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EXHIBIT 10.f
LEASE AGREEMENT
BY AND BETWEEN
COLLINWOOD PROPERTIES CO., LLC ("Lessor")
AND
GREAT LAKES BANK ("Lessee")
For Property Located at 00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxx
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TABLE OF CONTENTS
Access to Premises 16 Non-Liability of Lessor 17
Alterations 22 Notices/Consents 23
Applicable Laws 24 Operating Charges 6
Benefits of Assigns 24
Operation of Business 5
Care, Use and Occupancy Partial Invalidity 24
of Premises 9 Promotional Fund Charges 7
Common Areas 15 Quiet Enjoyment 24
Default 21 Rent, Fixed 7
Definitions 1/2/3/4 Rent, Payment & Demand 8
Rent, Percentage
Rent, Taxes 8
Destruction of Premises 18 Representations 23
Eminent Domain 19 Sales, Gross 8
Entire Agreement 23 Security Deposit 5
Signature/acknowledgements 25/26
Signs 7
Fixed Rent/Percentage Rent 6
Force Majeure 22
Grant of Lease 4 Sublease, Assignment/
Gross Sales 6 Stock Transfer 14
Holding Over 15 Surrender of Possession 13
Indemnity by Lessee 10 Term 5
Insurance by Lessee 10 Transfer of Title 22
Lessee's Chattels Taxes 8 Use and Restriction 5
Liability of Lessor Limited 22 Use of Terms 25
Maintenance 11 Utilities 7
Memorandum of Lease 24 Waiver of Jury Trial 22
Mortgage Subordination/ Waiver of Subrogation 17
Estoppel Certificate 20 Waiver 23
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LEASE AGREEMENT
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THIS LEASE AGREEMENT (herein called LEASE) made at Mentor, Ohio this
16th day of September, 1998 by and between GREAT LAKES BANK, herein "LESSEE" and
COLLINWOOD PROPERTIES CO., LLC, herein "LESSOR"
WITNESS AS FOLLOWS:
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ARTICLE 1. DEFINITIONS. As used herein, the words capitalized in this Article
and LEASE shall have the meaning of identity or represent the amount set forth
after each word:
A. LESSOR (name) COLLINWOOD PROPERTIES CO., LLC
(address) c/o 0000 Xxxxx Xxxx.
Xxxxxx, Xxxx 00000
(tel. no.) (000) 000-0000
B. LESSEE: (name) GREAT LAKES BANK
(address) 0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx, Xx.
(tel. no.) (000) 000-0000
C. PREMISES:
(i) Address: 00000 Xxxxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxx
(ii) Unit No. 1 Square Footage 3,268 square feet of rentable space.
The PREMISES are shown on the plot plan marked Exhibit "B" attached
hereto and made a part hereof for the sole purpose of identifying the
PREMISES and STRIP CENTER. Included in the definition of PREMISES shall
be the area used for LESSEE'S trash receptacles as designated by LESSOR
(wherever and whenever appropriate herein).
(iii) LESSEE'S SHARE: 56.05%
(iv) The Premises shall be delivered in their present "as is"
condition.
D. ORIGINAL TERM: Ten (10) Years (See Article 1.S hereof)
(i) COMMENCEMENT DATE: Delivery of actual and exclusive possession
of the PREMISES to LESSEE. (Approximately September 15, 1998)
(ii) EXPIRATION DATE: Tenth (10th) Anniversary of the last day of
the month in which the RENT COMMENCEMENT DATE occurs.
E. RENT COMMENCEMENT DATE: Thirty (30) days after the COMMENCEMENT DATE or
the date the PREMISES are opened for business, whichever is earlier.
F. FIXED RENT:
(i) During the Original Term:
Two Thousand Nine Hundred $2900.00 per month in advance on the first
day of each month without deduction or set-off.
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G. PERCENTAGE RENT: NONE
H. PERCENTAGE RENT BASE SALES AMOUNT: NOT APPLICABLE
I. OPERATING CHARGES: (initial) $4,500.00 per annum $375.00 per month
(LESSEE'S SHARE)
J. PROMOTIONAL FUND CHARGE: NONE
K. (i) SECURITY DEPOSIT: NONE
(ii) ADVANCE DEPOSIT: NONE
L. USE: Operation of a commercial bank branch and all activities
reasonably incidental thereto in the commercial banking industry.
M. EXTENDED TERM: One (1) option(s) of ten (10) ("OPTION TERM(S)")
N. EXTENDED FIXED RENT:
(i) for the EXTENDED TERM, EXTENDED FIXED RENT shall be paid by LESSEE
to LESSOR in an amount equal to the FIXED RENT or EXTENDED FIXED RENT
multiplied by a fraction, such fraction having as a numerator the CPI
for the first month of the OPTION TERM, and as a denominator the CPI
for the first month of the ORIGINAL TERM. In no event shall EXTENDED
FIXED RENT for the OPTION TERM be less than the annual FIXED RENT for
the ORIGINAL TERM nor more than 130% of FIXED RENT during the ORIGINAL
TERM.
(ii) Until the calculation provided for in the preceding Subsection can
be completed, payment of EXTENDED FIXED RENT for the OPTION TERM shall
be paid based upon the FIXED RENT for the ORIGINAL TERM. LESSOR shall
submit an invoice to LESSEE as soon after the commencement of the
OPTION TERM as to the calculation provided for in the preceding
Subsection, and LESSEE shall reimburse LESSOR for any deficiency in the
prior monthly payments based upon any increase therein, and shall
thereafter make payments accordingly to LESSOR.
(iii) If the CPI is not computed for a month required hereunder, the
amount thereof as of the closest amount thereto (with prior and
following months averaged, if necessary) shall be used. If no CPI or a
successor thereto is computed and/or published within thirty (30) days
of each such date, comparable statistics compiled by a responsible
financial periodical or recognized authority shall be used.
O. EXTENDED PERCENTAGE RENT: NOT APPLICABLE
P. STRIP CENTER: The buildings and improvements (including the PREMISES
and COMMON AREAS) comprising the commercial development situated on the
parcel of land, the legal description of which is set forth on Exhibit
"A" attached hereto and made a part hereof.
Q. COMMON AREAS: The parking (customers and employees) and service areas,
driveways and service roads, sidewalks and walkways, landscaped areas,
maintenance, meter and storage areas, utility lines and sewers, Strip
Center identification signs and other similar facilities common for all
lessees of the Strip Center and constituting a part of the Strip
Center.
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R. LESSEE'S SHARE: The percentage computed from the fraction, the
numerator of which is the number of square feet on the PREMISES and the
denominator of which is the total rentable square fee of all buildings
in the Strip Center. "Square feet in the PREMISES" and "rentable square
feet", as used herein for purposes of determining LESSEE'S SHARE solely
shall be deemed to exclude therefrom (where applicable) (i) non-sales
mezzanine areas, (ii) common areas, (iii) maintenance, meter and
storage areas, and (iv) areas used for LESSEE'S trash receptacles.
Adjustments for additions or deletions of rentable square feet shall be
made annually as of the first of the following year for the ensuing
year (not retroactive). LESSOR and LESSEE acknowledge the LESSEE'S
SHARE as of the date hereof is as set forth in Article 1. LESSEE'S
SHARES shall not increase during the ORIGINAL TERM or during the
EXTENDED TERM unless either (i) LESSOR constructs additional rentable
space in the STRIP CENTER, or (ii) LESSEE leases additional space
within the STRIP CENTER from LESSOR.
S. TERM: The ORIGINAL TERM and any extension or renewal, unless otherwise
specified, but subject to termination as provided herein. The ORIGINAL
TERM shall include, in addition to the period of time set forth in
Article 1(D) hereof, the period of time from the COMMENCEMENT DATE to
the last day of the month in which the RENT COMMENCEMENT DATE occurs,
in the event the COMMENCEMENT DATE and RENT COMMENCEMENT DATE do not
coincide.
T. LEASE YEAR: The first LEASE YEAR shall commence on the RENT
COMMENCEMENT DATE and end on the last day of the month in which the
first anniversary of the RENT COMMENCEMENT DATE occurs. Thereafter a
LEASE YEAR shall consist of twelve (12) consecutive full calendar
months commencing on the day following the close of the prior LEASE
YEAR. The twelve (12) months constituting a LEASE YEAR may be changed
with LESSOR'S prior consent, which consent shall not be unreasonably
withheld.
