Lease agreement dated July 15, 2012 between the City of Coweta and Accu-Tec Enterprises, Ltd., regarding the real property commonly referred to as 26730 East 111th Street South, Coweta, Oklahoma including the Estoppel Certificate, dated November 9, 2009, executed by the city of Coweta

 

1

An amount equal to the Lessor’s total monthly payment to BancFirst for financing associated with this project, based upon a twenty (20) year amortization scale (estimated to be 59 monthly payments of $2,243.07 and 1 payment of $210,555.18);

 

2

An amount equal to Lessor’s total monthly payment for its CDBG building loan in the amount, based upon a twenty (20) year amortization scale (estimated to be 239 monthly payments of $1,666.67 and 1 payment of $101,667.87).

 

(a)

Maintain and keep in good repair the improvements, including the exterior and interior of all buildings;

 

(b)

Keep the premises in a neat and clean condition, free from danger of damage by fire, and refrain from permitting any nuisance or fire hazard thereon, shall permit no unlawful or immoral practice to be carried on within the Premises with his knowledge or consent, and comply in his occupancy and use with all applicable laws and regulations relating thereto. Lessee shall at Lessee’s cost provide for the regular removal of all trash, rubbish and garbage from the Premises.

 

(c)

Lessee shall pay all personal property taxes assessed against the Premises or contents; the Lessor shall pay all taxes or assessments charged or levied against said real premises, including any ad valorem assessments or taxes.

 

(d)

Pay all costs for all utilities used on the Premises, including, but without limitation, electricity, gas, water and sewer charges;

 

(e)

Pay all other expenses of every kind required for the maintenance or operation of the Premises, with the exception that the Lessor shall be responsible for regular maintenance of the building facility for the first one year of the parties lease.

 

(a)

If Lessee shall have abandoned the Leased Premises, at Lessor’ option, without terminating this Lease, to change the locks on the doors to the Leased Premises and exclude Tenant therefrom, for the purposes of securing the premises;

 

(b)

At its option, by notice to Lessee, to terminate this Lease. No re-entry or taking of possession of the Leased premises by Lessor, as provided in clauses (a) and (c) of this article, shall be construed as an election on its part to terminate this Lease unless a notice of such intention is given to Lessee. Upon the service of such notice of termination, the term of this Lease shall automatically terminate. Notwithstanding any reletting without termination, Lessor may at any time thereafter elect to terminate this Lease for such previous breach in the manner provided in this section.

 

(c)

At its option, to require Lessee to surrender possession without termination of this Lease, whereupon Lessee shall immediately surrender possession of the Premises to Lessor and immediately vacate the same, and remove all effects therefrom, except such as may not be removed under other provisions of this Lease. If Lessee fails to surrender possession and vacate as aforesaid, Lessor may apply to a court of appropriate jurisdiction for an order for possession of the property without thereby waiving Lessor’s rights to rent or any other rights given to Lessor under this lease or at law or in equity. If Lessee shall not remove all effects from the Premises in a commercially reasonable time, Lessor may, at its option, remove any or all effects in any manner it shall choose and store the same without liability for loss, and Lessee shall pay Lessor, on demand, any and all expenses incurred in such removal and storage of said effects for any length of time during which the same shall be in Lessor’s possession or storage.

 

(d)

At its option, to make such alterations and repairs as Lessor shall determine may be reasonably necessary to relet the Premises, and to relet the same or any part thereof for such term or terms (which may be for a term extending beyond the term of this lease) and upon such terms and conditions as Lessor in its sole discretion may deem advisable. In no event shall Lessee be entitled to receive any surplus funds generated by any re-letting of the premises.

 

(e)

At its option, to collect from Lessee any other loss or damage which Lessor may sustain by reason of any breach and any diminished value of the Premises resulting from said breach.

 

(f)

At its option, in the event of a breach or threatened breach by Lessee, to enjoin any such breach or threatened breach.

 

(g)

No receipt of moneys by Lessor from or for the account of Lessee or from anyone in possession or occupancy of the Premises after the termination in any of this Lease or after the giving of any notice of termination, shall reinstate, continue or extend the term of this Lease or affect any notice given to Lessee prior to the receipt of such money, it being agreed that after the service of notice or the commencement of a suit, or after final judgment for possession of the Premises, Lessor may receive and collect any rent or other amounts due Lessor, and such payment shall not waive or affect said notice, suit or judgment.

