not limited to any exterior doors, walls, roof or windows of the building constituting part of the Leased Premises) any sign, awning, canopy decoration, lettering or other advertising matters (hereafter "Signage") that is not in accordance with the provisions of this Article V. Prior to opening for business and thereafter throughout the Lease Term, Tenant shall have Signage approved by Landlord, installed and maintained on the Leased Premises in accordance with the provisions of this Article V and shall maintain such Signage in good condition, appearance and repair at all times. The design for Tenant's Signage shall be approved in writing by both Tenant and Landlord no later than thirty (30) days after execution of this Lease, and prior to the construction and installation of the Signage. Landlord reserves the right to disapprove any sign design it feels is inappropriate for any reason in its sole discretion. Section 5.02. Canopy Sign Design. Tenant's signage on the exterior front of the Leased Premises shall be a "Canopy Sign" designed by a graphic artist acceptable to Landlord, consisting of individual, dimensional letters which are internally illuminated and of all metal construction. The design shall specify size, layout and color of these letters and method of installation. Metal letter returns and trim caps shall be of uniform size and color as specified by Landlord. Section 5.03. Installation. The Canopy Sign shall be installed by a contractor acceptable to Landlord no later than sixty (60) days after acceptance of design by Landlord. The Tenant shall be solely responsible for the cost of fabrication, installation and maintenance of the Canopy Sign. The electrical sign wiring must be installed in accordance with Underwriters Laboratory Rules and Regulations. All primary and secondary wiring installed through the canopy must be encased in flexible metal conduit or electrical metallic tubing with proper fasteners. All transformers must be concealed in metal transformer boxes and shall be mechanically grounded. After installation, Tenant shall maintain said Canopy Sign in good condition and repair at all times. Tenant shall give Landlord forty-eight (48) hours notice prior to the date of installation of the Canopy Sign. 11 Section 5.04. Illumination. The Canopy Sign shall be electrically illuminated beginning one-half (1/2) hour before sunset and ending no earlier than 11:00 p.m., seven (7) days per week, or as Landlord shall otherwise determine and so notify Tenant. Landlord reserves the right for the common use and benefit of tenants of the Shopping Center to control the illumination of Tenant's Canopy Sign with a common meter and timer in order to achieve uniformity in lighting. Section 5.05. Removal. Tenant's Signage may be removed by Tenant upon the expiration or earlier termination of this Lease provided that Tenant shall repair any damage to the Leased Premises or the Shopping Center caused by such removal. After the expiration or earlier termination of the Lease, Landlord shall have the right to remove Tenant's Signage and to have any damage from such removal repaired, all at Tenant's sole cost and expense. Tenant's obligation to pay such expense to Landlord shall survive the expiration or earlier termination of this Lease. Section 5.06. Monument Signage. Tenant shall have the right to locate on a unused panel on both Commercial Center Monument signs, with the cost of fabricating and installing the panel at Tenant’s sole expense. Tenant shall design panel in compliance with Landlord’s specifications. Tenant shall NOT be charged a monthly rental fee for use of such panels. ARTICLE VI OPERATING EXPENSES Section 6.01. Common Areas. (a) Definition. As used in this Lease, "Common Areas" are defined to mean all real estate shown on Exhibit A together with improvements and other facilities located thereon designed for use in common by tenants of the Shopping Center, and their agents, employees, customers, invitees and licensees, including parking areas, ingress; egress and access roads; sanitary sewers and utility lines; drainage system; walkways and sidewalks, driveways; landscaped and planted areas, on-site and off-site signs identifying or advertising the Shopping Center, maintenance, offices, areas or buildings and related facilities and improvements. (b) Management of Common Areas. Landlord shall operate, manage, equip, light, repair, clean, maintain and replace the Common Areas for their intended purposes in such manner as Landlord in its reasonable discretion shall determine, and the Common Areas shall at all times be subject to the exclusive control and management of Landlord. Landlord may at any time temporarily close all or any part of the Common Areas to fulfill the foregoing obligations, to prevent the acquisition of public rights in the Common Areas and to perform such other acts in or to the Common Areas to improve the benefit thereof to Tenant and other occupants of the Shopping Center as Landlord in its reasonable discretion shall deem appropriate. Landlord shall use reasonable efforts to arrange any temporary closing of the Common Areas at such times and in such manner as to minimize interference with or disruption of the conduct of Tenant's business in the Leased Premises. If the size or configuration of the Common Areas and any other facilities not within the Leased Premises are changed or altered in any way, Landlord shall not be subject to liability; nor shall Tenant be entitled to any compensation or diminution of rent; nor shall any reduction in the size of the Common Areas be deemed constructive or actual eviction of Tenant. If Landlord so designates, Tenant and Tenant's employees shall park their cars only in those portions of the parking areas designated for that purpose by Landlord. Upon five (5) days prior written notice from Landlord, Tenant shall provide Landlord with the automobile license numbers of Tenant's employees. In the 12 event Tenant or its employees fail to park their cars in the designated areas, Landlord shall have the right to charge Tenant ten dollars ($10.00) per day per car parked in any other area than the designated areas. (c) Charges for Common Areas. Tenant shall pay to Landlord Tenant's proportionate share of all costs and expenses incurred by Landlord during the Lease Term in operating and maintaining the Common Areas in accordance with subsection (a) above ("Common Areas Costs") as provided in Section 6.04. The Common Areas Costs shall include, but not be limited to, the total cost and expense incurred in operating, managing, insuring, equipping, lighting, repairing, replacing and maintaining the Common Areas, or causing the Common Areas to be in compliance with all federal, state, municipal and other applicable laws, but specifically including gardening and landscaping, painting, seasonal decorations, utility systems, landscaping irrigation systems, security, fire and safety monitoring systems, traffic control equipment, repairs, maintenance, line painting, lighting, sanitary control, removal of snow, trash, rubbish, garbage and other refuse, repair and replacement of paving, repair expense of the roof, the annualized portion of replacement costs of the roof, electricity for lighting the pylon Shopping Center sign or any part thereof, cost of, depreciation on or rentals of machinery and equipment used in such maintenance, the cost of personnel to implement such services, to direct parking, to act as security guards, and to police the Common Area, the cost of providing a storage and maintenance room, and cost and expense incurred in common lighting the signs of tenants in the Shopping Center by Landlord, cost of installing and maintaining any tenant directories, dues and assessments of any property owner’s association, wages, Workmen's Compensation, unemployment taxes and Social Security taxes, administrative costs equal to fifteen percent (15%) of all Common Area Costs and reasonable management fees. Section 6.02. Taxes. (a) Real Property Taxes. As used in this Lease, "Real Property Taxes" are defined to mean all real property taxes and assessments levied or assessed by any lawful authority against the land of the Shopping Center and any improvements thereon which are payable during the Lease Term, including any special assessments or any Substitute Taxes as provided herein, and including any costs and expenses incurred in contesting the amount or validity of such taxes, charges or assessments (such costs and expenses shall be applicable to the period of time for which the item is contested). Tenant shall pay to Landlord Tenant's proportionate share of each installment of Real Property Taxes payable during the Lease Term as provided in Section 6.04. (b) Substitute Tax. If due to a change in the method of taxation, a tax and/or assessment upon or against the rentals payable hereunder by Tenant to Landlord is imposed either by way of substitution for the Real Property Taxes levied or assessed against such land and improvements, or in addition thereto, or an income or franchise tax in substitution for the Real Property Taxes levied against such land and improvements is imposed, such taxes and/or assessments shall be deemed to constitute a tax and/or assessment against such land and improvements and shall be included in the term Real Property Taxes for the purpose of this Section. (c) Taxes on Tenant's Business and Property. Tenant shall pay and discharge when due all taxes and charges imposed upon the conduct of its business in the Leased Premises and all property taxes imposed upon its trade fixtures, equipment, merchandise and other personal property on the Leased Premises. Section 6.03 Insurance Obtained by Landlord. Landlord shall obtain public liability