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Exhibit 10.4
LEASE AGREEMENT
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THIS AGREEMENT OF LEASE is made and executed at Wooster, Ohio,
effective as of August 24, 1999, by and between JACK K. and HEIDI M. GANT, their
successors and assigns (hereinafter referred to as the "Lessors"), and OHIO
LEGACY CORP., an Ohio corporation (hereinafter referred to as the "Lessee").
Subject to Section 1, Lessors lease to Lessee and Lessee leases from
Lessors, the premises described in Section 2 upon the terms, covenants and
conditions hereinafter set forth below:
1. GRACE PERIOD. 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:
1. The issuance of a national bank charter to Lessee's wholly
owned subsidiary by the Office of the Comptroller of the Currency
("OCC") for a bank to be located in Wooster;
2. Completion of Lessee's initial public offering of common
stock in an amount required by the OCC (collectively "Conditions
Subsequent");
3. Obtaining all required or necessary building permits,
variances or other governmental approvals relating to the use of the
real estate.
As consideration for Lessors not seeking to enforce the provisions of
this Lease until the earlier of: (i) October 31, 1999, or (ii) the satisfaction
of the Conditions Subsequent ("Grace Period"), Lessee shall pay Lessors Five
Thousand Dollars ($5,000) upon execution of this Lease, which amount shall be
non-refundable to Lessee and shall not apply against the Rent set forth in
Section 8. Rent shall not accrue during the Grace Period. In the event the
Conditions Subsequent have not been satisfied on or before October 31, 1999,
Lessee shall have the option to extend the Grace Period until January 31, 2000
("Extended Grace Period") by delivering written notice to Lessors of such
extension along with a non-refundable payment of Twenty-five Thousand Dollars
($25,000) ("Extension Payment") on or before October 31, 1999.
In the event the Conditions Subsequent have not been satisfied on or
before January 31, 2000, Lessee shall have the option to extend the Extended
Grace Period until March 31, 2000 ("Extended Grace Period") by delivering
written notice to Lessors of such extension, along with a non-refundable payment
of Thirty Thousand Dollars ($30,000) ("Extension Payment") on or before January
31, 2000.
In the event the Conditions Subsequent have not been satisfied on or
before March 31, 2000, Lessee shall have the option to extend the Extended Grace
Period until May 31, 2000 ("Extended
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Grace Period") by delivering written notice to Lessors of such extension, along
with a non-refundable payment of Thirty Thousand Dollars ($30,000) ("Extension
Payment") on or before March 31, 2000.
In the event the Conditions Subsequent have not been satisfied on or
before May 31, 2000, Lessee shall have the option to extend the Extended Grace
Period until June 15, 2000 ("Extended Grace Period") by delivering written
notice to Lessors of such extension, along with a non-refundable payment of
Fifteen Thousand Dollars ($15,000) ("Extension Payment") on or before May 31,
2000. Lessee shall not have the right to extend the Extended Grace Period after
June 15, 2000.
The Extension Payment, if any, shall be a credit against monthly
installments of the Rent on a dollar-for-dollar basis. Lessee hereby covenants
and agrees that Lessee, and its officers, directors, and shareholders, shall
utilize their best efforts to obtain the satisfaction of the Conditions
Subsequent. In the event Lessee obtains its charter from the Office of
Comptroller of the Currency, and commences to accept deposits and make loans,
the Conditions Subsequent shall be deemed satisfied.
Upon the satisfaction of the Conditions Subsequent during
the Grace Period or Extended Grace Period, if any; or, subject to the next
subparagraph, the Lessee's failure to effectively extend the applicable Grace
Period, this Lease shall automatically become valid, binding, and fully
enforceable upon and by the parties.
During the Grace Period and Extended Grace Period, if any, Lessee may
terminate this Lease by written notice to Lessors, and neither party shall have
further rights or responsibilities hereunder, under the following circumstances:
(i) Lessee, and all it officers, directors, and shareholders,
abandon all efforts to establish a financial institution, and Lessee's
directors and officers deliver a certificate to such effect to Lessors;
or
(ii) The Conditions Subsequent have not been satisfied on or
before June 15, 2000, and Lessee has effectively extended the Grace
Period through June 15, 2000.
In the event Lessee terminates the Lease pursuant to this subsection,
Lessee shall have no claim on any payment made to Lessors hereunder, including
but not limited to the Extension Payments.
