L E A S E
By and Between
Xxxxx X. Xxxx, Trustee
(Landlord)
and
Towne Bancorp, Inc.
(Tenant)
PREMISES: Perrysburg, Ohio
08/18/95
TABLE OF CONTENTS
ARTICLE PAGE NO.
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1 PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4 CONSTRUCTION OF PREMISES AND POSSESSION . . . . . . . . . . . . 3
5 RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6 OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7 UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .10
8 TENANT'S REPAIRS. . . . . . . . . . . . . . . . . . . . . . . .10
9 CONFORMITY WITH LAW . . . . . . . . . . . . . . . . . . . . . .11
10 TENANT'S FIXTURES AND SIGNS . . . . . . . . . . . . . . . . . .12
11 ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . .13
12 SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . .13
13 ACCESS BY LANDLORD. . . . . . . . . . . . . . . . . . . . . . .14
14 LANDLORD'S REMEDIES UPON DEFAULT. . . . . . . . . . . . . . . .14
15 DEMAND FOR RENT . . . . . . . . . . . . . . . . . . . . . . . .16
16 DAMAGE BY FIRE OR CASUALTY. . . . . . . . . . . . . . . . . . .16
17 SUBORDINATION OF LEASE. . . . . . . . . . . . . . . . . . . . .18
18 HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . .19
19 WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . .20
20 EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . . . . . .20
21 NON-WAIVER OF DEFAULT . . . . . . . . . . . . . . . . . . . . .22
22 QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . .22
23 RECORDING . . . . . . . . . . . . . . . . . . . . . . . . . . .23
24 ACCEPTANCE OF LEASE . . . . . . . . . . . . . . . . . . . . . .24
25 NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
26 TAX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
27 TRANSFER OF LANDLORD'S INTEREST . . . . . . . . . . . . . . . .25
28 RIGHT OF FIRST REFUSAL. . . . . . . . . . . . . . . . . . . . .26
29 PUBLIC LIABILITY INSURANCE. . . . . . . . . . . . . . . . . . .26
30 ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . .27
31 ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . . . . . . . .28
32 FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . .28
33 TIME OF THE ESSENCE . . . . . . . . . . . . . . . . . . . . . .29
34 LIMITATION OF LANDLORD'S LIABILITY. . . . . . . . . . . . . . .29
35 USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
36 RENTAL TAXES. . . . . . . . . . . . . . . . . . . . . . . . . .29
37 LATE CHARGE . . . . . . . . . . . . . . . . . . . . . . . . . .30
38 CONDITIONS PRECEDENT TO LANDLORD'S OBLIGATIONS. . . . . . . . .30
39 RISK OF LOSS FOR PERSONAL PROPERTY OR BUSINESS. . . . . . . . .31
THIS LEASE
Made in Sylvania, Ohio this day of , 1995,
by and between Xxxxx X. Xxxx, Trustee, of 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000 (hereinafter called "Landlord"), and Towne Bancorp, Inc.,
of P. O. Xxx 000, Xxxxxxxxxx, Xxxx 00000 (hereinafter called "Tenant").
WITNESSETH:
ARTICLE 1. PREMISES.
Landlord does hereby let and lease unto Tenant premises situated in the
City of Perrysburg, County of Wood, 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 attached
hereto as Exhibit "A" and made a part hereof.
The Premises shall have approximately square feet of
interior space as outlined in red on the plot plan of the Property attached
hereto as Exhibit "B" 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 (as
hereinafter defined) and terminate on the last day of the twentieth (20th)
consecutive Lease Year (as hereinafter defined) thereafter unless sooner
terminated as provided herein.
The "Commencement Date" as used herein is defined as the earlier of either:
(a) the thirtieth (30th) day after Landlord delivers and Tenant accepts
possession of the Premises (subject to the provisions of Article 4) fully
completed in accordance with Tenant's plans and specifications approved as
outlined in Article 4; or
(b) when Tenant shall open the Premises for banking business;
but shall be extended by the number of days of delay (but in no event longer
than ten (10) days) resulting from strikes, casualties, Tenant's inability to
secure necessary licenses or any other cause beyond Tenant's control.
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.
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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.
Tenant agrees to construct the Premises as reflected on Exhibit "B", after
Landlord's approval of plans and specifications, which approval will not be
unreasonably withheld, in a good and workmanlike manner, with a maximum cost of
building construction, construction loan interest, site acquisition, site
improvements, engineering and architectural costs, permits, construction
management, and whatever other costs that would be associated with the Premises
and Property, not to exceed One Million Dollars ($1,000,000.00), which shall be
paid by Landlord in customary draws with both architectural and title company
written approval prior to each draw. Tenant shall pay all sums for the
aforesaid Property and Improvements on the Premises in excess of one Million
Dollars ($1,000,000.00). The Premises are to be constructed in accordance with
architectural drawings prepared by Tenant or Tenant's architect, and approved by
Landlord as aforesaid. No changes from said approved plans and specifications
shall be made without the approval of Landlord and Tenant in writing.
