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Exhibit 10.h.
OFFICE LEASE
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THIS LEASE, made and entered into at Madison, Ohio, as of the 1st day
of May 2000, by and between XXXXX AND XXXXXX, INC., an Ohio corporation
(hereinafter called "Lessor") and GREAT LAKES BANK, a corporation incorporated
and doing business under the laws of the State of Ohio, (hereinafter called
"Lessee"):
W I T N E S S E T H;
1. PREMISES AND TERM:
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A. Lessor, in consideration of the rents to be paid and the covenants
and agreements to be performed by Lessee and upon the terms and conditions
hereinafter contained, hereby leases to Lessee, who hereby hire and takes from
Lessor and hereby covenants and agrees to pay rents and to observe and perform
each and all of the covenants and agreements herein and upon and subject to said
terms and conditions, the premises hereinafter identified and shown on Exhibit
"A" attached hereto, of the first floor of the building located at 0000 Xxxxx
Xxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxxx (hereinafter referred to as the
"Building") said Building being located on the land (hereinafter referred to as
the "Land") described in Exhibit "A" attached hereto and hereby made a part
hereof. Hallway areas used exclusively by Lessee shall be included as part of
the Premises. This Lease shall commence on the Commencement Date as hereinafter
defined, and shall end on the last day of the one hundred twentieth (120) full
calendar month after
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the Commencement Date, unless sooner terminated as hereinafter provided.
B. Upon the condition that there is no default by Lessee in the
performance of any condition of this Lease, Lessee may extend the term of this
Lease for two (2) additional terms of sixty (60) months each. Lessee shall
exercise the option for an extended term by notifying Lessor in writing at least
one hundred eighty (180) days prior to the expiration of the then current term.
Time is of the essence in this provision for notice. The extended term shall be
upon the same conditions as provided in this Lease, and the annual base rent
during the extended term shall be as hereinafter set forth:
C. The Commencement Date shall be May 1, 2000. On request of Lessor,
Lessee shall execute and acknowledge a certificate to be furnished by Lessor
setting forth the actual number of square feet of the Premises, the base annual
rent therefor.
2. ANNUAL BASE RENT:
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A. Lessee covenants and agrees to pay Lessor without demand, as Annual
base Rent, for 1,232.00 square feet, for each year of the initial term the sum
of Twenty-One Thousand One Hundred Forty-One and 12/100 ($21,141.12) per year.
The total lease payment including Common Area Charges and real estate taxes as
set forth in Paragraph 3B below shall be Twenty-Three Thousand Five Hundred
Fifty-Two and 16/100 Dollars ($23,552.16) per year, until adjusted as provided
in Section 3. One-twelfth (1/12th) of the Annual Base Rent and Common area
Charges and real estate taxes
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shall be paid each consecutive month, each due in advance without deduction or
setoff, in legal tender of the United States of America, on the first day of
each and every calendar month during said term at the offices of Lessor or at
such other place as Lessor may from time to time in writing designate. The total
amount to be paid per month for the first lease year shall be $1,960.18 per
month. The rents will be adjusted yearly as provided in paragraph 3.
B. The extended terms (renewal periods) shall be upon the same
conditions as provided in this Lease and the annual base rent during the
extended terms shall be as follows: Nineteen and 90/100 Dollars ($19.90) per
square foot for an annual base rental of $24,516.80 during the first renewal
term; and Twenty-Three and 08/100 Dollars ($23.08) per square foot for an annual
base rental of $28,434.52) during the second renewal term.
C. The Base Rent and any or all other rent to be paid hereunder and any
or all other payments and/or charges hereunder not paid by Lessee when due shall
bear interest from the date when due at an annual rate equal to twelve percent
(12%). Rental adjustments, other rent and/or other payments or charges which
become due from Lessee shall be regarded as additional base rent hereunder. The
obligation of Lessee to pay rent under this Lease is an independent covenant,
and no act or circumstance whatsoever, whether such act or circumstance
constitutes a breach of covenant by Lessor, shall release or diminish Lessee's
obligations to pay rent hereunder.
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D. Annual Base rent during the Option Periods, as provided in 2B has
been agreed upon by the Lessor and Lessee, payable as provided in Section 3(A)
hereof).
E. In no event shall Annual base Rent be decreased by reason of the
application of the following formula.
3. RENTAL ADJUSTMENT:
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The Annual Base Rent to be paid by Lessee under this Lease shall be
adjusted and as adjusted paid by Lessee as of the times and in the manner set
forth in this Section 2, as follows:
A. One-quarter (1/4) of the annual real estate taxes;
B. One-quarter (1/4) of the cost of electricity for lighting of the
common areas;
Lessor estimates that the total charges for A and B of this section
shall be $198.42 per month. Lessor will adjust the amount up or down at the
beginning of each calendar year and will, upon request, provide Lessee with
documentation showing the basis for the change.
