1
Exhibit 10.5
LEASE AGREEMENT
---------------
THIS AGREEMENT OF LEASE is made and executed at Canton, Ohio, as of
November 30, 1999 by and between XXXXXXXXXX PROPERTIES, an Ohio Partnership
(hereinafter referred to as the "Lessor"), and OHIO LEGACY CORP. (HEREINAFTER
REFERRED TO AS THE "Lessee".)
Upon the terms, covenants and conditions hereinafter set forth, Lessor
leases to Lessee and Lessee leases from Lessor, a portion of the premises
described in paragraph 1 below:
1. DESCRIPTION, CONSTRUCTION, OF IMPROVEMENTS AND USE OF PREMISES.
Lessor is the owner of certain real estate described in EXHIBIT A, attached
hereto and made a part hereof. Lessee agrees to lease approximately, 3,500
square feet of the building on said real estate together with the drive-through
banking area of approximately 800 square feet. The area being leased is more
particularly described in the diagram attached hereto and made a part hereof and
marked as EXHIBIT B. The area being leased is hereinafter referred to as the
"Premises" and shall be used for the operation of a full service financial
institution branch.
2. INITIAL TERM. The initial term of this Lease shall be for a period
of ten (10) years. Subject to Section 7 below, the term shall commence when
Lessor provides the Premises to Lessee, which Premises conform to the plans and
specifications as agreed to between the parties; however, if that date shall be
other than the first day of the month, then the original term hereof shall
commence on the first day of the month next succeeding said date. In that event,
however, Lessee shall pay the fixed Minimum Rent and other charges hereinafter
provided for the fractional month on a per diem basis (calculated on the basis
of a thirty (30) day month) until the first day of the month when the term
hereunder commences, and Lessee's occupancy during said fractional month shall
be subject to all the other covenants and conditions of this Lease. This date
shall be known as the "Commencement Date."
The term "Lease Year" is defined to mean a period of twelve (12)
consecutive calendar months. The first Lease Year shall begin on the
Commencement date and end on the last day of the twelfth (12th) month
thereafter.
Lessee covenants and agrees that it will remain obligated under this
Lease in accordance with its terms and that Lessee will not take any action to
terminate, rescind, or avoid this Lease, notwithstanding the bankruptcy,
insolvency, reorganization, composition, readjustment, liquidation, dissolution,
winding-up or other proceeding affecting Lessor or any assignee of Lessor.
Lessee will remain obligated under this lease regardless of any action with
respect to this Lease which may be taken by any trustee or receiver of Lessor or
of any assignee of Lessor in any proceeding or by any court in any proceeding.
2
This Lease shall not terminate and Lessee's duties shall not be
affected by the prohibition, limitation or restriction of Lessee's use of the
Premises, or interference with such use by any private person or corporation.
The rent and all other charges payable under this Lease shall continue to be
payable and the obligations of Lessee shall continue unaffected, for so long as
Lessor or a successor in title which takes subject to this Lease owns the
Premises, unless the requirements to pay or perform are terminated pursuant to
paragraph 11(d).
If not sooner terminated, the Lease shall terminate on the expiration
of the original term or at the end of any subsequent extension or renewal
thereof, and Lessee hereby waives notice to vacate or quit the Premises and
agrees that Lessor shall be entitled to the benefit of all provisions of law
respecting the summary recovery of possession of the Premises from a lessee
holding over to the same extent as if such notice had been given. Lessee hereby
agrees that if it fails to surrender the Premises at the end of the primary term
hereof or any extension or renewal hereof, Lessee will be liable to Lessor for
any and all damages which Lessor shall suffer by reason thereof, and Lessee will
indemnify Lessor against all claims and demands made by any succeeding Lessee
against Lessor founded upon delay by Lessor in delivering possession of the
Premises to such succeeding Lessee.
For the period of six months prior to the expiration of the term
hereof, including any extension or renewal hereof, Lessor shall have the right
to display on the exterior of the Premises the customary sign "For Rent;" and
during such period Lessor may show the Premises and all parts thereof to
prospective tenants during normal business hours.
Hereinafter, any reference in this Lease to the term of the Lease shall
include not only the primary term but, where applicable or any period prior to
surrender of the Premises as provided below.
3. RENEWAL TERM. Provided that Lessee is not in default under the terms
of this Lease, Lessee shall have the right to renew this Lease for two (2)
additional five (5) year terms by providing Lessor with notice of Lessee's
election to renew at least six (6) months prior to the expiration of the then
current lease term. Upon such renewal, any reference to the term of this Lease
shall be interpreted to include any renewal term pursuant to this section.
4. SECURITY DEPOSIT. No security deposit shall be required.
5. RENT. Lessee agrees to pay to the Lessor as a minimum base rent for
the term of this Lease as follows:
(a) The sum of $15.00 per square foot per year during Lease
Years 1 through 5 or total of $52,500.00 per year payable $4,375.00 monthly in
advance on the first day of each month;
3
(b) The sum of $17.25 per square foot per year during Lease
Years 6 through 10 or the sum of $60,375.00 per year payable $5,031.25 monthly
in advance on the first day of each month;
(c) The sum of $19.83 per square foot per year during Lease
Years 11 through 15 or the sum of $69,405.00 per year payable $5,783.75 monthly
in advance on the first day of each month;
(d) The sum of $22.81 per square foot per year during Lease
Years 16 through 20 or the sum of $79,835.00 per year payable $6,652.92 monthly
in advance on the first day of each month;
(e) In addition to the foregoing, lessee shall pay to Lessor
the sum of $10.00 per square foot for the drive-thru area. This rent shall not
change during the term of this Lease.
