L E A S E
By and Between
Xxxxx X. Xxxxxxxxxxx Xxxx, Trustee
(Landlord)
and
Towne Bancorp, Inc.
(Tenant)
PREMISES: Sylvania, Ohio
08/27/96
TABLE OF CONTENTS
ARTICLE PAGE NO.
1 PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 PARKING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4 CONSTRUCTION OF PREMISES AND POSSESSION. . . . . . . . . . . . . . . 3
5 RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6 OPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7 UTILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8 TENANT'S REPAIRS . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9 CONFORMITY WITH LAW. . . . . . . . . . . . . . . . . . . . . . . . . 8
10 TENANT'S FIXTURES AND SIGNS. . . . . . . . . . . . . . . . . . . . . 9
11 ALTERATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
12 SURRENDER OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . .11
13 ACCESS BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . .11
14 LANDLORD'S REMEDIES UPON DEFAULT . . . . . . . . . . . . . . . . . .12
15 DEMAND FOR RENT. . . . . . . . . . . . . . . . . . . . . . . . . . .14
16 DAMAGE BY FIRE OR CASUALTY . . . . . . . . . . . . . . . . . . . . .14
17 SUBORDINATION OF LEASE . . . . . . . . . . . . . . . . . . . . . . .16
18 HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
19 WAIVER OF SUBROGATION. . . . . . . . . . . . . . . . . . . . . . . .17
20 EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . .18
21 NON-WAIVER OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . .20
22 QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . .20
23 RECORDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
24 ACCEPTANCE OF LEASE. . . . . . . . . . . . . . . . . . . . . . . . .21
25 NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
26 TAX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
27 TRANSFER OF LANDLORD'S INTEREST. . . . . . . . . . . . . . . . . . .23
28 RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . . . . . . . . .23
29 PUBLIC LIABILITY INSURANCE . . . . . . . . . . . . . . . . . . . . .24
30 ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . . . . . . . . .25
31 ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . .26
32 FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . . . . .26
33 TIME OF THE ESSENCE. . . . . . . . . . . . . . . . . . . . . . . . .26
34 LIMITATION OF LANDLORD'S LIABILITY . . . . . . . . . . . . . . . . .27
35 USE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
36 RENTAL TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
37 LATE CHARGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
38 CONDITIONS PRECEDENT TO LANDLORD'S OBLIGATIONS . . . . . . . . . . .28
39 RISK OF LOSS FOR PERSONAL PROPERTY OR BUSINESS . . . . . . . . . . .28
THIS LEASE
Made in Sylvania, Ohio this day of August, 1996, by and between
Xxxxx X. Xxxxxxxxxxx Xxxx, Trustee, of 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000 (hereinafter called "Landlord"), and Towne Bancorp, Inc.,
000 X. Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (hereinafter called
"Tenant").
WITNESSETH:
ARTICLE 1. PREMISES.
Landlord does hereby let and lease unto Tenant premises situated in the
City of Sylvania, County of Xxxxx, and State of Ohio, and known and described as
follows, to wit:
A certain free-standing, one story bank building (hereinafter
known as "Premises"). A legal description of the real property
upon which the Premises are located (hereinafter known as the
"Property") is described as Lot I of the Village at River
Crossings, a Subdivision in the City of Sylvania, Xxxxx County,
Ohio, a/k/a 0000 Xxxxxx Xxxxxx.
The Premises shall have approximately 7,000 square feet of interior space
as outlined in red on the plot plan of the Property attached hereto as Exhibit
"All and made a part hereof for the purpose of more specifically locating the
Premises.
In determining the square footage of the Premises, measurements shall be
from the center of all common walls and the outside of all exterior walls.
ARTICLE 2. PARKING.
Tenant and Tenant's visitors, customers, agents and employees shall have
the exclusive right, without charge, to use all sidewalks, driveways, service
areas, and parking spaces on the Property or made available for the use thereof
together with the right to use and enjoy any appurtenances
thereto, now or hereafter in existence. Tenant shall keep all sidewalks,
driveways, service areas, and parking spaces open and accessible at all times,
except for temporary closing for repairs and maintenance. Tenant shall comply
with the minimum parking requirements of the municipality.
ARTICLE 3. TERM.
The term of this Lease shall commence on the Commencement Date of September
1, 1996 and terminate on the last day of the twentieth (20th) consecutive Lease
Year (as hereinafter defined) thereafter unless sooner terminated as provided
herein.
The term "Lease-Year" as used herein shall mean a period of twelve (12)
consecutive full calendar months. The first Lease Year shall begin on the
Commencement Date if the Commencement Date shall occur on the first day of a
calendar month; if not, then the first Lease Year shall commence upon the first
day of the calendar month next following the Commencement Date and shall include
the period between the Commencement Date and the first day of the next following
calendar month. References herein to the term of this Lease shall include all
extended terms unless limited specifically or by context to the initial term.