insurance against damage to persons and property in the Common Areas in amounts not less than those required to be maintained by Tenant under Section 9.01. Landlord also shall obtain broad form fire and extended coverage insurance on the building in which the Leased Premises are located for its full insurable value on a replacement cost basis, if obtainable, and if not obtainable, for the full amount of its actual cash value. Landlord shall also obtain 13 business interruption insurance and/or loss of "rental value" insurance in such amounts as Landlord shall reasonably deem necessary. Tenant shall pay to Landlord Tenant's proportionate share of each annual premium for such insurance obtained by Landlord under this Section 6.03 ("Insurance Premiums") and in the event of loss or damage, Tenant’s proportionate share of that portion of any deductible charged to Landlord. If Tenant uses or permits the use of the Leased Premises or any part thereof in any manner so as to increase the cost of insurance to Landlord over and above the normal rates from time to time applicable to the Leased Premises for the use and purpose permitted under this Lease, Tenant shall pay to Landlord upon demand any such increase in the premiums for such insurance whether or not Landlord has consented to such use. Section 6.04. Payment of Operating Costs. (a) Tenant's Proportionate Share of Operating Costs. Tenant shall pay as additional rent to Landlord Tenant's proportionate share as provided herein of all charges, liabilities, costs and expenses of every kind and nature paid or incurred, including appropriate reserves, by Landlord during the Lease Term for each Lease Year or Fractional Lease Year which are attributable to or relate to the Shopping Center for Common Areas Costs, Real Property Taxes and Insurance Premiums (collectively, "Operating Costs"). (b) Calculation and Payment. Tenant's proportionate share of Operating Costs shall be that portion of such Operating Costs which the Gross Leasable Area of the Leased Premises bears to the total gross leasable area of the Shopping Center, which is 2,500 square feet divided by 29,250 square feet, or 8.6 % ("Tenant's Fraction"). Landlord reserves the right to adjust Tenant's Fraction in the event of an increase or decrease in the gross leasable area of the Leased Premises or the Shopping Center. Tenant shall pay its proportionate share of the Operating Costs for each Lease Year or Fractional Lease Year during the Lease Term in monthly installments on the first day of each calendar month, in advance, in an amount estimated by the Landlord. Landlord's estimate shall be made on the basis of the most recent annual Operating Cost Statement if available, adjusted to reflect reasonably anticipated increases or decreases of Operating Costs. An annual Operating Cost Statement prepared by Landlord shall be provided by Landlord to Tenant within a reasonable period of time after the end of each calendar year setting forth in reasonable detail the actual Operating Costs paid or incurred by Landlord in the next preceding twelve-month period ending December 31 and thereupon there shall be an adjustment between Landlord and Tenant with Tenant's payment to Landlord or repayment by Landlord to Tenant as may be required to the end that Landlord shall receive the entire amount of Tenant's proportionate share of such Operating Costs and not more. The dates of any such statements may, at the option of the Landlord, be subject to change. ARTICLE VII UTILITIES Section 7.01. Utility Lines. Landlord shall provide all necessary mains, conduits and other utility lines as provided in Exhibit C. Section 7.02. Tenant's Obligations. Commencing on the Commencement Date, Tenant shall, at its sole cost and expense, obtain and pay for all utility services rendered or furnished to the Leased Premise including, but not limited to, telephone, water, sewer, gas, electricity, heat and air conditioning. If any equipment installed by Tenant requires additional utility facilities, the costs of installing such additional facilities shall be borne by Tenant. Such facilities may not be removed by Tenant at the expiration or other termination of the Lease Term without the prior written consent of Landlord. In no event shall Landlord be responsible for the quality, quantity, failure or interruption of any utility service to the Leased Premises. 14 Section 7.03. Discontinuance of Services. Landlord shall be entitled upon three (3) days written notice to Tenant (except in case of emergency, in which case no notice shall be necessary) to cause the suspension or discontinuance of any or all utility services during any period in which Tenant is in default in payment of any rental or other amounts payable by Tenant under this Lease to make repairs or improvements to the Shopping Center, when necessary by reason of governmental regulation, rule or order, or for weather or for any other reason beyond the power or control of Landlord. Landlord shall not be liable to Tenant under any circumstances for damages or otherwise for any interruption in utility services caused by an unavoidable delay, by the making of any repairs or improvements, by any cause beyond Landlord's reasonable control or by discontinuance as provided in the preceding sentence of this Section 7.03. ARTICLE VIII MAINTENANCE AND REPAIRS Section 8.01. Limitation. Except as herein specifically provided to the contrary, Landlord shall not be responsible for making any repairs of any kind in or upon the Leased Premises. Section 8.02. Maintenance by Landlord. Landlord shall keep the foundation, structural parts, outer walls (excluding windows, doors, window and door frames and plate glass) and roof of the building of which the Leased Premises are a part in good order, condition and repair. Landlord shall not, however, be responsible for making any repairs thereto occasioned by any act or negligence of Tenant, its employees, contractors, agents, servants, customers, invitees, lessees, licensees, assignees or concessionaires or by vandalism or burglary to the Leased Premises; and Tenant shall promptly make any such repairs at it sole cost and expense. Landlord, at Tenant’s expense, can procure a maintenance contract with a licensed contractor for all of Tenant’s heating and air conditioning equipment including proper ventilation and reclamation of equipment refrigerants in compliance with the Federal Clean Air Act in a form satisfactory to Landlord. Said contract shall provide for inspection, change of filters, adjustment of belts and other maintenance as appears necessary from inspection, at least every one hundred and eighty (180) days. . Section 8.03. Maintenance by Tenant. Tenant shall not suffer or permit any damage, injury or waste to the Leased Premises and, except as provided in the foregoing Section 8.02, Tenant shall keep and maintain the Leased Premises and every part within or serving the Leased Premises (including, but not limited to, the exterior and interior portions of all doors and other entrances; signage; door handles, hardware, checks and closers; security gates; windows; glass; windows and door frames; interior and exterior electrical heating, ventilating, air conditioning, plumbing, sewage and other mechanical and utility equipment and systems; fixtures; and interior walls, floors and floor coverings, and ceiling) in good order, condition and repair. Except as provided in Section 8.02, Tenant shall conduct a program of preventive maintenance and repair of all electrical, plumbing, sewage and other mechanical and utility equipment and systems servicing the Leased Premises and Tenant shall be responsible for any maintenance, replacement, or repairs to all such equipment and systems, including any heating, ventilating and air conditioning systems. In the event Tenant shall fail, in Landlord's opinion, to provide the necessary preventive maintenance required herein, Landlord may accomplish such maintenance and all costs incurred thereby shall be paid by Tenant upon demand by Landlord. Tenant shall replace any glass and windows and doors (including any frames, retaining members and appurtenances thereto) in the Leased Premises which may be broken or damaged. Notwithstanding any provisions herein to the contrary, Tenant shall not be responsible for making any repairs occasioned by any willful act of Landlord or its agents, which repairs shall be promptly made by Landlord at its sole cost and expense. HVAC MAINTENANCE & REPAIR: Upon commencement of this Lease, Landlord shall deliver the Premises with an HVAC system that is in good working order at the time of Delivery. Said HVAC system 15 shall be for the exclusive use of Tenant. As long as the Tenant maintains a semi-annual maintenance program, with a licensed HVAC contractor, for the HVAC unit, Landlord shall warrant the HVAC unit for a period of one (1) year from the date of Rental Commencement. Beginning in year two (2) after the Rental Commencement, the Tenant’s obligation to repair or replace shall be limited to $1,000 per annum during Lease term and any extensions thereof, and expire when Lease term expires. Any costs over the $1,000.00 annual limit needs to be approved by Landlord, and such approval will not be unreasonably withheld. The Landlord shall reimburse Tenant for any annual expenses related to HVAC repair or replacement that exceed said $1,000.00 in the form of a check to be paid within 30 days of request. Section 8.04. Notice. Tenant shall give Landlord prompt written notice of the need for any maintenance, replacement or repairs which Landlord is obligated to make under foregoing Sections 8.02 and 8.03 and of any material damage, injury or disrepair to the Leased Premises or any part thereof. Section 