(f) If requested, Lessor shall install for the benefit of
Lessee certain leasehold improvements and personal property related to bank
operations. Such improvements shall be paid for by Lessee and Lessor shall be
entitled to 8 percent of overhead and profit on the cost of such installation.
(g) In the event at anytime during this Lease, Lessee requests
additional space and Lessor has such space available, Lessee shall be permitted
to lease such additional space as the parties may agree on the same terms and
conditions as contained herein, and such additional leased space shall be deemed
Premises subject to this Lease;
(h) In addition, the minimum base rent shall include any
sales, use or rent tax or any other similar tax assessed against rent or charges
specified in this Lease, which total sum (the "Minimum Rent") shall be due and
payable upon the execution of this Lease provided, however, so long as this
Lease is not in default, Lessor agrees to accept payments on a monthly basis as
above set forth plus any applicable sales, use or rent tax or any other similar
tax due thereon. All monthly installments of the Minimum Rent shall be paid in
advance on the first day of each calendar month, in legal tender of the United
States, without demand or set off at 0000 Xxxxxxxx Xxxx X.X., Xxxxx Xxxxxx, Xxxx
00000, Attention: Xxxxxx X. Xxxxxxxxxx (or such other place as Lessor may
designate form time to time in writing). In the event the Commencement Date or
the expiration date of this Lease is other than the first day or the last day of
the calendar month, respectively, then Lessee shall pay the Minimum Rent
hereunder for the fractional first or last month, as applicable, prorated on the
basis of a thirty (30) day month.
6. ADDITIONAL RENT. In addition to the Minimum Rent, all other payments
to be made by Lessee hereunder shall be deemed, for the purpose of securing the
collection thereof, additional rent hereunder, whether or not the same be
designated as
4
such, and shall be due and payable on demand or is such other manner and at such
other times as may otherwise be provided by the terms of this Lease, together
with applicable sales, use or rent tax or any other similar tax due thereon, and
Lessor shall have the same rights and remedies upon Lessee's failure to pay the
same as for the nonpayment of the Minimum Rent. Lessor, at its election, shall
have the right, but not the obligation, to make any payments on behalf of Lessee
or to perform any act which requires the expenditure of any sums of money as a
result of the failure or neglect of Lessee to perform any of the provisions of
this Lease and, in such event, Lessee agrees to reimburse and pay Lessor, upon
demand, all of such sums, which sums shall be deemed, for the purpose of
securing the collection thereof, additional rent hereunder.
7. CONDITIONS SUBSEQUENT. The parties acknowledge that Lessee is
attempting to obtain approval to charter a DE NOVO national bank and that the
enforceability of this Lease is subject to the satisfaction of the following
condition subsequent:
(a) The issuance of a national bank charter to a wholly owned
subsidiary to be formed by Lessee by the Office of the Comptroller of the
Currency ("OCC") for a bank branch to be located in Canton, Ohio; and
(b) Completion of Lessee's initial public offering of common stock in
the amount required by federal regulations (collectively "Conditions
Subsequent").
In the event either of the Conditions Subsequent are not satisfied, this Lease
shall be null and void and of no further force and effect.
8. COMMON AREA MAINTENANCE CHARGES. Lessee shall pay to Lessor monthly,
on the first day of each and every calendar month throughout the lease term,
plus applicable sales, use or rent tax or any other similar tax due thereon, in
addition to the Minimum Rent and as additional rent hereunder, its pro rata
share of the common area maintenance and operating expenses incurred by Lessor
for the Premises and the property of which the Premises forms a part, which
expenses shall be deemed to include, without limitation, expenses for Lessor's
maintenance of the entryways, sidewalks, parking areas, landscaping, and snow
removal. Lessor may estimate said amount and collect one-twelfth (1/12) of such
estimate monthly in advance. Utility charges deemed to be part of the common
area maintenance and operating expenses shall include charges that are not
separately metered or assessed or are only partially separated metered or
assessed and are used in common with other tenants of the property of which the
Premises forms a part. Lessee will pay to Lessor its pro rata share of such
charges to the extent that such charges are not included under the paragraph
titled "Utilities" below. Lessee's pro rata share of common area maintenance and
operating expenses shall be the proportion which the square footage of the
Premises (excluding drive-thru) bears to the total leasable square footage of
the property of which the Premises forms a part and at the commencement of the
Lease is agreed to be 54 percent. This shall not change during the term of this
Lease unless Lessee leases more space from Lessor.
5
9. COVENANTS OF LESSEE. Lessee hereby covenants with Lessor that during
the term of this Lease:
(a) PAYMENT OF RENT. As provided in paragraph 5 above, Lessee
will promptly pay the rent when due at the office of Lessor at 0000 Xxxxxxxx
Xxxx, X.X.., Xxxxx Xxxxxx, Xxxx 00000, or at such other place as Lessor may
designate to Lessee in writing.
(b) UTILITIES. Lessee shall pay during the lease term hereof
all electrical, water, gas, sewer, telephone, and other public utility charges
in connection with its occupancy and use of the Premises which are separately
metered.
