EXHIBIT 10.7
LEASE AGREEMENT
---------------
THIS AGREEMENT OF LEASE is made and executed at Wooster, Ohio, as of
____________, 2001, by and between SHEE-BREE'S, LLC, an Ohio limited liability
company, its successors and assigns (hereinafter referred to as the "Lessor"),
and OHIO LEGACY CORP, an Ohio corporation (hereinafter referred to as the
"Lessee").
Upon the terms, covenants and conditions hereinafter set forth, Lessor
leases to Lessee and Lessee leases from Lessor, a portion of the premises
described in paragraph 1 below.
1. CONDITIONS SUBSEQUENT. The enforceability of this Lease by either party
(other than the provisions of this Section) shall be subject to the satisfaction
of the following conditions subsequent.
(a) Approval by the Office of the Comptroller of the Currency (OCC) for
a branch office to be located in Millersburg, Ohio ("Regulatory
Approval"); and
(b) Obtaining of all required or necessary building permits, variances
or other governmental approvals relating to the use of the real estate.
Both parties are charged with a duty to act in good faith and due
diligence in fulfilling these obligations.
In the event either of the Conditions Subsequent are not satisfied,
this Lease shall be null and void and of no further force and effect.
2. DESCRIPTION, CONSTRUCTION OF IMPROVEMENTS AND USE OF PREMISES. Lessor is a
party to a contract to acquire certain real estate located at 000 X. Xxxx
Xxxxxx, Xxxxxxxxxxx, Xxxx, and more particularly described in Exhibit A,
attached hereto and made a part hereof. Lessor further agrees to build a
building on the real property described on Exhibit A, which building shall be
approximately 4,000 square feet inside, together with all necessary and related
appurtenances and improvements thereto, other than as set forth below, all which
shall be built in accordance with requirements set forth in Section 3 below, and
as otherwise set forth herein ("the Improvements") and approximately the same
amount in the basement. The real property described on Exhibit A and the
Improvements shall hereinafter be referred to as the "Premises." Upon completion
of the Improvements, Lessee hereby agrees that it shall use the Premises for the
sole purpose of operating a full service bank branch. Lessee shall not use the
Premises for any other purpose without first obtaining a written consent from
Lessor. Lessee shall be responsible for the construction and all related costs
of those leasehold improvements described in Exhibit B attached.
3. CONSTRUCTION OF IMPROVEMENTS.
(a) Lessor shall retain a contractor acceptable to Lessee to act as the
general contractor and shall construct or cause to be constructed upon
the Premises the above-referenced Improvements in accordance with
certain plans and specifications (the
"Plans") to be prepared by Lessee's architect which shall be approved
and initialed by Lessor and Lessee upon completion of the Plans. The
construction budget shall not exceed $550,000. Any amount in excess of
$550,000 necessary to complete construction of the Premises shall be
paid by Lessee, provided that Lessee approves such additional
expenditure in advance. Construction of the Improvements shall be
subject to the following conditions:
(i) The cost of constructing the Improvements shall be the
sole expense of Lessor except as set forth above; and
(ii) The Improvements being constructed on the Premises shall
be completed by Lessor and Lessee's contractors in a good and
workmanlike manner, pursuant to the terms of a construction
contract which has been reviewed and approved by Lessor and
Lessee and which shall be duly and properly executed by Lessor
and Lessee's contractors. As noted below, Lessor shall assign
to Lessee any warranties obtained by Lessor from any third
party contractors, covering all or part of the Premises, the
maintenance and repair of which may be the obligation of
Lessee hereunder.
(b) Upon the satisfaction of the Conditions Subsequent, Lessor shall
diligently attempt to obtain a building permit and shall cause
construction of the Improvements (hereinafter being defined as the date
that digging commences for footer locations) to be commenced as soon as
possible after such building permit has been obtained, and Lessor shall
proceed with reasonable diligence to complete the construction of said
Improvements within an eight month construction period thereafter. Once
construction has been commenced, Lessor shall diligently and
conscientiously pursue the construction of the Improvements to
completion. Lessee shall cooperate fully in the construction process to
assure the timely completion of the Improvements. Further, Lessee
agrees that Lessor shall not be held responsible for any delay in
completion of the Improvements when such delay results from any act or
omission of Lessee, or its employees or agents, strikes, lockouts,
fires, riots, unusual delay in transportation, failure of supply of
construction materials, labor, machinery or equipment, other than such
failure which results from an act or omission on the part of Lessor,
natural occurrences resulting in damage or delay or any other cause
beyond the control of Lessor.