U. CPI: The Bureau of Labor statistics, Consumer Price Index for All Urban
Consumers for Cleveland (1996 equals 100) ("CPI"). If the CPI is not
computed for a month required hereunder, the amount thereof as of the
closest month thereto (with prior and following months averaged, if
necessary) shall be used. If no CPI or a successor thereto is computed
and/or published within thirty (30) days of each such date, comparable
statistics compiled by a responsible financial periodical or recognized
authority shall be used.
V. AFFILIATE: The family members of an individual, if the LESSEE is an
individual; the individual partners, (general and/or limited) and/or
their family members, if the LESSEE is a partnership; and any parent,
subsidiary, brother/sister corporation of LESSEE or corporations under
common control with LESSEE and/or in principal shareholders of LESSEE,
if LESSEE is a corporation (including, specifically, the parties who
sign this LEASE on behalf of the corporation or partnership, if the
LESSEE is a corporation or partnership).
W. LESSEE'S CHATTELS: Any and all stock-in trade, floor and wall
coverings, trade fixtures, furniture, furnishings, ceiling-hung light
fixtures and other adornments, special equipment and personal property
of LESSEE within the PREMISES.
X. ARTICLE HEADINGS: The ARTICLE headings and the page numbers indicated
are for information index purposes solely.
ARTICLE 2. GRANT OF LEASE.
(a) LESSOR does lease and let unto LESSEE and LESSEE does lease and take
from LESSOR the PREMISES for the TERM upon the agreements, conditions
and covenants hereof.
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(b) The use and occupation of the PREMISES by LESSEE shall include (i) the
use by LESSEE (or LESSEE'S contractor) of the area designated by LESSOR
for LESSEE'S trash receptacle.
(c) The non-exclusive use by LESSEE, its agents, customers, employees and
invitees, in common with others entitled thereto, of the COMMON AREAS.
(d) LESSOR from time to time may make additions, alterations and/or
modifications to the Strip Center so long as the same do not
significantly obstruct the public's view of the PREMISES, significantly
hamper the public's access to the PREMISES, nor significantly interfere
with the intended use of the COMMON AREAS.
(e) Notwithstanding the dimensions of the PREMISES being calculated from
exterior faces of exterior walls and the center lines of interior
walls, LESSOR may use and shall control the surfaces of the exterior
walls (excluding storefronts) and the interior walls between surfaces
for utility lines or other purposes in connection with the operation of
the Strip Center.
ARTICLE 3. USE AND RESTRICTION. The PREMISES shall be used for retail purposes
solely for the USE and for no other purpose. LESSOR agrees not to engage in or
to allow anyone other than the LESSEE to engage in the business of operating a
commercial bank or a thrift institution at the STRIP CENTER.
ARTICLE 4. OPERATION OF BUSINESS.
(a) LESSEE shall operate all of the PREMISES for the USE in keep with good
business practice and during the business hours customary in the
commercial banking business, subject, however, to restrictions imposed
by law, to union agreements, and restrictions, and except as it may be
necessary that the PREMISES be closed due to the order of any duly
constituted authority or for the purpose of making repairs or
improvements, or during the period of strikes, lockouts, emergencies or
other causes beyond LESSEE'S reasonable control, so long as LESSEE
shall make all reasonable efforts to shorten such periods.
ARTICLE 5. SECURITY DEPOSIT. This Section intentionally deleted.
ARTICLE 6. TERM.
(a) The ORIGINAL TERM of this LEASE shall commence on the COMMENCEMENT
DATE and end on the EXPIRATION DATE.
(b) LESSOR shall deliver to LESSEE and LESSEE shall accept from LESSOR
possession of the PREMISES upon the COMMENCEMENT DATE in an "as is"
physical condition.
(c) The taking of possession of the PREMISES by LESSEE shall be conclusive
evidence as against LESSEE that the PREMISES were in good and
satisfactory condition at the time such possession was so taken as
provided in Exhibit "C" and that LESSOR has performed all conditions,
if any, by it to be performed prior to such taking of possession.
(d) LESSEE is hereby granted an option to extend this LEASE for the
EXTENDED TERM(S) upon the agreements, conditions and covenants herein
set forth, provided that
(i) LESSEE shall be deemed to have exercised said Option to Extend
unless LESSEE shall notify LESSOR not later than six (6)
months prior to the beginning of the EXTENDED TERM of LESSEE'S
election not to extend (time being of the essence).
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(ii) LESSEE has at all times prior to the beginning of EXTENDED
TERM(S) (the option for which LESSEE is then exercising) fully
complied with the agreements, conditions and covenants hereof,
(iii) this LEASE is then in full force and effect,
(iv) the FIXED RATE and PERCENTAGE RENT during EXTENDED TERM(S)
(EXTENDED FIXED RENT and EXTENDED PERCENTAGE RENT) shall be as
set forth in Article 1 hereof, and
(v) this option for EXTENDED TERM(S) is personal to LESSEE and may
not be assigned to and/or exercised by any other person or
entity.
ARTICLE 7. FIXED RENT/PERCENTAGE RENT.
(a) LESSEE shall pay to LESSOR the FIXED RENT in monthly installments on
the first day of each and every calendar month in advance commencing
upon the RENT COMMENCEMENT DATE and continuing during the balance of
the TERM.
(b) If the FIXED RENT and other charges (other than PERCENTAGE RENT, if
any) are not payable for a full month, then the same shall be prorated
on a PER DIEM basis unit the applicable annual amount divided by 365
multiplied times the number of days for which the FIXED RENT and other
charges are payable.
(c) This Subsection intentionally deleted.
ARTICLE 8. GROSS SALES.
(a) This Section intentionally deleted.
ARTICLE 9. OPERATING CHARGES.
(a) OPERATING CHARGES as used herein shall further be defined as the total
cost to LESSOR of complying with LESSOR'S obligations under Article
24(a), (b), and (c) hereof (entitled Common Areas Maintenance,
Operation, Insurance and Taxes by LESSOR).
Any increase in the costs otherwise includable in OPERATING CHARGES
which are directly attributable to a Strip Center tenant's wilful
action or negligence, change of use in a unit within Strip Center or
alterations, additions, and/or improvements to a unit within Strip
Center shall be excluded from OPERATING CHARGES computations.
(b) LESSEE shall pay to LESSOR LESSEE'S SHARE of annual OPERATING CHARGES
in monthly installments in advance on the first day of each and every
calendar month commencing upon the RENT COMMENCEMENT DATE and
continuing during the balance of TERM. The initial LESSEE'S SHARE of
OPERATING CHARGES shall be as set forth in Article 1(H) hereof. Within
ninety (90) days after the end of each calendar year during the TERM,
LESSOR shall determine the actual OPERATING CHARGES for the preceding
calendar year and LESSOR shall furnish to LESSEE a statement thereof
for such year. If LESSEE'S SHARE of the OPERATING CHARGES paid by
LESSEE is greater or less than the LESSEE'S SHARE of OPERATING CHARGES
determined as aforesaid for such year, then LESSEE shall pay to LESSOR
such deficiency or LESSOR shall credit LESSEE with any excess,
whichever the case shall be, within fifteen (15) days after the
furnishing of such statement. Effective as of the first day of the new
calendar year, the current amount of
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LESSEE'S SHARE of OPERATING CHARGES shall be increased or decreased so
as to equal one-twelfth of the preceding year's LESSEE'S SHARE of
OPERATING CHARGES (adjusted to reflect any then current known charges
in such costs.)
(c) For the LEASE YEAR in which the LEASE terminates, LESSEE'S SHARE of
OPERATING CHARGES shall be determined and adjusted to the date of lease
termination as soon thereafter as possible with any amounts prepaid
refunded and any deficiencies paid within fifteen (15) days thereafter.
ARTICLE 10. PROMOTIONAL FUND CHARGE.
(a) This Section intentionally deleted.
ARTICLE 11. UTILITIES.
(a) LESSEE shall pay all charges for all utilities, including, without
limitation, electricity, gas, water and sewage, used or consumed in or
chargeable to the PREMISES directly, which LESSOR shall cause to be
separately metered to the PREMISES.