(c) REAL ESTATE TAXES. Lessee shall pay, when due in each
calendar year during the term of this Lease, its allocable share of all real
estate taxes and assessments, general and special assessments, or any other tax
imposed or levied against the Premises and the buildings and improvements
thereon ("Taxes"). In addition, and when and if applicable, Lessee shall also
pay the reasonable cost (including fees of attorneys, consultants and
appraisers) of any negotiation, contest or appeal pursued by Lessor or Lessee in
an effort to reduce any such Taxes. For the calendar year in which the term of
this Lease commences or terminates, the provisions of this section shall apply
but Lessee's liability for any such Taxes for such year shall be subject to a
pro rata adjustment based upon the number of days of such tax year falling
within the term of this Lease.
(d) PERSONAL PROPERTY TAXES. Lessee will promptly pay when due
all personal property taxes levied against all personal property of Lessee
(including but not limited to trade fixtures and equipment) in or on the
Premises.
(e) MAINTENANCE AND REPAIR. Lessee, as its sole expense, shall
keep and maintain all non-structural items on the Premises, including fixtures
and improvements thereon and personal property therein or thereon, in good
order, repair, and operating condition. Lessee will not commit or suffer to be
committed any waste upon or about the Premises, and shall promptly, as its own
cost and expense, make all necessary repairs, whether ordinary or extraordinary,
foreseen or unforeseen, to maintain the Premises, including all fixtures and
leasehold improvements thereon, as the same were in at the commencement of the
term of this Lease (ordinary wear and tear expected). Lessee shall be
responsible for all maintenance, repair or replacement of HVAC systems related
to the Premises. Lessor shall assign all warranties to all equipment to Lessee
and shall cooperate with Lessee with respect to any repair, maintenance or
warranty claim.
(f) LESSEE'S USE AND OCCUPANCY. Lessee shall occupy the
Premises upon commencement of this Lease and thereafter will continuously use
the Premises for the permitted use set forth in paragraph 1 and for no other
purpose whatsoever. Lessee will use and occupy the Premises in a careful, safe,
and proper
6
manner; will carefully control and guard all machines and equipment, and fires
that may be operated therein; and will keep all HVAC, plumbing and sewer systems
free from obstructions and will not at any time overburden or exceed the
capacity of the mains, feeders, ducts, conduits, or other facilities by which
utilities are supplied to the Premises.
(g) COMPLIANCE WITH LAWS AND REGULATIONS. Lessee will not use
or occupy the Premises for any unlawful purpose, and at its sole cost and
expense. Lessee shall comply with and shall cause the Premises to comply with:
(i) all present and future federal, state, county,
municipal and other applicable governmental statutes, laws, rules, orders,
regulations and ordinances affecting the Premises or any part thereof or the
occupation or use thereof, including specifically but not limited to CERCLA
(Comprehensive Environmental Response Compensation and Liability Act) RCRA
(Resource Conservation and Recovery Act) and OSHA (Occupational Safety and
Health Act), and those which require the making of any structural, unforeseen or
extraordinary changes, whether or not such statutes, etc., which may be
hereafter enacted, involved a change of policy on the part of the governmental
body enacting the same; and
(ii) all rules, orders and regulations of the
National Board of Fire Underwriters (or other similar organizations exercising
similar functions) in connection with the prevention of fire or the correction
of hazardous conditions which apply to the Premises.
(h) LESSOR'S ENTRY. Lessee will permit Lessor or its agents or
other representatives to enter upon the Premises, at reasonable times, to
examine the condition of the same.
(i) SURRENDER OF PREMISES. At the end of the term of this
Lease, Lessee will surrender and deliver up the Premises in as good order and
condition as the same now are, or may be put by said Lessor.
(j) RESTRICTION AGAINST MECHANIC'S LIENS. Lessee covenants and
agrees that it shall not, during the term of this Lease, permit any lien to be
attached to or upon the Premises or any part of the Premises by reason of any
act or omission on the part of Lessee. Lessee agrees to save and hold the Lessor
harmless from or against any lien or claim of lien. If any lien does attach, and
is not released within thirty (30) days after notice to Lessee, or if Lessee has
not indemnified Lessor against the lien within the thirty (30) day period,
Lessor, in its sole discretion, may pay and discharge the lien and relieve the
Premises. Lessee agrees to repay and reimburse Lessor upon demand, as additional
rent, for any amount paid by Lessor to discharge a lien within interest, at a
rate equal to ten percent (10%) per annum.
Lessee shall be responsible for preparing and filing, subject to
Lessor's review and approval, all notices of commencement and other documents
required of property
7
owners by Ohio's Mechanics Lien Law. Notwithstanding the above, Lessee may in
good faith contest any mechanic's laborers', materialmen's or other liens filed
or established against the Premises. Lessee may permit the items so contested to
remain undischarged and unsatisfied during the period of the contest and any
appeal therefrom, unless the nonpayment of the items would materially endanger
the interest of the Lessor or the Premises or any portion would be subject to
loss or forfeiture. If nonpayment would impair the Lessor's interest or subject
the Premises to loss or forfeiture, Lessee shall promptly pay satisfy and
discharge all unpaid items or secure the payment by posting a bond, in a form
satisfactory to Lessor; provided, however, that Lessee shall first notify the
Lessor of its intention to contest the lien. Lessor will cooperate fully with
the Lessee in any such contest. Lessee shall defend and hold harmless the Lessor
from any loss, cost or expenses Lessor may incur related to any contest.
(k) FIXTURES, EQUIPMENT, ADDITIONS AND LEASEHOLD IMPROVEMENTS.
Lessee will pay for all business fixtures installed in and leasehold
improvements made to the Premises for Lessee's use and as required by Lessee.