ARTICLE 4. CONSTRUCTION OF PREMISES AND POSSESSION.
Landlord represents and warrants it has no knowledge of any present or
previous use of the Premises or the Property, or the presence therein or
thereupon of any substance or material which might be construed as creating an
environmental hazard, including but not limited to, the deposit, storage, and/or
disposal of hazardous wastes or substances.
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Tenant shall be responsible for obtaining any required occupancy permit for
the Premises as a condition precedent to the commencement of the term of this
Lease and Tenant's obligations hereunder.
ARTICLE 5. RENT.
(a) Tenant hereby covenants and agrees to pay Landlord as Fixed Rent
for the Premises during the term of this Lease the sum of Twelve Thousand
Dollars ($12,000.00) per month during Lease Years 1 through 3; the sum of
Thirteen Thousand, One Hundred Seven and 26/100 Dollars ($13,107.26) per month
during Lease Years 4 through 5, plus any increases in the Landlord's mortgage
payment; and for Lease Years 6 through 20, the rent shall be the monthly rental
of Lease Years 4 through 5, plus any increases in the Landlord's mortgage
payment and also shall be increased by the CPI adjustment, not to exceed ten
percent (10%), every five (5) years, beginning in Lease Year 6. The month of
August in the year 1996 would be the base month and year for the CPI increase
for Lease Years 6 through 10. The month of August in the year 2001 would be the
base month and year for the CPI increase for Lease Years 11 through 15. The
month of August in the year 2006 would be the base month and year for the CPI
increase for Lease Years 16 through 20. The CPI used to calculate any CPI
adjustments under this Lease would be the Consumer Price Index (CPI) US Cities
Average, CPI-W, 1982-84 base. Each monthly rental payment is payable in advance
upon the first day of every calendar month during said term. Fixed Rent shall
be prorated for any fraction of a month. Until further notice from Landlord to
Tenant, rent checks shall be payable and mailed to Landlord at:
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Xxxxx X. Xxxxxxxxxxx Xxxx, Trustee
c/o Gerdenich & Co.
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attn: Xxxxx Xxxxxxxxx, President
(b) As additional rent, Tenant will also pay Landlord at the end of
each Lease Year the sum of Thirty-Four Thousand Dollars ($34,000.00) in the form
of cash or common stock of Towne Bancorp, Inc. The number of common stock
shares to be issued and delivered by Tenant to Landlord would be based upon the
price of the stock offered to the public at the beginning of the first five-year
period of this Lease. During the last three (3) five-year periods of this
Lease, the number of common stock shares to be issued and delivered to Tenant by
Landlord would be based upon the price of the stock offered to the public at the
beginning of the sixth, eleventh, and sixteenth year(s) of this Lease.
ARTICLE 6. OPTIONS.
(a) Tenant shall have right to extend the term of this Lease for two
(2) additional consecutive periods of five (5) years each, upon the same terms
and conditions, except Fixed Rent, as provided in the original term of this
Lease, upon the condition that Tenant notifies Landlord in writing of its
intention to extend at least one hundred eighty (180) days prior to the date of
commencement of each such extension term and thereupon, this Lease shall be so
extended without the execution of any further document. Fixed Rent during each
of the five-year option periods shall be the monthly rent paid during the
twentieth (20th) year of the Lease, plus CPI increase not to exceed ten percent
(10%) for the first five-year option period, and ten percent (10%) CPI increase
for the second five-year option period. The month of August in the year 2011
would be the base
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month and year for the CPI increase for the Lease Years 21 through 25 (first
option period), and the month of August in the year 2016 would be the base month
and year for the Lease Years 26 through 30 (second option period).
In addition to the Fixed Rent, Tenant will also pay Landlord at the end of
each Lease Year the sum of Thirty-Four Thousand Dollars ($34,000.00) in cash or
in the form of common stock of the Towne Bancorp, Inc. The number of common
stock shares to be issued and delivered by Tenant to Landlord would be based
upon the price of the stock offered to the public at the beginning of each of
the two (2) five-year option periods of this Lease, i.e. year 2011 and year
2016.
(b) Provided that Tenant has fully complied with the terms and
conditions of this Lease, Tenant is hereby given an option to purchase the
Premises and Property at the end of every five-year period of this Lease by
giving written notice to the Landlord of the exercise of its option to purchase
at least one hundred twenty (120) days prior to the expiration of the respective
five-year periods. The purchase price would be One Million Five Hundred
Thousand Dollars ($1,500,000.00) plus appreciation of two percent (2%) per year
or the sum of One Million, Six Hundred and Fifty-Six Thousand Dollars
($1,656,000.00), plus deferred rent of Seven Thousand, Nine Hundred Seventy-Two
Dollars ($7,972.00), after the first five-year period; the sum of One Million,
Eight Hundred Twenty-Eight Thousand, Four Hundred Ninety-Two Dollars
($1,828,492.00) after the end of the second five-year period; the sum of Two
Million, Eighteen Thousand, Eight Hundred Three Dollars ($2,018,803.00) after
the end of the third five-year period; and the sum of Two Million, Two Hundred
Twenty-Eight Thousand, Nine Hundred Twenty-Two Dollars ($2,228,922.00) after the
end of the fourth five-year period.