(c) Upon completion Lessor hereby agrees that Lessor shall assign all
of its rights and options under its separate construction contracts
with third party contractors, to Lessee and that Lessee shall be a
third party beneficiary under each such contract and shall be
authorized to enforce the terms thereof and be entitled to exercise all
rights of Lessor thereunder. In addition, Lessee shall have the right
to inspect the Premises and the Improvements during construction, the
right to receive notice, schedules and test results, the right to make
a checklist upon substantial completion of the Improvements, the right
to make a final inspection thereof, and the right to enforce any
warranty rights or claims in connection with the Improvements. The
above rights granted to Lessee are for the
2
express purpose of permitting Lessee to monitor construction of the
Improvements and thereafter, during the term of this Lease, to permit
Lessee to enforce any representations and warranties and/or to cause
the applicable contractor to make any repairs required under the
construction contract. (d) Lessor and Lessee hereby agree that no
changes shall be made to the Plans for construction of the Improvements
unless in each case Lessor and Lessee agree in writing upon such
changes and upon impact which the same shall have upon the cost of
construction.
4. RESERVED.
5. TERM. The term of this Lease shall be fifteen (15) years. The term will be
measured as commencing upon Lessee's actual occupancy of the Premises. Unless
extended as hereinafter provided, the Lease shall terminate on the fifteenth
anniversary date of such commencement date. Notwithstanding the commencement
date of the term of this Lease, the parties shall be entitled to enforce the
provisions of this Lease prior to such commencement date in accordance herewith.
Lessee covenants and agrees that it will remain obligated under this
Lease in accordance with its terms and that Lessee will not take any action to
terminate, rescind, or avoid this Lease, notwithstanding the bankruptcy,
insolvency, receivership, reorganization, composition, readjustment,
liquidation, dissolution, winding-up or other proceeding affecting Lessor or any
assignee of Lessor. Lessee will remain obligated under this Lease regardless of
any action with respect to this Lease which may be taken by any trustee or
receiver of Lessor or of any assignee of Lessor in any proceeding or by any
court in any proceeding.
This Lease shall not terminate and Lessee's duties shall not be
affected by the prohibition, limitation or restriction of Lessee's use of the
Premises, or interference with such use by any private person or corporation.
The rent and all other charges payable under this Lease shall continue to be
payable and the obligations of Lessee shall continue unaffected, for so long as
Lessor or a successor in title which takes subject to this Lease owns the
Premises, unless the requirements to pay or perform are terminated pursuant to
Section 11.
If not sooner terminated, this Lease shall terminate on the expiration
of the original term or at the end of any subsequent extension or renewal
thereof, and Lessee hereby waives notice to vacate or quit the Premises and
agrees that Lessor shall be entitled to the benefit of all provisions of law
respecting the summary recovery of possession of the Premises from a Lessee
holding over to the same extent as if such notice had been given. Lessee hereby
agrees that if it fails to surrender the Premises at the end of the primary term
hereof or any extension or renewal hereof, Lessee will be liable to Lessor for
any and all damages which Lessor shall suffer by reason thereof, and Lessee will
indemnify Lessor against all claims and demands made by any succeeding Lessee
against Lessor founded upon delay by Lessee in delivering possession of the
Premises to such succeeding Lessee.
3
For the period of six months prior to the expiration of the term
hereof, including any extension or renewal hereof, Lessor shall have the right
to display on the exterior of the Premises the customary sign "For Rent",
provided that in any event such sign shall not exceed 2' by 1 1/2'; and during
such period Lessor may show the Premises and all parts thereof to prospective
tenants during normal business hours.
6. RENEWAL TERM. Provided that Lessee is not in default under the terms of this
Lease, Lessee shall have the right to renew this Lease for two additional five
year terms by providing Lessor with notice of Lessee's election to renew at
least six months prior to the expiration of the then current lease term. Upon
such renewal, any reference to the term of this Lease shall be interpreted to
include any renewal term pursuant to this Section.
7. SECURITY DEPOSIT. No security deposit shall be required.
8. RENT. The Rent for the premises shall be Seven Thousand Two Hundred Fifty
Dollars ($7,250) per month commencing on the Commencement Date and continuing
thereafter monthly throughout the first five years of the Lease. This amount
will be re-adjusted every five years, based upon the following schedule: $8,000
per month years 6-10 and $8,800 per month for years 11-15. All monthly
installments of the rent shall be paid in advance by the fifth day of each
calendar month, in legal tender of the United States, without demand or set-off,
at Millersburg, Ohio, or such other place as Lessor may designate from time to
time in writing. In the event the commencement date or the expiration date of
this Lease is other than the first day or last day of a calendar month,
respectively, then Lessee shall pay the rent hereunder for the fractional first
or last month, as applicable, prorated on the basis of a thirty day month.
9. COVENANTS OF LESSEE. Lessee hereby covenants with Lessor that during the term
of this Lease:
(a) PAYMENT OF RENT. As provided in Section 8 above, Lessee will
promptly pay the Rent when due at the office of Lessor at Millersburg,
Ohio, or at such other place as Lessor may designate to Lessee in
writing.
(b) UTILITIES. Lessee shall pay during the lease term hereof all
electrical, water, gas, sewer, telephone, and other public utility
charges in connection with its occupancy and use of the Premises.
