EXHIBIT 10.7
LEASE
RML CONSTRUCTION, LLP
"LANDLORD"
AND
DOMINION HOMES OF KENTUCKY, LTD
"TENANT"
DATE: SEPTEMBER 26, 2003
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BRIGHTON PLACE SHOPPES
LEASE AGREEMENT
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LESSEE:
TABLE OF CONTENTS
SECTION PAGE
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1.1 Description 4
1.2 Exception and Reservation 4
1.3 Definitions 4
2.1 Base Term 5
2.2 Option Term 5
2.3 Prior Installation 5
3.1 Minimum Rent 5
3.2 Lease Year 5
3.3 Gross Receipts 6
3.4 Security Deposit 6
3.5 Right to Audit 6
3.6 Taxes 6
3.7 Insurance 6
3.8 Operating Expense 7
4.1 Tenant's Use; Exclusive Use 10
4.2 Utilities 10
4.3 Signs 10
4.4 Continuous Occupancy 10
5.1 Initial Construction 11
5.2 Tenant's Duty to Repair 11
5.3 Surrender of Premises 11
5.4 Tenant's Alterations 11
5.5 Mechanic's Liens 12
6.1 Liability of Tenant 12
6.2 Notice of Claim or Suit 12
6.3 Liability Insurance 12
6.4 Failure to Procure Insurance 12
6.5 Increase in Fire Insurance Premium 13
6.6 Waiver of Subrogation 13
7.1 Partial Destruction 13
7.2 Substantial Destruction 13
7.3 Rights of Landlord's Lender 13
7.4 Right of Termination 13
7.5 Tenant Trade Fixtures 14
8.1 Tenant Assignment 14
8.2 Bankruptcy, Etc. 14
9.1 Events of Default 14
9.2 Remedies 15
9.3 No Remedy Exclusive 15
9.4 Attorneys Fees and Expenses 16
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10.1 Control of Common Areas 16
11.1 Partial Taking 16
11.2 Substantial Taking 17
11.3 Award 17
12.1 Landlord's Right of Entry 17
12.2 Quiet Enjoyment 17
12.3 Waiver 18
12.4 Trade Fixtures 18
12.5 Subordination 18
12.6 Notices 18
12.7 Recording 19
12.8 Amendment 19
12.9 Documentation; Right to Cure 19
12.10 Holding Over 19
12.11 No Partnership 19
12.12 Partial Invalidity 19
12.13 Successors 20
12.14 Governing Law 20
12.15 Accord and Satisfaction 20
12.16 Landlord's Exculpatory Clause 20
12.17 Joint and Several Liability 20
12.18 Substitution of Premises 21
12.19 Special Stipulations 21
12.20 Hazardous Waste 21
12.21 Real Estate Commission 21
12.22 Effective Only Upon Execution 21
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BRIGHTON PLACE SHOPPES
LEASE AGREEMENT
LOCATION:
3090 Helmsdale Place, Building A, Units 5 & 6,
Lexington, Kentucky
THIS LEASE AGREEMENT made and entered into as of the 26th day of September
2003, by and between RML CONSTRUCTION, LLP, a Kentucky limited liability
partnership, having its principal office at 3399 Tates Creek Road, Lexington,
Kentucky 40502 or assigns (referred to as "Landlord"), and DOMINION HOMES OF
KENTUCKY, LTD, having an address of 10035 Forest Green Boulevard, Louisville, KY
40223 (referred to as "Tenant):
WITNESSETH:
ARTICLE I: PREMISES
1.1 Description:
Landlord hereby leases to Tenant, and Tenant leases and accepts, subject to
the terms and conditions of this Lease, the premises outlined in red on the
attached site plan, incorporated herein and marked Exhibit A, at a site near the
corner of Man O' War Blvd. and Todds Road, Lexington, Kentucky and upon which
site the Landlord has constructed a Center, as defined hereafter in paragraph
1.3, substantially in accordance with the site plan, the demised premises
(referred to as "Demised Premises" or "Premises" herein) identified as Suite 240
& 260, being, approximately 4,836 square feet, as allocated by Landlord.
1.2 Exception and Reservation: N/A
1.3 Definitions:
(a) The term "Center" herein shall be deemed to mean the first or ground
floor of Building A and Building B, adjacent parking area, and including any and
all proposed structures, (whether reflected in Exhibit A or hereafter
incorporated in the Center during the lease term or any extension thereof).
(b) The term "Common Areas" herein shall include entrances and exits,
service road, loading facilities, sidewalks, ramps, landscaped areas, parking
area, roof, and exterior faces of exterior walls, and all other areas
constructed or to be constructed for use in common by the Tenant and all other
tenants in the Center and their agents, employees and business invitees,
subject, however, to the terms of this agreement and reasonable rules and
regulations prescribed from time to time by the Landlord.
(c) The term "Landlord's lender" or "lender" shall mean the holder of the
first mortgage against the property described in Exhibit A.
ARTICLE II: TERM
2.1 Base Term:
The original term of this Lease shall be for a period of thirty-six (36)
months plus part of a month, if any, (the "Base Term") from the Commencement
Date of the Lease Term to the first day of the
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first full calendar month in the Lease Term, commencing on October 1, 2003
hereafter referred to as the "Commencement Date".
2.2 Option Term:
The Landlord agrees that if the Tenant shall not be in default in
performing any of its obligations under this Lease, Tenant shall have and is
hereby granted one (1) option period to extend the Lease Term for an additional
period of two (2) years. Such extended term shall begin upon the expiration of
the original term or the current option term, as applicable, and all of the
terms, covenants, and provisions of this Lease shall apply to such extended
term, except the Minimum Guaranteed Rental shall be at the annual rate of $19.75
per square foot.
Tenant shall notify Landlord, in writing, not less than six (6) months
prior to expiration of original term of Tenant's intent to exercise the option
to renew.
2.3 Prior Installation:
Tenant, upon commencement of the term, shall with prior consent of Landlord
which shall not be delayed or unreasonably withheld and in accordance with the
provisions of Section 5.5 herein, be permitted to install fixtures and
equipment. Any work done by the Tenant shall be in a manner as will not
interfere with the progress of the work by Landlord in completing construction
and Landlord shall have no liability or responsibility or responsibility for
loss of, or any damage to fixtures, equipment or other property of Tenant so
installed or placed in Premises.