4. USE OF PREMISES:
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The premises shall be used and occupied by Lessee for banking purposes
only, and for no other purpose. Lessee shall keep the Premises at all times in
good order, condition and repair, and shall keep the Premises in a clean and
sanitary condition in accordance with the laws of the Township of Madison, and
the State of Ohio, and in accordance with all directions, rules and regulations
of the health officer, fire marshal, building inspector and/or other proper
officers of any and all governmental agencies
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having jurisdiction, at the sole cost and expense of Lessee, and Lessee shall
comply with all requirements of law, ordinance or otherwise, affecting the use
of the Premises. Lessee shall commit no act which will cause either Lessor to be
in noncompliance with the zoning ordinances of the Township of Madison. Lessee
will not occupy or use, nor permit any portion of the Premises to be occupied or
used, for any business or purpose which is deemed extra hazardous on account of
risk of fire, nor permit anything to be done which will in any way increase the
rate of fire insurance on the Building or contents, and, in the event that, by
reason of acts, conduct or business of Lessee, there shall be any increase in
the rate of insurance on the Building or contents created by Lessee's acts or
conduct or business, then Lessee agrees to pay such increase to Lessor upon
demand as additional rental. Lessee will conduct its business and control its
agents, employees and invitees in such manner as not to annoy, disturb or create
any nuisance or interference with other lessees or Lessor.
5. COMMON AREAS:
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Lessee and Lessee's agents, employees, licensees and invitees shall
have the right to use, in common with Lessor and Lessor's tenants and the
agents, employees, licensees and invitees of each, the parking areas, public
sidewalks, entrances, lobbies, vestibules, stairways, corridors, public toilets
and other public areas of the Building (all of the foregoing being hereinafter
referred to as the "Common Areas"), subject, however, to the provisions of this
Lease and to applicable Building rules,
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regulations and security measures. Lessor expressly reserves the right from time
to time to assign, designate and/or allocate certain parts of the parking areas
and/or parking spaces therein to and/or for use by Lessor and/or certain
lessees of the Building, and the agents, employees, licensees and/or invitees
of each. Lessee and Lessee's agents, employees, licensees and invitees shall not
obstruct or litter, or use for storage (temporarily or otherwise) or for the
display of merchandise or services or for any purpose other than the intended
and normal purpose, any of the Common Areas; and no floor mats or runners shall
be placed by Lessee in any Building corridor, lobby or vestibule, without
Lessor's prior written consent. Xxxxxx xxx temporarily close any part of the
Common Areas for such periods of time as may be necessary to prevent the public
from obtaining prescriptive rights or to make repairs or alterations. Lessor
reserves the right to change from time to time the dimensions and locations of
the Common Areas. The Common Areas shall be deemed to be part of the Premises
demised by this Lease, however, the right to use the Common areas granted herein
shall be subject to all of the terms, conditions and provisions of this Lease
and such rules and regulations as are or may be made by Lessor from time to
time. Any such modifications or re-configurations shall not materially impair
the visibility or accessibility of the bank's facilities, including, without
limitation, the drive-up facilities.
6. SERVICES:
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A. Provided Lessee is not in default under any of the
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covenants and/or agreements of this Lease, Lessor shall, during the term of this
Lease, furnish Lessee with the following as to the Common Areas:
(1) cleaning, janitorial and window washing services, standard for the
Building;
(2) cold and hot water at standard Building temperatures for sanitary
purposes only, and Lessee shall pay, at standard Building rates, for cold and
hot water used for other than sanitary purposes and/or for water wasted, and
also for sewer charges with respect hereto;
(3) heating and air conditioning units;
(4) lawn maintenance and snow plowing.
B. As to the demised portion of the Building, Lessee shall provide and
be responsible for payment of the following:
(1) cleaning, janitorial and window washing services standard for the
conduct of its business;
(2) security standard for the conduct of its business;
(3) all utility charges including, but not limited to, electricity and
telephone, for the demised premises. All utility charges shall be by separate
meter.
C. Lessee's personal property and trade fixtures shall be separately
listed for assessment purposes or for taxation purposes of any kind. Lessee
shall promptly pay all taxes levied thereon.
X. Xxxxxx reserves the right from time to time to make changes in,
additions to, subtractions from or rearrangements of the Building, including
without limitation, the Street address, all
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improvements at any time thereof, all entrances and exits thereto, and to grant,
modify and terminate easements or other agreements pertaining to the use and
maintenance of all or part of the Building and to make changes or additions to
the pipes, utilities and other necessary Building services in the Premises which
serve other portions of the Building. Any such modifications or reconfigurations
shall not materially impair the visibility or accessibility of the bank's
facilities, including, without limitation, the drive-up facilities.
7. ALTERATIONS AND REPAIRS:
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A. Lessor shall keep in good repair the structure, foundation, roof,
exterior walls and Common Areas of the Building, provided, however, Lessor shall
have no obligation to make any repairs hereunder until the expiration of a
reasonable period of time after Lessor's receipt of a written notice from Lessee
that such repair is needed, and provided, further, however, Lessor shall have no
obligation to make any repairs caused by or resulting from any negligence,
misuse, fault or willful misconduct of Lessee or Lessee's employees, agents,
guests, invitees or representatives sand all such repairs shall be made at
Lessee's cost and expense except as may otherwise expressly be provided in this
Lease. Lessee shall at all times during the term hereof keep and maintain at its
cost and expense, the Premises (including replacing any glass, outer or inside
windows and doors and any frames and hardware thereof, any of which become
broken or damaged from the inside) in as good order, condition and repair as
when they were
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entered upon, ordinary wear and tear excepted. All repairs required to be made
as a result of Lessee's misuse or neglect of the Premises or of damage to, or
defacement of, the Building and/or Common Areas, or any part thereof, by reason
of Lessee's tenancy therein shall be made at Lessee's expense. If Lessee fails
to keep the Premises in such good order, condition and repair as required
hereunder to the reasonable satisfaction of Lessor, as soon as reasonably
possible after written demand, Lessor may, but shall not be obligated to,
restore the Premises to such good order and condition and make such repairs
without liability to Lessee and, upon completion thereof, Lessee shall pay to
lessor, as additional rental, upon demand, the cost of restoring the Premises to
such good order and condition and of the making of such repairs.