(b) In no event shall LESSOR be liable for any interruption in or failure
of the supply of such utilities to the PREMISES unless due to LESSOR'S
negligence nor shall any interruption therein or failure thereof
entitle LESSEE to any rent abatement.
ARTICLE 12. SIGNS.
(a) LESSEE shall not install, erect or maintain or permit the installation,
erection, or maintaining of any sign or signs of any kind whatsoever on
the exterior of the PREMISES or intended to be visible from the
exterior of the PREMISES except in accordance with LESSOR'S SIGN
CRITERIA. Any breach of this subparagraph shall entitle LESSOR to the
right of self-help (that is, removal of unapproved signs) after fifteen
(15) days notice to LESSEE.
(b) Notwithstanding the foregoing, if, at any time and from time to time,
after the ORIGINAL TERM only, LESSOR establishes a new uniform SIGN
CRITERIA for substantially all of the tenants in the Strip Center,
LESSEE shall, at LESSEE'S sole cost and expense, comply with such SIGN
CRITERIA (that is, remove the old sign to the extent same does not
comply and/or replace same with a sign that does comply therewith)
within ninety (90) days after notice from LESSOR of the establishment
of such new SIGN CRITERIA.
(c) As to any and all such approved signs, LESSEE shall, at LESSEE'S own
cost, comply with all municipal and governmental codes, ordinances,
regulations and rules, both present and future, applicable thereto.
ARTICLE 13. LESSEE'S CHATTELS TAXES. LESSEE shall pay all municipal, county,
state and/or federal taxes levied or assessed against LESSEE'S CHATTELS.
ARTICLE 14. RENT TAXES. This Section intentionally deleted.
ARTICLE 15. RENT PAYMENT AND DEMAND.
(a) All payments of rent and other charges payable to LESSOR shall be paid
in current United States funds at LESSOR'S address or such other place
as LESSOR may from time to time designate without any
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deduction or setoff whatsoever (except as otherwise specifically
provided in this LEASE) and without any prior demand.
(b) Every demand for rents and other charges due, wherever and whenever
made, shall have the same effect as if made at the time it falls due
and at the place of payment, and, after the service of any notice or
commencement of any suit or final judgment therein, LESSOR may receive
and collect any rents and other charges due, and such collection or
receipt shall not operate as a waiver of nor affect such notice, suit
or judgment. Any rents and other charges not paid by LESSEE within ten
(10) days of the due date shall bear interest from the due date to the
date of payment at the rate of one and one-half percent (1.5%) per
month.
(c) Rents and other charges may be rounded to the nearest dollar i.e., if
50 cents or more to the next higher dollar and if less than 50 cents to
the next lower dollar. (For example, 101.39 would be 101.00 and 202.50
would be 203.00).
ARTICLE 16. CARE, USE AND OCCUPANCY OF PREMISES,
(a) LESSEE shall use and occupy the PREMISES in a careful, safe and proper
manner and shall keep the PREMISES in a clean, safe and healthy
condition and in accordance with all applicable governmental
authorities and insurance requirements and all laws and ordinances now
or hereafter in force. Included within the foregoing shall be LESSEE'S
obligation to maintain the area designed by LESSOR for LESSEE'S trash
receptacles in a clean, safe and healthy condition and in compliance
with all applicable laws, including enclosure of such area by LESSEE if
required by law. In addition, LESSEE shall maintain a legible street
address on the rear door in accordance with applicable law, ordinances
and/or regulations.
(b) LESSEE shall not:
(i) use or allow the PREMISES to be used for auction, fire,
bankruptcy, or "lost our lease" sales,
(ii) permit the PREMISES to be used for any purpose other than as
specified herein or for any unlawful purpose or in any way
that will injure the reputation of the Strip Center,
(iii) permit the PREMISES to be occupied in whole or in part by any
other person except as permitted under LEASE,
(iv) commit or suffer to be committed any waste or nuisance in the
PREMISES or any act or thing which may disturb the quiet
enjoyment of another tenant in the Strip Center,
(v) permit the accumulation of rubbish in or around the PREMISES
other than in LESSEE'S trash receptacles therefor,
(vi) use the sidewalks or permit the usage thereof for other than
access to the PREMISES and Strip Center, nor
(vii) misuse or permit the misuse of the COMMON AREAS by LESSEE'S
agents, employees, invitees or licensees.
(c) If required by local law, ordinance, and/or regulations, LESSEE shall
maintain a key to the rear door of the PREMISES in a fire department
lock box behind the PREMISES so as to make the PREMISES accessible to
the fire department in the event of a fire.
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ARTICLE 17. INSURANCE BY LESSEE.
(a) LESSEE shall keep in full force and effect a policy of public liability
and property damage insurance with respect to the PREMISES and the
business operated by LESSEE therein in which the limits of public
liability coverage shall be not less than $2,000,000 per occurrence for
personal injury liability and $100,000 per occurrence for property
damage liability. If LESSEE'S insurance carrier provides a combined
single limit for both personal injury and property damage, then the
limit shall not be less than $2,000,000 per occurrence. Such policy
shall include LESSOR as an additional insured and shall contain a
clause that the insurer will not cancel or change the insurance without
first giving LESSOR ten (10) days prior written notice. The foregoing
dollar limits shall be reviewed and revised periodically so as to
provide adequate insurance in accordance with good Strip Center
practice.
(b) LESSEE shall keep in full force and effect adequate insurance against
fire and such other risks as are, from time to time, included in
standard extended coverage endorsements insuring (i) LESSEE'S CHATTELS
located on or with the PREMISES, and (ii) alterations, decorations and
improvements to the PREMISES made by LESSEE (whether or not
constituting part of the PREMISES).
(c) LESSEE shall keep in full force and effect a policy of plate glass
insurance in standard form covering all glass in the PREMISES.
(d) All of such insurance policies shall be underwritten by insurance
companies licensed to do business in the State of Ohio. LESSEE shall
furnish LESSOR with a certificate evidencing such coverages within
thirty (30) days after written request therefor by LESSOR.
ARTICLE 18. INDEMNITY BY LESSEE.
Commencing upon the COMMENCEMENT DATE, or, if earlier, the date upon
which LESSEE shall enter possession of the PREMISES and continuing during the
TERM, LESSEE will indemnify LESSOR and save and hold LESSOR harmless from and
against all actions, claims, damages, demands, expenses, judgments and
liabilities in connection with damage, injury or loss to person or property
resulting or occurring or arising wholly or in part by reason of LESSEE'S use or
occupancy of the PREMISES or any part thereof or LESSEE'S altering, decorating,
or improving of the PREMISES or by any act or failure to act of LESSEE, LESSEE'S
agents, contractors, employees or servants, or anyone claiming by, through, or
under LESSEE. If LESSOR shall, without fault on its part, be made a party to any
litigation commenced by or against LESSEE, LESSEE shall protect and hold LESSOR
harmless from and pay all costs, expenses, and reasonable attorney's fees
incurred or paid by LESSOR in connection with such litigation.
Commencing upon the COMMENCEMENT DATE, or, if earlier, the date upon
which LESSEE shall enter possession of the PREMISES and continuing during the
TERM, LESSOR will indemnify LESSEE and save and hold LESSEE harmless from and
against all actions, claims, damages, demands, expenses, judgments and
liabilities in connection with damage, injury or loss to person or property
resulting or occurring or arising wholly or in part by reason of LESSOR'S
construction, operation or maintenance of the COMMON AREAS or by any act or
failure to act of LESSOR, LESSOR'S agents, contractors, employees or servants,
or anyone claiming by, through, or under LESSOR. If LESSEE shall, without fault
on its part, be made a party to any litigation commenced by or against LESSOR,
LESSOR shall protect and hold LESSEE harmless from and pay all costs, expenses,
and reasonable attorney's fees incurred or paid by LESSEE in connection with
such litigation.
ARTICLE 19. MAINTENANCE.