Within thirty (30) days after the date this Lease is signed by both
parties, Tenant shall prepare, at Tenant's sole cost and expense, final
architectural drawings for the Premises in conformance with the requirements of
Tenant's plans and specifications and any applicable laws, ordinances, rules and
regulations of any public authority or Board of Insurance Underwriters or
similar agency having jurisdiction over the construction of the Premises, and
deliver same to
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Landlord for Landlord's approval as aforesaid, which approval shall not be
unreasonably withheld. Landlord shall notify Tenant within five (5) days after
receipt of the architectural drawings of Landlord's approval or disapproval of
same. In the event Landlord shall not approve such architectural drawings,
Landlord shall notify Tenant in writing of any reasonable changes required by
Landlord and consistent with the plans and specifications originally submitted
by Tenant to Landlord. Tenant shall incorporate any such changes and deliver to
Landlord within five (5) days after receipt of such notice, the final
architectural drawings, as altered, for Landlord's approval. Landlord shall
notify Tenant within five (5) days after receipt of the altered final drawings
of Landlord's approval or disapproval of same.
Tenant shall commence construction of the Premises within two (2) months
from the date hereof, and in the event Tenant shall fail to commence
construction by said date, Landlord may cancel this Lease at any time thereafter
prior to the commencement of construction. Construction shall be deemed to have
commenced after the footings and foundations shall have been completed and all
building permits issued.
Tenant shall provide or cause to be provided as part of the original
installation in the Premises, the necessary mains, conduits, lines, utility
meters, and facilities in order that gas, electricity, water and sewer services
may be furnished to the Premises, which costs shall be included in total
construction cost.
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.
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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 Eight Thousand Five
Hundred Dollars ($8,500.00) per month during Lease Years 1 through 3; the sum of
Nine Thousand Four Hundred Seventeen and 42/100 Dollars ($9,417.42) 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
December in the year 1995 would be the bass month and year for the CPI increase
for Lease Years 2000 through 2005. The month of December in the year 2000 would
be the base month and year for the CPI increase for Lease Years 2005 through
2010. The month of December in the year 2005 would be the base month and year
for the CPI increase for Lease Years 2010 through 2015. 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:
Xxxxx X. 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 Twenty-Five Thousand Dollars ($25,000.00) in the form of
common stock of Towne
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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 September in the year 2010 would
be the base month and year for the CPI increase for the Lease Years 2015 through
2020 (first option period), and the month of September in the year 2015 would be
the base month and year for the Lease Years 2020 through 2025 (second option
period).
In addition to the Fixed Rent, Tenant will also pay Landlord at the end of
each Lease Year the sum of Twenty-Five Thousand Dollars ($25,000.00) 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
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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 2015 and year 2020.
(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 Dollars ($1,000,000.00) plus
appreciation of two percent (2%) per year or the sum of One Million One Hundred
Four Thousand Eighty-One Dollars ($1,104,081.00), plus deferred rent of
$16,514.00, after the first five-year period, the sum of One Million Two.
Hundred Thirteen Thousand Nine Hundred Ninety-Five Dollars ($1,213,995.00) after
the end of the second five-year period, the sum of One Million Three Hundred
Forty-Five Thousand Eight Hundred Seventy Dollars ($1,345,870.00) after the end
of the third five-year period, and the sum of One Million Four Hundred
Eighty-Five Thousand Nine Hundred Thirty-Nine Dollars ($1,485,939.00) after the
end of the fourth five-year period.
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 $642.00
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,
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up to a maximum of One Hundred Thousand Dollars ($100,000.00), based on the
original loan amount of Seven Hundred Fifty Thousand Dollars ($750,000.00) and
term of twenty (20) years, 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, 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 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
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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 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
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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 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
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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.
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
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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 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 Lease 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
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claim of Landlord for rent, damages, or indemnity for injury resulting from the
termination, 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 ad 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 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
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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 leaseholdor 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
condemning authority for loss of business, DAMAGE to merchandise and fixtures,
removal and reinstallation costs and moving expenses.
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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.
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 3nay
be evidenced by a photocopy of an existing policy of title insurance issued by a
recognized title insurance company.
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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 me 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.
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. Xxxx, Trustee
c/o Gerdenich & Co.
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attn: Xxxxx Xxxxxxxxx, President
(b) If to Tenant:
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P. O. Xxx 000
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. 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.
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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.
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.
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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 ail of the foregoing instances,
Tenant shall remain liable for all performance of all terms, covenants and
conditions of this Lease.
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. ESTOPPEL CERTIFICATES.
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
facto with respect thereto, provided such information and facto 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
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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.
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's acquisition of the Property described on Exhibit A;
(b) Tenant obtaining all necessary permits to engage in the construction
of the Premises as identified in this Lease;
(c) Landlord securing adequate financing to build the Premises and acquire
the Property;
(d) 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
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Tenant arising from any acts or neglect of Landlord, Landlord's agents,
independent contractor, or 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
----------------------------------- --------------------------------------
Xxxxx X. Xxxxxxxxxxx Xxxx, Trustee
----------------------------------- "Landlord"
Towne Bancorp, Inc.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------- -----------------------------------
Xxxxxx Xxxxxxxxx, President
By: /s/ Xxxx X. Xxxxxxx
----------------------------------- -----------------------------------
Xxxx X. Xxxxxxx, Vice President
"Tenant"
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