8.05. Alterations and Additions. Tenant shall make no alterations or additions to any part of the Leased Premises without the prior written consent of Landlord except to the leasehold improvements which Tenant is expressly entitled to make in accordance with Section 2.02 herein. All alterations and additions to the Leased Premises shall be made in accordance with all applicable laws, codes, rules, regulations and ordinances and shall, except as otherwise provided in Section 2.02, remain for the benefit of Landlord, provided however, that Landlord may elect by written notice to Tenant to require that Tenant, at its expense, remove on or before the expiration or earlier termination of this Lease all or a portion of the alterations or additions made by Tenant and repair any damage to the Leased Premises caused by such removal. Landlord reserves the right, along with any architects or other consultants to inspect any completed alterations, and, if such alterations are not in compliance with said laws and regulations, Landlord may cause the remodeling, additions, alterations or other changes to be in compliance at Tenant’s cost. Tenant's obligations under this section shall survive the expiration or earlier termination of this Lease. Section 8.06. Liens. Tenant shall not suffer or give cause for the filing of any lien against the Leased Premises. In the event any lien is filed against the Leased Premises or any part thereof for work claimed to have been done for, or material claimed to have been furnished to, Tenant, or for any reason whatsoever Tenant shall cause such lien to be discharged of record within fifteen (15) days after filing or, alternatively, Tenant shall furnish to Landlord (or any other entity designated by Landlord) within such 15-day period a bond or other assurances acceptable to Landlord that such claimed indebtedness as finally determined will be paid by Tenant. Tenant shall indemnify Landlord and save Landlord harmless from all costs, losses, expenses and attorney's fees suffered or incurred by Landlord including in connection with the filing or enforcement of any such lien including any damages suffered by Landlord in connection with the mortgage. In addition to any other remedy herein granted, upon failure of tenant to discharge such lien or to post a bond indemnifying Landlord against foreclosure of any such lien as above provided, Landlord, after notice to Tenant, may discharge such lien, and all expenditures and costs incurred thereby, with interest thereon, shall be payable as further rental hereunder at the next rental payment date. ARTICLE IX INSURANCE AND INDEMNIFICATION Section 9.01. Public Liability Insurance - Tenant. Tenant shall maintain in full force and effect throughout the Lease Term occurrence basis policies of commercial general liability insurance, and liquor liability insurance, if applicable, issued by a company or companies and in form satisfactory to Landlord, naming both Landlord and Tenant as insureds, as their interests may appear, and covering any and all claims for injuries to or deaths of persons and damage to property occurring in or upon the Leased Premises in amounts not less than Two Million Dollars ($2,000,000.00) for injury to or death of any one person; One Million Dollars 16 ($1,000,000.00) for injury to or death of more than one person in the same accident or occurrence; and Five Hundred Thousand Dollars ($500,000.00) for damaged property arising out of any one accident or occurrence. If it becomes customary for other similar facilities in the metropolitan area of the Shopping Center to carry higher limits of liability coverage, Tenant shall, if requested by Landlord, increase the foregoing coverage to such customary limits. Section 9.02. Insurance on Tenant's Property. Tenant shall also maintain in full force and effect throughout the Lease Term fire and extended coverage, vandalism, malicious mischief, and special form extended coverage insurance on its trade fixtures, equipment, merchandise and other personal property and improvements in or upon the Leased Premises including plate glass insurance if plate glass is a part of the Leased Premises, for the full insurable value thereof on a replacement cost basis, if obtainable, and if not obtainable, for the full amount of the actual cash value thereof. All property of Tenant kept or stored in, upon or about the Leased Premises shall be so kept or stored at the sole risk of Tenant; and Tenant shall hold Landlord harmless from any claims, costs or expenses, including attorneys' fees, arising out of damage thereto. Section 9.03. Waiver of Subrogation. Each of the parties hereto hereby waives and releases any and all rights of recovery which it might have against the other for any loss or damage, whether caused by any alleged negligence of the other party, its agents, licensees or invitees, to the extent that such loss or damage is or would be covered by any insurance required to be maintained under this Lease. All insurance policies maintained by the Landlord or Tenant as provided in this Article IX shall contain an agreement by the insurer waiving the insurer's right of subrogation against the other party to this Lease or agreeing not to acquire any rights of recovery which the insured has expressly waived prior to loss. Each of the parties hereto agrees that if the provision waiving subrogation in any of such policies of insurance requires that notice of such waiver be served upon the insurer, such notice shall be promptly served by the party obtaining such insurance. Section 9.04. Certificates of Insurance. For each type of insurance which Tenant is required to maintain under this Lease, Tenant shall furnish Landlord on or before the Commencement Date and thereafter within 10 days of Landlord's request therefor, a certificate or certificates of insurance showing that each such type of insurance is in full force and effect and not cancelable without ten (10) days prior written notice to Landlord. If Tenant fails to comply with its obligations under this Article IX, Landlord may obtain such insurance and keep same in effect and Tenant shall pay Landlord all premium costs thereof upon demand. Section 9.05. Indemnification. Tenant agrees to indemnify and hold Landlord harmless from any and all claims, liabilities, losses, costs and expenses (including attorneys' fees) arising from or in connection with (i) Tenant’s condition, use or control of the Leased Premises and any improvements thereon during the Lease Term and (ii) Tenant’s obligations to be performed under this Lease. Tenant shall be liable to Landlord for any damages to the Leased Premises and for any act done by Tenant or any person coming on the Leased Premises by the license or invitation of Tenant, express or implied (except Landlord, its agents or employees). Section 9.06. Waiver of Claims. Landlord shall not be liable for and Tenant waives all claims against Landlord for damages to persons or property sustained by Tenant or Tenant’s employees, agents, or servants resulting from the Leased Premises, or any equipment or appurtenances becoming out of repair, or resulting from any accident or occurrence in or about the Leased Premises, or resulting directly or indirectly from any act or neglect of any third person, firm or corporation, including any other tenants of the Shopping Center. Landlord hereby releases Tenant (anyone claiming through or under Tenant) from any liability to Landlord (or anyone claiming through or under Landlord by way of subrogation or otherwise) for any loss or 17 damage to Landlord’s property caused by fire or other perils against which Landlord is provided protection (excepting and excluding all or any portion of such loss or damage not covered because of any applicable deductible clause or in excess of the amount of coverage provided) by the coverage afforded by the fire and casualty insurance required to be maintained by Landlord under this Lease, even if such loss or damage shall have been caused by the fault or negligence of Tenant (or anyone claiming through or under Tenant) or its agents or employees. Tenant hereby releases Landlord from any liability or responsibility to Tenant (or anyone claiming through or under Tenant by way of subrogation or otherwise) for any loss or damage to Tenant’s property caused by fire or other perils normally covered by standard fire insurance (with extended coverage endorsements), whether or not such property is actually insured against any such loss or damage, even if such loss or damage shall have been caused by the fault or negligence of Landlord or its agents or employees. ARTICLE X FIRE AND OTHER CASUALTY In the event the Leased Premises are partially or totally destroyed by fire or other casualty, Landlord in its sole discretion shall have the options to either rebuild and repair the Leased Premises, or to terminate this Lease as hereinafter provided. Landlord shall give notice to Tenant of Landlord’s election to rebuild and repair or to terminate this Lease, as the case may be, within ninety (90) days of the happening of the event of destruction or damage or such additional time as may be necessary as a result of delays in decisions or investigations by governmental authorities. In the event Landlord elects to rebuild and restore the Leased Premises, and Tenant does not remain in possession and operate Tenant’s business during the period of rebuilding and repair, the Minimum Annual Rent shall abate (unless the casualty is a result of vandalism or burglary) based upon the portion of the Leased Premises which are not usable as to the entire Leased Premises until the Leased Premises have been rebuilt and repaired to substantially the same as, or better condition than, existed on