(a) LESSEE shall keep and maintain (including applicable replacement when
necessary) in good condition and repair the interior of the PREMISES,
including but not limited to:
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(i) The heating, ventilating and air conditioning system within
the PREMISES and any portion thereof not within the PREMISES
but serving the PREMISES exclusively, including any gas supply
line serving the PREMISES to the point of connection with the
gas company meter for the PREMISES, wherever located, and to
accomplish same, LESSEE shall carry (and pay for) a
maintenance service contract with a reputable heating,
ventilating and air conditioning contractor, approved in
writing by LESSOR,
(ii) the electrical system with the PREMISES and any portion
thereof not within the PREMISES but serving the PREMISES
exclusively, including the electric supply line serving the
PREMISES to the main panel within the PREMISES where the
electric supply line enters the PREMISES,
(iii) the plumbing system, both sewage and water lines, within the
PREMISES exclusively, including the water line with the
PREMISES from the point of entrance of the water supply line
into the PREMISES, (the water meter shall be maintained by the
utility company and/or the LESSOR) and the sewage line within
the PREMISES to the point of exit from the PREMISES,
(iv) alterations, decorations and improvements (whether or not
constituting a part of the PREMISES) made and/or installed by
LESSEE,
(v) the exterior doors and windows and door and window frames,
which for purposes hereof shall be construed as part of the
interior of the PREMISES, and
(vi) areas designated by LESSOR for LESSEE'S trash receptacles.
In the event LESSEE fails to maintain the PREMISES as hereinbefore
provided, LESSOR may (but with no obligation) do so after fifteen (15)
days notice to LESSEE or immediately in emergency cases. LESSEE shall
reimburse LESSOR the cost thereof as additional rent with the next
installment of FIXED RENT.
(b) LESSOR shall keep and maintain (including applicable replacement when
necessary) in good condition and repair the exterior of the PREMISES
and the Strip Center (to the extent the same is not the responsibility
of the tenants within Strip Center), the roofs, gutters and downspouts,
the foundations and structural portions of the PREMISES and Strip
Center.
(c) Notwithstanding the foregoing, each party shall be responsible for all
repairs pertaining to the interior/exterior and/or other portions of
the PREMISES/Strip Center necessitated by the wilful action or
negligence of such party or anyone acting for or on behalf of such
party, except to the extent such repairs are covered by standard fire
and extended coverage insurance.
ARTICLE 20. ALTERATIONS.
(a) LESSEE shall have the right to make such interior alterations,
decorations and improvements to the PREMISES not constituting a part of
the building as may be proper and necessary for the conduct of its
business and for the beneficial use of the PREMISES, provided the same
do not affect the exterior or structural portion of the PREMISES and
provided further that LESSEE shall:
(i) pay all costs, expenses and charges thereof,
(ii) make the same in accordance with applicable laws and building
codes and in a good and workmanlike manner,
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(iii) cause the same to be performed by qualified contractors who
shall not create any labor or other disturbance in the Strip
Center while performing same,
(iv) fully and completely indemnify LESSOR against any mechanic's
lien or other liens or claims in connection with the taking
thereof, and
(v) not thereby diminish the value of the PREMISES or Strip
Center.
(b) LESSEE may make alterations, decorations and improvements constituting
a part of the building or affecting the exterior or structural portion
of the PREMISES with the same provisions as contained in subparagraph
(a)(i)-(v) but only after (i) obtaining LESSOR'S prior consent thereto,
and (ii) obtaining LESSOR'S consent to the contractor engaged to
perform such work, which consent shall not be unreasonably withheld.
Upon completion of any such alterations, decorations and improvements
constituting a part of the building or affecting the exterior and/or
structural portions, the same shall immediately thereupon become a part
of the PREMISES and be included in the word "PREMISES" as used in this
LEASE.
(c) Notwithstanding the fact that alterations, decorations and/or
improvements to the PREMISES made by LESSEE may constitute a part of
and be included in the word PREMISES as used in this LEASE, repair
and/or restoration of damages thereto caused by fire and/or other
casualty shall be the responsibility of LESSEE, whether or not covered
by insurance by LESSEE, unless otherwise covered by LESSOR'S insurance
(which shall not be considered primary insurance).
(d) All of LESSEE'S CHATTELS and all interior alterations, decorations and
improvements not constituting a part of the building installed in the
PREMISES by LESSEE shall remain the property of LESSEE and shall be
removed by LESSEE upon the termination of this LEASE, and LESSEE shall
make any repairs necessitated by such removal. Any thereof not removed
on or before the termination of this LEASE and surrender of possession
of the PREMISES by LESSEE shall be deemed abandoned by LESSEE and, at
LESSOR'S election, may be treated and/or disposed of by LESSOR as
LESSOR'S own property without further right or claim thereto by LESSEE,
except that LESSEE shall reimburse LESSOR for the cost of removal if
LESSOR elects to have the same removed, and LESSEE shall be liable to
LESSOR for any damages sustained by LESSOR as a result of LESSEE'S
failure to remove same.
ARTICLE 21. SURRENDER OF POSSESSION.
(a) LESSEE shall deliver up and surrender to LESSOR possession of the
PREMISES upon the termination of this LEASE broom clean and in as good
condition and repair as the same shall be on the COMMENCEMENT DATE
(loss by fire or other casualty covered by insurance carried by LESSOR
and ordinary wear and decay only expected) and deliver the keys at the
office of LESSOR or LESSOR'S agent.
(b) Notwithstanding anything contained herein to the contrary, LESSEE shall
cause the heating, ventilating and air conditioning system to be placed
in good working order as of the date of termination of this LEASE and
shall furnish to LESSOR within three (3) business days thereafter a
statement from the heating, ventilating and air conditioning contractor
providing the service contract for such system (pursuant to Article
19(a)(1) hereof) so indicating. Failure to do so shall be deemed
authorization to LESSOR on behalf of LESSEE to place the heating,
ventilating and air conditioning system in good working order at
LESSEE'S expense payable by LESSEE within thirty (30) days after
billing therefor.
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ARTICLE 22. SUBLEASE/ASSIGNMENT/STOCK TRANSFER.
(a) LESSEE shall not (i) sublet the PREMISES or any part thereof, nor (ii)
assigns this LEASE, nor (iii) transfer, or permit the transfer of, by
sale, assignment, merger, consolidation, operation of law, or
otherwise, any part or all of the corporate shares of LESSEE to other
than an AFFILIATE, if LESSEE is a corporation the stock of which is not
listed or traded on a recognized security exchange or eighty percent
(80%) of which is not owned by a corporation so listed or traded, so as
to result in a change in the person or persons owning a majority of
said corporate shares on the date of execution of this LEASE, without
in each case [that is, either (i), (ii) or (iii)] the prior consent of
LESSOR, which consent shall not be unreasonably withheld.
Notwithstanding any approved subletting, assignment or stock transfer,
LESSEE shall remain fully liable under this LEASE and shall not be
released from performance of LESSEE'S obligations hereunder unless
specifically released by LESSOR, in LESSOR'S sole discretion. LESSOR'S
consent to any sublease, assignment or transfer as described
hereinabove shall not be deemed to be a consent to or the waiver of the
right to consent to any subsequent sublease, assignment or transfer.
(b) After the ORIGINAL TERM, LESSOR shall have the right, as a condition to
the granting of LESSOR'S consent as aforesaid, to increase the annual
FIXED RENT by such amount as LESSOR shall solely determine, not
exceeding, in any event, the annual CPI INCREASE (from the 13th month
prior to the proposed effective date of the sublease, assignment or
stock transfer to the month immediately preceding same.) Any such
increase shall be effective commencing upon the first day of the month
following the effective date of the sublease, assignment or stock
transfer. LESSOR'S exercise of the foregoing right shall not be deemed
to be an unreasonable withholding of LESSOR'S consent. Notice of such
increase shall be included with LESSOR'S consent to such sublease,
assignment or stock transfer.
(c) Any request for LESSOR'S consent to a sublease, assignment or transfer
as hereinabove provided shall be accompanied by the sum of $500.00 for
LESSOR'S consideration thereof, whether or not LESSOR'S consent is
thereafter granted or denied.
(d) In the event LESSEE assigns this LEASE to an entity having a net worth
equal to or greater than the net worth of LESSEE as of the date of
execution hereof or the date of assignment and such entity has had
retail experience in the operation of a business for the USE, then
LESSOR agrees to release LESSEE from liability hereunder arising after
the date of such assignment within thirty (30) days after receipt of
verification of the information as required hereunder.
ARTICLE 23. HOLDING OVER.