ARTICLE III: RENT AND OTHER TENANT CONTRIBUTIONS
3.1 Minimum Rent:
Tenant shall pay to the Landlord as minimum rent (the "Minimum Rent") for
the Demised Premises Seven Thousand Four Hundred Fifty-Five Dollars and Fifty
Cents ($7,455.50) per month, representing $18.50 per square foot, beginning the
earlier of (i) November 1, 2003, or (ii) the date upon which Tenant opens for
business, continuing until October 31, 2006 in advance, on the first day of each
month at the address for Landlord as hereafter given in paragraph 12.6, or at
such other place as Landlord may designate from time to time, such rent to be
paid without demand, set-off or deduction.
In the event of the failure of the Tenant to pay any Minimum Rent due
hereunder within ten (10) days of the date such rent is due, the Tenant shall be
liable to the Landlord for a late charge equal to five percent (5%) of the
rental payment due and unpaid in order to reimburse Landlord for its additional
administrative costs as a result of such breach. In the event the Minimum Rent
due hereunder or any other amount due under this Lease is not paid within
fifteen (15) days of the due date, interest will, subsequent to the expiration
of said fifteen (15) day period, accrue on the amount of the unpaid rental or
other payment at the maximum rate permitted by applicable law, or eighteen
percent (18%) per annum, whichever is less. Imposition of such late charge or
interest expense shall not abrogate or limit any rights or remedies which the
Landlord may otherwise have hereunder.
3.2 Lease Year:
The term "Lease Year" shall mean the twelve (12) month period beginning on
the Commencement Date referred to in Article II above and terminating on the
same day of the succeeding year, and on the same day of each year thereafter
during the lease term.
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3.3 Gross Receipts: N/A
3.4 Security Deposit:
Concurrently with its execution of this Lease, Tenant shall deposit with
Landlord a security deposit in the amount of $8,507.33 (the "Security Deposit")
which will be held by Landlord to guarantee the faithful, timely and full
performance by Tenant of all of its obligations under this Lease. Any interest
earned thereon shall be the property of Landlord. If Tenant defaults with
respect to any provision of this Lease, Landlord may expend the whole or any
part of the Security Deposit for the payment of any amount, which Landlord may
expend by reason of such default. Otherwise, such Security Deposit shall be
applied to Minimum Rent and all other payments due from Tenant to Landlord
hereunder when and as such payments become due until such Security Deposit is
extinguished.
3.5 Right to Audit: N/A
3.6 Taxes:
Tenant shall pay at least ten (10) days before delinquency all taxes,
charges or other governmental impositions assessed against or levied upon any of
Tenant's personal property and/or trade fixtures located in or about the Demised
Premises and any of Tenant's improvements or alterations made to the Demised
Premises.
3.7 Insurance:
(a) Landlord shall procure fire and extended casualty insurance for the
Center (excluding Tenant's goods, furniture, trade fixtures and all other
personal property located in or about the Demised Premises) and shall maintain
liability and other insurance on the Common Areas in such amounts as Landlord,
in its reasonable judgement , may deem appropriate. Provided, however, that
Landlord's coverage shall fulfill the requirements of Section 3.8 (b)(i), (ii)
and (iii) herein. Landlord shall have the right, at its option, to self-insure.
(b) Tenant shall, at its sole expense, obtain and maintain in full force
and effect during the Term of this Lease (i) all insurance coverage necessary or
desirable for the full protection against loss or damage from fire or other
casualty for all of Tenant's movable equipment, furniture, goods, supplies and
all other personal property and trade fixtures located in or about the Demised
Premises, (ii) workers compensation insurance in such amounts which are
necessary and desirable (in no event shall such amounts be less than any minimum
amount prescribed or required by law), and (iii) general liability insurance for
bodily injury and property damage with a limit of liability of not less than
$1,000,000 for bodily injury and $500,000 for property damage. Tenant shall
cause Landlord, RML Construction, LLP, Isaac Commercial Properties, Inc., its
Managing Agent, and their respective employees and assigns to be named as an
additional insured under the liability policies and shall furnish Landlord with
the policies or duly executed certificates (an ACORD 27) of all required
insurance, together with satisfactory evidence of the payment of the premiums
therefor, on the date Tenant first occupies the Demised Premises and, upon
renewals of such policies, not less than fifteen (15) days prior to the
expiration of the term of such coverage. All policies obtained pursuant hereto
shall be in form and content and written by insurers reasonably acceptable to
Landlord and endorsed to expressly waive the underwriters' and insurance
carriers' rights of subrogation against Landlord and/or its insurance carriers.
(c) Tenant shall not do or permit to be done any act or thing which
increases the rate of insurance for all or any part of the Center or any
property or equipment located therein or thereon. An addition to
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Landlord's other rights and remedies, in the event of a breach by Tenant under
this section, Tenant shall reimburse Landlord upon demand for any increased
premiums where increase is based on Tenant's breach.
(d) Anything in this Lease to the contrary notwithstanding, each party
hereto hereby releases and waives all claims, liabilities, rights of recovery
and causes of action that either such party or any party claiming by, through or
under such party by subrogation or otherwise may now or hereafter have against
the other party or any of the other party's partners, venturers, directors,
officers, employees or agents for any loss or damage that may occur to persons,
the Center, the Demised Premises, any of Tenant's fixtures, improvements or
personal property or any of the contents of the foregoing by reason of fire, act
of God, the elements or any other cause that could have been insured against in
the Commonwealth of Kentucky under the terms of policies of fire and casualty
insurance, general liability insurance or workers compensation insurance,
regardless of cause or origin including, without limitation, negligence of the
parties hereto or their partners, venturers, directors, officers, employees or
agents.
(e) Except for the claims, rights of recovery and causes of action that
Landlord has released and waived pursuant to Section 3.7 (d) hereof, Tenant
shall be liable to Landlord its agents, servants, directors, officers and
employees from and against, any and all liabilities, claims, costs (including
court costs, attorneys' fees and costs of investigation), and actions of any
kind resulting or arising or alleged to result or arise from any injuries to or
death of any person or damage to or loss of any property occasioned or alleged
to be occasioned, in whole or in part, by any act, omission or neglect of Tenant
or Tenant's partners, venturers, directors, officers, employees, agents,
invitees, assignees, subtenants, servants or guests or any parties contracting
with Tenant relating to the Demised Premises or by any breach, violation or
non-performance of any covenant of Tenant under this Lease. If any action or
proceeding shall be brought by or against Landlord in connection with any such
liability or claim, Tenant, on notice from Landlord shall defend such action or
proceeding at Tenant's expense, by or through attorneys reasonably satisfactory
to Landlord. The provisions of this section shall apply to all activities of
Tenant, Tenant's partners, venturers, directors, officers, employees, agents ,
invitees, assignees, subtenants, servants or guests or any parties contracting
with Tenant with respect to the Demised Premises or the Center, whether
occurring before or after the Commencement Date or before or after the
expiration or termination of this Lease.