the Commencement Date. If Tenant remains in possession and operates Tenant’s business during the period of rebuilding and repair, the Minimum Annual Rent shall abate (unless the casualty is a result of vandalism or burglary) based on the loss of business, if any, resulting from such destruction during the period of rebuilding and repair, using as a base figure, the gross sales of Tenant and of all licensees, concessionaires and tenants of Tenant, from all business conducted upon or from the Leased Premises, for the same period for the year immediately prior to the year in which the casualty occurs, provided, however, (a) if the casualty shall occur during the first six (6) months of the Leased Term, the Minimum Annual Rent shall abate completely (unless the casualty is a result of vandalism or burglary) until Landlord rebuilds and repairs the Leased Premises, and (b) if the casualty shall occur during the period beginning on the first day of the seventh month and ending the last day of the twelfth month of the first year of the Leased Term, and Minimum Annual Rent shall abate (unless the casualty is a result of vandalism or burglary) based on the loss of business, if any, resulting from such destruction during the period of rebuilding and repair, using as a base figure, the average of the monthly gross sales of Tenant and of all licensees, concessionaires and tenants of Tenants, from all business conducted upon or from the Leased Premises, for the period beginning on the last day of the calendar month of the Leased Term occurring immediately prior to the casualty. In the event Landlord elects to rebuild and repair, Landlord shall proceed with same as soon as practical and in all events such rebuilding and repair shall be completed within one hundred eighty (180) days after notice has been given of Landlord’s intent to rebuild and repair. ARTICLE XI EMINENT DOMAIN In the event that all or a part of the Leased Premises is taken or condemned for public or quasi-public use under any statute or by the right of eminent domain, or that in lieu thereof all or a part of the Leased 18 Premises is sold to a public or quasi-public body under threat of condemnation, and such taking, condemnation or sale renders the Leased Premises unsuitable for operation of the Tenant's business therein, this Lease shall terminate on the date possession of all or such part of the Leased Premises is transferred to the condemning authority. All rent shall be paid up to the date of termination; and all compensation awarded or paid for the taking or sale in lieu thereof shall belong to and be the sole property of Landlord; and Tenant shall have no claim against Landlord for the value of any unexpired portion of the Lease Term; provided, however, that Tenant shall be entitled to any award expressly made to Tenant for Tenant's interest in the Lease, loss of business or depreciation to and cost of removal of stock and trade fixtures so long as such award shall not reduce the compensation paid or awarded to Landlord. In the event that only a portion of the Leased Premises is taken or condemned and such taking does not materially affect the business of Tenant, Tenant shall be entitled to a proportionate abatement of Minimum Annual Rent but shall not be entitled to any award or payment made for such taking. ARTICLE XII ASSIGNMENT AND SUBLETTING Section 12.01. Requirement of Landlord's Consent. Tenant shall not assign this Lease or sublet the whole or any part of the Leased Premises or permit any other persons, including concessionaires or licensees, to occupy the same without the prior written consent of Landlord. Such consent shall not be implied from references in this Lease to assignees, sublessees, concessionaires, or licensees. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the requirement for such consent to any subsequent assignment or subletting. Any such assignment or subletting, even with the consent of Landlord, shall not relieve Tenant from liability for payment of rent or other sums herein provided or from the performance of any other obligations under this Lease. The acceptance of rent from any other person shall not be deemed to be a waiver of any of the provisions of this Lease or to be a consent to the assignment of this Lease or the subletting of the Leased Premises. Without in any way limiting Landlord's right to refuse to give consent to any assignment or subletting of this Lease, Landlord reserves the right to refuse to give such consent if in Landlord's discretion and opinion the use of the Leased Premises or quality of merchandising operation therein is or may be in any way adversely affected; if the financial worth of the proposed next occupant is less than that of Tenant at the commencement of the Lease Term; or if Landlord’s lender or mortgagee withholds or conditions consent to such assignment or subletting. Tenant shall pay to Landlord Two Hundred Dollars ($200.00) upon request of any proposed assignment or subletting and, shall at the time of such request, furnish Landlord copies of the proposed transferee’s financial statements and detailed information of such transferee’s retail history and experience and reimburse Landlord for reasonable accounting and attorneys' fees incurred in conjunction with the processing and documentation of any requested transfer, assignment, subletting, licensing or concession agreement, change of ownership or hypothecation of this Lease or Tenant's interest in and to the Leased Premises. Section 12.02. Assignment by Operation of Law. Any transfer of this Lease by operation of law including, but not limited to, the following, shall constitute an assignment for purposes of this Lease: (a) if Tenant is a corporation, any merger, consolidation or liquidation of Tenant; or (b) if Tenant is a corporation, partnership, or other entity, any sale or transfer of more than thirty percent (30%) of the outstanding stock of the corporation or any change in ownership whereby the present shareholders, members or partners shall, singly or collectively, cease to own, directly or indirectly, the controlling interest in the voting shares or interests of Tenant. 19 Section 12.03. Licensees or Concessionaires. Tenant shall not permit any business to be operated in, on or from the Leased Premises or any portion thereof by any sublessee, licensee, franchisee, or concessionaire without the prior written consent of Landlord. ARTICLE XIII BANKRUPTCY Section 13.01. Bankruptcy. (a) Assumption; Assignment. In the event Tenant shall file, or have filed against it, or otherwise become the subject of a, petition or proceeding under the United States Bankruptcy Code (the “Code”), the trustee, Tenant, or any other person operating as debtor-in-possession (“DIP”) may not assume and/or assign this Lease unless and until Landlord has received adequate assurance, as required by the Code (which adequate assurance, shall include, at a minimum, those terms set forth below) that (a) Tenant, trustee, DIP or any proposed assignee, as applicable, is fully capable of strict compliance with all obligations (payment and otherwise) under this Lease for the remainder of the term of this Lease (and all renewal terms) and (b) all defaults (payment and otherwise) outstanding as of the date of such proposed assumption shall be cured in full on assumption or as follows: (i) within ten (10) days from the date of such assumption, all monetary defaults under this Lease including all attorneys’ fees as provided by this Lease shall be cured; and ii) within thirty (30) days from the date of such assumption, all non-monetary defaults under this Lease shall be cured. If this Lease has been assumed for the purpose of assigning Tenant’s interest hereunder (whether immediately upon assumption or thereafter) to any other person or entity, such interest may be assigned only after Landlord has received adequate assurance, as required by the Code (with such adequate assurance including, at a minimum, those terms set forth hereinbelow), that such proposed assignee is fully capable of strict compliance throughout the term (and any renewal terms) of this Lease with all of the terms, covenants and conditions of this Lease with Landlord and Tenant acknowledging that such terms, covenants and conditions are commercially reasonable, whether in the context of a bankruptcy proceeding or otherwise. (b) Definitions. For purposes of this Article and any proceeding under the Code: (i) “adequate assurance” shall mean, and require, at a minimum, that: (a) Tenant, trustee, DIP and proposed assignee have and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to fulfill the obligations of Tenant under this Lease and to conduct a fully-operational, actively promoted business in the Leased Premises (which shall include keeping the Leased Premises stocked with merchandise and properly staffed with sufficient employees); and (b) Tenant, trustee, DIP or the proposed assignee (as applicable) shall grant Landlord a valid first priority security interest and/or mortgage in property of Tenant, the estate of the proposed assignee (as applicable), acceptable as to value and kind to Landlord, to secure its obligations to cure all defaults and/or non-monetary) under this Lease. 