2. DESCRIPTION, CONSTRUCTION OF IMPROVEMENTS AND USE OF PREMISES.
Lessors are parties to a contract to acquire certain real estate located at 305
W. Liberty Street, Wooster, Ohio, and more particularly described in Exhibit A,
attached hereto and made a part hereof. Lessors further agree to build a
building on the real property described on Exhibit A, which building shall
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be approximately ___________ 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"). 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 and Lessee's bank headquarters. Lessee shall not use the Premises for any
other purpose without first obtaining a written consent from Lessors. 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) Lessors 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 Lessors and Lessee upon completion of the Plans. Upon
completion of the Plans, Lessee's architect shall also prepare a detailed
construction budget which estimates all the development costs associated with
constructing the Improvements on the Premises (the "Construction Budget"), which
shall be approved and initialed by Lessors and Lessee upon completion of the
budget. The Construction Budget shall not exceed $550,000. Any amounts in excess
of $550,000 necessary to complete construction of the Premises shall be paid by
Lessee, provided that any change orders requested by Lessor shall be paid by
Lessor. Construction of the Improvements shall be subject to the following
conditions:
(i) The cost of constructing the Improvements shall be the
sole expense of Lessors except as set forth above; and
(ii) The Improvements being constructed on the Premises shall
be completed by Lessors and Lessors' contractors in a good and
workmanlike manner, pursuant to the terms of a construction contract
which has been reviewed and approved by Lessors and Lessee and which
shall be duly and properly executed by Lessors and Lessors'
contractors. As noted below, Lessors shall assign to Lessee any
warranties obtained by Lessors 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, Lessors 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 Lessors shall proceed with reasonable diligence to
complete the construction of said Improvements within an eight month
construction period thereafter. Once construction has been commenced, Lessors
shall diligently and conscientiously pursue the construction of the Improvements
to completion. Lessee shall
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cooperate fully in the construction process to assure the timely completion of
the Improvements. Further, Lessee agrees that Lessors 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 Lessors, natural
occurrences resulting in damage or delay or any other cause beyond the control
of Lessors, including but not limited to Y2K issues.
(c) Upon completion Lessors hereby agree that Lessors 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 Lessors 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 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) Lessors and Lessee hereby agree that no changes shall be made to
the Plans for construction of the Improvements without in each case Lessors and
Lessee agreeing in writing upon such changes and any impact which the same shall
have upon the cost of construction.
(e) Lessee acknowledges and agrees that Lessors may alter the Plans by
constructing the Building with a basement at Lessors' sole cost. Such cost shall
not be part of the Construction Budget and shall not count against the $550,000
cap. Notwithstanding anything to the contrary, the basement shall not be
considered part of the Premises and Lessors shall retain the right of exclusive
access to such basement. The basement shall not be accessed through the Lessee's
bank lobby or offices. In the event Lessors rent such basement or use it other
than for storage, the parties will agree upon a division of maintenance costs.
All utilities to the basement shall be separately metered. In the event Lessee
utilizes the basement for other than a mechanical room, Lessee shall pay rent to
Lessor in an amount the parties shall agree upon prior to Lessee's use of the
basement.
4. CONSTRUCTION FINANCING. Upon the satisfaction of the Conditions
Subsequent, Lessee shall provide Lessors with non-recourse financing for the
construction and permanent financing of the Improvements (the "Financing") in an
amount up to the Construction Budget secured by a first mortgage on the
Premises. Lessors and Lessee further agree that the amount of the Financing may
change upon completion of the Construction Budget, provided that both Lessors
and Lessee agree upon the amount of such adjustment in writing. The funds
disbursed under the
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Financing shall accrue interest at a rate equal to the Prime Rate plus one-half
(1/2) percent per annum. The Financing loan documents shall provide that Lessors
shall make equal monthly payments of accrued interest and principal in an amount
necessary to fully amortize the loan over 180 months at the interest rate set
forth above. During the Initial Rent Period as defined in Section 8, Lessee
shall make interest only payments under the Financing Loan Documents. For
purposes of this Lease, Prime Rate shall mean the interest rate per annum
commonly known as the "New York Prime Rate," or any successor interest rate
thereto which is calculated in the same or a substantially similar manner, and
which is published from time to time in The Wall Street Journal determined at
the time of the commencement of construction.
5. TERM. The term of this Lease shall be fifteen years. The term will
be measured as commencing upon the earlier of (i) Lessee's actual occupancy of
the Premises, or (ii) the substantial completion of the Improvements. 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 Lessors or
any assignee of Lessors. 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 Lessors or of any assignee of Lessors 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
Lessors 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 13.