3.8 Operating Expense:
(a) In addition to all Minimum Rent and any other payments required
herein, Tenant agrees to pay to Landlord its pro-rata share of all "Operating
Expenses", as such are defined below. Tenant shall pay to the Landlord a monthly
operating expense payment of $1,051.83 on each day that a Minimum Rent payment
is due. After the end of each calendar year during the term hereof, Landlord
shall supply Tenant with a statement covering all costs and expenditures as
enumerated herein with respect to Operating Expenses and a determination of
Tenant's pro-rata share of such Operating Expenses ("Tenant's Pro-Rata Share").
In the event that the amount paid by Tenant shall be less than Tenant's Pro-Rata
Share, such deficiency shall be paid to Landlord within thirty (30) days after
notice of such determination, or in the alternative, any payment made by the
Tenant in excess of Tenant's Pro-Rata Share, shall be credited to the next sums
due to Landlord from Tenant for Operating Expenses. Said statement shall also
include a determination by Landlord of the monthly sum to be paid by Tenant
during the calendar year succeeding the calendar year for which said statement
was prepared and such determination shall be based in part on the statement of
expenses for the prior year modified by any known and/or anticipated increases
in Operating Expenses. Unless within thirty (30) days after delivery of such
statement, Tenant (i) asserts specific error(s) in writing, or (ii) requests, in
writing, an audit in
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accordance with paragraph (b) below, the statement shall be deemed to be
correct. If Tenant asserts error, Tenant shall nevertheless pay the disputed
amount to Landlord pending the resolution thereof.
(b) Tenant shall have the right, at Tenant's sole cost and expense, to
audit Landlord's records of Operating Expenses provided that all of the
following criteria has been met:
(1) No audit shall be conducted during the months of January, February or
March of any calendar year. Tenant's auditor shall make an appointment with the
Landlord or any agent appointed by Landlord. Landlord and Tenant shall
reasonably cooperate to arrange a mutually acceptable time within sixty (60)
days of Tenant's request. Notwithstanding the foregoing, Landlord shall not be
required to accommodate Tenant's auditors if other tenants have scheduled audits
prior to Tenant's request on the date proposed by Tenant;
(2) Before conducting any audit, Tenant must pay the full amount of
Operating Expenses billed and must not be in default of any other provision of
this Lease;
(3) Tenant may review only those records of Landlord that are specifically
related to Operating Expenses. Without limiting the generality of the foregoing,
Tenant may not review any other leases, and/or tenant agreements, cross easement
agreements or Landlord's tax returns or financial statements;
(4) In conducting an audit, Tenant must utilize an independent certified
public accountant experienced in auditing shopping center records, subject to
Landlord's reasonable prior approval;
(5) The audit shall be conducted at a suitable business environment
location determined solely by Landlord in Fayette County, Kentucky;
(6) Upon receipt thereof, Tenant shall deliver to Landlord a copy of the
audit report and all accompanying data;
(7) Tenant shall keep confidential all agreements involving the rights
provided in this section and the results of any audits conducted hereunder.
Notwithstanding the foregoing, Tenant shall be permitted to furnish the
foregoing information to its auditors to the extent that this information is
required to perform their audit services for Tenant;
(8) The audit shall be conducted in accordance with generally accepted
rules of auditing practices;
(9) Tenant may not conduct an audit more than once each calendar year.
Tenant may audit records with respect to each Lease year only once. No audit
shall cover a period in time in excess of two (2) calendar years immediately
preceding the audit; and
(10) In the event that Tenant's audit reveals an overpayment by Tenant of
five percent (5%) or more, Landlord will reimburse Tenant for the cost of such
audit not to exceed $500. In any event, Landlord shall credit Tenant's account
for the full amount(s) of any overpayments by Tenant.
(c) The term "Operating Expenses" means and includes all amounts, expenses
and costs of whatsoever nature incurred because of or in connection with the
ownership, management, operation, repair or maintenance of the Center, any
portion thereof and/or all additional facilities which may be added to the
Center and Landlord's personal property used in connection therewith, excepting
only replacement of capital investment items and specific costs for special
items or services billed to and paid
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by specific tenants. Operating Expenses shall be determined on an accrual basis
in accordance with generally accepted accounting principles consistently applied
and shall include, but shall not be limited to, the following:
(1) Wages, salaries, related taxes, insurance fees, benefits and
reimbursable expenses of all personnel engaged in operating, managing, repairing
and maintaining the Center and providing traffic control about the Center,
including without limitation:
(i) Superintendent of the Center;
(ii) clerical and accounting staff;
(iii) window cleaners, porters, janitors, cleaners, dusters and
miscellaneous handymen;
(iv) watchmen, gardeners, caretakers, and persons engaged in
patrolling and protecting the Center;
(v) engineers, firemen, mechanics, electricians, plumbers and
persons engaged in the operation and maintenance of the heating,
air conditioning, ventilation, plumbing, electrical and
elevator, escalator systems serving the Center; and
(vi) carpenters, plasterers, painters and other persons engaged in
the operation and maintenance of the Center.
(2) All supplies, tools and materials used in operating, repairing and
maintaining the Center including the uniforms of employees specified in
subsection (1) above.
(3) Cost of all utilities for the Center, including, without limitation,
water, sewer, power, steam, gas, electricity, other fuel, heating, lighting, air
conditioning and ventilation, trash, garbage and collection fees.
(4) Cost of all maintenance, repair, janitorial and other similar service
agreements for the Center and the equipment therein and thereof.
(5) Cost of all insurance relating to the Center and its occupancy or
operations and Landlord's personal property used in connection with the Center
including, but not limited to, the insurance described in section 3.7 (a)
herein.
(6) All taxes, assessments and governmental charges and fees of whatsoever
nature, whether now existing or subsequently created, attributable to the Center
or its occupancy or operation, excluding only franchise and income taxes of
Landlord (but not excluding such taxes if imposed in the future wholly or
partially in lieu of present real estate, ad valorem or similar taxes).
(7) Costs of repairs and maintenance, excluding only such costs as are
specifically paid by the proceeds of insurance, by Tenant or by other third
parties.
(8) Intentionally deleted.
(9) A management fee not greater than five percent (5%) of gross rents for
the Center, including reimbursements for Operating Expenses other than this
management fee.
(10) Sales, use and excise taxes on goods and services, purchased or
provided by Landlord to properly manage, operate or maintain the Center.
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(11) License, permit and inspection fees (excluding those which relate
solely to other tenant space within the Center).
(12) Reasonable auditor's fees for public accounting and reimbursement for
home office accounting and data processing, but only to the extent the same are
directly related to accounting and data processing dealing directly with the
Center.