20 (ii) In no event shall any of the foregoing provisions be deemed to replace, eliminate, or otherwise diminish any obligations of Tenant, trustee, DIP or any proposed assignee to provide adequate assurance as required by the Code but such conditions shall be a part of such adequate assurance. Tenant hereby agrees and stipulates that the Leased Premises are part of a shopping center, and that any proposed assumption and/or assignment shall be subject to the provisions of Section 365(b)(3) of the Code. (c) Obligations. So long as this Lease has not been rejected or assumed and Tenant, trustee or DIP is still in possession of the Leased Premises, then Tenant, trustee, or DIP shall be obligated to pay all amounts due and owing hereunder, including without limitation, rent, common area maintenance, insurance, taxes, etc. Tenant stipulates and agrees that all such charges shall be fully earned, due and payable on the first day of each month and Tenant, trustee or DIP shall not be entitled to any pro-rata allocation with respect to any or all of such charges. Tenant agrees and stipulates that all such charges constitute reasonable use and occupancy charges for the Leased Premises. (d) Additional Obligations. The rights and remedies of Landlord and the liabilities and obligations of Tenant set forth in this Lease shall be in addition to those which may now or hereafter be accorded, or imposed upon, Landlord and/or Tenant by the Code. (e) Notice. Tenant, trustee, or DIP shall give Landlord not less than twenty (20) days prior written notice that it intends to reject, assume and/or assign the Lease, whether that notice be in the form of a motion or otherwise and any order rejecting the Lease shall have future effect only unless the Landlord otherwise consents. (f) Sublease. In the event that the Leased Premises have been relet by Tenant and Tenant, trustee or DIP seeks rejection of this Lease and any subtenant elects to holdover with respect to its rights under such sublease, then in such event, Landlord shall be subrogated to all rights of Tenant under such sublease (but shall assume no responsibility or liability of Tenant under such sublease. Landlord shall be entitled to receive all payments by such subtenant arising under any such sublease (which amount Tenant warrants and represents shall be not less than the amount due and owing by Tenant hereunder) received or accruing from and after the effective date of any such rejection. (g) Timely Performance. Tenant’s obligations to timely perform under this Lease pursuant to Section 365 of the Code, notwithstanding the fact that Tenant may be the subject of a proceeding under the Code, shall mean that Tenant, trustee or DIP, as appropriate, shall pay and perform all obligations hereunder as set forth herein, including without limitation, payment of rent on the first day of each month. Notwithstanding the foregoing, in the event that Landlord shall not receive payment in full of all obligations of Tenant hereunder on a timely basis, Landlord shall be entitled to a super priority administrative expense claim in an amount not less than such unpaid amounts, all of which shall be deemed to have conferred a benefit upon the estate, with such administrative expense being immediately payable upon request of Landlord. 21 ARTICLE XIV DEFAULT AND REMEDIES Section 14.01. Events of Default by Tenant. Each of the following shall be deemed a default by Tenant: (a) Tenant's failure to pay rent as herein provided when due; (b) Tenant's failure to perform or observe any other terms, conditions or covenants of this Lease to be performed or observed by Tenant; (c) If Tenant fails more than twice within any twelve (12) month period to observe or perform any covenant, condition, or agreement of this Lease (including without limitation the payment of Rent), regardless of whether such defaults shall have been cured by Tenant, the third default shall at the election of Landlord, in its sole and absolute discretion, be deemed a non-curable event of default; (d) Tenant or any agent of Tenant falsifies any report or misrepresents other information required to be furnished to Landlord pursuant to this Lease; (e) Tenant's vacation or abandonment of the Leased Premises or any failure to keep the Leased Premises open for business in the manner and during Regular Business Hours as provided in Article IV; (f) The sale of Tenant's leasehold interest hereunder pursuant to execution; (g) The death of Tenant or any guarantor of Tenant’s obligations; or the commencement of steps or proceedings toward the dissolution, winding up, or other termination of the existence of the Tenant or of any guarantor of Tenant’s obligations, or toward the liquidation of either of their respective assets; (h) The commencement of a case under any chapter of the Federal Bankruptcy Code by or against Tenant or any guarantor of Tenant’s obligations hereunder, or the filing of a voluntary or involuntary petition proposing the adjudication of Tenant or any such guarantor as bankrupt or insolvent, or the reorganization of Tenant or any such guarantor, or an arrangement by Tenant or any such guarantor with its creditors, unless the petition is filed or case commenced by a party other than Tenant or any such guarantor and is withdrawn or dismissed within thirty (30) days after the date of its filing; (i) The making of an assignment by Tenant or any guarantor of Tenant’s Lease obligations for the benefit of its creditors, or if in any other manner Tenant’s interest in this Lease passes to another by operation of law, including without limitation, by attachment, execution, or similar legal process, which is not discharged or vacated within thirty (30) days; (j) The appointment of a receiver or trustee for the business or property of Tenant or any guarantor of Tenant’s Lease obligations, unless such appointment shall be vacated within ten (10) days of its entry; 22 (k) Evidence of the inability of Tenant or of any guarantor of Tenant's Lease obligations to pay its debts as they come due. Such evidence shall include, but shall not be limited to either of the following: (i) An admission in writing by Tenant or any such guarantor of its inability to pay its debts when due; or (ii) If one or more judgments are docketed against Tenant or any such guarantor and not paid, or discharged within 30 days. Section 14.02. Landlord's Rights Upon Tenant's Default. In the event of any default provided in Clause (a) of Section 14.01 and the continuance of such a default for a period of five (5) days after due; or in the event of any default provided in Clause (b) of Section 14.01 and the continuance of such a default after thirty (30) days written notice from Landlord to Tenant; or in the event of any other default provided in Section 14.01 without any demand or notice, Landlord, in addition to any other rights or remedies at law or equity, may: (a) elect to terminate this Lease; (b) in the event that Tenant has failed to perform any of its covenants under this Lease other than a covenant to pay rent, perform the covenant or covenants of Tenant which are in default (entering upon the Leased Premises for such purpose, if necessary); and Landlord's performance of any such covenant shall neither subject Landlord to liability for any loss, inconvenience or damage to Tenant nor be construed as a waiver of Tenant's default or of any other right or remedy of Landlord in respect of such default, or as a waiver of any covenant, term or condition of this Lease; or (c) immediately re-enter upon the Leased Premises, remove all persons and property therefrom, and store such property in a public warehouse or elsewhere at the sole cost and for the account of Tenant, all without service or notice or resort to legal process, without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby, and without such re-entry being deemed to terminate this Lease. Tenant hereby grants and transfers to Landlord a security interest in all inventory, equipment, fixtures, general tangibles, accounts, documents and instruments of Tenant now or hereafter owned by Tenant and located on the Leased Premises or at any time used in connection with Tenant’s business carried on in the Leased Premises, including the proceeds thereof, to secure the performance by Tenant of Tenant’s obligations under this Lease. Tenant hereby irrevocably authorizes Landlord to file financing statements, and amendments and continuations of financing statements, covering the security interest granted hereby, as often as Landlord, in its sole discretion, shall require. In addition to, and not in lieu of, any other remedy afforded Landlord under this Lease, upon failure of Tenant to cure any default of Tenant within the applicable cure period, if any, set forth in this Lease, Landlord, at its option and without further notice or demand, shall be entitled to enter the Leased Premises and to take immediate possession of the property which is the subject of the security interest granted hereby for purposes of disposition or rendering the same unusable. Upon repossession, Landlord may elect to retain such property in satisfaction of the obligations of Tenant secured hereby or dispose of same at public or private sale or through other disposition in accordance with the Uniform Commercial Code as adopted and then in effect in Indiana or any other applicable statute. Upon request by Landlord, Tenant shall assemble and make such property available to Landlord at a place designated by Landlord which is reasonably convenient to both Landlord and Tenant. Tenant agrees that the requirement of reasonable notification by Landlord to Tenant of the time and place of any public or private sale or other disposition or of the date after which any private sale or other indicated disposition is to be made shall be met if written notification is sent to Tenant at 23 least ten (10) days prior to the date of sale or disposition. In the event that Landlord shall collect or dispose of any or all of said property after default, the proceeds of disposition shall be applied in the following order: (a) to the reasonable expenses of retaking, holding, preparing for sale, selling, collecting and the like, (b) to the reasonable attorneys’ fees and legal expenses