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 Lessors 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 Lessors for
any and all damages which Lessors shall suffer by reason thereof, and Lessee
will indemnify Lessors against all claims and demands made by any succeeding
Lessee against Lessors founded upon delay by Lessors in delivering possession of
the Premises to such succeeding Lessee.
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For the period of six months prior to the expiration of the term
hereof, including any extension or renewal hereof, Lessors 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 Lessors may show the Premises and all parts thereof to prospective
tenants during normal business hours.
Hereinafter, any reference in this Lease to the term of the Lease shall
include not only the primary term but, where applicable or any period prior to
surrender of the Premises as provided below.
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 (2)
additional five (5) year terms by providing Lessors with notice of Lessee's
election to renew at least six (6) 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. For the period commencing upon the earlier of (i) termination
of the Grace Period or applicable Extended Grace Period, or (ii) the
satisfaction of the Conditions Subsequent and expiring upon the earlier of (i)
the completion of the building to be located on the Premises ("Building") or
(ii) four (4) months following the commencement date set forth above ("Initial
Rent Period"), the monthly rent shall be equal to the Prime Rate plus one-half
(1/2) percent times the amount paid by Lessors to contractors under the
Construction Budget. In the event Lessor obtains construction financing from a
financial institution other than Lessee or its affiliate, the monthly rent
during the Initial Rent Period shall be zero unless the parties otherwise agree.
Following the Initial Rent Period, Lessee agrees to pay to Lessors as the
minimum base rental for the initial term of this Lease the total sum equal to
the product of 180 times the sum of Four Thousand Two Hundred Dollars ($4,200)
and an amount equal to the monthly payment necessary to fully amortize over 180
months the Construction Budget bearing interest at the Prime Rate plus one-half
percent (1/2%), plus any sales, use or rent tax or any other similar tax
assessed against rent or charges specified in this Lease, which total sum
("Rent") shall be due and payable upon the execution of this Lease, provided,
however, so long as this Lease is not in default Lessors agree to accept
payments on a monthly basis each in the amount of one-one hundred eightieth
(1/180) of the Rent. The parties acknowledge that the Rent shall not be affected
by any partial or full prepayment of the Promissory Note. All monthly
installments of the rent shall be paid in advance on the first day of each
calendar month, in legal tender of the United States, without demand or set-off,
at 246 West Liberty Street, Wooster, Ohio 44691, or such other place as Lessors
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
(30) day month.
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9. ADDITIONAL RENT. In addition to the Rent, all other payments to be
made by Lessee hereunder shall be deemed, for the purpose of securing the
collection thereof, additional rent hereunder, whether or not the same be
designated as such, and shall be due and payable on demand or in such other
manner and at such other times as may otherwise be provided by the terms of this
Lease, together with applicable sales, use or rent tax or any other similar tax
due thereon, and Lessors shall have the same rights and remedies upon Lessee's
failure to pay the same as for the nonpayment of the Rent. Lessors, at their
election, shall have the right, but not the obligation, to make any payments on
behalf of Lessee or to perform any act which requires the expenditure of any
sums of money as a result of the failure or neglect of Lessee to perform any of
the provisions of this Lease and, in such event, Lessee agrees to reimburse and
pay Lessors, upon demand, all of such sums, which sums shall be deemed, for the
purpose of securing the collection thereof, additional Rent hereunder.
10. RENT DURING ADJUSTMENT PERIOD. The Rent from the period commencing
on the fifth anniversary date of the Lease through the tenth anniversary date
("First Adjustment Period") shall be determined as follows: the increase in the
Rent, if any, for the First Adjustment Period shall be determined by first
multiplying the then current annual Rent times a fraction, the numerator of
which shall be the amount by which the Consumer Price Index for all Urban
Consumers, United States, all Items (1982-1984=100) published by the Bureau of
Labor Statistics of the United States Department of Labor (the "CPI Index") for
the penultimate month immediately preceding the fifth anniversary date of this
Lease exceeds the CPI Index for the penultimate month immediately preceding the
first month of the Lease, and the denominator of which shall be the CPI Index
for the penultimate month immediately preceding the first month of the Lease.
Any such increase shall then be added to the Rent and shall become the Rent for
the First Adjustment Period.