(13) Reasonable fees and expenses (including without limitation, reasonable
travel expenses) of counsel or consultants retained by Landlord in connection
with proceedings for the reduction of real estate taxes or other matters but
only to the extent that the same shall be of general benefit to tenants in the
Center.
(14) Such other expenses and costs of any nature whatsoever, whether or not
herein mentioned, which would be construed as an operating expense by a
reasonable, prudent operator of a first-class shopping center and are in
accordance with sound real estate accounting practices, and provide a direct
benefit for the operation or condition of the Center.
ARTICLE IV: USE OF PREMISES
4.1 Tenant's Use:
The Demised Premises shall be used and occupied by Tenant as a residential
real estate sales, mortgage, design, title/ closing and construction development
office and for no other use without Landlord's prior written consent. Tenant
shall comply with all rules, regulations and laws of any governmental authority
with respect to use and occupancy of the Premises. The Tenant, its employees,
agents and invitees shall comply with all reasonable rules and regulations for
the Center as may be established by the Landlord for the general benefit of all
tenants, provided that Landlord furnishes Tenant with a written copy of such
rules and regulations for the Premises.
4.2 Utilities:
The Premises shall be separately metered or submetered by Landlord for all
of Tenant's's utilities and the Tenant shall be responsible for the payment of
all charges related to electric, gas, water, telephone or other utility use.
4.3 Signs:
Tenant shall not place on any exterior door, awning, wall or window of the
Premises any sign or advertising matters without first obtaining Landlord's
written approval and consent which shall not be delayed or unreasonably
withheld. Tenant agrees to maintain such signs or advertising matter as required
and approved by Landlord in good condition and repair. All signs shall comply
with applicable ordinances or other governmental restrictions and the
determination of such requirements and the prompt compliance therewith shall be
the responsibility of the Tenant.
4.4 Continuous Occupancy:
This section intentionally deleted.
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ARTICLE V: CONSTRUCTION, MAINTENANCE AND REPAIRS
5.1 As-Is Condition:
Landlord shall deliver the Premises to Tenant in its "as-is" condition.
5.2 Tenant's Duty to Repair:
(a) Tenant shall keep and maintain in good order and condition and repair
and/or replace the Premises and every part thereof and any and all appurtenances
thereto wherever located, including, without limitation, the exterior and
interior portion of all doors, windows, store front, all plumbing and sewage
facilities within the Premises including free flow up to the main sewer line,
fixtures, heating and air conditioning and electrical systems which service the
Premises (whether or not located in the Demised Premises), sprinkler systems,
walls, floors and ceiling, meters applicable to Tenant's Premises, and all
installations made by Tenant under the terms of this Lease and any exhibits
thereto, as herein provided. Tenant shall also make any repairs required to be
made in the Premises due to burglary of the Premises or other illegal entry into
the Premises or any damage to the Premises due to a strike involving the Tenant
or its employees.
(b) Tenant shall keep and maintain the Premises in a clean, sanitary and
safe condition and in accordance with all directions, rules and regulations of
the proper officials of the government agencies having jurisdiction, at the sole
cost and expense of Tenant, and Tenant shall comply with all requirements of
law, by statute, ordinance or otherwise, affecting the Premises and all
appurtenances thereto. If Tenant refuses or neglects to commence and to complete
repairs promptly and adequately, Landlord may, but shall not be required to make
and complete said repairs and Tenant shall pay the cost thereof to Landlord as
additional rent upon demand. Tenant shall allow no nuisance to exist with
respect to the Premises.
5.3 Surrender of Premises:
At the termination of the Base Term, or any renewal term thereof, the
Tenant agrees to deliver the Premises in the same condition as received by it on
the Commencement Date (subject to the removals hereinafter required), reasonable
wear and tear excepted, and shall surrender all keys for the premises to
Landlord at the place then fixed for the payment of rent and shall inform
Landlord of all combination locks, safes and vaults, if any, in the Premises.
Tenant, during the last thirty (30) days of such term, shall remove all its
trade fixtures, and, to the extent required by Landlord by written notice, any
other installations, alterations or improvements, before surrendering the
Premises as aforesaid and shall repair any damage to the Premises caused by
removal of such items. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of this covenant shall survive
the expiration or other termination of the Lease Term. Any items remaining in
the Premises after the termination date of the Lease shall be deemed abandoned
for all purposes and shall become the property of the Landlord and the latter my
dispose of the same without liability of any type or nature. Landlord shall have
the right to show the Premises to prospective tenants the last six (6) months of
any lease term upon prior notice to Tenant, if Tenant has not negotiated a new
lease termination with Landlord.
5.4 Tenant's Alterations:
Following Tenant's construction/ installation of its tenant improvements,
Tenant shall not make structural alterations to the Demised Premises (except for
repairs as aforesaid), without first obtaining the written approval of Landlord
to such improvements, and the Landlord's approval of the manner in which said
fixtures and equipment are to be installed and located in the Demised Premises,
which approval shall not be delayed or unreasonably withheld.
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5.5 Mechanic's Liens:
If Tenant makes any alterations or improvements in the Demised Premises,
Tenant must pay for same when made. Nothing in the Lease shall be construed to
authorize Tenant or any person dealing with or under Tenant, to charge the rents
of the Demised Premises, or the property of which the Demised Premises form a
part, or the interest of Landlord in the estate of the Demised Premises, or any
person under and through whom Landlord has acquired its interest in the estate
of the Demised Premises, with a mechanic's lien or encumbrance of any kind, and
under no circumstance shall Tenant be construed to be the agent, employee or
representative of Landlord in the making of any such alterations or improvements
to the Premises, but, on the contrary, the right or power to charge land on
which the Center has been erected is denied. If a mechanic's or materialmen's
lien is threatened by any contractor or supplier, or in the event of the filing
of a notice of any such lien, Tenant will promptly pay same or take steps to
have the lien discharged or record, by bond or otherwise. If same is not removed
within twenty (20) days from the date of written notice from Landlord, Landlord
shall have the right at Landlord's option of paying or bonding the same or any
portion thereof and the amounts so paid including attorneys' fees and expenses
incurred in connection therewith and interest at the maximum rate permitted by
law on any sums paid or advanced, shall be deemed additional rent payable upon
demand. Tenant will indemnify and save Landlord harmless from and against all
loss, claim, damage, cost or expense suffered by Landlord by reason of any
repairs, installations or improvements made by Tenant and/or due to any bond
posted with regard to same, including reasonable attorneys' fees of the
Landlord.