Other than all necessary wiring, conduits, and other fixtures which are
necessary to provide basic telephone and other data transmission
services to the building, and the conduit capacity for Lessee to expand
such capabilities which are included in the Plans, Lessee shall be
responsible for providing any telephones, and telephone or data
transmission equipment necessary for supplying telephone or data
processing services to the Premises. However, Lessor shall be
responsible for bringing all of the utilities to the Premises and for
installing the same to the Building thereon as required by the Plans.
4
(c) REAL ESTATE TAXES. Lessee shall pay, at least five business days
prior, when due, all real estate taxes and assessments, general and
special assessments, fees or late charges, or any other tax imposed or
levied against the Premises and the buildings and improvements thereon
("Taxes") relating to each calendar year during the term of this Lease.
Lessor shall be responsible for Taxes due and payable during the first
year of this Lease relating to the period prior to the term of the
Lease. Lessee shall be responsible for Taxes due and payable after the
expiration of the Lease, but relating to Taxes due during the period of
time that the Premises were occupied by Lessee. Five days prior to the
applicable due date, Lessee shall provide proof of payment of the Taxes
to Lessor. In addition, and when and if applicable, Lessee shall also
pay the reasonable cost (including fees of attorneys, consultants and
appraisers) of any negotiation, contest or appeal pursued by Lessor or
Lessee in an effort to reduce any such Taxes. For the calendar year in
which the term of this Lease commences or terminates, the provisions of
this Section shall apply but Lessee's liability for any such Taxes for
such year shall be subject to a pro rata adjustment based upon the
number of days of such tax year falling within the term of this Lease
and the number of days which the Premises are unimproved.
(d) PERSONAL PROPERTY TAXES. Lessee will promptly pay when due all
personal property taxes levied against all personal property of Lessee
(including but not limited to trade fixtures and equipment) in or on
the Premises.
(e) MAINTENANCE AND REPAIR. Lessee, at its sole expense, shall keep and
maintain all portions of the Premises, including fixtures and
improvements thereon and personal property therein or thereon, in good
order, repair, and operating condition. Lessee will not commit or
suffer to be committed any waste upon or about the Premises, and shall
promptly, at its own cost and expense, make all necessary repairs,
whether ordinary or extraordinary, foreseen or unforeseen, to maintain
the Premises, including all fixtures and leasehold improvements
thereon, as the same were in at the commencement of the term of this
Lease (ordinary wear and tear excepted). At its sole expense, Lessee
shall maintain the exterior of the Premises (including all signs,
parking lot, and abutting landscape and sidewalks) in good order and
repair, keeping them clear of all rubbish, debris, dirt, ice, snow and
other obstacles. In the event a single item of repair or maintenance to
the Premises exceeds $5,000, Lessee shall not commence such work
(unless an emergency or required to prevent additional damage to the
Premises) without Lessor's prior consent, which consent shall not be
unreasonably withheld.
(f) LESSEE'S USE AND OCCUPANCY. Lessee shall occupy the Premises upon
commencement of this Lease and thereafter will continuously use the
Premises for the permitted use set forth in Section 2 and for no other
purpose whatsoever. Lessee will use and occupy the Premises in a
careful, safe, and proper manner; will carefully control and guard all
machines, equipment, and fires that may be operated therein; and will
keep all HVAC, plumbing and sewer systems free from obstructions and
will not at any time
5
overburden or exceed the capacity of the mains, feeders, ducts,
conduits, or other facilities by which utilities are supplied to the
Premises.
(g) COMPLIANCE WITH LAWS AND REGULATIONS. Lessee will not use or occupy
the Premises for any unlawful purpose, and at its sole cost and
expense, Lessee shall comply with and shall cause the Premises to
comply with:
(i) all present and future federal, state, county, municipal
and other applicable governmental statutes, laws, rules,
orders, regulations and ordinances affecting the Premises or
any part thereof or the occupation or use thereof, including
specifically but not limited to CERCLA (Comprehensive
Environmental Response Compensation and Liability Act), RCRA
(Resource Conservation and Recovery Act) and OSHA
(Occupational Safety and Health Act), and those which require
the making of any structural, unforeseen or extraordinary
changes, whether or not such statutes, etc., which may be
hereafter enacted, involve a change of policy on the part of
the governmental body enacting the same; and
(ii) all rules, orders and regulations of the National Board
of Fire Underwriters (or other similar organizations
exercising similar functions) in connection with the
prevention of fire or the correction of hazardous conditions
which apply to the Premises.
(h) LESSOR' ENTRY. Lessee will permit Lessor or its agents or other
representatives to enter upon the Premises, at reasonable times, to
examine the condition of the same.
(i) SURRENDER OF PREMISES. At the end of the term of this Lease, Lessee
will surrender and deliver up the Premises in as good order and
condition as the same now are, or may be put by said Lessor.