The Rent from the period commencing on the tenth anniversary date of
the Lease through the fifteenth anniversary date ("Second Adjustment Period")
shall be determined as follows: the increase in the Rent, if any, for the Second
Adjustment Period shall be determined by first multiplying the then current
annual Rent times a fraction, the numerator of which shall be the amount by
which the Consumer Price Index for all Urban Consumers, United States, all Items
(1982-1984=100) published by the Bureau of Labor Statistics of the United States
Department of Labor (the "CPI Index") for the penultimate month immediately
preceding the tenth anniversary date of this Lease exceeds the CPI Index for the
penultimate month immediately preceding the first month of the First Adjustment
Period, and the denominator of which shall be the CPI Index for the penultimate
month immediately preceding the first month of the First Adjustment Period. Any
such increase shall then be added to the Rent and shall become the Rent for the
remainder of the lease term.
In the event Lessee exercises its first option to renew the term of
this Lease for an additional five (5) years, the Rent during such first renewal
term ("Third Adjustment Period") shall be determined as follows: the increase in
the Rent, if any, for the first renewal term shall be determined by first
multiplying the then current annual Rent times a fraction, the numerator of
which shall be the amount by which the CPI Index for the penultimate month
immediately
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preceding the fifteenth anniversary date of this Lease exceeds the CPI Index for
the penultimate month immediately preceding the first month of the Second
Adjustment Period, and the denominator of which shall be the CPI Index for the
penultimate month immediately preceding the first month of the Second Adjustment
Period. Any such increase shall be added to the Rent and shall become the Rent
for the first renewal term.
In the event Lessee exercises its second option to renew the term of
this Lease for a second five-year renewal term, the Rent during such second
renewal term shall be determined by first multiplying the then current annual
Rent times a fraction, the numerator of which shall be the amount by which the
CPI Index for the penultimate month immediately preceding the twentieth
anniversary date of this Lease exceeds the CPI Index for the penultimate month
immediately preceding the first month of the Third Adjustment Period, and the
denominator of which shall be the CPI Index for the penultimate month
immediately preceding the first month of the Third Adjustment Period. Any such
increase shall be added to the Rent and shall become the Rent for the second
renewal term.
In the event that the CPI Index ceases to be published at any time
during the terms of this Lease, or if a substantial change is made in the method
of establishing the CPI Index, then the determination of the adjustment in the
Rent shall be made with the use of such comparable statistics on the cost of
living in the United States as shall be selected by Lessors. Notwithstanding any
term to the contrary, in no event shall the Rent decrease.
11. COVENANTS OF LESSEE. Lessee hereby covenants with Lessors 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 Lessors at 246 W.
Liberty Street, Wooster, Ohio 44691, or at such other place as Lessors
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, Lessors 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.
(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
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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. Five days
prior to the applicable due date, Lessee shall provide proof of payment
of the Taxes to Lessors. 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 Lessors 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 Lessors' 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 and 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 overburden or
exceed the capacity of the mains, feeders, ducts, conduits, or other
facilities by which utilities are supplied to the Premises.
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(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) LESSORS' ENTRY. Lessee will permit Lessors or their 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 Lessors.
(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 Lessors harmless from or against any lien or claim
of lien. If any lien does attach, and is not released within thirty
(30) days after notice to Lessee, or if Lessee has not indemnified
Lessors against the lien within the thirty (30) day period, Lessors, in
their sole discretion, may pay and discharge the lien and relieve the
Premises. Lessee agrees to repay and reimburse Lessors upon demand, as
additional Rent, for any amount paid by Lessors to discharge a lien
with interest, at a rate equal to ten percent (10%) per annum.
Lessee shall be responsible for preparing and filing, subject
to Lessors' 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 the Premises. Lessee may permit the items so
contested to remain undischarged and
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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 Lessors or the Premises or any portion would be subject
to loss or forfeiture. If nonpayment would impair the Lessors' 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 Lessors; provided, however,
that Lessee shall first notify the Lessors of their intention to
contest the lien. Lessors will cooperate fully with the Lessee in any
such contest. Lessee shall defend and hold harmless the Lessors from
any loss, cost or expenses Lessors may incur related to any 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 Lessors upon a showing of Lessee's reasonable need
for such leasehold improvements. All leasehold improvements including
business fixtures installed in or upon the Premises at any time shall
not be removed from the Premises at any time, unless such removal is
consented to in advance and in writing by Lessors. 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 and
leasehold improvements 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 Lessors without payment of any kind to
Lessee.
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 Lessors (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 Lessors as an
additional named insured, and each such policy shall contain an
agreement or endorsement
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that such policy will not be canceled by the insurer without at least
ten days prior notice to Lessors 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 Lessors 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 11(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 Lessors, 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 Lessors first consent in writing. If a sublease or
assignment is made as provided in this Section, Lessee shall
pay Lessors a charge of Five Hundred Dollars ($500) to
reimburse Lessors for all of the necessary legal and
accounting services required.