Lessee may make such leasehold improvements to the Premises as may be acceptable
to Lessor upon a showing of Lessee's reasonable need for such leasehold
improvements. All leasehold improvements (as distinguished from business
fixtures and equipment) installed in or upon the Premises at any time shall not
be removed from the Premises at any time, unless such removal is consented to in
advance and in writing by Lessor. At the expiration of this Lease (either upon
the Termination Date or upon such earlier termination as provided in this Lease
) all such leasehold improvements shall be deemed to be a part of the Premises,
shall not be removed by Lessee when it vacates the Premises, and title thereto
shall vest solely in Lessor without payment of any kind to Lessee.
So long as Lessee shall not be in default of any terms or
covenants of this Lease, all business fixtures and equipment (as distinguished
from leasehold improvements and fixtures) owned by Lessee and installed in the
Premises shall remain the property of Lessee and shall be removable at any time,
including upon the expiration of the term hereof; provided, however, that Lessee
shall repair any damage to the Premises caused by the removal of such business
fixtures and equipment, and shall restore the Premises to substantially the same
condition as it existed prior to the installation of such business fixtures and
equipment.
Notwithstanding any of the foregoing to the contrary, Lessee
shall be permitted to remove all equipment, fixtures, or leasehold improvements
relating to Lessee's drive-thru banking facilities which were paid for by
Lessee; provided, however, that Lessee shall repair any damage to the Premises
caused by the removal of such business fixtures and equipment, and shall restore
the Premises to substantially the same condition as it existed prior to the
installation of such business fixtures and equipment.
8
(l) PUBLIC LIABILITY INSURANCE. At its sole cost and expense,
Lessee will procure and maintain in force during the term of this Lease policies
of public liability and property damage insurance, covering both Lessee and
Lessor (as an additional named insured) against liability or damage to all
persons or property while in or on the Premises, the entry ways thereto, and
sidewalks and streets abutting thereon, with limits of not less than $1,000,000
in general aggregate. Such policies of insurance shall be with companies and
through brokers qualified to do business in Ohio. Each such policy shall contain
an endorsement for the benefit of Lessor as an additional named insured, and
each such policy shall contain an agreement or endorsement that such policy will
not be cancelled by the insurer without at least ten days prior notice to Lessor
and Lessee.
(m) FIRE AND EXTENDED COVERAGE INSURANCE. Lessee shall obtain
such coverage as it may desire upon all personal property located in or upon the
Premises and owned or otherwise in the possession of Lessee (including
specifically, but not by way of limitation, inventory, stock in trade,
equipment, and fixtures).
(n) LESSOR'S INSURANCE. Lessee shall pay, when due in each
calendar year during the term of this Lease, its allocable share of all Lessor's
annual premiums for the insurance maintained by Lessor for (i) a public
liability policy providing against loss and damage or injury occurring on the
Common Areas, which shall be in the amount of $2,000,000.00 coverage, and (ii)
an all risk policy of insurance which shall insure against loss or damage to the
building and any other structural improvements, which shall be in the amount of
the estimated replacement value. The parties agree that for said premium amounts
the Lessee shall pay 54 percent for same. In consideration for Lessee's payment
of its share of Lessor's annual insurance premiums, Lessor will have the Lessee
named as an "Additional Named Insured" on the policies.
(o) INDEMNITY BY LESSEE. Lessee shall indemnify, hold harmless
and defend Lessor from and against any and all claims, actions, damages,
liability and expense ( including, but not limited to, fees of attorneys and
other professional fees) in connection with:
(i) any failure of Lessee to perform its
obligations as provided in paragraph 9(g);
(ii) any loss of life, personal injury and/or
damage to property arising from out of the
occupancy or use by Lessee (or any other party
using the Premises under Lessee) of the
Premises or any part thereof, occasioned
wholly or in party by any act or omission of
the Lessee, its officers, employees,
contractors, agents or invitees; or
(iii) by any failure of Lessee to abide by or
perform any other term, covenant or condition
of this Lease.
9
(p) ASSIGNMENT AND SUBLETTING.
(i) Lessee covenants not to assign this Lease, sublet
all or any part of the Premises or allow a change in the ownership of the
leasehold interest without the price written consent of the Lessor, which
consent shall not be unreasonably withheld. An assignment for the benefit of
creditors of Lessee or by operation of law shall not be effective to transfer or
assign the Lessee's interest without and unless the Lessor first consents in
writing. If a sublease or assignment is made as provided in this section, Lessee
shall pay Lessor a charge of Two Hundred Dollars ($200.00) to reimburse Lessor
for all of the necessary legal and accounting services required. Lessee shall be
permitted with no cost to assign this Lease to a wholly owned subsidiary to be
formed by it, which subsidiary shall engage in banking services.
(ii) Any assignment or subletting by Lessee shall not
result in Lessee being released or discharged from any liability under this
Lease. As a condition to Lessor's prior written consent as provided for in this
section, the assignee(s) or subtenant(s) shall agree in writing to comply with
and be bound by all of the terms of this Lease.
(iii) Lessor's consent to any assignment,
encumbrance, subletting, occupation, lien or other transfer shall not release
Lessee from any of Lessee's obligations under this Lease or be deemed to be a
consent to any subsequent occurrence. Any assignment, encumbrance, subletting,
occupation, lien or other transfer of this Lease which does not comply with the
provisions of this paragraph shall be void.
(iv) Any assignment or sublease shall recite that it
is and shall be subject and subordinate to the provisions of this Lease, and the
termination or cancellation of this Lease shall constitute a termination and
cancellation of every assignment or sublease.