(j) RESTRICTION AGAINST MECHANIC'S LIENS. Lessee covenants and agrees
that it shall not, during the term of this Lease, permit any lien to be
attached to or upon the Premises or any part of the Premises by reason
of any act or omission on the part of Lessee. Lessee agrees to save and
hold the Lessor harmless from or against any lien or claim of lien. If
any lien does attach, and is not released within thirty days after
notice to Lessee, or if Lessee has not indemnified Lessor against the
lien within the thirty day period, Lessor, in its sole discretion, may
pay and discharge the lien and relieve the Premises. Lessee agrees to
repay and reimburse Lessor upon demand, as additional Rent, for any
amount paid by Lessor to discharge a lien with interest, at a rate
equal to ten percent per annum.
Lessee shall be responsible for preparing and filing, subject to
Lessor's review and approval, all notices of commencement and other
documents required of property owners by Ohio's Mechanics Lien Law.
Notwithstanding the above, Lessee may in good faith contest any
mechanic's, laborers', materialmen's or other liens filed or
established against
6
the Premises. Lessee may permit the items so contested to remain
undischarged and unsatisfied during the period of the contest and any
appeal therefrom, unless the nonpayment of any of the items would
materially endanger the interest of the Lessor or the Premises or any
portion which would be subject to loss or forfeiture. If nonpayment
would impair the Lessor's interest or subject the Premises to loss or
forfeiture, Lessee shall promptly pay, satisfy and discharge all unpaid
items or secure the payment by posting a bond, in a form satisfactory
to Lessor; provided, however, that Lessee shall first notify the Lessor
of its intention to contest the lien. Lessor will cooperate fully with
the Lessee in any such contest.
(k) FIXTURES, EQUIPMENT, ADDITIONS AND LEASEHOLD IMPROVEMENTS. Lessee
will pay for all business fixtures installed in and leasehold
improvements made to the Premises for Lessee's use and as required by
Lessee. Lessee may make such leasehold improvements to the Premises as
may be acceptable to Lessor upon a showing of Lessee's reasonable need
for such leasehold improvements. All leasehold improvements including
business fixtures installed in or upon the Premises shall not be
removed from the Premises at any time, unless such removal is consented
to in advance and in writing by Lessor. At the expiration of this Lease
(either upon the Termination Date or upon such earlier termination as
provided in this Lease) all such business fixtures shall be deemed to
be a part of the Premises, shall not be removed by Lessee when it
vacates the Premises, and title thereto shall vest solely in Lessor
without payment of any kind to Lessee. However, leasehold improvements
not deemed fixtures shall be removable by Lessee if so doing will not
in any way damage the Premises.
Notwithstanding any of the foregoing to the contrary, Lessee shall be
permitted to remove all equipment, fixtures, or leasehold improvements
relating to Lessee's drive-thru banking facilities which were paid for
by Lessee. In the event the removal causes damage to the Premises,
Lessee shall restore the Premises to the same condition as existed
prior to the removal.
(l) INSURANCE. At its sole cost and expense, Lessee will procure and
maintain in force during the term of this Lease (including
construction) policies of: (i) commercial (general liability)
insurance, covering both Lessee and Lessor (as an additional named
insured) against liability or damage to all persons or property while
in or on the Premises, the entry ways thereto, and sidewalks and
streets abutting thereon, with limits of not less than $1,000,000 in
general aggregate; and (ii) fire and extended coverage casualty
insurance on the Premises, including all additions and leasehold
improvements thereto in an amount equal to the replacement value of the
Premises. The amount of insurance shall be reviewed from time to time
by the parties to assure such amounts remain reasonable in light of
inflation and the general business environment. Any change shall be
made promptly. Such policies of insurance shall be with companies and
through brokers qualified to do business in Ohio. Each such policy
shall contain an endorsement for the benefit of Lessor as an additional
named insured, and each such policy shall contain an
7
agreement or endorsement that such policy will not be canceled by the
insurer without at least ten days prior notice to Lessor and Lessee.
(m) PERSONAL PROPERTY INSURANCE. Lessee shall obtain such coverage as
it may desire upon all personal property located in or upon the
Premises and owned or otherwise in the possession of Lessee (including
specifically, but not by way of limitation, stock in trade, equipment,
and fixtures).
(n) INDEMNITY BY LESSEE. Lessee shall indemnify, hold harmless and
defend Lessor from and against any and all claims, actions, damages,
liability and expense (including, but not limited to, fees of attorneys
and other professional fees) in connection with:
(i) any failure of Lessee to perform its obligations
as provided in Section 9(g);
(ii) any loss of life, personal injury and/or damage
to property arising from or out of the occupancy or use by
Lessee (or any other party using the Premises under Lessee) of
the Premises or any part thereof, occasioned wholly or in part
by any act or omission of the Lessee, its officers, employees,
contractors, agents or invitees; or
(iii) by any failure of Lessee to abide by or perform
any other term, covenant or condition of this Lease.
(o) ASSIGNMENT AND SUBLETTING.
(i) Lessee covenants not to assign this Lease, sublet all or
any part of the Premises or allow a change in the ownership of
the leasehold interest without the prior written consent of
the Lessor, which consent shall not be unreasonably withheld.