LESSEE shall pay to LESSOR, upon demand by LESSOR, as liquidated
damages, one and one-quarter times the rent and other charges specified herein
applicable during the last LEASE YEAR of the TERM for any period during which
LESSEE shall hold the PREMISES after the TERM if this LEASE has expired by its
terms and not be acceleration. Any holding over by LESSEE shall be deemed on a
month-to-month basis, subject in all other respects, except as to term, to the
agreements, conditions and covenants hereof.
ARTICLE 24. COMMON AREAS MAINTENANCE, OPERATION, INSURANCE AND TAXES BY LESSOR.
LESSOR SHALL:
(a) keep and maintain in good condition and repair (including replacement
where necessary, with any replacement costs amortized over the useful
life of such replacements for the purposes of computing OPERATING
CHARGES as provided in Article 9 hereof) the COMMON AREAS (to the
extent the same are not the responsibility of LESSEE or any other
tenant within Strip Center) and operate the
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COMMON AREAS in accordance with reasonable rules and regulations
uniformly applicable prescribed by LESSOR from time to time, including
designation of areas and times for deliveries, areas for parking by the
Strip Center tenants and employees, and usage of the COMMON AREAS by
others from time to time, with or without charge, so doing as such
usage does not significantly interfere with the use of the COMMON AREAS
by LESSEE, LESSEE'S agents, customers, employees, and invitees.
Included within the term "operate" shall be the following: cleaning,
clearing debris, snow and ice removal, painting of lane markers and
parking spaces, operation of parking/traffic control signs/devices
(both on and off site), illumination, music, storm drainage; equipment
rental expense or depreciation and operating charges pertaining
thereto; fire protection; direct labor costs (excluding supervisory or
administrative personnel), whether compensation for employees of LESSOR
or LESSOR'S managing company or independent contractors, together with
all employee benefits and payroll taxes including Social Security,
workers' compensation and unemployment compensation; landscaping,
including materials and supplies; license and/or permit fees, levies,
and/or surcharges, personal property taxes; police and security;
utility charges; utility service line maintenance for which connecting
tenants are not directly responsible; water and sewage administration
and maintenance; and such other items as are reasonable and necessary
for the ongoing operation of the COMMON AREAS not specifically included
in the foregoing.
(b) keep in full force and effect:
(i) insurance covering the buildings and improvements constituting
the PREMISES and Strip Center against loss by fire and
standard extended coverage in amounts equal to at least
replacement value (with no less than eighty percent (80%)
co-insurance) and such amount of deductible as LESSOR from
shall from time to time determine appropriate,
(ii) public liability and property damage insurance with respect to
the Strip Center in which the limit of public liability
coverage shall be not less than $2,000,000 per occurrence with
respect to personal injury and $100,000 per occurrence with
respect to property damage. The foregoing dollar limits shall
be reviewed and revised periodically so as to provide adequate
insurance in accordance with good Strip Center practice, and
(iii) other insurance, such as rental, boiler, sprinkler, vandalism,
and malicious mischief, as LESSOR shall from time to time
determine appropriate.
LESSEE'S payments of OPERATING CHARGES shall in no event create any
rights in LESSEE in such insurance policies nor shall LESSEE be
entitled to the benefit of any proceeds payable thereunder. LESSEE
shall reimburse LESSOR for any increase in the cost of the foregoing
insurance coverages caused by LESSEE or LESSEE'S change of use of the
PREMISES and the same shall be excluded from OPERATING CHARGES
computation.
(c) pay all real estate taxes and assessments against the PREMISES and
Strip Center and any costs expended in contesting the amount and/or
validity thereof. The term "REAL ESTATE TAXES AND ASSESSMENTS" as used
herein shall be construed to mean the total of all real estate taxes
and assessments, special or otherwise, assessed upon or with respect to
the ownership of all or any part of the Strip Center imposed by
federal, state or local governmental authorities or any other taxing
authority having jurisdiction, by whatever name the tax may be
designated. If, due to a change in the methods of taxation, any rent,
franchise, income, profit or other tax, however designated, (herein
called OTHER TAX) may be levied against or chargeable to LESSOR
directly due to LESSOR'S interest in Strip Center in lieu of any tax
which would otherwise constitute REAL ESTATE TAXES AND ASSESSMENTS,
such OTHER TAXES shall be included in the term REAL ESTATE TAXES AND
ASSESSMENTS. LESSEE shall reimburse LESSOR for any increase in REAL
ESTATE TAXES AND ASSESSMENTS which are directly due to LESSEE'S
alterations, additions and/or
15
improvements to the PREMISES made by LESSEE or LESSOR at LESSEE'S
request and the same shall be excluded from OPERATING CHARGES
computations. Any increase in REAL ESTATE TAXES AND ASSESSMENTS due to
alterations, additions or improvements by another tenant in the Strip
Center shall be excluded from OPERATING CHARGES computations.
ARTICLE 25. ACCESS TO PREMISES. LESSOR shall have free access to the PREMISES at
all reasonable times and at any time for emergency purposes for the purpose of
examining the same or to make any alterations or repairs to the PREMISES that
LESSOR may deem necessary for its safety or preservation or that LESSOR is
required to make, and also during the last three (3) months of the TERM for the
purpose of exhibiting the PREMISES and putting up the usual notice "To Rent",
not to exceed six (6) square feet in area, which notice shall not be removed,
obliterated or hidden by LESSEE.
ARTICLE 26. NON-LIABILITY OF LESSOR. LESSOR and LESSOR'S agents, contractors,
employees, and servants shall not be liable for, and LESSEE hereby releases and
waives any and all claims for, loss or damage to persons or the business or
property of LESSEE or anyone claiming, by, through or under LESSEE, or others
within the Strip Center.
(a) occasioned by reason of:
(i) any accident or act of God within or around the PREMISES or
Strip Center.
(ii) the condition or construction of the Strip Center, including
the PREMISES except as set forth in Exhibit C,
(iii) any defect in or failure of the electrical system, the
plumbing and sewer system, and/or heating, ventilating or air
conditioning system serving the PREMISES or the building of
which the PREMISES are a part, or
(iv) water, snow or ice being upon or coming through the roof,
trapdoor, walls, windows, doors or otherwise,
unless in any such case such damage shall be due to the negligence of
LESSOR, LESSOR'S agents, contractors, employees or servants,
(b) arising by reason of the failure of LESSEE to comply with the
agreements, conditions and covenants hereof or the negligence of LESSEE
or other tenants of the Strip Center, LESSEE'S and/or their agents,
contractors, customers, employees, invitees, licensees, servants and/or
suppliers.
ARTICLE 27. WAIVER OF SUBROGATION. LESSOR and LESSEE hereby waive all claims,
rights or recovery and causes of action which either has or may have or which
may arise hereafter against the other whether caused by negligence, intentional
misconduct or otherwise, for any damage to the PREMISES or property or business
within or about the PREMISES or the building of which the PREMISES are a part or
the Strip Center caused by any of the perils covered by LESSOR'S or LESSEE'S
fire insurance with extended coverage and with vandalism and malicious mischief
endorsements, building and contents and business interruption insurance, or for
which either party may be reimbursed as a result of insurance coverage affecting
any loss suffered by it, provided, however, that the foregoing waivers shall
apply only to the extent of any recovery made by the parties hereto under any
policy of insurance now or hereafter issued and provided further that the
foregoing waivers do not invalidate any policy of insurance of the parties
hereto, now or hereafter issued, it being stipulated by the parties hereto that
the waivers shall not apply in any case in which the application thereof would
result in the invalidation of any such policy of insurance. Any additional
premium caused by this waiver of subrogation shall be paid by the party
benefitted thereby. The parties acknowledge that the use of "deductibles" may
result in limiting the effectiveness of this waiver of subrogation.
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ARTICLE 28. DESTRUCTION OF PREMISES.
(a) (i) If the PREMISES shall be damaged by fire or other insured
casualty, (herein called INSURED LOSS) but are not thereby
rendered untenantable in whole or in part, LESSOR shall, at
LESSOR'S own expense, cause such damage to be repaired, and
the rents and other charges shall not be abated.
(ii) If, by reason of such INSURED LOSS, the PREMISES shall be
rendered untenantable only in part, LESSOR shall, at LESSOR'S
own expense, cause such damage to be repaired and the rents
and other charges meanwhile shall be equitably abated.