(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 Lessors' 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) Lessors consent to any assignment, encumbrance,
subletting, occupation, lien or other transfer shall not
release Lessee from any of Lessee's obligations under
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this Lease or be deemed to be a consent to any subsequent
occurrence. Any assignment, encumbrance, subletting,
occupation, lien or other 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.
(v) Notwithstanding anything to the contrary, Lessors
acknowledge that Lessee intends to assign this Lease to its
subsidiary, a federally chartered national bank, upon the
completion of such subsidiary's formation.
(P) LATE CHARGES. If payment due to Lessors from Lessee is not
received by Lessors within ten (10) days after the due date, a "late
charge" of $25.00 may be charged by Lessors 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 Lessors 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 Lessors 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) Lessors 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 Lessors from time to time in the future, and Lessee upon
demand by Lessors 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 Lessors shall procure from any such
mortgagee an agreement, in writing,
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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.
(S) CONSTRUCTION PLANS. Lessee shall be responsible for
providing Lessors with all necessary information with respect to
Lessee's specifications for and requirements to be included within the
Improvements such that Lessors 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, Lessors and Lessee shall
review and approve of the same and shall evidence such approval by
initialing the same.
12. COVENANTS OF LESSORS. Lessors hereby covenant 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 Lessors or any person or
persons lawfully claiming under Lessors.
(B) WARRANTIES AS TO TITLE AND FITNESS FOR USE. Prior to
accepting Rent, Lessors warrant 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 Lessors imposed
hereunder have been fully performed.
(C) INDEMNITY BY LESSORS. Lessors shall indemnify, hold
harmless and defend Lessee from and against any and all claims,
actions, damages, liability and expense
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(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
Lessors of the Premises or any part thereof, occasioned wholly
or in part by any act or omission of the Lessors, their
officers, employees, contractors, agents or invitees; or
(ii) by any failure of Lessors to abide by or perform
any other term, covenant or condition of this Lease.
13. MUTUAL COVENANTS OF LESSORS AND LESSEE. Both Lessors 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, Lessors 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 11(m) of this Lease, payable as a
result of any damage or destruction, shall be payable jointly to
Lessors and Lessee and used only for the purpose of such repair or
rebuilding. Lessors 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 abate.
(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 Lessors have received the insurance
funds on the Premises pursuant to Section 11(m) 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 Lessors. If Lessee exercises Lessee's right to terminate the
Lease, Lessors shall refund all Rent paid after the casualty and any
insurance proceeds belonging to Lessee paid to Lessors. 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 abate six months from the date of
casualty to recommencement of operations.
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<PAGE> 16
(C) DEMAND FOR RENT AND LESSORS' 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:
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 (10) 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 (10) days
after written notice and demand any other charges payable to
or on behalf of Lessors under this Lease;
4. Lessee's failure to perform or abide by any other
term, covenant, or condition of this Lease within ten (10)
days after written notice and demand, unless the failure
absolutely requires more than ten (10) 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 Lessors, 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 and without Lessors or their agents
being deemed guilty of trespass, or becoming liable for any
loss or damage which may be caused by the removal, Lessee
absolutely waiving all claims for direct or indirect related
damages;
2. To terminate the Lease and re-let the Premises for
the account of the Lessors or, within the sole discretion of
Lessors, to retake possession of the
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<PAGE> 17
Premises without terminating the Lease and to re-let them for
the account of Lessee. In the event that Lessors re-let the
Premises for the account of Lessee, then Lessors shall have
the right to make any alterations and repairs as may be
necessary and to re-let the Premises, or any part thereof, at
such Rent and for such term and subject to such terms and
conditions as Lessors may deem advisable and receive the Rent.
Upon each re-letting for the account of Lessee, all Rentals
received by Lessors shall be applied, first to the payment of
any indebtedness other than Rent under the Lease from Lessee
to Lessors; 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 Lessors due
and unpaid under the Lease; and the residue, if any, shall be
held by Lessors and applied in payment of future Rent and
other charges payable on behalf of Lessors as it may become
due and payable under the Lease. Lessee agrees to pay to
Lessors on demand any deficiency that may arise by reason of
re-letting, Notwithstanding any re-letting without
termination, Lessors 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
Lessors' attorney(s), Lessee shall pay Lessors' reasonable
attorney's fees plus costs, where deemed necessary or
appropriate by Lessors, whether suit is instituted or not.