ARTICLE VI: INSURANCE
6.1 Liability of Tenant/Landlord:
Both Landlord and Tenant shall protect each other, indemnify and save each
harmless from and against all and any liability and expense of any kind,
including reasonable attorneys' fees, arising from injuries or damages to
persons or property in, on or about the Premises arising out of or resulting in
any way from any act or omission of Tenant or Landlord, their respective agents,
invitees, servants and employees, in the use, occupancy and/or enjoyment of the
Premises and/or the Center during the term of this Lease.
6.2 Notice of Claim or Suit:
Tenant agrees to promptly notify Landlord of any claim, action, proceeding
or suit instituted or threatened against the Landlord. In the event Landlord is
made a party to any action for damages which Tenant has herewith indemnified
Landlord against, then Tenant shall pay all costs and shall provide effective
counsel in such litigation or shall pay at Landlord's option, the attorneys'
fees and costs incurred in connection with said litigation by Landlord.
6.3 Liability Insurance: This section intentionally deleted.
6.4 Failure to Procure Insurance:
In the event Tenant shall fail to procure insurance required under this
Article VI, and fail to maintain the same in force continuously during the term,
or renewal thereof, Landlord shall be entitled to procure the same and Tenant
shall immediately reimburse Landlord for such premium expense.
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6.5 Increase in Fire Insurance Premium:
Tenant agrees not to keep upon the Premises any articles or goods which may
be prohibited by the standard form of fire insurance policy. It is agreed
between the parties that in the event the insurance rates applicable to fire and
extended coverage insurance covering the within Premises shall be increased by
reason of any use of the Premises made by the Tenant, then Tenant shall pay to
Landlord such increase in insurance as shall be occasioned by said use.
ARTICLE VII: FIRE OR OTHER CASUALTY
7.1 Partial Destruction:
In the event of the partial destruction of the Demised Premises by fire or
any other casualty, Landlord shall restore or repair the Demised Premises, and
Landlord shall expend such sums as required to repair or restore the Demised
Premises to the condition they were in immediately prior to the date of the
destruction; provided, Landlord shall not be obligated to expend any sums in
excess of the insurance proceeds received by Landlord as a result of such damage
or destruction. A just and proportionate part of the rent payable by Tenant to
the extent that such damage or destruction renders the Demised Premises
untenantable shall abate from the date of such damage or destruction until such
Premises are repaired or restored. Landlord agrees to notify Tenant in writing
of its plans and repair schedule within two weeks of such partial destruction.
7.2 Substantial Destruction:
If the Demised Premises shall be so damaged by fire or other casualty or
happening as to be substantially destroyed, then Landlord shall have the option
to terminate this Lease by giving Tenant written notice within one hundred
eighty (180) days after such destruction, and any unearned rent shall be
apportioned and returned to Tenant. If Landlord does not elect to cancel this
Lease as aforesaid, then the same shall remain in full force and effect and
Landlord shall proceed with all reasonable diligence to repair and replace the
Demised Premises to the condition they were in prior to the date of such
destruction within one hundred eighty (180) days after such destruction, and for
any period of time the Premises may be rendered untenantable, the rent shall be
abated to the same extent. Landlord agrees to notify Tenant within one hundred
eighty (180) days after such substantial destruction to inform Tenant of its
election to rebuild the Premises in like kind or form.
7.3 Rights of Landlord's Lender:
Notwithstanding anything contained herein to the contrary, any obligation
of the Landlord with respect to repairing or rebuilding the Premises is subject
to the prior right of the Landlord's lender to receive insurance proceeds as a
result of a fire or other casualty, with any obligation of the Landlord to be
limited to the extent insurance proceeds are received and retained by the
Landlord for such repair or rebuilding after the Landlord's exercise of its
right to receive insurance proceeds.
7.4 Right of Termination:
Notwithstanding anything else to the contrary contained in this Article VII
or elsewhere in this Lease, Landlord, at its option, may terminate this Lease on
thirty (30) days notice to Tenant given within one hundred eighty (180) days
after the occurrence of any one of the following: (i) The Premises and/or the
Center in which the Premises are located shall be damaged or destroyed as a
result of an occurrence that is not covered by Landlord's insurance; or (ii) the
Premises shall be damaged or destroyed during the last year of the Base Term or
Option Term; or (iii) any or all of the Demised Premises or other leased
premises or Common Areas of the Center are damaged (whether or not the Premises
are damaged) to
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such an extent that in the commercially reasonable judgment of the Landlord, the
Center cannot be operated as an economically viable unit.
7.5 Tenant Trade Fixtures:
In the event of the partial or substantial destruction of the Demised
Premises due to fire or other casualty, Landlord shall not be liable to Tenant
for damages to Tenant's business or for damage to or replacement or repair of
Tenant's personal property (including, without limitation, inventory, trade
fixtures, floor covering, furniture and other property removable by Tenant under
the provisions of this Lease) or to any leasehold improvements installed in the
Demised Premises, all of which damage, replacement or repair shall be undertaken
and completed by Tenant promptly, except in the case of gross negligence by
Landlord.
ARTICLE VIII: ASSIGNMENT AND SUBLETTING
8.1 Tenant Assignment:
Tenant shall not assign, sublet, transfer or encumber this Lease without
the prior written consent of Landlord and Landlord's lender, which consent may
not be unreasonably withheld or delayed. Landlord shall base its consent upon
several factors, including but not limited to financial strength and general
reputation of transferee, market compatibility of transferee's business with
existing tenants and exclusive rights granted to other tenants by Landlord. In
the event that Landlord consents to any request to assign, sublet, transfer or
encumber this Lease, Tenant shall remain liable under this Lease unless Landlord
has issued an explicit written release of Tenant and the assignee, sublessee,
transferee or lienholder has expressly assumed Tenant's obligations hereunder in
writing.
8.2 Bankruptcy, Etc.
Neither this Lease, nor any interest therein, nor any estate created
hereby, shall pass to any trustee or receiver in bankruptcy with respect to the
Tenant, nor to any other receiver or assignee for the benefit of creditors of
Tenant or otherwise by operation of law.
ARTICLE IX: DEFAULT AND RE-ENTRY
9.1 Events of Default:
The occurrence of any of the events described in subparagraphs 9.1.1
through 9.1.10, inclusive, of this paragraph 9.1, shall be and constitute an
Event of Default under this agreement.
9.1.1 Failure by Tenant to pay in full any rental or other sum payable hereunder
within five (5) days of receipt of written notice of nonpayment from Landlord.
9.1.2 Default by Tenant in the observance or performance of any of the terms,
covenants, agreements or conditions contained in this Lease, other than as
specified in subparagraph 9.1.1 of this paragraph 9.1 (which pertain to a
failure to pay any rental or other sum on a timely basis), for a period of
thirty (30) days after Tenant's receipt of written notice thereof from Landlord.