(q) LATE CHARGES. If payment due to Lessor from Lessee is not
received by Lessor within ten (10) days after the due date, a "late charge" of
$25.00 may be charged by Lessor to Lessee, as rent. The purpose of this
additional payment is to defray the expense incident to the handling of such
delinquent payments, and the fee shall be payable by Lessee to Lessor upon
demand.
(r) PAYMENT BY CHECK. Payment by check shall always be subject
to timely collection of the funds represented by the check. If any check
tendered by or on behalf of Lessee in payment of any sum due under this Lease is
dishonored and returned to Lessor for any reason, Lessee shall be charged the
sum of Twenty-five Dollars ($25.00) for each such check, which shall be payable
as rent, to defray the expense of handling, processing and bookkeeping. Tenant
shall promptly replace any dishonored check with a check which is the direct
obligation of a bank or savings and loan institution (certified check, cashier's
check, official check or money order). The amount of the replacement check shall
be in the aggregate amount of the payment
10
tendered, plus the late charges provided in paragraph 9(a) in this Lease, plus
the One Hundred Dollar ($100.00) charge required by this paragraph.
10. COVENANTS OF LESSOR. Lessor hereby covenants with Lessee that during the
term of this Lease (and, where applicable, for such further period as may be
required);
(a) QUIET ENJOYMENT. If Lessee pays the rent when due, and
keeps and performs the covenants of this Lease on the part of Lessee, Lessee
shall peaceably and quietly hold, occupy, and enjoy the Premises, during the
term of this Lease and any extension thereof, without any hindrance or
molestation by Lessor or any person or persons lawfully claiming under Lessor.
(b) WARRANTIES AS TO TITLE AND FITNESS FOR USE. Lessor, upon
the effective date of this Lease, warrants that:
(i) it is the true and lawful owner of the
Premises; and
(ii) it has good, right and full power to lease
the same in the manner aforesaid.
Except for the foregoing, this Lease is made without warranty of any kind,
express or implied, as to the fitness of the Premises, for any particular use or
purpose, and by executing this Lease, Lessee shall be deemed to have:
(i) accepted the Premises;
(ii) acknowledged that the same are in the
condition called for hereunder; and
(iii) agreed that the obligations of Lessor imposed
hereunder have been fully performed.
(c) COMMON AREA REPAIRS. Lessor shall keep the foundation, the
outer walls, the parking lot, entry ways, landscaping, and the roof of the
property of which the Premises forms a part in good repair, ordinary wear and
tear excepted, but shall not be required to make any other repairs.
Notwithstanding the above, if any damage is caused by any act, negligence or
omission of Lessee, its sublessees, assignees, invitees, licensees, contractors,
employees or agents or their respective sublessees, assignees, invitees,
licensees, contractors, employees, or agents, then, in such event, Lessee shall
remain liable. The parties acknowledge that the parking lot and building are
being constructed in a low lying area, and Lessor shall be responsible for any
repair or maintenance necessitated as a result of settling, water infiltration,
or other damage caused by such fact.
11
(d) INDEMNITY BY LESSOR. Lessor shall indemnify, hold harmless
and defend Lessee from and against any and all claims, actions, damages,
liability and expense (including, but not limited to, fees of attorneys and
other professional fees) in connection with:
(i) any loss of life, personal injury and/or damage
to property arising from or out of the occupancy or use by Lessor (or any other
party using the Premises under Lessor) of the Premises or any part thereof,
occasioned wholly or in part by any act or omission of the Lessor, its officers,
employees, contractors, agents or invitees; or
(ii) by any failure of Lessor to abide by or perform
any other term, covenant or condition of this Lease.
11. MUTUAL COVENANTS OF LESSOR AND LESSEE. Both Lessor and Lessee mutually
covenant and agree:
(a) PARTIAL DESTRUCTION. If, during the lease term and any
extensions thereto, the building or its appurtenances on the Premises are
damaged or destroyed by fire, or by any other cause, Lessor shall repair and/or
rebuild the damaged property. Repair or reconstruction shall be in conformance
with plans and designs as existed immediately before the damage or destruction
occurred, subject to changes as may be reasonably attributable to governmental
restriction or inability to obtain like materials or labor, or other causes
(other than financial), beyond the control of Lessee. All proceeds of insurance
carried on the improvements pursuant to paragraph 9(m) of this Lease, payable as
a result of any damage or destruction, shall be payable jointly to Lessor and
Lessee and used only for the purpose of such repair or rebuilding. Lessor shall
restore, restore, repair and/or rebuild the Premises including Lessee's
leasehold improvements, to the condition existing prior to the damage or
destruction. Lessee's obligation to pay rent hereunder shall not xxxxx.
(b) COMPLETE DESTRUCTION. If, during the lease term and any
extension thereto, the building on the Premises is completely destroyed by fire
or by any other cause, this Lease shall not terminate and the rent shall not be
abated unless Lessor has received the insurance funds on the Premises pursuant
to paragraph 9(m) above and Lessee is unable to recommence its operations within
150 days of the casualty, in which event, Lessee may terminate the Lease by
written notice to Lessor. If Lessee exercises Lessee's right to terminate the
Lease, Lessor shall refund all rent paid after the casualty and any insurance
proceeds belonging to Lessee paid to Lessor. Repair or reconstruction shall be
in conformance with the plans and designs as existed immediately before the
damage or destruction occurred, subject to any changes as may be reasonably
attributable to governmental restriction, inability to obtain like materials or
labor or other like causes. If operations are not expected to recommence within
150 days of the date of casualty and Lessee elects not to terminate the Lease,
Lessee's rental obligation shall xxxxx from the date of casualty to
recommencement of operations.