An assignment for the benefit of creditors of Lessee or by
operation of law, or by the order or action of any
governmental agency, shall not be effective to transfer or
assign the Lessee's interest without and unless the Lessor
first consents in writing.
(ii) Any assignment or subletting by Lessee shall not result
in Lessee being released or discharged from any liability
under this Lease. As a condition to Lessor's prior written
consent as provided for in this Section, the assignee(s) or
subtenant(s) shall agree in writing to comply with and be
bound by all of the terms of this Lease.
(iii) Lessor's consent to any assignment,
encumbrance, subletting, occupation, lien or other transfer
shall not release Lessee from any of Lessee's obligations
under this Lease or be deemed to be a consent to any
subsequent occurrence. Any assignment, encumbrance,
subletting, occupation, lien or other
8
transfer of this Lease which does not comply with the
provisions of this Section shall be void.
(iv) Any assignment or sublease shall recite that it is and
shall be subject and subordinate to the provisions of this
Lease, and the termination or cancellation of this Lease shall
constitute a termination and cancellation of every assignment
or sublease.
(p) LATE CHARGES. If payment due to Lessor from Lessee is not received
by Lessor within ten days after the due date, a "late charge" of $25.00
may be charged by Lessor to Lessee, as Rent. The purpose of this
additional payment is to defray the expense incident to the handling of
such delinquent payments, and the fee shall be payable by Lessee to
Lessor upon demand.
(q) PAYMENT BY CHECK. Payment by check shall always be subject to
timely collection of the funds represented by the check. If any check
tendered by or on behalf of Lessee in payment of any sum due under this
Lease is dishonored and returned to Lessor for any reason, Lessee shall
be charged the sum of Twenty-five Dollars ($25.00) for each such check,
which shall be payable as Rent, to defray the expense of handling,
processing and bookkeeping. Tenant shall promptly replace any
dishonored check with a check which is the direct obligation of a bank
or savings and loan institution (certified check, cashier's check,
official check or money order). The amount of the replacement check
shall be in the aggregate amount of the payment tendered, plus the late
charges provided in this Lease, plus the One Hundred Dollar ($100.00)
charge required by this Section.
(r) MORTGAGE SUBORDINATION.
(i) Lessor shall have the right to demand and obtain from
Lessee a subordination of Lessee's lien arising by virtue of
this lease, thereby subordinating Lessee's lien in favor of a
mortgage arising from a mortgage loan, or in favor of any
mortgage lien of any refinancing or replacing mortgage loan
that may become necessary or desirable to Lessor from time to
time in the future, and Lessee upon demand by Lessor for same,
agrees to execute at any and all times such instruments that
may be required by any lending institution or prospective
mortgagee in order to effectuate such subordination of
Lessee's lien, provided that such documents or agreements are
reasonably acceptable to Lessee and Lessee's legal counsel.
(ii) It is a condition, however, of the subordination of lien
provisions herein provided, that Lessor shall procure from any
such mortgagee an agreement, in writing, which shall be
delivered to Lessee, providing in substance that so long as
Lessee shall faithfully discharge the obligations on its part
to be kept and performed under the terms of this lease,
Lessee's tenancy will not be disturbed and this lease will not
be affected by any default under such mortgage.
9
(s) CONSTRUCTION PLANS. Lessee shall be responsible for providing
Lessor with all necessary information with respect to Lessee's
specifications for and requirements to be included within the
Improvements such that Lessor shall then be able to obtain the
preparation of necessary plans and specifications for the construction
of the Improvements on the Premises pursuant to this lease and shall
cause them to comply with all applicable laws and building regulations.
As noted above, upon completion of the Plans, Lessor and Lessee shall
review and approve of the same and shall evidence such approval by
initialing the same.
10. COVENANTS OF LESSOR. Lessor hereby covenants with Lessee that during the
term of this Lease (and, where applicable, for such further period as may be
required):
(a) QUIET ENJOYMENT. If Lessee pays the Rent when due, and keeps and
performs the covenants of this Lease on the part of Lessee, Lessee
shall peaceably and quietly hold, occupy, and enjoy the Premises,
during the term of this Lease and any extension thereof, without any
hindrance or molestation by Lessor or any person or persons lawfully
claiming under Lessor.
(b) WARRANTIES AS TO TITLE AND FITNESS FOR USE. Prior to accepting
Rent, Lessor warrants that:
(i) it shall be the true and lawful owner of the Premises; and
(ii) it has good, right and full power to lease the same in
the manner aforesaid.
Except for the foregoing, this Lease is made without warranty of any
kind, express or implied, as to the fitness of the Premises, for any
particular use or purpose, and by executing this Lease, Lessee shall be
deemed to have:
(i) accepted the Premises;
(ii) acknowledged that the same are in the condition called
for hereunder; and
(iii) agreed that the obligations of Lessor imposed hereunder
have been fully performed.