X. Xxxxxx reserves the right at any time or times, either voluntarily
or pursuant to governmental requirements, to make, at Lessor's expense, any
repairs, alterations or improvements in or to the Building or any part thereof,
and during such times may temporarily close entrances, doors, corridors, stairs
or other public parts of the Common Areas of the Building, all without liability
to Lessee.
C. Lessee shall, at Lessee's cost and expense provide and construct all
inner walls, partitions and counters, provide own window coverings and hardware,
tile and/or carpeting. Lessee further agrees to keep said premises and
improvements thereon at that times, free and clear of all liens for labor or
materials furnished in and about the premises and indemnify and save harmless
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Lessor from each and every claim or action on account of any claim, lien or
judgment arising out of or connected with any fact or omission by lessee, its
successors or assigns, or any of its agents, employees or contractors, in or
about such repair, alteration or improvement.
8. INDEMNITY AND INSURANCE:
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A. Lessor shall not be liable to Lessee or to Lessee's employees,
agents, guests, licensees or invitees, or to any other person whomsoever, for
any injury to person or damage to Lessee's business or to property on or about
the Premises, the Land or the Building caused by the negligence or misconduct of
Lessee, Lessee's officers, agents, employees, licensees or contractors, or any
other person entering the Land or Building under express or implied invitation
of Lessee, or arising out of the use of the Premises by Lessee or the conduct of
its business therein, or arising out of any breach or default by Lessee in the
performance of its obligations hereunder. Lessee shall indemnify and save
harmless Lessor from and against any and all claims, actions, damages, liability
and expense in connection with injury or death to person or damage to property
occurring in, on or about the Premises, the Common Areas, the Land, the Building
and adjacent sidewalks and other areas, caused by the negligent acts or willful
misconduct of Lessee, Lessee's officers, agents, employees, licensees or
contractors, and shall pay Lessor's costs, expenses and reasonable attorney's
fees in connection therewith.
B. Lessee, at all times during the term hereof, shall at its
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sole cost and expense, obtain and keep in full force and effect, comprehensive
general liability insurance, including personal injury, death and property
damage insurance, issued by a responsible insurance company or companies
authorized to do business in the State of Ohio, in the amount of no less than
One Million Dollars ($1,000,000.00) for injury to or death of one person and no
less than Two Million Dollars ($2,000,000.00) for injury to or death of two or
more persons, and no less than One Million Dollars ($1,000,000.00) for damages
to property, or in lieu of the above, a combined single limit of no less than
Two Million Dollars ($2,000,000.00). Lessor shall be named as an additional
insured under said policies with respect to the Premises. Lessee shall, within
ten (10) days after request therefor by Lessor, deposit with Lessor a copy of
all such policies or certificates showing such insurance to be then in force.
All policies shall contain an undertaking by the insurers to notify the Lessor,
in writing, by registered or certified mail, not less than thirty (30) days
prior to any material change, cancellation or other termination thereof. In
addition, Lessee shall, at its sole cost and expense, obtain and keep in full
force and effect, such other forms of insurance as Lessor may reasonably require
from time to time in form and amounts and insuring against risks included within
fire, extended coverage, vandalism, malicious mischief and those included in the
all-risk endorsement.
9. LOSS AND DAMAGE:
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A. Lessor shall not be liable or responsible in any way for
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any death or injury arising from or out of any occurrence in, on or about the
Premises, Land or Building, nor for any damage to any property of Lessee or
others located in, on or about the Premises, Land or Building, Without limiting
the generality of the foregoing, Lessor shall not be liable or responsible for
any injury or damage to persons or property resulting from fire, smoke,
explosion, falling ceilings, flood, steam, gas, electricity, water, sewers,
rain, snow or leaks from any part of the Premises, Land or Building or from the
pipes, appliances, plumbing works, roof, street, or sub-surface of any floor or
ceiling or from any other place in the Building or because of dampness or
climatic conditions or from any other cause of whatsoever kind. Lessor shall not
be liable for any damage whatsoever caused by any other lessee or persons in the
Building, or by any occupant of adjacent property thereto, or the public, or
construction of any private, public or quasi-public work. All property of Lessee
and/or others kept or stored on the Premises shall be so kept or stored at the
risk of Lessee only and Lessee shall indemnify Lessor in the event of any claims
arising out of damage to the same, including any subrogation claims by lessee's
or others' insurers.