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In the event that Landlord's mortgage rate interest at any time during the
Lease term is in excess of twelve percent (12%), Tenant shall have the right to
exercise their option to purchase the Property and Premises based on the
valuation formula as set forth above, plus any unpaid deferred rent of Three
Hundred Twenty-Three and 68/100 Dollars ($323.68) per month effective in Lease
Years 4 through 10, and if this purchase takes place between Lease Years 6-10,
the Purchaser shall be given credit towards the purchase price of one-third
(1/3) of the principal reduction in the loan.
In the event Tenant exercises its option to purchase after ten (10) years
of occupancy by Tenant, Landlord will give Tenant a credit on the purchase price
for one-half (1/2) of the loan equity, up to a maximum of One Hundred Thousand
Dollars ($100,000.00), based on the original loan amount of One Million, One
Hundred Twenty-Five Thousand Dollars ($1,125,000.00) and amortized over twenty
(20) years at 8 3/4% annual interest rate, subject to any interest rate
fluctuations under the loan agreement.
In the event of the exercise by the Tenant of this option to purchase the
Premises and the Property, Landlord shall furnish Tenant with a preliminary
letter for a guaranteed certificate of title for the Property issued by Port
Xxxxxxxx Title & Trust Company. The Tenant shall purchase any additional
evidence of title, such as title insurance, at Tenant's cost. Said preliminary
letter shall show good and merchantable title of record in the Landlord, subject
to easements and restrictions of record and mortgage(s) to be discharged at
closing.
ARTICLE 7. UTILITIES.
Tenant shall pay when due, all bills for gas, water, electricity and other
utilities supplied to the Premises after the date Tenant accepts possession of
the Premises and until expiration of the
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term. Tenant, at its own expense, shall install separate meters for the
utilities used in the Premises in compliance with the outlined specifications
and requirements of the utility supplier.
ARTICLE 8. TENANT'S REPAIRS.
Tenant agrees to keep and maintain (including repair and/or replacement
when necessary) the interior and exterior of the Premises, including doors and
windows in good condition and repair, and Tenant shall maintain, repair and make
replacements to the heating, ventilating, air conditioning, plumbing, gas,
electrical and other similar units and systems within or exclusively serving the
Premises, as well as roof, parking lot, and driveways. Tenant shall be required
to make structural repairs. Tenant shall provide rubbish removal from the
Premises and for removal of all rubbish from the Property which is generated by
or from the Premises. The parties hereto understand that this Lease is a triple
net lease with the Tenant paying for all taxes and assessments on the Property,
insurance and maintenance costs as aforesaid, including the building structure
and roof.
ARTICLE 9. CONFORMITY WITH LAW.
Tenant will use and occupy the Premises and appurtenances in a careful,
safe and proper manner and comply with the valid requirements of the proper
public officials regarding the manner in which Tenant conducts its business.
Tenant will not use the Premises for any unlawful purpose nor commit or suffer
waste thereon. To the extent of Landlord's control thereof, Landlord warrants
that the Premises are in conformity with applicable building and zoning codes
and other laws, ordinances and regulations of any authority having jurisdiction.
Tenant shall at its own risk and expense remove and dispose of any hazardous or
toxic material or underground storage tank present
-9-
in or on the Premises or the Property. Landlord shall not grant any occupancy
rights in the sidewalk space in front of the Premises or in the parking or other
areas of the Property without Tenant's consent.
If at any time during the term of this Lease or any extension thereof, any
governmental agency or other authority having jurisdiction requires repairs,
alterations, additions or remedial action to the Premises or to the systems
serving the Premises and the same is brought about by reasons involving the
bank, or other business conducted by Tenant, or involving Tenant's manner of use
of the Premises or Property, all consequential actions shall be at Tenant's sole
cost and expense.
ARTICLE 10. TENANT'S FIXTURES AND SIGNS.
Tenant may install, operate and maintain in or on the Premises, machinery
and any other mechanical equipment, pipes, conduits, ducts and communication
antennas as required and in so doing shall comply with all lawful requirements.
Any roof penetration shall require the prior consent of Landlord. Tenant shall,
at all times, have the right to remove all fixtures, machinery, equipment,
appurtenances or other property furnished or installed by Tenant, it being
expressly understood and agreed that said property shall not become part of the
Premises, but shall at all times be and remain the property of Tenant and not
subject to any Landlord's lien. Tenant shall repair all damage caused by its
removal of its property. Landlord waives all rights which it may now or
hereafter have under law or by virtue of this Lease or Tenant's occupancy of the
Premises to levy upon, claim or assert a lien upon or right or title to any or
all of Tenant's personal property now or hereafter installed on
-10-
or located at the Premises, by reason of rentals due hereunder or for any
monetary obligations arising by reason of or default under this Lease.