12
(c) DEMAND FOR RENT AND LESSOR'S REMEDIES ON LESSEE'S BREACH.
(i) The occurrence of any one or more of the
following shall constitute an event or default under this Lease;
1. The filing of a petition by or against
Lessee for adjudication as a bankrupt or insolvent, or for its reorganization or
for the appointment of a receiver or trustee of Lessee's property/ any
reorganization proceedings under any provisions of the Federal Bankruptcy Code;
any assignment by Lessee for the benefit of creditors; or the taking possession
of the property of Lessee by any governmental officer or agency pursuant to the
statutory authority for the dissolution or liquidation of Lessee;
2. Failure of Lessee to pay within ten (10)
days after written demand any installment of the rent or other rental charge
required to be paid by Lessee;
3. Failure of Lessee to pay within ten (10)
days after written notice and demand any other charges payable to or on behalf
of Lessor under this Lease;
4. Lessee's failure to perform or abide by
any other term, covenant, or condition of this Lease within ten (10) days after
written notice and demand, unless the failure absolutely requires more than ten
(10) days to cure. In that event, Lessee's failure to proceed expeditiously,
continuously, and diligently to cure fully and completely the failure shall
constitute an event of default.
5. The Lessee shall abandon or vacate the
said Premises for more than 30 consecutive days due to any reason except partial
or total destruction of the Premises.
(ii) If an event of default as provided in subsection
(i) immediately above occurs, then the Lessor, in addition to all rights and
remedies granted under the laws of the State of Ohio, shall have the following
rights:
1. To re-enter and remove all persons and
property from the Premises, and the property may be removed and stored in a
public warehouse or elsewhere at the cost of and for the account and sole risk
of Lessee, all without service of notice or resort to legal process and without
Lessor or its agents being deemed guilty of trespass, or becoming liable for any
loss or damage which may be caused by the removal, Lessee absolutely waiving all
claims for direct or indirect related damages;
2. To terminate the Lease and re-let the
Premises for the account of the Lessor or, within the sole discretion of Lessor,
to retake possession of the Premises without terminating the Lease and to re-let
them for the account of Lessee. In the event that Lessor re-lets the Premises
for the account of Lessee, then
13
Lessor shall have the right to make any alterations and repairs as may be
necessary and to re-let the Premises, or any part thereof, at such rent and for
such term and subject to such terms and conditions as Lessor may deem advisable
and receive the rent. Upon each re-letting for the account of Lessee, all
rentals received by Lessor shall be applied, first to the payment of any
indebtedness other than rent under the Lease from Lessee to Lessor; second, to
the payment of any loss and expenses of the re-letting, including brokerage fees
and attorney's fees and costs of alterations and repairs; third, to the payment
of rent and other charges payable to and on behalf of Lessor due and unpaid
under the Lease; and the residue, if any, shall be held by Lessor and applied in
payment of future rent and other charges payable on behalf of Lessor as it may
become due and payable under the Lease. Lessee agrees to pay to Lessor on demand
any deficiency that may arise by reason of re-letting,, Notwithstanding any
re-letting without termination, Lessor may at any time thereafter elect to
terminate this Lease for the previous breach.
3. Lessee agrees to pay all costs, including
"court costs," and expenses of collection and reasonable attorneys' fees on any
part of the rent, sums agreed to be treated as rent and other charges payable by
Lessee that may be collected by an attorney, with or without instituting legal
action. IF Lessee fails promptly and fully to perform and comply with each and
every term, covenant, agreement, undertaking, or condition under this Lease and
the matter is turned over to Lessor's attorney(s), Lessee shall pay Lessor's
reasonable attorney's fees plus costs, where deemed necessary or appropriate by
Lessor, whether suit is instituted or not. Lessee shall not be required to
reimburse Lessor for attorney's fees and related costs in excess of $5,000.00.
(d) APPROPRIATION BY RIGHT OF EMINENT DOMAIN. If the Premises,
or substantially all thereof, shall be taken in appropriation proceedings or by
any right of eminent domain, then this Lease shall terminate and be utterly void
from the time when possession thereof is required for the public use, and such
taking shall not operate as or be deemed an eviction of Lessee or a breach of
Lessor's covenant of quiet enjoyment; but Lessee shall pay all rent due and
perform and observe all of the covenants hereof, up to the time when possession
is required for public use. Provided, however, that if only a part of the
Premises be so taken, and if eight months or more of the term of this Lease,
then remains unexpired, and if the remaining Premises can be substantially
restored within 30 days, this Lease shall not terminate, but Lessor shall, at
the sole expense of Lessee, restore the Premises as near as possible to the
condition it was in prior to such taking, the rent payable by Lessee during the
period of restoration not being reduced, and after such restoration, if any, the
entire rent herein reserved shall be paid by Lessee as herein provided during
the remainder of the term of this Lease.
Lessor shall be entitled to retain any insurance proceeds
payable in connection with the appropriation of the Premises.
If the Premises, or any part thereof, shall be taken in
appropriation proceedings or by any right of eminent domain, Lessee shall not
share any award
14
relating to the taking of any portion of the fee and Lessee's award, if any,
shall be limited to an award arising out of Lessee's interest in the Lease any
claims against the condemning authority for loss of Lessee's fixtures and
equipment (other than leasehold improvements made by Lessee to the Premises).