X. Xxxxxx shall not be liable or responsible in any way for any act or
omission (including theft, malfeasance or negligence) on the part of any agent,
contractor or person from time to time employed by Lessor to perform janitor
services or security services, or repairs or maintenance services, in or about
the Premises, Land or Building, nor shall Lessor be liable or responsible in any
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way for loss or damage, however, caused, to money, securities, negotiable
instruments, papers or other valuables of Lessee, nor shall Lessor be liable for
lost profits or temporary relocation expenses of Lessee.
10. UNTENANTABILITY:
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A. Unless all or substantially all of the Premises or Building are made
unfit for occupancy by fire or other casualty, acts of God or other cause, if
the Premises shall be partially damaged by fire or other casualty, this Lease
shall remain in full force and effect and the damage to the Premises shall be
repaired by Lessor, and the rent shall xxxxx proportionate to the extent and for
the period that the Premises are unfit for occupancy. Lessor shall incur no
liability on account of any delay in the making and/or completion of such
repairs which may arise by reason of adjustment of insurance, labor difficulties
or any other cause beyond Lessor's reasonable control.
B. If all or substantially all of the Premises or Building are made
unfit for occupancy by fire or other casualty, acts of God or other cause,
Lessor may elect (a) to terminate this Lease as of the date when the Premises or
the building are so made unfit for occupancy, by written notice to Lessee within
ninety (90) days after that date, or (b) to repair, restore or rehabilitate the
Premises or the Building at Lessor's expense within one hundred eighty (180)
days after Lessor is able to take possession of the damaged Premises and
undertake reconstruction or repairs; and if Lessor elects so to repair, restore
or rehabilitate the Premises or
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the Building, this Lease shall not terminate, but rent shall be abated on a per
diem basis proportionate to the extent and from the period that the Premises are
unfit for occupancy. In the event Lessor shall proceed under (b) above and
shall not substantially complete the work within said one hundred eighty (180)
days (excluding from said period loss of time resulting from delays beyond the
reasonable control of Lessor) either Lessor or Lessee may then terminate this
Lease, as of the date when the Premises or the Building were so made unfit for
occupancy, by written notice to the other not later than ten (10) days after the
expiration of said one hundred eighty (180) day period, computed as herein
provided. In the event of termination of this Lease pursuant to this paragraph,
rent shall be apportioned on a per diem basis to and including the effective
date of such termination.
11. EMINENT DOMAIN
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A. If the whole or any substantial part of the Premises, Building or
Land shall be appropriated, condemned, taken or otherwise acquired by any public
or quasi-public authority under the power of eminent domain, condemnation or
other proceedings, this Lease and the estate hereby created shall, at the option
of Lessor, terminate and wholly expire on the date title shall vest in the
acquiring authority, and all rent shall be prorated and adjusted as of said
date. In no event whatsoever shall Lessee have any claims against Lessor by
reason of any appropriation, condemnation or taking of the whole or any part of
the Premises, Building or Land, nor shall Lessee have any claim to the amount,
or
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any portion thereof, that may be awarded as damages or compensation or paid as a
result of any appropriation, condemnation and/or taking. Lessee hereby assigns
to Lessor all of Lessee's right, title and interest in and to any and all
amounts awarded or paid by reason by any appropriation, condemnation and/or
taking, provided, however that none of the foregoing is meant to deprive the
Lessee from claiming and being paid moving expense, displacement expenses or the
like solely from the acquiring authority. Lessee upon request of Lessor will
execute any and all releases, transfers or other documents as shall be required
by such public or quasi-public authority to effect and give further evidence and
assurances of the foregoing
B. If this Lease is not terminated following such appropriation,
condemnation and taking, then Lessor shall, at Lessor's own expense, but only to
the extent of an equitable proportion of the award for the portion of the
Premises or Building (excluding any award for any land), make such repairs to
the Premises as are necessary to constitute a complete architectural and
tenantable unfit. In the event of a partial taking or conveyance of the
Premises, a proportionate allowance shall be made if the fixed rent based on the
proportion of the Premises remaining as compared to the original Premises.
12. ASSIGNMENT AND SUBLETTING:
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Except by corporate merger or acquisition, Lessee shall not, without
the prior written consent of Lessor in each instance, (a) assign, mortgage,
hypothecate or convey this Lease or any
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interest therein; (b) allow any transfer hereof or any lien upon Lessee's
interest by operation of law; (c) sublet the Premises or any part thereof; or
(d) permit the use or occupancy of the Premises or any part thereof by anyone
other than Lessee; provided, however, Lessor's written consent shall not be
necessary to an assignment of this Lease or the subletting of any portion of the
Premises to any subsidiary, affiliated or parent entity of Lessee, except that
Lessor shall be given written notice of such assignment or subletting and that
such assignee and/or sublessee shall be jointly and severally liable with Lessee
for all of Lessee's obligations under this Lease. Consent to any such
assignment, conveyance or subletting by Lessor shall not operate as a waiver of
the necessity for a consent to any subsequent assignment, conveyance or
subletting, and the terms of such consent shall be binding upon Lessee and any
person holding by, under or through Lessee. Such consent shall not relieve
Lessee from liability hereunder for the payment of rental and/or performance
and/or observance of any of the terms and conditions of this Lease.