incurred by Landlord, and (c) to the satisfaction of the obligations of Tenant secured hereby. Tenant releases and holds harmless Landlord from any and all claims arising out of the repossession and/or disposition of Tenant’s property. Any successor, assignee of Tenant or any party at any time having the rights of Tenant hereunder, for all purposes of this Section shall be deemed to have granted and transferred to Landlord, and by its acceptance, succession or exercise, grants and transfers to Landlord, a security interest in its respective inventory, equipment, fixtures, general tangibles, accounts, documents and instruments now or hereafter owned by it and located on the Leased Premises, including the proceeds thereof, to have authorized Landlord to file financing statements, and amendments and continuations of financing statements, and to have given Landlord the same rights as to it and its property as Landlord has as to Tenant and Tenant’s property. Section 14.03. Re-Letting. In the event Landlord re-enters upon the Leased Premises as provided in Clause (c) of Section 14.02, or takes possession of the Leased Premises pursuant to legal proceedings or pursuant to any notice provided for by law, Landlord may either terminate this Lease, or from time-to-time without terminating this Lease, make alterations and repairs for the purpose of re-letting the Leased Premises and re-let the Leased Premises or any apart thereof for such term or terms (which may extend beyond the term of this Lease) at such rental and upon such other terms and conditions as Landlord in its sole discretion deemed advisable. Upon each re-letting, all rentals received from such re-letting shall be applied: first to payment of costs of such alterations and repairs; second, to the payment of rent and any other indebtedness due and unpaid hereunder; and the remainder, if any, shall be held by Landlord and applied in payment of future rent as it becomes due and payable hereunder. If the rentals received from such re-letting during any month are less than amounts to be paid hereunder by Tenant during that month, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No re-entry or taking of possession by Landlord of the Leased Premises shall be construed as an election to terminate this Lease unless a written notice of termination is given to Tenant. Notwithstanding any re-letting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant's previous default. Provided, however, Landlord shall in no event be under any duty whatsoever to attempt to re-let the Leased Premises or to otherwise mitigate its damages unless and until all other space within the Shopping Center shall be leased and occupied. Section 14.04. Damages Upon Termination. In the event that Landlord at any time terminates this Lease for any default by Tenant, in addition to any other remedies Landlord may have, Landlord may recover from Tenant all damages Landlord may incur by reason of such default, including costs of recovering the Leased Premises, reasonable attorneys' fees, and the value at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the Lease Term over the then reasonable rental value of the Leased Premises for the remainder of the Lease Term. All such amounts shall be immediately due and payable from Tenant to Landlord. If Tenant is obligated to pay Percentage Rent under this Lease, in determining the rent which would be payable by Tenant subsequent to default, the annual rental for each year of the unexpired portion of the Lease Term shall be equal to the Minimum Annual Rent payable during such period plus the average Lease Term to the time of default or during the preceding two (2) full calendar years whichever period is shorter. Section 14.05. Attorneys’ Fees. Upon any default by Tenant hereunder, Tenant shall be liable for and hereby agrees to pay any and all liabilities, losses, costs and expenses including attorneys' fees incurred by Landlord as a result of Tenant's default and in exercising Landlord's rights and remedies in connection with such default. 24 Section 14.06 Default of Landlord. Landlord shall in no event be charged with default in the performance of any of its obligations under this Lease unless and until Landlord shall have received written notice from Tenant specifying wherein Landlord has failed to perform such obligation or remedy such default, and such default has not been cured after thirty (30) days (or such additional time as is reasonably required to correct any such default) from Landlord's receipt of such notice from Tenant. Section 14.07. Status of Landlord. Tenant agrees that Tenant shall look solely to Landlord's interests in and to the Shopping Center, subject to prior rights of any mortgagee of the Shopping Center, for collection of any judgment (or other judicial process) requiring payment of money by Landlord in the event of default or breach by Landlord of any of the covenants, terms or conditions of this Lease to be observed or performed by Landlord, and that no other assets of Landlord shall be subject to levy execution or other process for satisfaction of Tenant's remedies. The term "Landlord" as used in this Lease in relation to covenants, agreements and conditions to be observed and performed by Landlord, shall mean and include only the owner or owners from time-to-time of the Landlord's interest in this Lease and the Shopping Center. In the event of any transfer or transfers of such interest (except a transfer for security), the Landlord named herein (or the transferor in the case of a subsequent transfer) shall, after the date of such transfer, be released from all personal liability for performance of any covenant, agreement and condition on the part of the Landlord which are thereafter to be performed hereunder. The transferee shall be deemed to have assumed (subject to the limitations of this paragraph) all of the covenants, agreements and conditions herein to be observed by Landlord with the result that such covenants, agreements and conditions shall bind the Landlord, its successors and assigns, only during and in respect of their respective successive periods of ownership. ARTICLE XV ACCESS TO LEASED PREMISES Tenant shall permit Landlord and its agents to enter upon the Leased Premises at all reasonable times to inspect and examine the Leased Premises, to show the Leased Premises to prospective purchasers, mortgagees or tenants, or to make such repairs (including the bringing of materials that may be required therefor into or upon the Leased Premises) as Landlord may deem necessary or which Tenant has agreed herein but failed to make without any such act constituting any eviction of Tenant in whole or in part, without rent in any manner abating while such repairs are being made by reason of loss or interruption of Tenant's business in the Leased Premises, and without responsibility for any loss or damage to Tenant's property or business other than such loss or damage resulting from the willful act of Landlord, its agents, employees or contractors. If Tenant is not present to open and permit an entry by Landlord into the Leased Premises at any time when entry therein is necessary because of an emergency, Landlord or its agents may forcibly enter the Leased Premises without rendering Landlord or its agents liable therefor and without in any manner affecting the obligations and covenants under this Lease, provided that Landlord shall repair any damage occasioned thereby. ARTICLE XVI SURRENDER Upon the expiration or earlier termination of this Lease, Tenant shall quit and surrender to Landlord the Leased Premises, together with all property permanently affixed to the Leased Premises, in good order and condition (ordinary wear and tear excepted), broom clean, free of all waste and debris, and in an environmentally safe condition in compliance with all governmental laws, rules, orders and regulations. Tenant shall remove any or all of its property which Landlord directs Tenant to remove subject to the provision of Sections 2.02 and 8.05 hereof; and upon Tenant's failure to do so, Landlord may cause all or any item of such property to be removed at Tenant's expense. Tenant hereby agrees to pay all costs and expenses of any removal 25 and of the repair of any damage to the Leased Premises caused by such removal. Tenant's obligation to observe and perform these covenants shall survive the expiration or earlier termination of this Lease. ARTICLE XVII ESTOPPEL CERTIFICATES, ATTORNMENT AND SUBORDINATION Section 17.01. Initial Estoppel Certificate. Prior to opening the Leased Premises for business, Tenant shall deliver to Landlord a written statement, in recordable form if requested, certifying (if such is the case) that Landlord has completed construction of the improvements constituting part of the Leased Premises in accordance with its obligations contained herein; that Tenant has accepted possession of the Leased Premises; that this Lease is in full force and effect and has not been assigned, modified, supplemented or amended; and indicating the Commencement Date and the dates to which the Minimum Annual Rent and other charges have been paid in advance, if any. Section 17.02. Subsequent Estoppel Certificates. Within five (5) days after Landlord's written request therefor, Tenant shall deliver to Landlord or to any prospective purchaser or mortgagee of the Leased Premises a written statement in recordable form certifying (if such is the case) that this Lease is in full force and effect and has not been assigned, modified, supplemented or amended; that all covenants, conditions and agreements on the part of Landlord hereunder have been performed; that there are no defenses or offsets to the enforcement of this Lease by Landlord, or