(c) INDEMNITY BY LESSOR. Lessor shall indemnify, hold harmless and
defend Lessee from and against any and all claims, actions, damages,
liability and expense (including, but not limited to, fees of attorneys
and other professional fees) in connection with:
(i) any loss of life, personal injury and/or damage to
property arising from or out of the occupancy or use by Lessor
of the Premises or any part thereof,
10
occasioned wholly or in part by any act or omission of the
Lessor, their officers, employees, contractors, agents or
invitees; or
(ii) by any failure of Lessor to abide by or perform any other
term, covenant or condition of this Lease.
11. MUTUAL COVENANTS OF LESSOR AND LESSEE. Both Lessor and Lessee mutually
covenant and agree:
(a) PARTIAL DESTRUCTION. If, during the lease term and any extensions
thereto, the building or its appurtenances on the Premises are damaged
or destroyed by fire, or by any other cause, Lessor shall repair and/or
rebuild the damaged property. Repair or reconstruction shall be in
conformance with plans and designs as existed immediately before the
damage or destruction occurred, subject to changes as may be reasonably
attributable to governmental restriction or inability to obtain like
materials or labor, or other causes (other than financial), beyond the
control of Lessee. All proceeds of insurance carried on the
improvements pursuant to Section 9(l) of this Lease, payable as a
result of any damage or destruction, shall be payable jointly to Lessor
and Lessee and used only for the purpose of such repair or rebuilding.
Lessor shall restore, repair and/or rebuild the Premises including
Lessee's leasehold improvements, to the condition existing prior to the
damage or destruction. Lessee's obligation to pay Rent hereunder shall
not xxxxx.
(b) COMPLETE DESTRUCTION. If, during the lease term and any extension
thereto, the building on the Premises is completely destroyed by fire
or by any other cause, this Lease shall not terminate and the Rent
shall not be abated unless Lessor has received the insurance funds on
the Premises pursuant to Section 9(l) above and Lessee is unable to
recommence its operations within 90 days of the casualty or such
destruction occurs within 18 months of the end of the term, as
extended, in which event, Lessee may terminate the Lease by written
notice to Lessor. If Lessee exercises Lessee's right to terminate the
Lease, Lessor shall refund all Rent paid after the casualty and any
insurance proceeds belonging to Lessee paid to Lessor. Repair or
reconstruction shall be in conformance with the plans and designs as
existed immediately before the damage or destruction occurred, subject
to any changes as may be reasonably attributable to governmental
restriction, inability to obtain like materials or labor or other like
causes. If operations are not expected to recommence within 90 days of
the date of casualty and Lessee elects not to terminate the Lease,
Lessee's Rental obligation shall xxxxx six months from the date of
casualty to recommencement of operations.
(c) DEMAND FOR RENT AND LESSOR'S REMEDIES ON LESSEE'S BREACH.
(i) The occurrence of any one or more of the following shall
constitute an event of default under this Lease:
11
1. The filing of a petition by or against Lessee for
adjudication as a bankrupt or insolvent, or for its
reorganization or for the appointment of a receiver
trustee of Lessee's property; any receivership
proceedings under any provisions of federal law; any
assignment by Lessee for the benefit of creditors; or
the taking possession of the property of Lessee by
any governmental office or agency pursuant to the
statutory authority for the receivership,
dissolution, or liquidation of Lessee; or any other
action by any governmental agency or department which
has the effect of divesting Lessee of its interest or
control over the Premises.
2. Failure of Lessee to pay within ten days after
written demand any installment of the Rent or other
Rental charge required to be paid by Lessee;
3. Failure of Lessee to pay within ten days after
written notice and demand any other charges payable
to or on behalf of Lessor under this Lease;
4. Lessee's failure to perform or abide by any other
term, covenant, or condition of this Lease within ten
days after written notice and demand, unless the
failure absolutely requires more than ten days to
cure. In that event, Lessee's failure to proceed
expeditiously, continuously, and diligently to cure
fully and completely the failure shall constitute an
event of default.
5. The Lessee shall abandon or vacate said Premises
for more than 30 consecutive days due to any reason
except partial or total destruction of the Premises.
(ii) If an event of default as provided in subsection (i)
immediately above occurs, then the Lessor, in addition to all
rights and remedies granted under the laws of the State of
Ohio, shall have the following rights:
1. To re-enter and remove all persons and property
from the Premises, and the property may be removed
and stored in a public warehouse or elsewhere at the
cost of and for the account and sole risk of Lessee,
all without service of notice or resort to legal
process;
2. To terminate the Lease and re-let the Premises for
the account of the Lessor or, within the sole
discretion of Lessor, to retake possession of the
Premises without terminating the Lease and to re-let
them for the account of Lessee. In the event that
Lessor re-let the Premises for the account of Lessee,
then Lessor shall have the right to make any
alterations and repairs as may be necessary and to
re-let the Premises, or any part
12
thereof, at such Rent and for such term and subject
to such terms and conditions as Lessor may deem
advisable and receive the Rent. Upon each re-letting
for the account of Lessee, all Rentals received by
Lessor shall be applied, first to the payment of any
indebtedness other than Rent under the Lease from
Lessee to Lessor; second, to the payment of any loss
and expenses of the re-letting, including brokerage
fees and attorney's fees and costs of alterations and
repairs; third, to the payment of Rent and other
charges payable to and on behalf of Lessor due and
unpaid under the Lease; and the residue, if any,
shall be held by Lessor and applied in payment of
future Rent and other charges payable on behalf of
Lessor as it may become due and payable under the
Lease. Lessee agrees to pay to Lessor on demand any
deficiency that may arise by reason of re-letting,
Notwithstanding any re-letting without termination,
Lessor may at any time thereafter elect to terminate
this Lease for the previous breach.