 

(a)

If at any time prior to or after the commencement of the term of this Lease there shall be filed by Lessee, in any court pursuant to any statute either of the United States or of any State, a petition in bankruptcy (including, without limitation, a petition for liquidation, reorganization, or for adjustment of debts of an individual with regular income), or if such petition is filed against Lessee and such party fails to secure a dismissal thereof within thirty (30) days of the filing thereof, or if Lessee becomes insolvent or is unable or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors or petitions for or enters into an arrangement with its creditors or a custodian is appointed or takes possession of Lessee’s property, then this Lease shall, at the Lessor’s option, be terminated, in which event Lessee, nor any person claiming through Lessee or by virtue of any statute or any order of any court, shall be entitled to possession of the Premises, and Lessor, in addition to the other rights and remedies given by this Lease, or by virtue of any statute or rule of law, may retain as liquidated damages any rent, Security Deposit or moneys received by Lessor from Lessee or others in behalf of Lessee.

 

(b)

In the event an act of bankruptcy shall occur and this Lease is not terminated pursuant to the provisions of paragraph (a) above, the parties agree:

 

(a)

Lessee shall not, voluntarily, involuntarily or by operation of law assign or encumber this Lease, nor sublet all or any part of the Premises, without the prior written consent of the Lessor. Notwithstanding, unless written agreement otherwise, upon approved assignment or subletting, Lessee shall remain liable for any and all of his obligations owed pursuant to this Lease.

 

(b)

Lessor may not transfer its ownership interest in the Premises to any party other than the Lessee or Lessee’s assigns without first obtaining a written assumption by the proposed transferee of all of Lessor’s obligations and duties under all written agreements between the Lessor and Lessee. Upon the valid transfer of its interest, the Lessor shall be entirely released and relieved of all obligations and responsibilities concerning this Lease.

 

(a)

If the damage or destruction is such that the cost of repairs or replacement to the premises is greater than 50% of the initial cost of construction of the premises, rent shall abate by 50% during the time period in which the premises is not capable of being used by Lessee, said abatement period not to exceed 6 months. Abatement of rentals shall not occur if Lessee continues and occupy the premises and continues to conduct business in the premises, regardless of the extent of damage. Lessor shall have the option of deciding not to rebuild or repair only if it is determined insurance proceeds are not available to fund the total cost of rebuild or repair, in which case the Lessor may terminate this Lease.

 

(b)

If the damage or destruction is such that the cost of repairs or replacement to the premises is less than 50% of the initial cost of construction of the premises, rent shall not abate during the period of replacement or repair, regardless of the impact upon Lessee’s business.

 

(a)

In case suit is brought because of the breach of any agreement or obligation contained in this Lease on the part of Lessee or Lessor to be kept or performed, and a breach shall be established, the prevailing party shall be entitled to recover all expenses incurred therefor, including reasonable attorneys’ fees.

 

(b)

Lessor’s and Lessee’s rights and remedies shall be cumulative and may be exercised and enforced concurrently. Any right or remedy conferred upon Lessor or Lessee under this Lease shall not be deemed to be exclusive of any other right or remedy it may have.

 

(a)

The waiver by Lessor or Lessee of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained. No waiver of any rights shall occur unless such waiver is in writing and signed by the party charged therewith.

 

(b)

No payment by Lessee or receipt by Lessor of a lesser amount than the monthly rent or any other charges shall he deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement on any check be deemed an accord and satisfaction.

 

(c)

No subsequent alteration, amendment, change or addition to this Lease, nor any surrender of the term, shall be binding upon Lessor or Lessee unless reduced to writing and signed by the parties hereto.

 

(d)

Lessor does not in any way or for any purpose become a partner of Lessee in the conduct of his business or otherwise, nor a joint venturer or a member of a joint enterprise with Lessee.

 

(e)

This written agreement constitutes the total, sole and complete Lease agreement of the parties, and no representations, promises, understandings, offers or other communications of any type concerning the agreement of the parties shall be binding unless included herein, EXCEPT, the parties anticipate execution herewith an “Option to Purchase” and said separate agreement, if approved by the parties, shall be binding thereon as a separate agreement, and not as a modification, interpretation, or limitation an this Lease.

 

(f)

Any notices required by the parties Lease shall be provided in writing, by certified mail, to the last known address of that party.

 

(g)

The parties agree that any action concerning breach or enforcement of the terms of this lease shall be brought in the District Court for Wagoner County, Oklahoma, and that jurisdiction shall not be proper in any other court, regardless of the residence of the Lessee or where this Lease may be executed.

 

(h)

The laws of the State of Oklahoma shall govern the performance, validity and enforcement of this Lease.

CITY OF COWETA, LESSOR

By:

W.W. Osburn, Mayor

City of Coweta

Joyce Terry, City Clerk

 

1

Commencing on the date of the first payment by the Optionee to the Optionor for lease or rental of improved real property as described on the attached Exhibit “A” (the “Property”), and ending on the end of the twentieth (20th) year after the date of such first payment, the Optionee shall have an option to purchase the Property owned by Optionor.

 

2

The Option Price shall be the then outstanding balance of all promissory notes or other debt instruments secured by the Property, but shall include only those debts entered into to allow the Optionee to purchase the Property and erect the initial improvements on said real property, together with the amount of any sums paid the Optionor on said promissory notes prior to the occupancy of the Property by the Optionee for which Optionor has not been reimbursed by the Optionee.