Lessor and Lessee agree that, in any proceedings incident to
recovery of damages resulting from any taking or condemnation, they will, at the
request of the other, join and cooperate in the prosecution of their several
respective claims for damages resulting from such taking or condemnation.
(e) RISK OF LOSS AND WAIVER OF LIABILITY. All personal
property located in or upon the Premises (including, but not limited to,
additions or improvements made by Lessee to the interior of the Premises, and
Lessee's inventory, stock in trade, equipment, and fixtures) shall be at the
sole risk of Lessee.
Neither Lessee nor any assignee or subrogee of Lessee shall
have any claim or action, either at law or in equity, over and against Lessor or
its agents or employees for any loss, cost or damage to the Premises cause by or
resulting from fire, the elements, or any other cause, of whatsoever origin.
Lessor likewise agrees that no claims shall be made and that no suit or action,
either at law or in equity, shall be brought by Lessor or by any person, firm or
corporation claiming by, through, or under Lessor, against Lessee, its
successors and assigns, for any loss, cost or damage to the Premises (or to any
other buildings or appurtenances which are or may be located upon the Premises)
caused by or resulting from fire, the elements, or any other cause, of
whatsoever origin.
(f) OWNERSHIP OF IMPROVEMENTS. All equipment and business
fixtures installed in or made by Lessee to the Premises shall remain the
personal property of Lessee, any law to the contrary notwithstanding; provided,
however, that Lessor shall become the owner of all leasehold improvements and
fixtures without the necessity of payment of any kind from Lessor to Lessee
upon:
(i) the Termination Date; or
(ii) any default by Lessee in the performance of any
term, covenant or condition of this Lease as provided in paragraph 11(c); or
(iii) any governmental condemnation of the Premises.
(g) EFFECT OF LESSOR'S WAIVER. Lessor's waiver of a breach of
any covenant or condition of this Lease is not a waiver or a breach of others,
or of any subsequent breach of any one so waived. Lessor's acceptance of rent
installments after breach is not a waiver of any breach. Any failure of Lessor
to enforce rights or seek remedies upon any default of Lessee with respect to
the obligations of this Lease, or any of them, shall not prejudice or affect the
rights or remedies of Lessor in the event of any subsequent default of Lessee.
15
12. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT. In the
event Lessor determines to grant a security interest (including Mortgage,
Assignment of Rents, financing statements, and the like) in the Premises, the
Lessee hereby agrees to execute a Subordination, Non-disturbance and Attornment
Agreement in a reasonable form and substance, thereby subordinating its interest
in the Lease to the financial institution or other entity providing the
financing to Lessor ("Financing Entity"). In the event of a foreclosure or other
action by the Financing Entity, such agreement shall provide that for so long as
Lessee is not in default of this Lease, Lessee's occupancy of the Premises shall
not be affected.
13. SIGNAGE. Lessee shall be entitled to place on the side of the
canopy used for its drive-thru facilities Lessee's name as shown on the plans
and specifications. In addition, Lessee shall be entitled to install a sign in
conformity with the sign depicted on Exhibit C, attached hereto, at the location
previously agreed. On termination of the Lease, Lessee shall be entitled to
remove its sign.
14. PROHIBITION AGAINST COMPETING TENANTS. Lessor agrees that, without
Lessee's prior written approval, Lessor will not lease any other portion of the
building of which the Premises are a part to any competitor of Lessee, including
any investment banking firm, mortgage brokerage firm, financial institution, or
any other individual, institution, or entity that sells competing products or
provides competing services with Lessee.
15. ARBITRATION. In the event the parties have any dispute arising out
of this Lease, such dispute shall be submitted to a neutral arbitrator mutually
acceptable to both parties. In the event the parties cannot agree on a single
arbitrator, each party shall appoint a neutral arbitrator, and the two so
appointed shall appoint a third. A decision of the single arbitrator or of the
majority of the three arbitrators (as the case may be) shall be final and
binding on the parties. Prior to the arbitration award, the cost of a single
arbitrator shall be shared equally between the parties, and the cost of three
arbitrators shall be borne by each party bearing the cost of the arbitrator
appointed by it with the cost of the third arbitrator being shared equally
between the parties. At the time of the arbitrator(s)' award, the arbitrator(s),
as part of the award, shall specify which party is the prevailing party. The
prevailing party shall, in addition to such other relief as the arbitrator(s)
deem advisable, be entitled to recover all costs and expenses associated with
the arbitration of the matter including reasonable attorney's and experts' fees.
The arbitrator(s) may, as part of the award, determine that neither party is the
prevailing party, and, in which case, each party shall bear their own cost. In
the event a party fails to appoint an arbitrator within 15 days of demand for
arbitration, the arbitrator selected by the party demanding arbitration shall be
deemed an arbitrator mutually acceptable to both parties, and the arbitration
shall proceed accordingly.
16. NOTICES. All notices and other communications provided for under
this Lease shall be in writing and mailed or delivered:
16
if to the Lessor:
Xxxxxxxxxx Properties
0000 Xxxxxxxx Xxxx X.X.
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx
If to the Lessee:
Ohio Legacy Corp.
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: L. Xxxxxx Xxxxx
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this paragraph 16. All such notices and communications shall, when mailed, be
effective when deposited in the mail addressed as aforesaid.
17. COMMON AREAS. The common areas shall be reserved for all lessees,
and no lessee shall be permitted to use the common area for signage or
advertising or to place signage on the inside of lessee's leased premises facing
the common areas so as to solicit business. This provision shall not prohibit a
lessee from placing signage within its leased premises disclosing its hours of
operation.