3. Lessee agrees to pay all costs, including "court
costs," and expenses of collection and reasonable
attorney's fees on any part of the Rent, sums agreed
to be treated as Rent and other charges payable by
Lessee that may be collected by an attorney, with or
without instituting legal action. If Lessee fails
promptly and fully to perform and comply with each
and every term, covenant, agreement, undertaking, or
condition under this Lease and the matter is turned
over to Lessor's attorney(s), Lessee shall pay
Lessor's reasonable attorney's fees plus costs, where
deemed necessary or appropriate by Lessor, whether
suit is instituted or not. Lessee shall not be
required to reimburse Lessor for attorneys' fees and
related costs in excess of $5,000.
(d) APPROPRIATION BY RIGHT OF EMINENT DOMAIN. If the Premises, or
substantially all thereof, shall be taken in appropriation proceedings
or by any right of eminent domain, then this Lease shall terminate and
be utterly void from the time when possession thereof is required for
the public use, and such taking shall not operate as or be deemed an
eviction of Lessee or a breach of Lessor's covenant of quiet enjoyment;
but Lessee shall pay all Rent due and perform and observe all of the
covenants hereof, up to the time when possession is required for public
use. Provided, however, that if only a part of the Premises be so
taken, and if eight months or more of the term of this Lease, then
remains unexpired, and if the remaining Premises can be substantially
restored within 30 days, this Lease shall not terminate, but Lessor
shall, at the sole expense of Lessee, restore the Premises as near as
possible to the condition it was in prior to such taking, the Rent
payable by Lessee during the period of restoration not being reduced,
and after such restoration, if any, the entire Rent herein reserved
shall be paid by Lessee as herein provided during the remainder of the
term of this Lease.
Lessor shall be entitled to retain any proceeds payable in connection
with the appropriation of the Premises.
13
If the Premises, or any part thereof, shall be taken in appropriation
proceedings or by any right of eminent domain, Lessee shall not share
any award relating to the taking of any portion of the fee and Lessee's
award, if any, shall be limited to an award arising out of Lessee's
interest in the Lease and any claims against the condemning authority
for loss of Lessee's fixtures and equipment (other than leasehold
improvements made by Lessee to the Premises).
Lessor and Lessee agree that, in any proceedings incident to recovery
of damages resulting from any taking or condemnation, they will, at the
request of the other, join and cooperate in the prosecution of their
several respective claims for damages resulting from such taking or
condemnation.
(e) RISK OF LOSS AND WAIVER OF LIABILITY. All personal property located
in or upon the Premises (including, but not limited to, additions and
improvements made by Lessee to the interior of the Premises, and
Lessee's inventory, stock in trade, equipment, and fixtures) shall be
at the sole risk of Lessee.
Neither Lessee nor any assignee or subrogee of Lessee shall have any
claim or action, either at law or in equity, over and against Lessor or
their agents or employees for any loss, cost or damage to the Premises
caused by or resulting from fire, the elements, or any other cause, of
whatsoever origin. Lessor likewise agrees that no claims shall be made
and that no suit or action, either at law or in equity, shall be
brought by Lessor or by any person, firm or corporation claiming by,
through, or under Lessor, against Lessee, its successors and assigns,
for any loss, cost or damage to the Premises (or to any other buildings
or appurtenances which are or may be located upon the Premises) caused
by or resulting from fire, the elements, or any other cause, of
whatsoever origin.
(f) OWNERSHIP OF IMPROVEMENTS. All equipment and business fixtures
installed in or made by Lessee to the Premises shall remain the
personal property of Lessee, any law to the contrary notwithstanding;
moreover, Lessor shall be the owner of both equipment and business
fixtures and leasehold improvements without the necessity of payment of
any kind from Lessor to Lessee upon:
(i) the Termination Date; or
(ii) any default by Lessee in the performance of any term,
covenant or condition of this Lease as provided in Section
11(c); or
(iii) any governmental condemnation of the Premises.
12. SIGNAGE. Any signage on the exterior of the building on the Premises shall
be in accordance with the plans and specifications approved by Lessor as set
forth in Section 3.