stating those claimed by Tenant; and such other information as is reasonably requested by Landlord or any prospective purchaser or mortgagee. Section 17.03. Attornment. Tenant shall, in the event that any proceedings are brought for the foreclosure of any mortgage made by Landlord covering the Leased Premises, attorn to the purchaser upon such foreclosure and recognize such purchaser as the Landlord under this Lease. Section 17.04. Subordination. Upon Landlord's written request, Tenant shall execute and deliver to Landlord an agreement in recordable form subordinating its rights hereunder to the lien of any mortgage or mortgages or the lien or security interest from any other method of financing or refinancing (hereinafter collectively referred to as "Mortgage") now or hereafter encumbering the land of which the Leased Premises are a part, the Leased Premises and the buildings now or hereafter built or to be built in the Shopping Center or Landlord's interest in such land, Leased Premises or buildings. In the event Tenant is required to subordinate its rights hereunder to any mortgage Landlord agrees to use reasonable efforts to obtain from the holder of such Mortgage a written agreement providing, in substance, that so long as Tenant faithfully discharges its obligations under this Lease and is not in default hereunder, its tenancy under this Lease will not be disturbed. Tenant hereby irrevocably appoints Landlord as Tenant’s attorney-in-fact, which appointment is coupled with an interest, to execute, deliver and record the documents described in this Article XVII in Tenant’s name, place and stead. ARTICLE XVIII MISCELLANEOUS PROVISIONS Section 18.01. Covenant of Quiet Enjoyment. Landlord agrees that if Tenant performs all the covenants and agreements herein provided to be performed by Tenant, Tenant shall, at all times during the Lease Term, have the peaceable and quiet enjoyment of possession of the Leased Premises without any manner of hindrance from Landlord or any persons claiming under Landlord. This Lease does not guarantee a continuance of light and air over the Leased Premises or any property adjoining the Leased Premises. 26 Section 18.02. Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein stipulated, including additional rent and all other sums and charges due under this Lease, shall be deemed to be other than on account of the earliest stipulated rent remaining due and owing; nor shall any endorsement or statement on any check or letter accompanying any check or payment as rent be deemed an accord and satisfaction; and Landlord may accept any such check or payment without prejudice to Landlord's right to recover the balance of such rent or to pursue any other remedy provided in this Lease. Section 18.03. No Option. The submission of this Lease for examination by Tenant shall not constitute a reservation of or option for the Leased Premises. This Lease shall become effective as a Lease only upon execution and delivery thereof by Landlord and Tenant. Section 18.04. Memorandum of Lease. The parties hereto shall not record this Lease but each party shall execute upon the request of the other a "Memorandum of Lease” suitable for recording. Section 18.05. Relationship of Parties. Nothing contained herein including, but not limited to, the method of computing rent, shall be deemed or construed by the parties hereto or by any third party as creating between the parties hereto the relationship of principal and agent, partnership, joint venture, or any relationship other than the relationship of lessor and lessee. Section 18.06. Waivers. No waiver of any covenant or condition or the breach of any covenant or condition of this Lease shall be deemed to constitute a waiver of any subsequent breach of such covenant or condition nor justify or authorize a nonobservance upon any occasion of such covenant or condition or any other covenant or condition; nor shall the acceptance of rent by Landlord at any time when Tenant is in default of any covenant or condition or the acceptance of any partial payment of rent be construed as a waiver of such default or Landlord's right to terminate this Lease on account of such default. No waiver of any covenant or condition in this Lease shall be deemed waived by Landlord unless such waiver is in writing signed by Landlord. Section 18.07. Remedies Cumulative. The remedies of Landlord and Tenant hereunder shall be cumulative, and no one of them shall be construed as exclusive of any other or of any remedy provided by law or in equity. The exercise of any one such right or remedy by the Landlord or Tenant shall not impair its standing to exercise any other such right or remedy. Section 18.08. Severability. The invalidity or unenforceability of any particular provision of this Lease shall not affect the other provisions, and this Lease shall be construed in all respects as if such invalid or unenforceable provision had not been contained herein. Section 18.09. Benefit of Persons Affected. This Lease and all of the terms and provisions hereof shall inure to the benefit and be binding upon the respective heirs, executors, administrators, successors and assigns of Landlord and Tenant except as otherwise expressly provided herein. Section 18.10. Construction. Whenever in this Lease a singular word is used, it shall also include the plural wherever required by the context and vice-versa. All references in this Lease to periods of days shall be construed to refer to calendar, not business days. Section 18.11 Entire Agreement; Amendments. This instrument contains the entire agreement between the parties hereto with respect to the subject matter hereof. All representations, promises and prior or contemporaneous undertakings between such parties are merged into and expressed in this instrument, and any 27 and all prior agreements between such parties are hereby cancelled. The agreements contained in this instrument shall not be amended, modified, supplemented except by a written agreement duly executed by both Landlord and Tenant. Section 18.12. Governing Law. This Lease has been executed under and shall be governed in accordance with the laws of the State of Indiana. Section 18.13. Captions. The captions of this Lease are for convenience only and do not in any way limit or amplify the terms and provisions of this Lease. Section 18.14. Notices. Any notice, demand, consent or waiver required or permitted to be given or served by either party to this Lease shall be in writing and shall be deemed to have been duly given if delivered in person or sent by United States certified or registered mail, returned receipt requested, addressed to the other party as follows: Landlord: Lawndale Plaza, LLC 6440 Westfield Blvd Indianapolis, IN 46220 Tenant: Jason Upton d/b/a F45 Jason & Lori R. Upton 4331 Cherry Court Zionsville, IN 46077 Phone:_317-442-3245 Jup3245@yahoo.com Any party may change its address for notice from time to time by serving notice on the other party as provided above. The date of service of any notice served by mail shall be the date upon which such notice is deposited in a post office of the United States Postal Service. Section 18.15. Counterparts. This Lease may be executed in separate counterparts, each of which when so executed shall be an original; but all of such counterparts shall together constitute but one and the same instrument. Section 18.16. Authority. The persons executing this Lease on behalf of Landlord and Tenant hereby warrant that they have full power and authority to do so. Tenant and Landlord shall deliver appropriate evidence of such authority to the other upon request. Section 18.17. Deposit. Tenant agrees to deposit with Landlord the amount of Five Thousand, Five- Hundred, Twenty Dollars and Eight Three Cents ($5,520.83) to be held by Landlord without interest as security for the full and faithful performance by Tenant of all of the terms, conditions and covenants contained herein. Landlord may apply all or any part of such deposit to cure all or any part of any default or to compensate Landlord for all or damage sustained by Landlord by reason of any default hereunder; and Tenant agrees, upon demand, to promptly deposit such additional sums with Landlord as may be required to maintain the full amount of the deposit. Further all sums held by Landlord pursuant to this paragraph shall be returned to Tenant promptly after the end of the Lease Term, provided there is then no uncured default. If Tenant is in default under this Lease more than three (3) times within any twelve-month period, irrespective of whether or not such 28 default is cured, then, without limiting Landlord’s other rights and remedies provided for in this Lease or at law or equity, the Security Deposit shall automatically be increased by an amount equal to the greater of: (a) Three (3) times the original Security Deposit; or (b) Three (3) months’ Minimum Rent, which shall be paid by Tenant to Landlord forthwith on demand. Section 18.18. Force Majeure. In the event that Landlord shall be delayed or hindered in or prevented from doing or performing any act or thing required in this Lease by reason of strikes, lock-outs, casualties, Acts of God, labor troubles, inability to procure materials, failure of power, governmental laws or regulations, riots, insurrection, war or other causes beyond the reasonable control of Landlord, then Landlord shall not be liable or responsible for any such delays and the doing or performing of such act or thing shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay; provided however, notwithstanding the foregoing, Tenant shall pay to Landlord all monetary amounts when due under this Lease. Section 18.19. Submission for Review. This Lease is submitted for Tenant's