13. TRANSFER BY LESSOR:
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In the event of a sale or transfer by Lessor of the Land and/or
Building or the portion thereof containing the Premises or of Lessor's interest
therein, Lessor shall, without further agreement, thereafter have no further and
is hereby released and relieved of all liability or obligation under this Lease,
except for such liabilities as may have accrued prior to the date of such sale
or transfer.
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14. TAKING AND SURRENDER OF POSSESSION:
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A. Taking of possession of the Premises by Lessee shall be
conclusive evidence as against Lessee that the Premises were in good
order and satisfactory condition when Lessee so took possession and
Lessee agrees, upon request of Lessor, to execute a written
acknowledgment evidencing and confirming such acceptance. No
representation respecting the condition of the Premises or the Building
has been made by Lessor to Lessee unless contained herein; and no
promise of Lessor to prepare, alter or improve the Premises for Lessee's
use and occupancy shall be binding upon Lessor unless contained herein
or in Lessor's said Work Letter. This Lease does not grant any right to
light or air over property, and Lessor shall not be liable to Lessee for
any expense, injury, death, loss or damages resulting from work done in
or upon, or by reason of the use of, any adjacent or nearby building,
land or public or private way.
B. At the expiration, or earlier termination in any manner,
of the term hereof, Lessee shall quit and surrender the Premises, broom
clean, together with all installations, improvements and alterations
(including partitions) which may have been installed by Lessor or
Lessee; and the Premises shall then be in as good condition and repair
as when possession was delivered, reasonable use and wear, loss or
damage by fire, the elements or other insured casualty excepted, failing
which Lessor may restore the Premises to such condition and Lessee shall
pay the cost thereof. Lessee may remove carpeting laid by Lessee,
provided
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Lessee also removes all nails, tacks, paper, glue, bases and other
vestiges of the carpeting and restores the floor surface to the
condition existing before such carpeting was laid. If Lessee fails to
remove Lessee's carpeting, trade fixtures, personal property and
equipment which it has a right to remove from the premises prior to the
end of the term, Lessor, at its option, may require Lessee to remove the
same and, if Lessee does not do so by the end of the term, Lessor may do
so at the Lessee's expense and, in any event, if Lessee does not remove
the same, Lessee shall be conclusively presumed to have abandoned the
same, and ownership thereof shall forthwith vest in Lessor without
payment or credit to Lessee. If the Premises are not surrendered at the
end of the term, or any renewal thereof, or the sooner termination
thereof, Lessee shall indemnify Lessor against loss or liability
resulting from delay by Lessee in so surrendering the Premises,
including, but without limitation, any claims made by any succeeding
lessee founded on such delay. Lessee shall promptly upon surrender,
deliver all keys for the Premises to Lessor at the place then fixed for
payment of rent.
15. HOLDING OVER:
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Should Lessee or any party claiming under Lessee remain in
possession of the Premises after the expiration or other termination
of the term of this Lease with the consent of Lessor, then, unless a new
agreement in writing shall have been entered into with respect thereto
between the parties hereto, such tenancy shall be from month-to-month
and otherwise be subject to all of the
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additional rentals, covenants and agreements of this Lease, so far as
applicable, at a monthly rental equal to one hundred fifty percent
(150%) of the last monthly installment of rent payable hereunder and
terminable by either party on thirty (30) days notice.
16. ACCESS TO PREMISES:
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A. Lessor and its agents and representatives shall have the
right to enter the Premises at all reasonable times (1) for the making
of such inspections, repairs, alterations, improvements or additions of,
or to, the Premises, the Building or the Land as Lessor may deem
necessary or desirable; (2) to exhibit the Premises to others during the
last six (6) months of the term hereof; and (3) for any purpose
whatsoever related to the safety, protection, preservation, repair,
maintenance or improvement of the Premises, the Building or the Land or
of Lessor's interest.
X. Xxxxxx and its agents and representatives shall have the
right to enter during the last ninety (90) days of the term, provided
Lessee shall have removed substantially all of Lessee's property from
the Premises, for the purpose of altering, remodeling, repairing,
renovating or otherwise preparing the Premises for leasing.
X. Xxxxxx may exercise all or any of the foregoing rights
without being deemed guilty of an eviction of disturbance of Lessee's
use and possession without being liable in any manner to Lessee and
without elimination or abatement of rent, or payment of other
compensation, and such acts shall in no way affect this
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Lease.
17. QUIET ENJOYMENT:
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Lessor covenants and agrees that if Lessee shall perform all
of the covenants and agreements on Lessee's part to be performed
hereunder, Lessee shall land may peaceable and quietly have, hold and
enjoy the Premises during the Lease term and any renewal or extension
thereof, without hindrance from Lessor or any person lawfully claiming
the Premises, subject, however, to the terms of this Lease and any
mortgages or other matters of record. Lessor shall not be liable for any
interference or disturbance by other tenants or third persons, nor shall
Lessee be released from any of the obligations of this Lease because of
such interference or disturbance.
18. SIGNS:
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Lessee may use all existing signage, which includes a
free standing sign and directional signs for the traffic using the
drive-through. Lessee may erect a wall sign on the face of the
building facing U.S. Rt. 20. The color and size of the signs are
to be approved by Lessor, which approval will not be unreasonably
withheld.