9.1.3 Filing by or against Tenant of a voluntary or involuntary petition for any
relief under the Bankruptcy Act, as amended, or under any other insolvency act,
law, rule or regulation, State or Federal,
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now or hereafter existing, or any action by Tenant indicating consent to,
approval of, or acquiescence in, any such petition or proceeding; the
application by Tenant for, or the appointment with Tenant's consent or
acquiescence, of a receiver or trustee of Tenant, for all or a substantial part
of property of Tenant; the making by Tenant of any general assignment for the
benefit of creditors of Tenant; or the inability of Tenant, or the admission of
Tenant of the inability thereof, to pay the debts of Tenant as such mature.
9.1.4 This section intentionally deleted.
9.1.5 The Premises, or Tenant's interest therein, are levied upon or attached
under process against Tenant and same is not satisfied or dissolved within
forty-five (45) days after notice from Landlord to Tenant to obtain satisfaction
thereof.
9.1.6 This section intentionally deleted.
9.1.7 Any construction, changes or alterations on the Premises without the prior
written consent of Landlord.
9.2 Remedies:
Whenever any Event or Default shall have happened and be existing, Landlord
may, to the extent permitted by law, take any one or more of the remedial steps
described in subparagraphs 9.2.1 through 9.2.5, inclusive, of this paragraph
9.2, subject, however to the right, title and interests of any lender of the
Landlord.
9.2.1 Landlord may, at its option, subject to all legal duties to mitigate its
damages, declare all installments of Minimum Rent as adjusted at the time of an
Event of Default for the remainder of the lease term, to be immediately due and
payable, whereupon the same shall become immediately due and payable.
9.2.2 Landlord may re-enter and take possession of the Premises and improvements
without terminating this Lease, and sublease in their entirety the same for the
account of Tenant, holding Tenant liable for the difference in the rent and
other amounts actually and indefeasibly paid by such sublessee to Landlord in
such subletting and the rents and other amounts payable by Tenant hereunder.
9.2.3 Landlord may terminate the lease term, exclude Tenant from possession of
the Premises and improvements and lease the same to another, holding Tenant
liable for all rent and other amounts payable by Tenant hereunder which are not
recovered under the subsequent Lease with another.
9.2.4 Landlord may take whatever action at law or in equity may appear necessary
or desirable to collect the rent and other amounts then due and thereafter to
become due or to enforce performance and observance of any obligation,
agreement, or covenant of Tenant under this Lease, and in connection with such
actions, to recover any damages to Landlord for Tenant's violation or breach of
this Lease.
9.3 No Remedy Exclusive:
No remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative, and shall be in addition to every other remedy given
under this Lease or now or hereafter existing at law or in equity or by statute.
No delay or omission by Landlord to exercise any right or power accruing upon
any default of
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Tenant shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised by Landlord at any time,
from time to time and as often as may be deemed expedient. In order to entitle
Landlord to exercise any remedy reserved to it in this Article IX, it shall not
be necessary to give any notice, other than such notices as is herein expressly
required by this Lease.
9.4 Attorneys' Fees and Expenses:
In the event that Landlord shall be required to engage legal counsel for
the enforcement of any terms of this Lease, whether such employment shall
require institution of suit or other legal services required to secure
compliance on the part of Tenant, Tenant shall be responsible for and shall
promptly pay to Landlord reasonable attorneys' fees, and any other expenses
incurred by Landlord as a result of such default. Further all reasonable
expenses incurred by Landlord in reletting or subletting the Premises and in
preparing the Premises for reletting or subletting shall be promptly repaid by
Tenant.
ARTICLE X: COMMON AREAS
10.1 Control of Common Areas:
All sidewalks, ramps, landscaped areas, parking areas, and other Common
Areas and facilities provided by Landlord for the common use of tenants of the
Center and their agents, employees and customers, shall at all times be subject
to the exclusive control and management of Landlord, and Landlord shall have the
right from time to time to establish, modify and enforce reasonable rules and
regulations with respect to the use of all such Common Area and facilities.
Landlord shall have the right to operate and maintain the same in such manner as
Landlord, in its sole discretion, shall determine from time to time, including,
without limitation, the right to employ all personnel and to make all rules and
regulations pertaining to and necessary for the proper operation and maintenance
of said Common Areas and facilities. No auction, fire or bankruptcy sales may be
conducted in the Demised Premises without the previous written consent of
Landlord. Tenant shall not use the sidewalks adjacent to the Demised Premises or
any other Common Areas for business purposes without the previous written
consent of Landlord; all merchandise and coin vending machines of any
description shall be kept within the Demised Premises. Landlord shall have the
exclusive right at any and all time to close any portion of the Common Areas for
the purpose of making repairs, and changes or additions thereto, and to change
the size, area or arrangement of the parking areas or the lighting thereof
within or adjacent to the existing areas. In the event that the lighting
controls for the Common Areas shall be located in the Premises, then Landlord in
such event shall have the right to enter the Premises for the purpose of
adjusting or otherwise dealing with the said controls as required. Landlord
shall be responsible for keeping all common areas clean and in first class
condition.
ARTICLE XI: EMINENT DOMAIN
11.1 Partial Taking:
If a portion of the Demised Premises shall be taken for public improvements
or otherwise, under the exercise of the right of eminent domain or acquired by
conveyance in lieu thereof and if Tenant determines that the Premises shall
continue to be reasonably suitable for the use which is herein authorized, then
this Lease shall continue in full force and effect except the Minimum Rent shall
be reduced from the date of such taking in direct proportion to the reduction in
Rentable Area within the Premises.
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11.2 Substantial Taking:
If the Demised Premises hereby leased or a part thereof sufficient to
render the remainder wholly unfit for the use herein authorized shall be
condemned or acquired by grant or otherwise, for the widening of streets or for
other public improvements, or shall otherwise be taken in the exercise of the
right of eminent domain or acquired by conveyance in lieu thereof, Tenant shall
have the right, at Tenant's option, to terminate and cancel this Lease on thirty
(30) days prior written notice to Landlord and Landlord's lender, and, under
this Article XI, Tenant shall be liable only for rents and other charges accrued
and earned to the date of surrender of possession of the Premises to Landlord
and for the performance of other obligations maturing prior to said date.
11.3 Award:
Tenant shall not be entitled to participate in or receive any part of the
damages or award which may be paid to or awarded to Landlord by reason of a
taking or conveyance in lieu thereof under this Article XI except: (i) where
said award shall provide for moving or other reimbursable expenses for the
Tenant under applicable statute, (ii) where said award relates to leasehold
improvements paid for by Tenant, and (iii) where said award for moving or other
reimbursable expenses in no manner decreases the amount to be paid to or awarded
to Landlord.