All exterior signs installed by Tenant shall be at its own cost and expense
and in conformity with the rules and regulations of the local governmental
authorities having jurisdiction, however Landlord agrees, at Tenant's cost and
expense, to cooperate with Tenant in approving, locating, obtaining permits,
erecting and supplying electricity to such sign. No exterior sign shall be
installed without the Landlord's approval as to design, placement and method of
attachment to the Premises, which approval shall not be unreasonably withheld or
delayed.
ARTICLE 11. ALTERATIONS.
Tenant may at its own cost and expense make changes and alterations to the
interior of the Premises but shall obtain Landlord's consent, which consent
shall not be reasonably withheld, before making any changes to the building
structure. In the event Tenant has not received written objections from
Landlord within thirty (30) days after submission of Tenant's written request
for its consent, Landlord, not so responding within said thirty (30)
day period, shall be deemed to have consented thereto. If requested by Tenant,
Landlord, at Tenant's cost and expense, shall cooperate in securing necessary
permits and authority. Tenant shall not permit any mechanics' or other liens to
stand against the Premises or Property for work or material furnished to Tenant
or to the Premises or Property by its contractor, subcontractors, or materialmen
or their respective subs and suppliers.
-11-
ARTICLE 12. SURRENDER OF PREMISES.
Tenant will surrender and deliver possession of the Premises to Landlord
upon the expiration of this Lease or its termination in any way, in good
condition and repair (loss by fire; acts of God; ordinary wear and decay;
casualty; neglect, fault or default of Landlord; taking by eminent domain and
alterations approved by Landlord excepted) and deliver the keys to the office of
Landlord or Landlord's agent. Any property not removed by Tenant upon surrender
or abandonment of the Premises shall be deemed abandoned.
ARTICLE 13. ACCESS BY LANDLORD.
Landlord may have free access to the Premises during business hours for the
purpose of examining same. During the last six (6) months of the term of this
Lease, provided the same shall not interfere with Tenant's business, Landlord
may have access to the Premises for the purposes of exhibiting the Premises.
ARTICLE 14. LANDLORD'S REMEDIES UPON DEFAULT.
(a) In the event Tenant shall at any time fail to make timely payment
of rent or perform any of its obligations under this Lease, and Tenant shall
fail to remedy such failure within fifteen (15) days after receipt of written
notice thereof from Landlord if said failure relates to payment of rent, or
other monetary charges under this Lease, or within thirty (30) days after
receipt of written notice thereof from Landlord if the failure relates to
matters other than payment of rent or other monetary charges under this Lease,
(but Tenant shall not be in default of a matter other than payment of rent or
other monetary charges under this Lease if it commences to remedy same within
-12-
thirty (30) days after such notice and proceeds therewith with due diligence) or
if Tenant shall be adjudged a bankrupt or enter into an arrangement for the
benefit of creditors under any state or federal insolvency law and such
proceedings are not dismissed or terminated within sixty (60) days after the
commencement thereof, then Landlord may declare the terms of this Lease
terminated, enter into possession of the Premises and xxx for all rents and
damages accrued under this tease or arising out of any violation hereof, or
Landlord may xxx without declaring this Lease void or entering into possession
of the Premises and any recovery of rents shall be on a monthly basis as the
same become due. Notwithstanding the recital of any specific remedies, Landlord
shall likewise have all rights and remedies (except acceleration) to which
Landlord is entitled either in law or equity.
Notwithstanding the notice requirements set forth above, Landlord shall not
be required to provide Tenant with more than two (2) fifteen-day notices during,
any twelve-month period for nonpayment of rent, or other charges payable by
Tenant, before Landlord exercises its immediate rights upon default as set forth
and permitted above.
(b) Notwithstanding any other provisions contained in this Lease, in
the event (i) Tenant or its successors or assignees shall become insolvent or
bankrupt, or if it or their interests under this Lease shall be levied upon or
sold under execution or other legal process, or (ii) the depository institution
then operating on the Premises is closed, or is taken over by any depository
institution supervisory authority ("Authority"), Landlord may, in either such
event, terminate this Lease only with the concurrence of any Receiver or
Liquidator appointed by such Authority; provided, that in the event this Lease
is terminated by the Receiver or Liquidator, the maximum claim of Landlord for
rent, damages, or indemnity for injury resulting from the termination,
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rejection, or abandonment of the unexpired Lease shall by law in no event be in
an amount equal to all accrued and unpaid rent to the date of termination.
ARTICLE 15. DEMAND FOR RENT.