14
13. NOTICES. All notices and other communications provided for under this Lease
shall be in writing and will be deemed to have been duly given only if delivered
personally or mailed certified return receipt requested to the parties at the
following addresses:
if to the Lessor:
Shee-Bree's, LLC
0000 XX 000
Xxxxxxxxxxx, Xxxx 00000
if to the Lessee:
Ohio Legacy Corp.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: L. Xxxxxx Xxxxx
Any party from time to time may change its address by giving notice specifying
such change to the other party hereto.
14. MISCELLANEOUS.
(a) LEASE APPLICABLE TO SUCCESSORS AND ASSIGNS. This Lease and all the
covenants, terms, provisions and conditions herein contained shall
inure to the benefit of and be binding upon the heirs, legal
representatives and assigns of Lessor, and the successors and assigns
of Lessee; provided, however, that no assignment or sublease by, from,
through or under this Lease in violation of any covenant, provision,
term or condition hereof shall vest in the assigns or sublessee any
right, title or interest whatever.
(b) RECORDING. If either party shall desire to record this Lease, the
parties will execute and record a short Memorandum of Lease.
(c) HEADINGS. The section headings are inserted only as a matter of
convenience and reference and in no way define, limit, or describe the
scope and intent of this Lease nor in any manner affect this Lease.
(d) GOVERNING LAW. This Lease shall be governed in accordance with Ohio
law.
IN WITNESS WHEREOF, the parties hereto have signed this Lease Agreement
the day and year first above written.
Witnesses: LESSOR:
15
SHEE-BREE'S, LLC,
an Ohio limited liability company
By:
-------------------------- Name:___________________________
Its ____________________________
--------------------------
LESSEE:
OHIO LEGACY CORP.
By:
-------------------------
L. Xxxxxx Xxxxx, President
STATE OF OHIO )
) ss:
COUNTY OF ___________ )
Before me, a Notary Public in and for said State, personally appeared
the above named SHEE-BREE'S, LLC, an Ohio limited liability company, by
_______________, its ______________, who acknowledged that he did sign the
foregoing instrument and that the same is the free act and deed of such limited
liability company and of him personally and as such member.
In Testimony Whereof, I have hereunto set my hand and official seal at
_______________, Ohio, this _____ day of _________, 2001.
Notary Public
STATE OF OHIO )
) ss:
COUNTY OF XXXXX )
Before me, a Notary Public in and for said State, personally appeared
the above named Ohio Legacy Corp, an Ohio corporation, by L. Xxxxxx Xxxxx, its
President, who acknowledged
16
that he did sign the foregoing instrument and that the same is the free act and
deed of said corporation, and the free act and deed of him personally and as
such officer.
In Testimony Whereof, I have hereunto set my hand and official seal at
Wooster, Ohio, this ______ day of _________________, 2001.
Notary Public
This instrument prepared by:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxxxxx, Xxxxxxxxxxx & Xxxxxxxx, Ltd.
000 X. Xxxxxx Xxxxxx
X. X. Xxx 000
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
17
EXHIBIT A
---------
Situated in the State of Ohio, County of Xxxxxx and Village of
Millersburg, and being more fully described as follows:
PARCEL A:
---------
Being a part of Outlot Number Ten (10) in the Second Addition to the Town of
Millersburg, Ohio, commencing on the West line of said Xxx 000 xxxx Xxxxx xx xxx
Xxxxx Xxxx corner thereof, thence North 53 feet 6 inches, thence East 231 feet,
thence South 53 feet 6 inches, thence West 231 feet to the place of beginning,
and known on the Auditor's duplicate as Part of Inlot No. 398.
PARCEL B:
---------
Being a part of Out Lot Number Ten (10) in said Village of Millersburg;
commencing on the West line of said Lot 44 feet North of the southwest corner of
said lot; thence North 59 feet along said West line; thence East parallel with
the south line of said lot 142 feet; thence South parallel with the East line 59
feet; thence West parallel with said South line 142 feet to the place of
beginning. Said premises numbered by the Auditor for taxation as Part of Inlot
No. 397.
EXCEPTING FROM PARCEL A: Beginning at an iron pin set at the southeast corner of
Lot 398 the TRUE POINT OF BEGINNING.
Thence with the following FOUR (4) COURSES:
1) N 85E 14' 30" W 51.00 feet along the south line of Lot 398 to an iron
pin set;
2) N 4E 54' 00" E 53.50 feet to an iron pin set on the lot line;
3) S 85E 14' 30" E 51.00 feet along the north line of Lot 398 to an iron
pin set at the NE corner of said Lot 398;
4) S 4E 54' 00" W 53.50 feet along the E line of Lot 398 to the TRUE POINT
OF BEGINNING.
This parcel contains 0.063 acre, but subject to all easements of record.
See Xxxxxx County Plat Book 12, Page 495 for survey
This Survey made and description prepared by Xxxxxx X. Xxxxx, PS 6938.
April 27, 1990. Parcel No. 07-03327 & Parcel No. 07-01221.
18