Lessee shall not be required to reimburse Lessors 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 Lessors' 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 Lessors 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.
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Lessors shall be entitled to retain any proceeds payable in
connection with the appropriation of the Premises.
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).
Lessors 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
Lessors 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. Lessors likewise agree that no
claims shall be made and that no suit or action, either at law or in
equity, shall be brought by Lessors or by any person, firm or
corporation claiming by, through, or under Lessors, 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; provided, however, that Lessors shall become the
owners of all leasehold improvements and business fixtures without the
necessity of payment of any kind from Lessors 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 13(c); or
(iii) any governmental condemnation of the Premises.
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(G) EFFECT OF LESSORS' WAIVER. Lessors' waiver of a breach of
any covenant or condition of this Lease is not a waiver or a breach of
others, or of any subsequent breach of any one so waived. Lessors'
acceptance of Rent installments after breach is not a waiver of any
breach. Any failure of Lessors to enforce rights or seek remedies upon
any default of Lessee with respect to the obligations of this Lease, or
any of them, shall not prejudice or affect the rights or remedies of
Lessors in the event of any subsequent default of Lessee.
14. SIGNAGE. Any signage on the exterior of the building on the
Premises shall be in accordance with the plans and specifications approved by
Lessors as set forth in Section 3.
15. 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 Lessors:
Jack K. Gant
Heidi M. Gant
246 West Liberty Street
Wooster, OH 44691
if to the Lessee:
Ohio Legacy Corp.
305 West Liberty Street
Wooster, OH 44691
Attention: L. Dwight Douce
All such notices and other communications will: (i) if delivered personally to
the addresses provided in this Section, be deemed given upon delivery; and (ii)
if delivered by mail in the manner described above to the address provided in
this Section, be deemed given within three days following the mailing thereof.
Any party from time to time may change its address by giving notice specifying
such change to the other party hereto.
16. 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 Lessors, 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.
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(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.
(E) SECTION 1031 EXCHANGE. Lessee acknowledges that Lessors are
acquiring the Premises and constructing the Improvements as part of a tax-free
exchange. Lessee shall fully cooperate with Lessors to assure that such exchange
complies with applicable Internal Revenue Service's regulations.
(F) PREVIOUS USE OF PREMISES. The parties acknowledge that the Premises
had previously been a site of a gas station.
(G) CONDITION SUBSEQUENT TO LESSER'S PERFORMANCE. Lessors obligations
under this Lease are expressly conditioned upon Lessors' acquisition of the
Premises. In the event Lessors do not acquire the Premises on or before December
31, 1999, all amounts paid under Section 1 shall be returned to Lessee by
Lessors and Lessors shall have no further liability hereunder.
IN WITNESS WHEREOF, the parties hereto have signed this Lease Agreement
the day and year first above written.
LESSORS:
/s/ Robert C. Berry /s/ Jack K. Gant
--------------------------- ----------------------------------
Jack K. Gant
/s/ Brenda K. Blackburn
---------------------------
/s/ Robert C. Berry /s/ Heidi M. Gant
--------------------------- ----------------------------------
Heidi M. Gant
/s/ Brenda K. Blackburn
---------------------------
LESSEE:
OHIO LEGACY CORP.
/s/ illegible By: /s/ L. Dwight Douce
--------------------------- ----------------------------------
L. Dwight Douce, President
/s/ Julie Reese
---------------------------
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<PAGE> 21
STATE OF OHIO )
) ss:
COUNTY OF WAYNE )
Before me, a Notary Public in and for said State, personally
appeared the above named Jack K. Gant and Heidi M. Gant, husband and wife, who
acknowledged that they did sign the foregoing instrument and that the same is
their free act and deed.
In Testimony Whereof, I have hereunto set my hand and
official seal at Wooster, Ohio, this 20th day of August, 1999.
/s/ Brenda K. Blackburn
--------------------------
Notary Public
Brenda K. Blackburn
Notary Public, State Of Ohio
My Commission Expires Dec. 14, 2000
STATE OF OHIO )
) ss:
COUNTY OF WAYNE )
Before me, a Notary Public in and for said State, personally
appeared the above named Ohio Legacy Corp., an Ohio corporation, by L. Dwight
Douce, its President, who acknowledged 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 24th day of August, 1999.
/s/ Julie Reese
--------------------------
Notary Public
This Instrument Prepared By:
Robert C. Berry Julie Reese
Attorney at Law Notary Public, State Of Ohio
Wooster, Ohio My Commission Expires Oct. 4, 1999
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