No receipt of monies by Landlord from or on the account of Tenant or from
anyone in possession or occupancy of the Premises after the termination in any
way of this Lease, or after the giving of any notice of termination, shall
reinstate, continue or extend the term of this Lease or affect any notice given
to Tenant prior to the receipt of such money. After service of any notice of
commencement of any suit or final judgment therein, Landlord may receive and
collect any rent due and such collection or receipt shall not operate as a
waiver of, nor affect such notice, suit or judgment.
ARTICLE 16. DAMAGE BY FIRE OR CASUALTY.
During the term of this Lease, Landlord agrees to carry standard form "All
Risk" property insurance (or the insurance industry equivalent), including loss
of rents insurance, on the Property wherein the Premises are situated and all
improvements therein for one hundred percent (100%) of the full replacement
thereof and shall provide Tenant with a certificate of insurance reflecting such
coverage.
Tenant shall reimburse Landlord for the premium for such insurance.
Landlord shall make demand for reimbursement from Tenant for such insurance
premium costs which shall be paid by Tenant within thirty (30) days of its
receipt thereof. Each such demand for reimbursement shall be accompanied by a
copy of the insurance premium invoice for which reimbursement is requested.
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If the Premises or a portion thereof shall be destroyed or injured by any
cause insurable by standard policies of "All Risk" insurance or its equivalent
and such destruction or injury could reasonably be repaired within ninety (90)
days thereafter, Landlord shall with diligence undertake and substantially
complete repairs within ninety (90) days after the happening of such destruction
or injury. If Tenant shall be deprived of the occupancy of any portion of the
Premises due to any destruction or injury but can nevertheless continue to
engage in its regular business, a rental abatement shall be allowed in
proportion to the area rendered untenantable and continuing until the Premises
are restored. No rent shall be payable during any period that Tenant is unable
to engage in its regular business.
If the destruction or injury cannot reasonably be repaired within ninety
(90) days after the happening thereof, Landlord shall notify Tenant within
twenty-one (21) days after the happening of such destruction or injury whether
or not Landlord will repair or rebuild. If Landlord elects not to repair or
rebuild, this Lease shall be terminated. If Landlord shall elect to repair or
rebuild, Landlord shall specify the time within which repairs or reconstruction
will be completed and Tenant shall have the option within twenty-one (21) days
after the receipt of such notice to elect either to terminate this Lease and
further liability thereunder or to extend the term or renewal term of this Lease
by a period of time equivalent to the period from the happening of such
destruction or injury until the Premises are restored to their former condition.
In the event Tenant elects to extend the term of the Lease, Landlord shall
restore the Premises to their former condition within the time specified in the
notice and Tenant shall be entitled to an abatement of rent in the manner
hereinbefore set forth.
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Tenant shall remove the debris and repair and replace the property which
may be removed by it upon surrender of the Premises. Landlord shall remove the
debris and repair and replace the building and the interior of the Premises.
If this Lease is terminated by reason of damage or destruction, Landlord
shall refund all prepaid rentals and unearned charges, pro rated to the date of
such termination.
ARTICLE 17. SUBORDINATION OF LEASE.
Upon the request of Landlord in writing, Tenant shall subordinate this
Lease to the lien of any present or future first mortgage and/or ground lease of
the Premises or any property of which the Premises forms a part, provided that
the holder of any such mortgage and/or ground lease ("Mortgagee") shall enter
into a written agreement with Tenant to the effect that (i) in the event of
foreclosure or other action taken under the mortgage and/or ground lease by
Mortgagee, this Lease and the rights of Tenant hereunder shall not be disturbed
so long as Tenant shall not be in material default hereunder beyond any time
permitted to cure, but shall continue in full force and effect; and (ii) such
Mortgagee shall permit insurance proceeds to be used for any restoration and
repair required by the provisions of this Lease as set forth in Article 16. If
on the date of this Lease there is in existence a mortgage on the Property,
Landlord agrees to obtain from such mortgagee, a written agreement that this
Lease and the right of Tenant hereunder shall not be disturbed so long as Tenant
shall not be in material default hereunder beyond any time permitted to cure.
The word "mortgage" as used herein includes mortgage, deed of trust or other
similar instrument and any modifications, extensions, renewals and replacements
thereof.
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ARTICLE 18. HOLDING OVER.
Except when the term of this Lease is extended pursuant to Article 6
hereof, Tenant's continued occupancy of the Premises after expiration of the
term of this Lease or any renewal or extension thereof or any earlier
termination provided or permitted by this Lease, shall be from month-to-month.
All covenants, provisions, obligations and conditions of this Lease shall remain
in full force and effect during such month-to-month tenancy.
ARTICLE 19. WAIVER OF SUBROGATION.
Landlord and Tenant agree that it is their intention that each shall look
solely to its own resources and/or its own insurance carrier for recovery of any
loss to real and/or personal property. Landlord and Tenant hereby waive all
rights of 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 loss, including deductible amounts and/or
self-retained loss levels, caused by any perils coverable by "All Risk" property
insurance (or the insurance industry equivalent), consequential loss, or use and
occupancy types of insurance, or for which either party may be reimbursed as a
result of insurance coverage affecting any loss suffered by it and each party
shall have its respective insurance policies properly endorsed (if necessary) to
prevent any invalidation that might arise as the result of foregoing waivers.