19. RULES AND REGULATIONS:
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Lessee and Lessee's agents, employees, licensees and invitees
shall faithfully observe and strictly comply with any Rules and
Regulations appearing at the end of this Lease and made a part hereof,
and with such further reasonable Rule and Regulations as Lessor may,
after notice to Lessee, from time to time adopt any
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Rules or Regulations which are applicable to Lessee and/or the Premises
and which are inconsistent with the terms of this Lease, without
Lessee's consent thereto. Nothing in this Lease shall be construed to
impose upon Lessor any duty or obligation to enforce the Rules and
Regulations herein and/or in any other lease as against any other
lessee, and Lessor shall not be liable to Lessee for violation of the
same by any other lessee or the agents, employees, licensees or invitees
of such other lessee or any other person.
20. ESTOPPEL CERTIFICATES:
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Lessee agrees that it will from time to time upon request by
Lessor execute and deliver to Lessor a statement or statements in
recordable form certifying (i) that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same are
in full force and effect as so modified), (ii) the dates to which rent
and other charges payable under this Lease have been paid, (iii) that
Lessor is not in default hereunder (or if Lessor is in default,
specifying the nature of such default), and (iv) the Commencement Date
and termination date of this Lease. Lessee further agrees that it will
from time to time upon request by lessor execute and deliver to Lessor
an instrument or instruments in recordable form acknowledging its
receipt of any notice of assignment of this Lease by Lessor.
21. LESSOR'S REMEDIES UPON DEFAULT
------------------------------
A. If any voluntary or involuntary petition or similar
pleading under any Act of Congress relating to bankruptcy shall be
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filed by or against Lessee, or if any voluntary or involuntary
proceedings in any court or tribunal shall be instituted by or against
Lessee to declare Lessee insolvent or unable to pay Lessee's debts, then
and in any such event Lessor may, if Lessor so elects, with or without
notice of such election and with or without entry or other action by
Lessor, forthwith terminate this Lease and Lessee's right to possession
of the Premises, and, notwithstanding any other provisions hereof,
Lessor shall forthwith upon such termination be entitled to recover
damages in an amount equal to the then present value of the rent to be
paid under this Lease for the entire residue of the stated term hereof.
In calculating present value, the legal rate of interest applicable at
the date of default shall be used.
B. If Lessee shall fail to pay any rent due to be paid
hereunder when due, or within five (5) business days after the giving of
notice by Lessor that such rent is past due, or defaults in the prompt
and full performance of any of Lessee's covenants and agreements
hereunder, and said default is not corrected within ten (10) business
days after notice from Lessor or said default, or if the leasehold
interest of Lessee be levied upon under execution or be attached, or if
Lessee makes an assignment for the benefit of creditors or if a receiver
be appointed for any property of Lessee, or if lessee abandons the
Premises, then and in any such event, Lessor may, if Lessor so elects,
and with or without notice of such election and with or without demand
whatsoever, forthwith terminate this lease and Lessee's right of
possession of the Premises, or
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Lessor may, without terminating this Lease, terminate Lessee's rights to
possession of the Premises. No re-entry or retaking of possession by
lessor shall be construed as an election to terminate this Lease unless
a written notice of such election is given to Lessee or unless the
termination thereof is decreed by a court of competent jurisdiction.
C. Upon termination of this Lease, or upon the termination
of Lessee's right to possession without termination of the Lease, Lessee
shall surrender possession and vacate the Premises immediately, and
Lessor may enter into and repossess the Premises with or without process
of law and remove all persons and property therefrom in the same manner
and with the same right as if this Lease had not been made, and for the
purpose of such entry and repossession Lessee waives any notice provided
by law or otherwise to be given in connection therewith. Lessor shall
forthwith upon termination of this Lease be entitled to recover damages
in an amount equal to the then present value of the rent to be paid
under this Lease for the entire residue of the stated term hereof. In
calculating present value, the legal rate of interest applicable at the
date of default shall be used.
D. If Lessor elects to terminate Lessee's right to possession
only, without terminating the Lease as above provided, Lessor may remove
from the Premises any and all property found therein and such
repossession shall not release Lessee from Lessee's obligation to pay
the rent to be paid under this Lease. After any such repossession by
Lessor without termination of the
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Lease, Lessor shall make reasonable efforts to relet the Premises, or
any part thereof, as agent of Lessee, to such person, firm or
corporation and for such time and upon such terms as Lessor, in Lessor's
sole discretion, may determine. Lessor may make repairs, alterations and
additions in and to the Premises and may redecorate the same to the
extent deemed by Lessor necessary or desirable, and Lessee shall, upon
demand, pay the cost thereof, together with Lessor's expenses (including
any broker's commission and attorney's fees) of reletting. If the rents
collected by lesser upon any such reletting are not sufficient to pay
monthly the full amount of the rent to be paid under this Lease,
together with the payment of any indebtedness other than rent due
hereunder from Lessee, and the costs of such repairs, alterations,
additions, redecorating and expenses, Lessee shall pay to Lessor the
amount of each monthly deficiency upon demand.