ARTICLE XI: GENERAL PROVISIONS
12.1 Landlord's Right of Entry:
Landlord reserves the right at all reasonable times during the term of this
Lease for Landlord or Landlord's agents to enter the Premises upon at lease
twenty-four (24) hours prior notice to Tenant except in the event of an
emergency for the purpose of inspecting and examining the same, and to show the
same to prospective purchasers or tenants, and to make such repairs,
alterations, improvements or additions as Landlord may deem necessary or
desirable provided reasonable notice is given to Tenant by Landlord or its
representative. During the one hundred eighty (180) days prior to the expiration
of the term of this Lease or any renewal term, Landlord may exhibit the Premises
to prospective tenants, and place upon the Premises the usual notices
advertising the Premises for lease, as the case may be, which notices Tenant
shall permit to remain thereon without molestation. If Tenant shall not be
personally present to open and permit an entry into the Premises, at any time,
when for any reason an entry therein shall be necessary or permissible, Landlord
or Landlord's agents may enter the same by a master key, or may forcibly enter
same, without rendering Landlord or such agents liable therefore, and without in
any manner affecting the obligations and covenants of this Lease. Nothing herein
contained, however, shall be deemed or construed to impose upon Landlord any
obligation, responsibility or liability whatsoever for the care, maintenance or
repair of the Premises or any part thereof, except as otherwise herein
specifically provided.
12.2 Quiet Enjoyment:
Landlord agrees that, if the Minimum Rent and all other sums due Landlord
under this Lease are being paid in the manner and at the time prescribed and the
covenants and obligations of the Tenant are being all and singularly kept,
fulfilled and performed, Tenant shall lawfully and peaceable have, hold,
possess, use and occupy and enjoy the Premises so long as this Lease remains in
force, without hindrance, disturbance or molestation from Landlord, subject to
the specific provisions of this Lease.
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12.3 Waiver:
Waiver by Landlord of any default, breach or failure of Tenant under this
Lease shall not be construed as a waiver of any subsequent or different default,
breach or failure. In case of a breach by Tenant of any of the covenants or
undertakings of Tenant, Landlord nevertheless may accept from Tenant any payment
or payments hereunder without in any way waiving Landlord's right to exercise
the right of re-entry hereinbefore provided for by reason of any other breach or
lapse which was in existence at the time such payment or payments were actually
accepted by Landlord.
12.4 Trade Fixtures:
At the expiration of this Lease or any renewal thereof, provided Tenant is
not in default, Tenant shall have the right to remove any trade fixtures
installed by Tenant on the Premises, provided Tenant shall promptly repair any
damage to Premises caused by such removal.
12.5 Subordination:
Tenant agrees and acknowledges that its acceptance and execution of this
Lease shall also be construed as a subordination of all of its right, title and
interest in and under this lease to the lien of any mortgages, or the lien
resulting from any other method of financing or refinancing, now or hereafter in
force against the Mixed Use Center of which the Demised Premises are a part or
against any buildings hereafter placed upon said real estate of which the
Demised Premises and the Mixed Use Center are a part. Upon the request of
Landlord, Tenant agrees to execute any other documents which Landlord and/or its
lender deem appropriate, to further evidence and/or confirm such subordination,
provided that such documents do not modify or amend this Lease.
12.6 Notices:
All notices by either party to the other shall be made by hand delivery, by
posting such notice (if to Tenant) at the Demised Premises, or by depositing
such notice in the certified mail of the United States of America, return
receipt requested, and such notice shall be deemed to have been served on the
date of hand delivery, posting (if to Tenant) or such depositing in the
certified mail unless otherwise provided. All notices shall be addressed as
follows:
If to Landlord: RML Construction, LLP
3399 Tates Creek Road
Lexington, Kentucky 40502
Attn: D. Ray Ball
If to Tenant: Dominion Homes of Kentucky, LTD
10035 Forest Green Boulevard
Louisville, KY 40223
Attn: Steve George
And copy to: Dominion Homes, Inc.
5501 Frantz Road
Dublin, OH 43017-7502
Attn: Robert A. Meyer, Jr., Esq.
or at such other address as the parties may from time to time designate in the
manner provided in this paragraph 12.6.
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12.7 Recording:
Tenant, upon request of Landlord, shall join in the execution of a
memorandum of this Lease for the purpose of recordation at Landlord's sole cost.
Such memorandum shall be in a form and content which is acceptable to Landlord
and shall describe the parties, the Premises, shall incorporate the terms of
this Lease by reference and include such other provisions as Landlord deems
appropriate to effectuate the purpose of such recordation. The Tenant shall not
record this Lease without the prior written consent of Landlord.
12.8 Amendment:
All amendments to this Lease shall be in writing and executed by the
parties or their respective successors in interest.
12.9 Documentation; Right to Cure:
Tenant does covenant and agree to execute and deliver to Landlord within
twenty (20) days from the date of request such supplemental documents as may be
requested and/or required by the Landlord or the lender of the Landlord in
connection with the Lease Agreement, including estoppel certificates, and
Subordination, Non-Disturbance and Attornment Agreements, or any such other form
as may be requested or required by Landlord or the said lender, which documents
shall be in a form and content which is acceptable to Landlord and/or the lender
of Landlord, provided that such documents do not modify or amend this Lease, and
may include information as to any modifications of this Lease, date of
commencement of term and termination date of this Lease, and whether or not
Landlord is in default hereunder. Any such document may be relied upon by any
prospective purchaser or prospective tenant of the Demised Premises, or any
lender or prospective lender of the Landlord, or any assignee or prospective
assignee of any lender thereof. If Tenant fails or refuses to furnish such
document within ten (10) days of Landlord's or Landlord's lender's request for
same, it will be conclusively presumed that this Lease is in full force and
effect in accordance with its terms and the Landlord is not in default.
12.10 Holding Over:
Any holding over after the expiration of the term with the consent of
Landlord shall be construed to be a tenancy from month to month at the rents
herein specified. Any holding over after the expiration of the term without the
consent of Landlord shall be deemed to be a tenancy at will.
12.11 No Partnership:
It is understood that Landlord does not in any way or purpose become a
partner or joint venturer with Tenant in the conduct of Tenant's business.