ARTICLE 20. EMINENT DOMAIN.
In the event that the entire Premises shall at any time after execution of
this Lease be taken in public or quasi-public use or condemned under eminent
domain, then this Lease shall terminate
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and expire effective the date of such taking and any prepaid rent or unearned
charges shall be refunded to Tenant. Tenant shall have the right of termination
of this Lease with an appropriate refund of prepaid rent or unearned charges,
if, as a result of such eminent domain proceeding or other governmental or
quasi-public action:
(a) Any portion of the Premises shall be taken and the remaining
portion shall be unsuitable for Tenant's continued business operations,
determined in Tenant's sole business judgments; or (b) The total number of
parking spaces established for the Premises shall be reduced by twenty percent
(20%) or more, or Tenant, its customers, agents, employees and visitors are for
more than thirty (30) days denied reasonable access to the Premises or parking
areas.
Should Tenant elect to remain in the Premises under the circumstances
described in subparagraph (a), then rent shall be reduced for the remainder of
the term thereafter in proportion to the amount of the Premises taken. All
damages awarded in connection with the taking of the Premises whether permitted
as compensation for diminution in value to the leasehold or the fee of the
Premises or for taking of any portion of the Property shall belong to Landlord,
provided, however, if Tenant has made any leasehold improvements to the Premises
or structural changes to the Premises with Landlord's written approval and at
its own expense (regardless of when made), Tenant and not Landlord shall be
entitled to claim an award for unamortized balance of Tenant's cost thereof
amortized over the useful life thereof, not to exceed ten (10) years. In the
event the condemning authority shall not make a separate award therefor,
Landlord shall make a claim therefor on behalf of Tenant and if such claim is
allowed, assign the portion of its award equal to such unamortized cost to
Tenant. In addition, Tenant shall be entitled to claim an award from the
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condemning authority for loss of business, damage to merchandise and fixtures,
removal and reinstallation costs and moving expenses.
ARTICLE 21. NON-WAIVER OF DEFAULT.
No acquiescence by either party in any breach of covenant or default by the
other party hereunder shall operate as a waiver of its rights with respect to
any other breach of default, whether of the same or any other covenant or
condition, nor shall the acceptance of rent by Landlord at any time constitute a
waiver of any rights of Landlord hereunder.
ARTICLE 22. QUIET ENJOYMENT.
Landlord hereby warrants that on or before the Commencement Date it will
have a good and marketable fee simple estate in the Property and the Premises
and full right and authority to lease the Premises in accordance with the terms
hereof. Landlord covenants and agrees that in the event Tenant shall perform
all covenants and agreements herein stipulated to be performed on Tenant's part,
Tenant shall at all times have the peaceable and quiet enjoyment and possession
of the Premises and easement rights herein granted with respect to the Property,
without any manner of let or hindrance from Landlord or any other person or
persons claiming rights by or through Landlord. Landlord further warrants that
the execution of this Lease, compliance with the terms hereof and occupation of
the Premises and the Property by Tenant will not conflict with, constitute or
cause a breach or default under the terms of any agreement or instrument to
which Landlord is a party.
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A breach of this Article by Landlord shall entitle Tenant to all available
equitable relief as well as any and all remedies at law and Landlord shall
indemnify Tenant from and against all damages, expense and costs arising out of
or resulting from a breach of this Article.
Upon written request from Tenant, Landlord shall provide Tenant with
evidence of Landlord's title to the Premises and the Property. Such title may
be evidenced by a photocopy of an existing policy of title insurance issued by a
recognized title insurance company.
ARTICLE 23. RECORDING.
This Lease shall not be recorded, but at any time upon the request of
either party hereto, the other party shall join in the execution of a recordable
memorandum or so-called "short form" of this Lease for the purpose of public
recordation. Said memorandum or short form of this Lease shall describe the
parties, the Premises, the Property, the lease term and all options to extend or
renew hereunder, any exclusive use provisions and shall incorporate this Lease
by reference only, shall be in recordable form and may be recorded by either
party at the cost and expense of the party requesting such recording.
ARTICLE 24. ACCEPTANCE OF LEASE.
This instrument shall merge all undertakings between the parties hereto
with respect to the Premises and constitute the entire Lease Agreement unless
otherwise hereafter modified by both parties in writing.
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ARTICLE 25. NOTICE.
Any notice or consent required to be given by or on behalf of either party
to the other shall be in writing and given by mailing such notice or consent by
certified mail, return receipt requested, or by overnight courier, addressed to
the other party as follows:
(a) If to Landlord:
Xxxxx X. Xxxxxxxxxxx Xxxx, Trustee
c/o Gerdenich & Co.