E. If Lessee shall default in performing any term, covenant
or condition of this Lease on the part of Lessee to be performed by
Lessee, which default may be cured by the expenditure of money, Lessor
at Lessor's option may, but shall not be obligated to, on behalf of
Lessee, expend such sums as may be necessary to perform and fulfill such
term, covenant or condition, and any and all sums so expended by Lessor,
with interest thereon at an annual rate equal to twelve percent (12%),
shall be and be deemed to be addition rent, in addition to the Annual
base Rent and/or Adjusted Annual Rent, and shall be repaid by Lessee to
Lessor on demand, but no such payment or expenditure by Lessor shall be
deemed a waiver
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of Lessee's default nor shall it affect any other remedy of Lessor by
reason of such default.
F. Any obligation imposed by law upon Lessor to relet the
Premises shall be subject to the reasonable requirements of Lessor to
develop in a harmonious manner the property of which the Premises are a
part; and the failure of Lessor to relet, provided that Lessor has used
reasonable efforts to relet, shall not release or affect Lessee's
liability for damages hereunder.
G. In the event of a default or threatened default by Lessee
of any of the terms, provisions, covenants, conditions, rules and/or
regulations of this Lease, Lessor shall have the right to injunction and
the right to invoke any remedy permitted to lessor in law or in equity.
All remedies available to Lessor are declared to be cumulative and
concurrent. No termination of this Lease nor any taking or recovering of
possession of the Premises shall deprive Lessor of any of its rights,
remedies or actions against Lessee.
22. WAIVER:
-------
A. No receipt of money by lessor from Lessee with knowledge
of the breach of any covenants of this Lease, or after the termination
hereof, or after the services of any notice, or after the commencement
of any suit, or after final judgment for possession of the Premises,
shall be deemed a wavier of such breach, nor shall it reinstate,
continue or extend the term of this Lease or affect any such notice,
demand or suit.
B. No delay on the part of Lessor in exercising any
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right, power or privilege hereunder shall operate as a wavier thereof,
nor shall any single or partial exercise of any right, power or
privilege preclude any other, or further, exercise thereof or the
exercise of any other right, power or privilege.
C. No act done or thing said by Lessor or Lessor's agents or
employees shall constitute a cancellation, termination or modification
of this Lease or a waiver of any covenants, agreement or condition
hereof, nor relieve Lessee from Lessee's obligation to pay the rents or
other charges to be paid hereunder. Any waiver or release by Lessor and
any cancellation, termination or modification of this Lease must be in a
writing signed by Lessor. The receipt by Lessor of rent from any
assignee, sublessee or occupant of the Premises shall not be deemed a
waiver of the covenant in this Lease contained against assignment and
subletting or an acceptance of the assignee, sublessee or occupant as a
lessee, or a release of Lessee from further observance or performance by
Lessee of the covenants in this Lease on the part of Lessee to be
observed and performed.
23. SUBORDINATION OF LEASE:
-----------------------
This Lease shall be subject and subordinate to the lien of
any ground lease, first mortgage or deed of trust which may now or
hereafter affect the Building or the Land of which the Premises are a
part, or both, and to all renewals, extensions or replacements to any
such ground lease, first mortgage or deed of trust, unless Lessor or any
such mortgagee or trustee shall, in writing, certify to lessee
otherwise. Lessee shall recognize and honor any assignment of this Lease
by Lessor or assignment of the
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rentals hereunder by the Lessor as security or otherwise. It is the
intention of the parties that, such priority shall be established
automatically and that no separate instrument shall be required to
effectuate such subordination or any non-subordination of this Lease, as
well as any such assignment and/or Lessee's attornment to any such
ground lease, first mortgagee, trustee or assignee. Lessee will,
however, upon request by Lessor, execute any and all instruments deemed
by Lessor necessary or advisable to subject and subordinate, or not to
subject and subordinate, this Lease and all rights given Lessee
hereunder to any such ground lease, first mortgage or deed of trust. In
the event that Lessee does not, within ten (10) days after such request
by Lessor, execute such instruments, Lessee hereby authorizes Lessor as
the Lessee's attorney-in-fact to execute and deliver any such
instruments for and on behalf of Lessee. In the event any proceedings
are brought for the foreclosure of any such first mortgage or deed of
trust, Lessee covenants that it will, to the extent of Lessor's interest
affected by such foreclosure, attorn to the purchaser upon any such
foreclosure sale and recognize such purchaser's interest as Lessor under
this Lease. Lessee agrees to execute and deliver at any time and from
time to time, upon the request of Lessor or of any such holder, any
instrument which, in the sole judgment of Lessor, may be necessary or
appropriate in any such foreclosure proceeding or otherwise to evidence
such attornment. In the event that Lessee is required to subordinate to
existing or future mortgages placed on the demised premises by
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Lessor, such subordination shall be conditioned upon the procurement of
a non-disturbance agreement from the mortgagee(s) whereby the
mortgagee(s) agree that in the event of any foreclosure of the
mortgage(s), the mortgagee(s) will honor the terms of this lease and
shall not disturb the Lessee's quiet enjoyment of the premises.
24. BROKER:
-------
Lessee represents and warrants to Lessor that Lessee has not
dealt with any broker, salesman or finder with respect to the Premises
and/or this Lease and that broker, salesman or finder negotiated or was
instrumental in negotiating or consummating or was the procuring cause
of this transaction or Lease; and Lessee agrees to indemnify and hold
harmless Lessor and defend Lessor against any claim or demand
inconsistent with the foregoing representations and warranties.