12.12 Partial Invalidity:
If any term or condition of this Lease or the application thereof to any
person or event shall to any extent be invalid and unenforceable, except for
Tenant's covenant to pay rent hereunder, the remainder of this Lease and the
application of such term, covenant or condition to persons or events other than
those to which it is held invalid or unenforceable shall not be affected and
each term, covenant and condition of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
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12.13 Successors:
The provisions, covenants and conditions of this Lease shall bind and inure
to the benefit of the legal representatives, successors and assigns of each of
the parties, except that no assignment or subletting by Tenant without the
written consent of Landlord shall vest any right in the assignee or sublessee of
Tenant.
12.14 Governing Law:
The Lease shall be governed by, and construed in accordance with, the laws
of the Commonwealth of Kentucky.
12.15 Accord and Satisfaction:
No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly Minimum Rent and other payments due hereunder shall be deemed to be
other than on account of the earliest rent or other payments due, nor shall any
endorsement or statement or any check or any letter accompanying any check or
payment as rent or other payment be deemed an accord and satisfaction; and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such rent or payment or pursue any other remedy
provided for in this Lease. Payments tendered by Tenant to Landlord may be
applied by Landlord to any sums due and owing by Tenant in any order as Landlord
may, in its sole discretion, elect.
12.16 Landlord's Exculpatory Clause:
The term "Landlord" as used in this Lease means only the fee simple owner
or ground lessee for the time being of the land upon which the Demised Premises
have been, or are to be, constructed. In the event of any sale or sales of such
land, or assignment, transferee, or other conveyance of its rights under this
Lease, the Landlord shall be and hereby is entirely freed from and relieved of
all covenants and obligations of Landlord hereunder and it shall be presumed
between the parties that the purchaser and/or any assignee, transfer or other
recipient of a conveyance of Landlord's rights under this Lease, has assumed and
agreed to carry out any and all covenants and obligations of the Landlord
hereunder.
If the Landlord or any successor in interest or assignee shall be an
individual, joint venture, tenancy in common, firm, partnership, general or
limited, or corporation, it is specifically understood and agreed that there
shall be no personal liability on such individual or the members of the joint
venture, tenancy in common, firm, limited or general partnership or corporation,
with respect to any of the covenants or conditions of this Lease, and the Tenant
shall look solely to the Landlord's equity in the fee simple or leasehold estate
for the satisfaction of the remedies of the Tenant in the event of a breach by
the Landlord of any of the terms, covenants and conditions of this Lease to be
performed by the Landlord.
Notwithstanding the provisions of this paragraph 12.16, Tenant expressly
agrees that the Landlord's lender shall not be held subject to any liability or
obligation to Tenant under this Lease or otherwise, unless and until such lender
obtains title to the Demised Premises as a result of foreclosure or otherwise;
and, in such event, Landlord's lender shall be subject only to those liabilities
or obligations arising subsequent to the date lender obtains title to the
Demised Premises.
12.17 Joint and Several Liability:
If this Lease is executed by more than one party constituting Tenant, all
such parties shall be jointly and severally liable for the payment and
performance of all obligations of Tenant hereunder.
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12.18 Substitution of Premises:
Landlord reserves the right on thirty (30) days written notice to Tenant to
substitute for the Premises, at the same rental as required of Tenant herein,
including adjustments, and also including additional rents as may be
appropriate, other comparable premises located in the Center for all uses and
purposes as though originally leased to Tenant at the time of execution of this
Lease and subject to all terms and provisions thereof. In the event Landlord
elects to cause such substitution of Premises, Landlord agrees to pay all
reasonable expenses of Tenant incidental thereto.
12.19 Special Stipulations: N/A
12.20 Hazardous Waste:
Tenant shall not use or permit the use of the Demised Premises for the
generation, storage, treatment, use, transportation or disposal of any chemical,
material, or substance which is regulated as toxic or hazardous or exposure to
which is prohibited, limited, or regulated by any federal, state, regional,
local or other governmental authority or which, even if not so regulated, may or
could pose a hazard to the health and safety of the other tenants and occupants
of the Center, any part thereof or any adjacent property ("Hazardous
Substance"). Tenant hereby represents and warrants to Landlord that it does not
use any Hazardous Substances in connection with its business to be conducted in
the Demised Premises, and that Tenant shall immediately notify Landlord if
Tenant becomes aware of the presence of any Hazardous Substances within or about
the Demised Premises or the Center. In the event of any use in violation of this
provision, Tenant will remove, or cause to be removed, such material at its own
expense and will indemnify Landlord for any loss or expense, including
reasonable attorneys' fees, it suffered as a result of the violation. Tenant's
liability for such indemnification is not limited by an exculpatory provision in
this Lease, and shall survive any cancellation or termination of this Lease or
transfer of Landlord's interest in all or any portion of the Center.
12.21 Real Estate Commission:
Each of the parties hereto warrant to the other that it has not obligated
the other party for any finders, brokers or other agents fees in connection with
this Lease and both parties shall indemnify and hold each other harmless from
and against any and all claims for such fees alleged to have been incurred by
Tenant. Landlord agrees to pay a real estate commission to the sole Broker
involved in this Lease, Isaac Commercial Properties, Inc., as per separate
agreement.
12.22 Effective Only Upon Execution:
The submission of this Lease by one party to the other for examination,
review or negotiation does not constitute a reservation of or offer or option
for the Premises. Notwithstanding any provision in this Lease to the contrary,
this Lease shall not be effective nor shall either party be legally bound until
final execution of this Lease by both Landlord and Tenant.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and date first above written
LANDLORD:
RML CONSTRUCTION, LLP
a Kentucky limited liability partnership
BY: /s/ Ray Ball
-----------------------------------
Ray Ball
ITS: Member
-----------------------------------
TENANT:
DOMINION HOMES OF KENTUCKY, LTD
BY: Dominion Homes of Kentucky GP, LLC
BY: /s/ Stephan M. George
--------------------------------
Stephan M. George
ITS: President
COMMONWEALTH OF KENTUCKY
COUNTY OF FAYETTE
The foregoing Lease was subscribed, sworn to and acknowledged before me on
this the 13th day of September 2003, by Ray Ball as member for and on behalf of
RML Construction, LLP.
/s/ Kathryn Dietchman
----------------------------------------
NOTARY PUBLIC, STATE AT LARGE
My Commission Expires:March 11, 2007
COMMONWEALTH OF KENTUCKY
COUNTY OF FAYETTE
The foregoing Lease was subscribed, sworn to and acknowledged before me on
this the 26th day of September 2003, by Stephan M. George as President of
Dominion Homes of Kentucky, GP, LLC, as General Partner of Dominion Homes of
Kentucky, LTD.
/s/ Kathryn Dietchman
----------------------------------------
NOTARY PUBLIC, STATE AT LARGE
My Commission Expires:March 11, 2007
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EXHIBIT A
SITE PLAN
[Graphic of Site Plan]
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