(iii) If the PREMISES shall be rendered wholly untenantable by
reason of such INSURED LOSS and such damage could be
reasonably repaired within six (6) months, this LEASE shall
continue and LESSOR shall, at LESSOR'S own expense, cause such
damage to be repaired, and the rents and other charges
meanwhile shall xxxxx.
(iv) If (A) the PREMISES shall be rendered wholly untenantable by
reason of such INSURED LOSS and such damage cannot be
reasonably repaired within six (6) months, or (B) if such
INSURED LOSS is during the last two (2) years of the TERM to
the extent of fifty percent (50%) or more of the then value of
the PREMISES, then either party may terminate this LEASE as of
the date of such INSURED LOSS by giving notice to the other
party within sixty (60) days thereafter of such party's
election so to do. If neither party terminates this LEASE
within said sixty (60) day period, this LEASE shall continue
in full force and effect and LESSOR shall repair the PREMISES
as soon as reasonably possible and the rents and other charges
meanwhile shall xxxxx.
(v) Nothing herein contained shall alter or affect LESSEE'S
obligation to repair, replace and/or restore plate glass
and/or alterations, decorations and improvements made by or
for LESSEE to the PREMISES whether or not constituting a part
of the PREMISES.
(vi) Following any restoration as provided in subparagraph (a)(iii)
and (iv), payments of rents and other charges shall recommence
thirty (30) days after the date of redelivery of possession of
the restored PREMISES in tenantable condition to LESSEE or the
date the PREMISES are reopened for business, whichever is
earlier.
(b) In the event that:
(i) the building in which the PREMISES are situated shall be
materially damaged or destroyed by any cause not covered by
LESSOR'S insurance (herein called UNINSURED LOSS) regardless
of the length of time necessary to repair and/or restore same,
or
(ii) 50% or more of the building in which the PREMISES are situated
shall be damaged or destroyed by an INSURED LOSS, but the same
cannot reasonably be repaired within six (6) months after such
INSURED LOSS, notwithstanding the fact that the PREMISES may
be unaffected by either such UNINSURED LOSS or INSURED LOSS.
LESSOR or LESSEE may terminate this LEASE and the tenancy hereby
created by giving to the other not less than thirty (30) days nor more
than one hundred twenty (120) days notice of such party's election so
to do, which notice shall be given, if at all, within sixty (60) days
following such UNINSURED LOSS or INSURED LOSS, setting forth in such
notice the effective date of such termination.
17
(c) In the event of the material damage or destruction to the building in
which the PREMISES are situated, LESSOR reserves the right to change
the configuration of such building, provided that the PREMISES as
situated in any such new configuration shall be substantially the same
in location, dimensions and traffic flow as prior to such damage or
destruction.
ARTICLE 29. EMINENT DOMAIN.
(a) If the whole of the PREMISES or COMMON AREAS shall be acquired or
condemned by eminent domain for any public or quasi-public use or
purpose, then the TERM shall cease and terminate as of the date
possession shall be taken by such public authority.
(b) If any part of the PREMISES shall be acquired or condemned as
aforesaid,
(i) in the event that such partial taking or condemnation shall
render the PREMISES unsuitable for the business of LESSEE,
then the TERM shall cease and terminate as of the date
possession shall be taken by such public authority, or
(ii) in the event that such partial taking or condemnation is not
extensive enough to render the remaining PREMISES unsuitable
for the business of LESSEE, then LESSOR shall promptly restore
the remaining PREMISES to a condition comparable to its
condition at the time of such condemnation less the portion
lost in the taking, and this LEASE shall continue in full
force and effect with respect to the remaining PREMISES and an
equitable reduction of rents and other charges shall be made
based upon the portion lost in the taking. This LEASE shall be
thereupon terminated as to the portion of the PREMISES so
taken.
(c) If less than ten percent (10%) of the COMMON AREAS shall be acquired or
condemned as aforesaid, there shall be no change in this LEASE or
LESSEE'S obligations hereunder.
(d) If more than ten percent (10%) of the COMMON AREAS shall be acquired or
condemned as aforesaid, and if, as the result thereof, the ratio of
square feet of COMMON AREAS to ground floor square feet of the sales
area of the Strip Center buildings is reduced to a ratio below four (4)
parking spaces per 1,000 square feet, then the TERM shall cease and
terminate as of the date possession shall be taken by such public
authority, unless LESSOR shall take immediate steps toward increasing
the parking ratio to a ratio at least equal to four (4) parking spaces
per 1,000 square feet, in which event, this LEASE shall be unaffected
and shall remain in full force and effect without any reduction or
abatement or rents and other charges.
(e) In the event of the termination of this LEASE as aforesaid, all rents
and other charges due hereunder shall be paid to the date of
termination and any rents and other charges paid in advance shall be
refunded.
(f) In the event of any condemnation or taking as aforesaid, whether whole
or partial and regardless of the termination of this LEASE as
aforesaid, LESSEE shall not be entitled to any part of the award paid
for such condemnation and LESSOR is to receive the full amount of such
award, LESSEE having hereby assigned to LESSOR any right or claim to
any part thereof. Although all damages in the event of any condemnation
are to belong to LESSOR, whether such damages are awarded as
compensation for diminution in value of the leasehold or to the fee of
the PREMISES, LESSEE shall have the right to claim and recover from the
condemning authority, but not from LESSOR, such compensation as may be
separately awarded or recoverable by LESSEE'S business by reason of
(i) an account of any and all damage to LESSEE'S business by
reason of the condemnation, and
18
(ii) for or on account of any cost or loss to which LESSEE might be
put in removing LESSEE'S CHATTELS and interior alterations,
decorations and improvements not constituting a part of the
building installed in the PREMISES by LESSEE.
ARTICLE 30. MORTGAGE SUBORDINATION/ESTOPPEL CERTIFICATE.
(a) This LEASE shall, at the option of LESSOR, be subject, subordinate and
inferior in lien with respect to a first mortgage that may be placed on
the land and building of which the PREMISES from a part by a Bank,
Trust Company, Insurance Company, or other lender, and LESSEE will,
upon demand without cost, execute any instrument necessary to
effectuate such subordination. If LESSEE, within ten (10) days after
submission of such instrument, fails to execute same, LESSOR is hereby
authorized to execute same, as attorney in fact for LESSEE.
(b) It is a condition, however, to the subordination and lien provision
herein provided, that LESSOR shall procure from any such mortgagee a
non-disturbance and attornment agreement in writing in form reasonably
acceptable to the first mortgage lender, which shall be delivered to
LESSEE, providing in substance that so long as LESSEE shall faithfully
discharge the obligations on LESSEE'S part to be kept and performed
under the terms of this LEASE, LESSEE'S tenancy will not be disturbed
nor this LEASE affected by any default under such mortgage.
(c) In the event of such financing or in the event of a sale of the
PREMISES by LESSOR and a written statement is requested of LESSEE
certifying as to the status of the LEASE. LESSEE shall provide such
certification within ten (10) days after request therefor stating
therein that this LEASE is in full force and effect and that there are
no defenses or offsets thereto or stating those claimed by LESSEE.
ARTICLE 31. DEFAULT.
(a) If
(i) Lessee shall at any time be in default in the payment of rent
and/or other charges or in the observance of the performance
of any of the agreements, conditions or covenants of this
LEASE on LESSEE'S part to be observed and/or performed and
LESSEE shall fail to remedy such default within fifteen (15)
days after notice thereof from LESSOR in the event the default
is as to payment of rent and/or other charges, or within
thirty (30) days after notice thereof if the default relates
to matters other than the payment of rent and/or other charges
(but LESSEE shall not be deemed in default if it commences to
remedy said defaults other than relate to payment of rent
and/or other charges within said thirty (30) day period and
proceeds therewith with due diligence), or
(ii) LESSEE shall make an assignment for the benefit of creditors,
or
(iii) a receiver of any property of LESSEE in or upon the PREMISES
be appointed in any action, suit or proceeding by or against
LESSEE and not removed within forty-five (45) days after
appointment, or
(iv) the interest of LESSEE in the PREMISES shall be sold under
execution or other legal process, or
(v) LESSEE shall sublet the PREMISES or any part thereof, assign
this LEASE or transfer or permit the transfer by sale,
assignment, merger, consolidation, operation of law or
otherwise any part or all of the shares of LESSEE, without
LESSOR'S written consent, if such consent in any such event is
required as provided in Article 22 hereof, or
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(vi) an audit of LESSEE'S records discloses a deficiency in
reported annual GROSS SALES in excess of five percent (5%) of
the annual GROSS SALES actually made by LESSEE during any
LEASE YEAR.
then, in any such event, LESSOR may terminate this LEASE, or, without
terminating this LEASE, re-enter the PREMISES by summary proceedings or
otherwise and, in either event, may dispossess LESSEE at LESSEE'S
expense. LESSOR shall not be deemed to have elected to terminate this
LEASE unless LESSOR gives LESSEE notice of such election to terminate.