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attn: Xxxxx Xxxxxxxxx, President
(b) If to Tenant:
000 X. Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
or at such other addresses. as may be specified from time to time in writing by
either party. Mailed notices shall be deemed effective three (3) business days
after mailing and notices by overnight courier shall be deemed effective on the
date delivery is requested by the sending party.
ARTICLE 26. TAX.
Landlord will pay all general real estate taxes and assessments for
betterments or improvements which may be levied or assessed by any lawful
authority against the Property and the Premises. Commencing with the date
Tenant shall open its Premises for business and during the term of this Lease
for each full calendar year and proportionately for any part of a calendar year,
Tenant agrees to reimburse Landlord as set forth below for any such real estate
taxes and assessments levied or assessed against the Property and Premises, on a
due and payable basis.
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Landlord shall make demand for reimbursement from Tenant, and each such demand
shall be accompanied by a copy of the receipted tax statements for the taxes for
which reimbursement is requested. Tenant shall pay to Landlord, within thirty
(30) days following its receipt of Landlord's statement, the amount shown as due
thereon.
ARTICLE 27. TRANSFER OF LANDLORD'S INTEREST.
No transfer or sale of Landlord's interest hereunder shall be binding upon
Tenant until Tenant has received a photocopy of the original instrument
assigning or transferring Landlord's interest in this Lease provided, however,
this provision shall not be applicable to any such transfer as security for any
loans made to Landlord.
ARTICLE 28. RIGHT OF FIRST REFUSAL.
If the Landlord desires to sell the Premises during the term of this Lease
or extension hereof and prior to the Tenant exercising its option to purchase
hereunder, Landlord shall give Tenant ten (10) days prior written notice of the
terms and conditions of an offer to purchase the Premises that Landlord is
willing to accept, then Tenant shall have a right of first refusal for the
aforesaid ten-day period to match the terms and conditions of the aforesaid
acceptable offer by entering into an agreement for the sale of the Premises with
the Landlord. If Tenant fails to enter into an agreement for sale of the
Premises with the Landlord during said ten-day period, then Landlord may sell
same to a third party on the aforesaid terms and conditions.
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ARTICLE 29. PUBLIC LIABILITY INSURANCE.
Tenant shall, after accepting possession of the Premises and thereafter
during the entire term hereof, keep in full force and effect a policy of
comprehensive general liability insurance coverage and property damage insurance
with respect to claims arising from the use and occupancy of the Property and
Premises by Tenant, under which the limits of public liability shall not be less
than Two Million Dollars ($2,000,000.00) combined single limit per occurrence or
the equivalent thereof. Such policy shall provide that not less than thirty
(30) days written notice be given to Landlord in advance of the effective date
of cancellation, non-renewal or material change in such policy. A certificate
reflecting such insurance coverage and designating Landlord as insured
thereunder shall be delivered to Landlord upon request therefor.
The policy required by this Article 28 shall provide coverage on an
occurrence basis and shall include products and completed operations coverage.
Additionally, the parties agree to periodically increase the limits of such
policy as prudent, good business judgment would dictate.
ARTICLE 30. ASSIGNMENT AND SUBLETTING.
Tenant shall have the right, without Landlord's consent, to assign this
Lease or sublet the Premises: (i) to the parent or a subsidiary of Tenant; (ii)
to a subsidiary or affiliate of Tenant's parent; or (iii) to any entity with
which Tenant or Tenant's parent may merge or consolidate. Additionally, Tenant
shall have the right, without Landlord's consent, to assign this Lease or sublet
the Premises at any time for use as a bank. In all of the foregoing instances,
Tenant shall remain liable for all performance of all terms, covenants and
conditions of this Lease.
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In the event that Tenant desires to assign this Lease or sublet the
Premises for use other than the operation of a bank, such primary use (i) shall
not be demeaning to the Property and/or the Premises; and (ii) Tenant shall
notify Landlord in writing of its intention to assign this Lease or sublet the
Premises, stating the entity to which it desires to assign or sublet and
reflecting the proposed use for the Premises. Landlord shall approve such
requested assignment or subletting with the understanding that Tenant will
remain liable for the Tenant's performance of the terms, covenants, and
conditions contained in this Lease.
ARTICLE 31. ASSIGNMENT AND SUBLETTING.
Landlord and Tenant agree, within fifteen (15) days of receipt of written
request therefor, to execute, acknowledge and deliver to either party requesting
such, a statement confirming the status of the Lease and confirming certain
facts with respect thereto, provided such information and facts are true and
readily ascertainable.
ARTICLE 32. FORCE MAJEURE.
If either party shall be delayed or prevented from the performance of any
act required by this Lease by reason of strikes, utility failure, restrictive
laws, riot, acts of God or other similar reasons not the fault of the
non-performing party, then the performance time for such act shall be extended
for a period equivalent to the period of such delay but not longer than fifteen
(15) days. The provisions of this Article shall not operate to excuse Tenant
from prompt payment of rent or other charges hereunder.