review and may be withdrawn by Landlord at any time prior to Landlord delivering fully executed leases to Tenant. Section 18.20. Security Measures. Tenant hereby acknowledges that Landlord shall have no obligation whatsoever to provide guard service or other security measures for the benefit of the Leased Premises or the Shopping Center. Tenant assumes all responsibility for the protection of Tenant, its agents, and invitees and the property of Tenant and of Tenant’s agents and invitees from acts of third parties. Nothing herein contained shall prevent Landlord, and Landlord’s sole option, from providing security protection for the Shopping Center or any part thereof, in which event of the cost thereof shall be included within the definition of Common Areas Costs, as set forth in Section 6.01(c). Section 18.21. Relocation. Landlord shall have the right, at its option, upon at least thirty (30) days’ written notice to Tenant, to relocate Tenant and to substitute for the Leased Premises described above other space in the Shopping Center containing at least as much rentable area as the original Leased Premises. Such substituted Leased Premises shall be improved by Landlord at its expense, with decorations and improvements at least equal in quantity and quality to those in the original Leased Premises. Landlord shall pay the expenses reasonably incurred by Tenant in connection with such substitution of Leased Premises, including, but not limited to, costs of moving, door lettering, telephone relocation and reasonable quantities of new stationery. Section 18.22. Financing. Landlord, at its cost and expense and prior to _______________ (date), shall have obtained financing for the acquisition and intended development of the Shopping Center upon such terms and conditions as are acceptable to Landlord in its sole discretion. If Landlord fails to obtain a commitment for financing, Landlord may terminate this Agreement by written notice to Tenant given prior to _________________ (date) whereupon the Deposit shall be returned to Tenant. 29 IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first above written. TENANT: LANDLORD: LAWNDALE PLAZA, LLC By:___________________________________ ________________________________________ Printed:_Jason Upton______________________ Title:___________________________________ STATE OF ) ) COUNTY OF ) Before me, a Notary Public in and for said County and State, personally appeared _________________ __________________________ the _________________________________ of ________________________ ________________________________, who acknowledged the execution of the foregoing “Lease” on behalf of said corporation. WITNESS my hand and notarial seal this __________ day of __________________________, 2018. COMMISSION EXPIRATION: ____________________________________________ Notary Public COUNTY OF RESIDENCE: ____________________________________________ (Printed Signature) 30 GUARANTY OF LEASE In consideration of the execution of the above and foregoing Lease by and between LAWNDALE PLAZA, LLC (hereinafter referred to as "Landlord") and Jason Upton d/b/a F45. (hereinafter referred to as "Tenant") executed this day of January, 2018 (hereinafter referred to as "Lease"), Jason & Lori Upton, (hereinafter referred to as "Guarantor") hereby becomes surety for and guarantees (i) the prompt payment of all rents, additional rents and other sums to be paid by Tenant under the terms of the Lease; and (ii) the performance by Tenant of the covenants, conditions and terms of the Lease (such payment and performance to be referred to collectively as "Obligations"). If Tenant defaults in the performance of the Obligations during the term of the Lease, Guarantor hereby promises and agrees to pay to Landlord all rents and any arrearages thereof that may be due and to fully satisfy the conditions and covenants of the Lease by Tenant to be paid, kept and performed. As conditions of liability pursuant to this Guaranty, Guarantor hereby unconditionally waives (a) any notice of default in the payment of rent or any other term, covenant or condition of the Lease by Tenant; or (b) any requirement that Landlord exercise or exhaust its rights and remedies against Tenant or against any person, firm or corporation prior to enforcing its rights against Guarantor. Landlord may, without notice to Guarantor, and Guarantor hereby consents thereto (a) modify or otherwise change or alter the terms and conditions of the Lease; and (b) waive any of its rights under the Lease or forbear to take steps to enforce the payment of rent or any other term or condition of the Lease against Tenant. Guarantor hereby agrees, upon the request of Landlord, to execute, acknowledge and deliver to Landlord a statement in writing certifying, if this be the fact, that this Guaranty of the referenced Lease is unmodified, in full force and effect, and there are no defenses or offsets thereto; certifying that the referenced Lease is unmodified, in full force and effect, and there are no defenses or offsets to such Lease (or if modified, that the Lease is in full force and effect as modified and that this Guaranty extends to and fully covers such Lease as modified); and certifying the dates to which Minimum Rent, Percentage Rent, if any, and any other additional rentals have been paid. In the event Tenant fails at any time to pay any rent, additional rent or other payments when due or fails to comply with any other term, covenant or condition of the Lease, Guarantor, upon demand by Landlord, shall make such payments and perform such covenants as if they constituted the direct and primary obligations of 31 Guarantor; and such obligations of Guarantor shall be due with attorneys' fees and without relief from valuation or appraisement laws. After the initial Sixty (60) month period after the Rental Commencement Date, provided the Tenant has cured any default during this Sixty (60) month period, the Personal Guarantee shall be limited to Three months of rent and CAM charges. The rights and obligations created by this Guaranty shall inure to the benefit of and be binding upon the successors, assigns and legal representatives of Guarantor and Landlord. IN WITNESS WHEREOF, Guarantor has executed this Guaranty of Lease this day of January, 2017. ATTEST: By: ____________________________ Printed: ________________________________ Its: ____________________________ Address: 4331 Cherry Court ________ Zionsville, IN 46077 Phone: 317-442-3245 Email: jup3245@yahoo.com Social Security #: Social Security #: ATTEST: By: ____________________________ Printed: _Lori R. Upton____________________ Its: ____________________________ Address: 4331 Cherry Court ________ Zionsville, IN 46077 Phone: 317-557-5389 Email: Social Security #: STATE OF ) )SS: COUNTY OF ) 32 Before me, a Notary Public in and for said County and State, personally appeared , who acknowledged execution of the foregoing Guaranty of Lease. WITNESS my hand and Notarial Seal this day of _______________________, 2018. My Commission Expires: Signature, Notary Public County of Residence: Printed Signature, Notary Public 33 EXHIBIT A site plan to be inserted 34 EXHIBIT B site plan to be inserted 35 EXHIBIT C This Exhibit “C” shall be made a part of and be attached to a certain Lease between Lawndale Plaza, LLC as Landlord, and Jason Upton d/b/a F45 as Tenant, dated this ______ day of January, 2018. Except as follows, or otherwise provided in the Lease, it is agreed that Tenant shall accept the space in its “as is” condition with the exception of the following items listed below: 1. Landlord at Landlord’s expense will clean and service the HVAC unit 2. CONSTRUCTION ALLOWANCE. Landlord shall provide Tenant with an improvement allowance in the amount of Fifteen Thousand Dollars ($15,000.00). Disbursement of the Tenant Improvement Allowance by Landlord shall be made within 15 business days after the latest date of the following events to occur: a) Tenant’s submission to Landlord, of lien waivers from all contractors, material men and suppliers for labor and materials relating to Tenant’s improvements, b) Tenant opening for business. In the event that Landlord fails to make said payment to Tenant, Tenant shall have the right to offset the amount due it, hereunder, against Rent until the entire debt shall be paid. 3. Tenant will remodel the store per plans first approved by Landlord and build a first-class Exercise Salon. Tenant shall use a licensed, bonded, and insured contractor for any improvements constructed in the space. Tenant or Tenant’s contractor shall be responsible for obtaining any necessary permits or approvals necessary for the lawful operation of Tenant’s business. TENANT LANDLORD Jason Upton d/b/a F45 LAWNDALE PLAZA, LLC By:______________________________ By:___________________________ Title:____________________________ 36 EXHIBIT “D” WEST CARMEL SHOPPES In no event shall the Tenant use the Demised Premises for the following uses: • Operate an animal hospital • Operate a bicycle and fitness retail store, with sales and service of bicycles, fitness equipment • Operate an alterations business • Operate a restaurant specializing in pizza and Italian related food offerings • Operate a haircutting business specializing in children’s haircutting and related goods and services • Operate a business whose primary use is the sales of Running shoes, apparel, swim wear, swim accessories triathlon apparel and triathlon accessories (excluding those specifically designed as bicycle accessories, or used solely in the act of bicycling). • Landlord shall not lease space within the shopping center known as West Carmel Shoppes to any NEW tenant that generates greater than 15% of its sales from the sale of submarine-style sandwiches.