 

3

Optionee has paid the sum of $100.00 as non-refundable option consideration which will be applied toward the purchase price of the property if, and only if, Optionee exercises this Option to purchase. In the event Optionee fails to exercise the Option or defaults under any terms of the attached lease, this Option will be void and all monies will be retained by Optionor as liquidated damages and not as a penalty.

 

4

The recording of this Option or any memorandum thereof will result in the automatic revocation of this Option, and all monies will be retained by Optionor as liquidated damages and not as a penalty. In addition, Optionee will be liable to Optionor for all incidental and consequential damages for slander of title, including, but not limited to, attorneys fees and court costs for correcting title.

 

5

This Option, or any interest therein, is not transferable or assignable and can only be exercised by the individuals signing this Option acting in unison for Optionee’s principal residence.

 

6

Notice must be delivered to the Optionor in writing of Optionee’s intention to exercise this Option at least fifteen (15) days prior to exercise.

 

7

This purchase option is NOT contingent upon Optionee’s ability to obtain financing from a lender or any other reason. Optionee understands that TIME IS OF THE ESSENCE for this agreement, and that Optionee’s failure to purchase the property before the expiration of the Option for any reason (or if Optionee defaults under any of the terms of a lease agreement for the above stated property), all monies paid by Optionee will be retained by Optionor. Optionor and Optionee further agree that this agreement is not an installment land contract, contract-for-deed or equitable mortgage, but merely a statement of Optionee’s right to purchase the above-referenced property under the terms stated above, and that Optionee is under no legal responsibility to purchase the property.

 

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16THE UNDERSIGNED IS THE OWNER OF THE FEE SIMPLE TITLE OF THE PREMISES AND THE OWNER AND HOLDER OF THE INTEREST OF LANDLORD UNDER THE LEASE.

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17THE TERM OF THE LEASE COMMENCED ON JULY 15, 2002 AND WILL EXPIRE ON 20 YEARS AS OF DAY RENTALS COMMENCE (SUBJECT TO THE TENANT’S RIGHT OF EXTENSION, IF ANY, CONTAINED IN THE LEASE).  THE LEASE IS VALID AND IN FULL FORCE AND EFFECT.

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18ATTACHED HERETO IS A TRUE, ACCURATE, AND COMPLETE COPY OF THE LEASE, TOGETHER WITH ALL AMENDMENTS AND MODIFICATIONS THERETO.  THE LEASE CONTAINS THE ENTIRE AGREEMENT BETWEEN THE UNDERSIGNED AND TENANT WITH RESPECT TO THE PREMISES.

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19THE LAST MONTHLY PAYMENT OF RENT WAS MADE ON OR ABOUT OCTOBER 19, 2009.  ALL RENTAL NOW OR HERETOFORE DUE HAS BEEN PAID IN FULL, THROUGH AND INCLUDING THE PAYMENT OF RENT DUE ON OR ABOUT OCTOBER 15, 2009.  THE MONTHLY RENTAL UNDER THE LEASE FOR THE REMAINING TERM OF THE LEASE IS $3,909.74.

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20EXCEPT FOR A SECURITY DEPOSIT IN THE AMOUNT OF $0, NO SECURITY DEPOSIT OR RENT IN ADVANCE OF ITS DUE DATE HAS BEEN PAID.

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21TO THE KNOWLEDGE OF THE UNDERSIGNED, NO DEFAULT AND NO EVENT HAS OCCURRED AND NO CONDITION EXISTS WHICH, IF NOT CURED FOLLOWING THE GIVING OF NOTICE AND/OR THE PASSAGE OF TIME, WOULD CONSTITUTE A DEFAULT UNDER THE LEASE.  NO NOTICE OF DEFAULT HAS BEEN GIVEN WITH RESPECT TO ANY DEFAULT WHICH REMAINS UNCURED.

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22ALL CONSTRUCTION OBLIGATIONS OF TENANT AND LANDLORD UNDER THE LEASE HAVE BEEN COMPLETED.

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23NO CONTROVERSY PRESENTLY EXISTS BETWEEN TENANT AND LANDLORD, INCLUDING ANY LITIGATION OR ARBITRATION, OVER THE LEASE OR THE PERFORMANCE OF THE TERMS THEREOF.  THERE IS NO DEFENSE, OFFSET, CLAIM, OR COUNTERCLAIM BY OR IN FAVOR OF LANDLORD AGAINST TENANT UNDER THE LEASE.

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24THE PERSON SIGNING THIS ESTOPPEL CERTIFICATE IS DULY AUTHORIZED AND HAS THE POWER TO EXECUTE IT ON BEHALF OF LANDLORD AND TO BIND LANDLORD.

/s/ Steven C. Whitock