In the event of such re-entry, LESSOR shall relet the PREMISES and
apply the rents therefrom first to the payment of LESSOR'S expenses
incurred by reason of LESSEE'S default and the expenses of reletting
including reasonable attorney's fees and then to the payment of rents
and other charges due from LESSEE hereunder. If the rents received do
not equal the expenses and costs of reletting, LESSEE shall remain
liable for any deficiencies. If the rents received exceed the expenses
and costs of reletting, then LESSEE shall have no rights therein if
LESSOR has elected to terminate this LEASE. Such deficiency, at
LESSOR'S option, may be calculated and payable by LESSEE monthly.
(b) In the event either party hereto incurs or pays costs, expenses and/or
reasonable attorney fees in enforcing the agreements, conditions and
covenants of the LEASE as a result of the other party's default in
observance or performance thereof, then the defaulting party shall be
required to reimburse or pay such costs, expenses and/or fees incurred
or paid by the non-defaulting party.
ARTICLE 32. WAIVER OF JURY TRIAL. It is mutually agreed by and between LESSOR
and LESSEE that the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
LEASE, the relationship of LESSOR and LESSEE, LESSEE'S use or occupancy of the
PREMISES, and any emergency or other statutory remedy.
ARTICLE 33. LIABILITY OF LESSOR LIMITED. This Section intentionally deleted.
ARTICLE 34. TRANSFER OF TITLE. In the event of a sale, assignment, or transfer
by LESSOR of the PREMISES or its interest in the PREMISES, such LESSOR shall
thereafter have no liability for the agreements, conditions and covenants of
this LEASE on the part of LESSOR to be observed or performed thereafter,
provided that LESSOR'S transferee assumes the obligations of LESSOR accruing
hereunder thereafter. All such agreements, conditions, and covenants shall,
however, run with the land and shall be binding upon the successors-in-interest
of such LESSOR.
ARTICLE 35. FORCE MAJEURE. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act, other than
payment of rents or other charges required hereunder, by reason of strikes,
lockouts, labor trouble, inability to procure materials, failure of power,
restrictive governmental laws or regulations, riots, insurrection, war or other
reason of a like nature not the fault of the party delayed in performing work or
doing acts required under the terms of this LEASE, then performance of such act
shall be excused for the period of the delay and the period for the performance
of any such act shall be extended for a period equivalent to the period of such
delay, provided that nothing herein shall be deemed to extend the TERM beyond
the EXPIRATION DATE or earlier termination of this LEASE as hereinbefore
provided.
ARTICLE 36. NOTICE/CONSENTS.
(a) Any notice or consent required to be given by or on behalf of either
party upon the other shall be in writing and shall be given by mailing
such notice or consent by registered or certified mail addressed:
(i) to LESSOR at the address in Article 1 with a courtesy copy to
________________________________________________, and
20
(ii) to LESSEE at the address in Article I or at such other
addresses as may be specified from time to time in writing
delivered to the other party.
(b) Notices shall be deemed effective when deposited as certified or
registered mail in the mail or delivered to a private express carrier
provided that the same is received or tendered for delivery in the
ordinary course of business at the address to which the same is sent.
ARTICLE 37. WAIVER.
(a) No waiver of any agreement, condition or covenant shall be valid unless
it be in writing signed by the party to be charged nor shall the waiver
of a breach of any agreement, condition, or covenant be claimed or
pleaded to excuse a future breach of the same agreement, condition or
covenant or any other agreement, condition, or covenant.
(b) No waiver by LESSOR in respect to one tenant of the Strip Center shall
constitute a waiver in respect to any other tenant.
(c) Acceptance by LESSOR of a lesser amount than the amount actually due
hereunder, whether for rents or other charges, shall not prejudice
LESSOR'S right to collect the full amount due.
ARTICLE 38. REPRESENTATIONS. LESSOR and LESSOR'S agents have made no
representations or promises with respect to the PREMISES or the building or
Strip Center of which the same form a part except as herein expressly set forth.
ARTICLE 39. ENTIRE AGREEMENT. This LEASE and the Exhibits, if any, attached
hereto and forming a part hereof, set forth all of the agreements, conditions
and covenants between LESSOR and LESSEE concerning the PREMISES and the Strip
Center and there are no agreements, conditions and covenants, either oral or
written, between the, other than are herein set forth. Except as herein
otherwise provided, no subsequent amendment, change, modification or addition to
this LEASE shall be binding upon LESSOR or LESSEE unless in writing and signed
by them.
ARTICLE 40. QUIET ENJOYMENT. LESSOR hereby covenants and agrees that if LESSEE
shall perform all the agreements, conditions and covenants herein stipulated to
be performed on LESSEE'S part, LESSEE shall at all times during the TERM have
the peaceable and quiet enjoyment and possession of the PREMISES without any
hindrance or interruption from LESSOR or any person or persons lawfully claiming
the PREMISES, subject only to the agreements, conditions and covenants of this
LEASE.
ARTICLE 41. APPLICABLE LAWS. This LEASE and the agreements, conditions and
covenants herein set forth shall be construed in accordance with and governed
pursuant to the laws of the State of Ohio.
ARTICLE 42. BENEFIT OF ASSIGNS. This LEASE and all the agreements, conditions,
and covenants herein contained shall inure to the benefit of and be binding upon
the heirs, personal representatives, successors and assigns, respectively, of
the parties hereto, provide however, that no assignment by, from, through or
under LESSEE in violation of the provisions hereof shall vest in the assigns any
right, title or interest whatever.
ARTICLE 43. MEMORANDUM OF LEASE.
(a) This LEASE shall not be recorded, but a Memorandum of Lease of event
date herewith describing the PREMISES, setting forth the TERM and
referring to this LEASE may be recorded by either party.
(b) In the event the COMMENCEMENT DATE, RENT COMMENCEMENT DATE or
EXPIRATION DATE hereof are not dates certain as of the date hereof, the
parties shall enter into a Supplemental
21
Lease Agreement at such time as the same have been determined setting
forth therein the actual COMMENCEMENT DATE, RENT COMMENCEMENT DATE and
EXPIRATION DATE hereof and describing the PREMISES.
ARTICLE 44. PARTIAL LIABILITY. If any agreement, condition or covenant of this
LEASE or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this LEASE, or the
application of such agreement, condition or covenant to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each agreement, condition or covenant of this LEASE shall
be valid and be enforced to the fullest extent permitted by law.
ARTICLE 45. USE OF TERMS.
(a) Wherever the word "LESSOR" or "LESSEE" is used in this LEASE, it shall
be considered as meaning "LESSORS" or "LESSEES" respectively, wherever
the context permits or requires, and when the singular and/or neuter
pronouns are used herein, the same shall be construed as including all
persons, entities and corporations designated respectively as LESSOR or
LESSEE in the heading of this instrument wherever the context requires.
(b) If there be more than one LESSEE, they shall be jointly and severally
liable hereunder. Notice to either LESSEE, if there be more than one,
shall be deemed to be adequate and proper notice hereunder and each
LESSEE authorizes, approves and consents to service of notice upon any
one or more of the LESSEES.
(c) The word, LESSOR, as used in this LEASE shall mean, in addition to the
party identified in Article 1 hereof, any successor-in-interest to such
party, including a mortgagee-in-possession of the PREMISES.
IN WITNESS WHEREOF, on the date and at the place first aforesaid, the
parties have set their hands to this LEASE consisting of Pages 1 through 26 and
Exhibits "A" though "C".