25. GOVERNING LAW:
--------------
This Lease shall be deemed to have been made in and shall be
governed, interpreted and construed in accordance with the laws of the
State of Ohio.
26. NOTICES:
--------
In every instance where it shall be necessary or desirable
for Lessor to serve any notice or demand upon Lessee, such notice or
demand shall be deemed sufficiently given or made if it is in writing
and is either (a) delivered to the Premises, or (b) mailed to Lessee by
registered, or certified, United States mail, postage prepaid, addressed
to Lessee at the Building of which
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the Premises are a part, and the time of giving or making such notice or
demand shall be deemed to be the time when the same is mailed as herein
provided. Any notice by lessee to Lessor must be sent by registered or
certified United States Mail, postage prepaid, addressed to Lessor at
the address where the last rent hereunder was to be paid. Wherever in
this Lease, in connection with the breach or performance of any of the
covenants and agreements of Lessee, no period or time or notice is
required by the terms hereof, no notice shall be required as a
prerequisite to the exercise of any right or remedy of Lessor. Prior to
the completion of construction and their occupying the Building, notices
to Lessee shall be given to it at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxx
00000 and notices to Lessor shall be given to it at ___________________.
27. RECORDING:
----------
The parties hereto agree that this Lease shall not be
recorded, but on request of either party, Lessor and Lessee agree to
execute a Memorandum of this Lease, identifying the parties hereto, the
Premises, the term hereof and containing such other provisions as Lessor
shall deem appropriate but not the rate or amount of rent, which
Memorandum of Lease may then be recorded in the office of the Lake
County Recorder.
28. SECTIONS HEADINGS:
------------------
The section headings appearing in this Lease are inserted as
a matter of convenience and for reference purposes only, and in no way
define, limit or describe the scope and intent of this
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Lease, or any section or paragraph hereof, nor in any way affect it.
29. WAIVER OF SUBROGATION:
----------------------
Lessor and Lessee 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 damage to the Premises, Building or
Land, or any property or business caused by any of the perils covered by
a standard fire insurance policy, with Extended Coverage, vandalism and
malicious mischief endorsements, building and contents and business
interruption (if applicable) insurance, or for which either party may be
reimbursed as a result of insurance coverage affecting any loss suffered
by it; provided, however, that the foregoing waivers shall apply only to
the extent of any recovery made by the parties hereto under any policy
of insurance now or hereafter issued and further that the foregoing
waivers do not invalidate any policy of insurance of the parties hereto,
now or hereafter issued, it being stipulated by the parties hereto that
these waivers shall not apply in any case in which the application
thereof would result in the invalidation of any such policy of
insurance. Any additional premium caused by these waivers of subrogation
shall be paid by the party benefited thereby and each party hereto shall
use reasonable effort to attempt to obtain the consents of their
respective insurers to these waivers of subrogation.
30. SEVERABILITY:
-------------
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If any clause or provision of this Lease, or any application
thereof, is illegal, invalid or unenforceable under present or future
laws effective during the Lease term, or any extension thereof, then,
and in that event, it is the intention of the parties that the remainder
of this Lease and any other application of such provision shall not be
affected thereby.
33: LIABILITY OF LESSOR:
--------------------
No personal liability on or under this Lease shall arise or
be enforceable against any and/or all of the present or future
shareholders, officers and directors of Lessor, a corporation, as
individuals, as shareholders or individually or personally, whether or
not said shareholders, officers or directors have signed this Lease, and
the obligations of Lessor on or under this Lease are the obligations
only of said corporation and not of any of said present or future
shareholder, officer or director and shall be enforceable only against
said corporation and only against the assets of said corporation, and
present or future shareholders shall be, made a party to any claim or
suit hereunder and/or be personally liable for any deficiency, Lessee
hereby waiving and releasing any and all such personal liability.
32. ENTIRE AGREEMENT:
-----------------
This lease contains the entire agreement between the parties
hereto and shall not be modified in any manner except by an instrument
in writing executed by said parties or their respective successors in
interest. If more than one person or entity or a combination thereof
comprise "Lessee", their liability hereunder
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shall be joint and several.
The covenants, agreements and conditions contained in this
Lease shall bind and inure to the benefit of Lessor and Lessee and their
respective heirs, legal representatives, successors and assigns to the
extent permitted in this Lease.
IN WITNESS WHEREOF, Lessee and Lessor have executed multiple
counterparts of this LEASE, as of the day, month and year first above
written.
WITNESS: LESSEE:
GREAT LAKES BARK
/s/ Xxxxx X. Xxxxxxxx Xx.
------------------------ an Ohio corporation
/s/ Xxxxxx X. Xxxxxxxx
------------------------
/s/ Xxxxxxx X. Xxxxxxx Xx.
------------------------------------
By: Xxxxxxx X. Xxxxxxx Xx.
--------------------------------
its: President
--------------------------------
LESSOR:
/s/ Xxxxxxx X. Xxxxxxx
------------------------ XXXXX AND XXXXXX, INC.
/s/ Xxxxx Xxxxxxxx an Ohio corporation
------------------------
/s/ Xxxx X. Xxxxx
------------------------------------
By: Xxxx X. Xxxxx
---------------------------------
Its: Secretary
--------------------------------
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