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ARTICLE 33. TIME OF THE ESSENCE.
Time is of the essence in the performance of each and every one of the
terms, covenants, conditions and obligations of this Lease.
ARTICLE 34. LIMITATION OF LANDLORD'S LIABILITY.
Anything in this Lease to the contrary notwithstanding, Tenant agrees that
it shall look solely to the estate, property and interest of the Landlord in
this Lease and the land, improvements and buildings (including but not limited
to the Premises) comprising the Property and the Premises for the satisfaction
of any judgment requiring the payment of money by Landlord or in the event of
any default or breach by Landlord, and no other property or assets of Landlord
or the owners of Landlord shall be subject to levy, execution or other
procedures for the. satisfaction of Tenant's remedies.
ARTICLE 35. USE.
Provided Landlord fulfills all of the conditions precedent to the
commencement of this Lease, Tenant agrees to initially open the Premises as a
bank, and operate as such during the initial term of this Lease and any renewal
hereof.
ARTICLE 36. RENTAL TAXES.
Should any governmental taxing authority levy, assess, or impose any tax,
excise or assessment (other than income or franchise tax) upon or against the
rentals payable by Tenant to Landlord, either by way of substitution for or in
addition to any existing tax on land, buildings or
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otherwise, Tenant shall be responsible for and shall pay any such tax, excise or
Assessment, or shall reimburse Landlord for the amount hereof, as the case may
be.
ARTICLE 37. LATE CHARGE.
Any monthly installment of rent not received by Landlord within ten (10)
days from the due date shall be subject to a penalty of five percent (5%) of the
monthly rent until paid. Landlord shall not be required more than two (2) times
in any Lease Year to give Tenant written notice of default for failure to pay
Fixed Rent, as provided in Article 14.
ARTICLE 38. CONDITIONS PRECEDENT TO LANDLORD'S OBLIGATIONS.
Notwithstanding anything else in this Lease to the contrary, Landlord's
obligations under this Lease shall be contingent on the following conditions
precedent, and Landlord may unilaterally terminate this Lease upon Landlord's
inability to accomplish any of the following conditions:
(a) Landlord securing adequate financing to acquire the Property;
(b) Landlord obtaining a Phase I Environmental Report on the
Property, satisfactory to Landlord, its lender, and the Tenant.
ARTICLE 39. RISK OF LOSS FOR PERSONAL PROPERTY OR BUSINESS.
Anything to the contrary herein notwithstanding, all Property of the Tenant
of any kind or description whatsoever in the Premises shall be at Tenant's sole
risk and Landlord shall not be liable for any damage done to or loss of such
property, or damage or loss suffered by the business of the Tenant arising from
any acts or neglect of Landlord, Landlord's agents, independent contractor, or
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from the bursting, overflowing, or leaking of water, sewer, or electric wires,
fire, theft, or from gas or odors, caused in any other manner whatsoever not
limited by the foregoing, except in the case of willful acts on the part of the
Landlord.
IN WITNESS WHEREOF, the parties hereto have set their hands to multiple
copies hereof as of the date first above written.
IN THE PRESENCE OF:
/s/ XXXXX X. XXXXXXXXXXX XXXX, TRUSTEE
---------------------- -----------------------------------------------
Xxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxxxxx Xxxx, Trustee
---------------------- "Landlord"
Xxxxx X. Xxxxx
Towne Bancorp, Inc.
By: /s/ XXXXXX XXXXXXXXX
--------------------- --------------------------------------------
Xxxxxxx X. Xxxxx Xxxxxx Xxxxxxxxx, President
---------------------
Xxxxx X. Xxxxxxxxx
By: /s/ XXXX X. XXXXXXX
--------------------------------------------
Xxxx X. Xxxxxxx, Vice President
"Tenant"
-00-
XXXXX XX XXXXXXXX )
) SS:
COUNTY OF DENVER )
BEFORE ME, a Notary Public in and for said county and state personally
appeared Xxxxx X. Xxxxxxxxxxx Xxxx, Trustee, to me known to be the person who
executed the within and foregoing instrument, who acknowledged that she did
execute such instrument as Trustee and that the game is her free and voluntary
act and deed for the uses and purposes therein set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
_______ , ________ this _______ day of ____________ , 1996.
------------------------------------
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF XXXXX )
BEFORE ME, a Notary Public in and for said county and state appeared Xxxxxx
Xxxxxxxxx and Xxxx Xxxxxxx, to me personally known who, being by me sworn, did
say the they are the President and Vice President, respectively, of Towne
Bancorp, Inc., the corporation named in and which executed the within
instrument; that said instrument was signed on behalf. of said corporation by
authority of its Board of Directors; and that said instrument is their free act
and deed of said corporation, Towne Bancorp, Inc.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
_______ , Ohio, this ________ day of _________ , 1996.
------------------------------------
Notary Public
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EXHIBIT "A"
PLOT PLAN
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