LESSOR:
Signed and acknowledged COLLINWOOD PROPERTIES CO., LLC
in the presence of: AN OHIO LIMITED LIABILITY COMPANY
/s/ Xxxx X. Xxxxxxx By: XXXXX ONE CORP., Authorized Member
--------------------------------------
[Signature of Witness]
Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx, President
-------------------------------------- -----------------------------------
[Printed Name of Witness] Xxxxxxx X. Xxxxxxx, President
/s/ Xxxxxxx X. Augusta
-------------------------------------
[Signature of Witness]
XXXXXXX X. AUGUSTA
-------------------------------------
[Printed Name of Witness]
LESSEE:
GREAT LAKES BANK
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx, Xx. [Signature of Witness]
--------------------------------------- --------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Xxxx X. Xxxxxxx Its: /s/ President
--------------------------------------- -------------------
[Printed Name of Witness] President
/s/ Xxxxxxx X. Augusta AND BY:
---------------------------------------- ----------------------------------------
[Signature of Witness]
22
Xxxxxxx X. Augusta ITS:
---------------------------------------- ---------------------------------
[Printed Name of Witness]
STATE OF OHIO )
) SS. LESSOR ACKNOWLEDGEMENT
COUNTY OF LAKE )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above named COLLINWOOD PROPERTIES CO., LLC by XXXXX ONE CORP. by
XXXXXXX X. XXXXXXX, its President, who acknowledged that he did sign the
foregoing instrument and that the same is his free and voluntary act and deed
personally and as such officer and the free and voluntary act and deed of said
corporation.
IN TESTIMONY WHEREOF, I have hereunto affixed my signature and official
seal at Mentor, Ohio this 16th day of September, 1998.
/s/ Xxxx X. Xxxxxxx
---------------------------
Notary Public
STATE OF OHIO )
) SS. LESSEE ACKNOWLEDGEMENT
COUNTY OF LAKE )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above named GREAT LAKES BANK by Xxxxxxx X. Xxxxxxx, Xx., its
President, and by _________________________, its _______________, who
acknowledged that they did sign the foregoing instrument and that the same is
their free and voluntary act and deed personally and as such officers and the
free and voluntary act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto affixed my signature and official
seal at Mentor, Ohio this 16th day of September, 1998.
/s/ Xxxx X. Xxxxxxx
---------------------------
Notary Public
This instrument prepared by:
Xxxxx X. Xxxxxxxx, Xx., Esq.
000 X. Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxx 00000
23
EXHIBIT "A"
Situated in the City of Xxxxxxxxxx Hills, County of Lake and State of
Ohio, being known as part of Original Xxxxxxxxxx Xxxxxxxx Xxx 0, Xxxxx
0, bounded and described as follows:
Beginning at a monument box with an iron pin at the centerline
intersection of Xxxxxx Road, 60 feet wide, and Chardon (aka U.S. Route
6), width varies:
Thence South 81 degrees 33'11" West, along said centerline of Chardon
Road, a distance of 179.99 feet to a point;
Thence South 00 degrees 32'28" East, passing through a 3/8" iron pin
found at 30.29 feet point being the northwesterly corner of land
conveyed to Xxxxx Company by deed recorded in Volume 521, Page 999 of
Lake county Official Records, a total distance of 45.42 feet to a 5/8"
iron pin set and the principal place of beginning.
COURSE I Thence South 00 degrees 32'28' East, along the
westerlyline of land so conveyed to Xxxxx Company, a
distance of 134.39 feet to a 3/8" iron pin found on
the northerly line of land conveyed to Xxxx X.
Xxxxxx by deed recorded in Volume 890, Page 759 of
Lake County Official Records;
COURSE II Thence South 81 degrees 33'11" West, along said
Xxxxxx' northerly line, a distance of 4.06 feet to
a 3/8" iron pin found at the northwesterly corner
thereof;
COURSE III Thence South 08 degrees 19'12" East, along Xxxxxx'
westerly line, a distance of 202.84 feet to a 5/8"
iron pin set on the northerly line of land conveyed
to Xxxxxx X. and Xxxxxxx Xxxx by deed recorded in
Volume 843, Page 1194 of Lake County Records;
COURSE IV Thence South 81 degrees 33'24" West, along said
northerly line, a distance of 100.29 feet to a 1/2"
iron pin found at the southeasterly corner of land
conveyed to Xxxxxx Xxxxxxxxxx by deeds recorded in
Volume 42, Page 1091 and Volume 44, Page 600 of
Lake County Records;
COURSE V Thence North 16 degrees 09'19" West, along an
easterly line of said Xxxxxxxxxx, a distance of
148.13 feet to an iron pin found at an angle point
therein;
COURSE VI Thence North 08 degrees 24'34" West, along an
easterly line of said Xxxxxxxxxx, a distance of
189.16 feet to a 5/8" iron pin set on a southerly
sideline of said Chardon Road;
COURSE VII Thence North 81 degrees 33'11" East along said
sideline a distance of 143.03 feet to the principal
place of beginning and containing 0.9361 acres as
calculated and described in August, 1998 by
Xxxxxxx X. Xxxxxxxx, Xx., P.S. No. 7388 of LDC, Inc.
based on a boundary survey done by Xxxx X. Xxxxxxxx
P.S. No. 7193 of LDC, Inc. in March 1996, be the
same more or less but subject to all legal highways
and easements of record.
Bearings used herein refer to an assumed meridian and
are intended to indicate angles only.
Easement Parcel 1:
Together with a perpetual easement and right of way for the purpose of
ingress and egress across the following described premises:
24
Situated in the City of Xxxxxxxxxx Hills, County of Lake and State of
Ohio and known as part of Original Willoughby Township Lot No. 4 in
tract No. 4 and further described as follows:
Beginning in the westerly margin of Xxxxxx Road as conveyed to
Xxxxxxxxxx Hills City of deed recorded in Volume 726, Page 510 of the
Lake County Deed Records at the point that is South 04 degrees 46'55"
East along said Westerly margin 28.00 feet from the southerly line of
land conveyed to the Mobile Oil Corporation, Inc., by deed recorded in
Volume 746, Page 573 of the aforesaid deed records;
Thence South 82 degrees 28'45" West 134.41 feet;
Thence South 07 degrees 24'03" East 25.97 feet;
Thence North 82 degrees 28'45" East, 133.25 feet to the aid Westerly
margin of Xxxxxx Road;
Thence North 04 degrees 46'55" West along said margin 26.00 feet to
the place of beginning.
Easement Parcel 2
Together with a perpetual easement and right of way for the purpose of
ingress and egress across the following described premises:
Situated in the City of Xxxxxxxxxx Hills, County of Lake and State of
Ohio and known as part of Original Willoughby Township Lot No. 4 in
tract No. 4 and further described as follows:
Beginning in the Westerly margin of Xxxxxx Road as conveyed in
Xxxxxxxxxx Hills City by deed recorded in 726, Page 510 of the Lake
County Deed Records at the point that is North 04 degrees 46'55" West
along said Westerly margin 23.76 feet from the northerly line of land
conveyed to Xxxxxx X. and Xxxxxxx Xxxx by deed recorded in Volume 843,
page 1194 of the aforesaid deed records;
Thence North 04 degrees 46'55" West continuing along said Westerly
margin 26.00 feet;
Thence South 82 degrees 29'26" West 128.69 feet;
Thence South 07 degrees 24'03" East 25.97 feet;
Thence North 82 degrees 29'26" East 127.50 feet to the place
of beginning.
Easement Parcel 3
Together with a perpetual easement for a right of way for ingress and
egress over and upon the land hereinafter described.
Situated in the Village of Xxxxxxxxxx Hills, County of Lake and State
of Ohio and known and described as follows, to-wit:
and known as being a part of Xxx 0, Xxxxx 0 and bounded and described
as follows:
Beginning at the intersection of the centerline of Euclid-Chardon Road
and the Northwesterly line of land conveyed to Central National Bank of
Cleveland Trustee, as recorded in Deed Volume 402, Page 430 of Lake
County Records;
25
Thence South 0 degrees 27'10" West a distance of 179.83 to the
southwest corner of Central National Bank's property; thence North
82 degrees 3' East along said southerly line a distance of 20'; thence
in a northerly direction back to the point of beginning, forming a
pie-shaped parcel, be the same more or less, but subject to all legal
highways.
26
EXHIBIT "B"
TO BE SUPPLIED FOLLOWING EXECUTION