18. MISCELLANEOUS.
(a) LEASE APPLICABLE TO SUCCESSORS AND ASSIGNS. This Lease and
all the covenants, terms, provisions and conditions herein contained shall inure
to the benefit of and be binding upon the heirs, legal representatives and
assigns of Lessor, and the successors and assigns of Lessee; provided, however,
that no assignment or sublease by, from, through or under this Lease in
violation of any covenant, provision, term or condition hereof shall vest in the
assigns or sublessee any right, title or interest whatever.
(b) NOTICES AND CONSENTS. All notices provided for in this
Lease shall be given in writing; and shall be delivered, in the case of Lessor,
and, in the case of Lessee, to the premises.
(c) RECORDING. If either party shall desire to record this
Lease, the parties will execute and record a short Memorandum of the Lease.
17
(d) HEADINGS. The paragraph headings are inserted only as a
matter of convenience and reference and in no way define, limit, or describe the
scope and intent of this Lease nor in any manner affect this Lease.
(e) GOVERNING LAW. This Lease shall be governed in accordance
with Ohio law.
IN WITNESS WHEREOF, the parties hereto have signed this Lease Agreement as of
the day and year first above written.
LESSOR:
XXXXXXXXXX PROPERTIES,
/s/ Xxxxxxxx Xxxxxxx An Ohio Partnership
------------------------
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------
/s/ Xxxx Xxxxx Xxxxxx X. Xxxxxxxxxx,
------------------------ General Partner
/s/ Xxxx Xxxxxxx LESSEE:
------------------------
OHIO LEGACY CORP.
/s/ Xxxxx Xxxxxxxxxxx By: /s/ L. Xxxxxx Xxxxx
------------------------ ----------------------------
President and CEO
18
STATE OF OHIO )
)ss:
COUNTY OF XXXXX )
Before me, a Notary Public, in and for said State, personally appeared
the above-named Xxxxxxxxxx Properties, by Xxxxxx X. Xxxxxxxxxx, its General
Partner, who acknowledged that he did sign the foregoing instrument in the
indicated capacities, and that the same is his free act and deed and the free
act and deed of Xxxxxxxxxx Properties.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Xxxxx, Ohio, this 24th day of November, 1999.
/s/ Xxxx X. Xxxxx
-----------------------
Notary Public
STATE OF OHIO )
)ss:
COUNTY OF XXXXX )
Before me, a Notary Public in and for said State, personally appeared
the above named Ohio Legacy Corp., by L. Xxxxxx Xxxxx, its President and CEO,
who acknowledged that he did sign the foregoing instrument and that the same is
the free act and deed of said Institution, and the free act and deed of him
personally and as such officer.
In Testimony Whereof, I have hereunto set my hand and official seal at
Canton, Ohio, this 30th day of November, 1999.
/s/ Xxxxx Xxxxxxxxxxx
--------------------
Notary Public
This Instrument Prepared By:
Xxxxxx X. Xxxxxx
Attorney at Law
Wooster, Ohio
19
EXHIBIT A
---------
Situated in the Township of Xxxxxxx, County of Xxxxx, State of Ohio,
and being part of the Southwest Quarter of Section 25, (T-11, R-9), also being
part of a tract conveyed to Xxxxxx X. Xxxxxxxxxx by a deed recorded in Official
Records Imaging Number 98031478 of the Xxxxx County Records.
Beginning at a standard county monument found at the northeast corner
of said Southwest Quarter; thence S 02 degrees 01' 57" W along the easterly
line of said Southwest Quarter, 9.99 feet to a 1/2 inch iron bar with H&A cap
found and the true place of beginning:
1. Thence continuing S 02 degrees 01' 57" W along the easterly
line of said Southwest Quarter, 470.55 feet to a 1/2 inch
iron bar with Xxxxxx cap found;
2. Thence N 87 degrees 58' 03" W along the northerly line of a
tract now or formerly owned by Xxxxxxx X. Xx. and Xxxxxxx X.
Rosedale, 181.94 feet to a 1/2 inch iron bar with Xxxxxx cap
found;
3. Thence N 15 degrees 11' 49" W along the easterly right-of-way
line of Xxxxxxxx Road, C.R. 101 (an 80 foot public right-of-
way), 425.94 feet to a 1/2 inch iron bar with Xxxxxx cap
found;
4. Thence on a curve to the right having a radius of 1862.55
feet, a central angle of 02 degrees 05' 36" , a tangent of
34.03 feet, a chord of 68.05 feet and a chord bearing of N 14
degrees 09' 01" W, an arc distance of 68.05 feet to a 1/2
inch iron bar with H&A cap found at a point of non-tangency;
5. Thence S 87 degrees 40' 57" E along the southerly line of a
tract now or formerly owned by Xxxxxxxxxx Properties, 327.07
feet to a 1/2 inch iron bar with H&A cap found and the true
place of beginning.
The above described tract of land contains 2.759 acres, of which 0.00
acres lies within the public road right-of-way as surveyed by Xxxxxxx X.
Xxxxxxxxxx, P.S. #7263 of Xxxxxxxxxx and Associates, Limited, Engineers and
Surveyors of North Canton, Ohio, in June, 1998.
The basis of bearings for this description is S 02 degrees 01' 57" W
the east line of the Southwest Quarter of Section 25 as recorded in Official
Records Imaging Number 98031478 of the Xxxxx County Records.
20
EXHIBIT B
---------
[SEPARATE PLAT OF BUILDING]
