Lease Agreement
Business and Commercial
This Lease Agreement is made on December 1, 2002
BETWEEN
THE XXXX HILLS REALTY CO., LP
whose address is 0000 Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx 00000
herein designated as the "Landlord,"
AND
CAPITAL FINANCIAL CORP.
whose address is 0000 Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx 00000
herein designated as the "Tenant."
1. Premises. The Landlord does hereby lease to the Tenant and the
Tenant does hereby rent from the Landlord, the following described premises:
2. Term. For a term of Thirty-six (36) months commencing on January 1, 2003,
and ending on December 31, 2005.
3. Use. To be used and occupied only and for no other purpose than business
office and any other lawful use incidental thereto. The Tenant shall not,
and will not allow others, to occupy or use the leased premises or any part
thereof for any purposes other than as herein limited, nor for any purpose
deemed unlawful, disreputable, or extra hazardous, on account of fire
or other casualty.
4 Rent. The Tenant agrees to pay $131,760.00 (One Hundred Thirty-One
Thousand Seven Hundred Sixty Dollars) as rent, to be paid as follows:
$3,660.00 per month, due on January 1, 2003 and the first (1st) day
of each month thereafter. The security deposit is due upon the signing
of the Lease by the Tenant. The Tenant must pay a late charge of $50.00
as additional rent for each payment that is more than 5 days late. This late
charge is due with the monthly rent payment. The Tenant must also pay a
fee of $50.00 as additional rent for any dishonored check.
5. Repairs and Care. The Tenant has examined the premises and has entered
into this Lease without any representation on the part of the Landlord as to
the condition thereof.* The Tenant shall take good care of the premises
and shall at the Tenant's own cost and expense, make all repairs, including
painting, decorating, and shall maintain the premises in good condition and
state of repair, and at the end or other expiration of the term hereof; shall
deliver up the rented premises in good order and condition, wear and tear
from a reasonable use thereof, and damage by the elements not resulting
from the neglect or fault of the Tenant, excepted. The Tenant shall neither
encumber nor obstruct the sidewalks, driveways, yards, entrances,
hallways and stairs. Landlord shall keep the premises free from ice and snow
*see paragraph 41
6. Alterations and Improvements. No alterations, additions or improvements
shall be made, and no climate regulating, air conditioning, cooling, heating
or sprinkler systems, television or radio antennas, heavy equipment,
apparatus and fixtures, shall he installed in or attached to the leased
premises, without the written consent of the Landlord. Unless otherwise
provided herein, all such alterations, etc., when made, installed in or
attached to the said premises, shall belong to and become the property
of the Landlord and shall be surrendered with the premises and as part
thereof upon the expiration or sooner termination of this Lease, without
hindrance, molestation or injury.
7. Signs. The Tenant shall not place nor allow to be placed any signs, upon,
in or about the said premises, except as may be consented to by the
Landlord in writing. In case the Landlord or the Landlord's agents,
employees or representatives shall deem it necessary to remove any such
signs in order to paint or make any repairs, alterations or improvements in
or upon said premises or any part thereof, they may be so removed, but s
hall be replaced at the Landlord's expense when the said repairs,
alterations or improvements shall have been completed. Any signs permitted
by the Landlord shall at all times conform with all municipal ordinances
or other laws and regulations applicable thereto. Landlord will install a
new sign panel on both sides of the lawn sign, at Landlord's cost and expense.
8. Utilities. The Landlord shall pay when due all charges for water or
other utilities used by the Tenant, which are or may be assessed or imposed
upon the leased premises or charged to the Landlord by the suppliers thereof
during the term hereof.
9. Compliance with Laws etc. The Tenant shall promptly comply with all laws,
ordinances, rules, regulations, requirements and directives of all
Governmental or Public Authorities and of all their subdivisions, applicable
to and affecting the said premises, their use and occupancy, and shall
promptly comply with all orders, regulations, requirements and directives of
the Board of Fire Underwriters or similar authority and of any insurance
companies which have issued or are about to issue policies of insurance
covering the said premises and its contents, for the prevention of fire or
other casualty, damage or injury, at the Tenant's own cost and expense.
10. Assignment. The Tenant shall not, without the written consent of the
Landlord, assign, mortgage or hypothecate this Lease, nor sublet or sublease
the premises or any part thereof.
11. Liability Insurance. The Tenant, at Tenant's own cost and expense, shall
obtain or provide and keep in full force for the benefit of the Landlord,
during the term hereof; general public liability insurance, insuring the
Landlord against any and all liability or claims of liability arising
out of; occasioned by or resulting from any accident or otherwise in or about
the leased premises for injuries to any persons, for limits of not less
than $500,000.00 for property damage, $500,000.00 for injuries to one person
and $ 1,000,000.00 for injuries to more than one person, in any one a
accident or occurrence. The insurance policies shall be with companies
authorized to do business in this State and shall be delivered to the
Landlord, together with proof of payment, not less than fifteen (15) days
prior to the commencement of the term hereof or of the date when the Tenant
shall enter in possession, whichever occurs sooner. At least fifteen days
prior to the expiration or termination date of any policy, the Tenant shall
deliver a renewal or replacement policy with proof of the payment of the
premium therefor.
12. Indemnification. The Tenant also agrees to and shall hold harmless
and indemnify the Landlord from and for any and all payments, expenses,
costs, attorney fees and from and for any and all claims and liability for
losses or damage to property or injuries to persons occasioned wholly or in
part by or resulting from any acts or omissions by the Tenant or the Tenant's
agents, employees, guests, licensees, invitees, subtenants, assignees or
successors.
13. Mortgage Priority. This Lease shall not be a lien against the said
premises with respect to any mortgages that may hereafter be placed upon
said premises. The recording of such mortgages shall have preference and be
superior and prior in lien to this Lease, irrespective of the date of recording.
The Tenant agrees to execute any instruments, without cost, which may be
deemed necessary, to further effect the subordination of this Lease to
any such mortgages. A refusal by the Tenant to execute such instruments
is a violation and shall entitle the Landlord to cancel this Lease.
14. Condemnation Eminent Domain. If any portion of the premises of which the
leased premises are a part shall be taken under eminent domain or condemnation
proceedings, or if suit or other action shall be instituted for the taking
or condemnation thereof; or if in lieu of any formal condemnation proceedings
or actions, the Landlord shall grant an option to purchase and or shall sell
and convey the said premises or any portion thereof, to the governmental or
other public authority, agency, body or public utility, seeking to take said l
and and premises or any portion thereof; then this Lease, at the option of
the Landlord, shall terminate, and the term hereof shall end as of such date
as the Landlord shall fix by notice in writing. The Tenant shall have no claim
or right to claim or be entitled to any portion of any amount which may be
awarded as damages or paid as the result of such condemnation proceedings or
paid as the purchase price for such option, sale or conveyance in lieu of
formal condemnation proceedings. All rights of the Tenant to damages, if any,
are hereby assigned to the Landlord. The Tenant agrees to execute and deliver
any instruments, at the expense of the Landlord, as may be deemed necessary
to expedite any condemnation proceedings or to effectuate a proper transfer of
title to such governmental or other public authority, agency, body or public
utility seeking to take or acquire the said lands and premises of any
portion thereof. The Tenant agrees to vacate the said premises, remove
all the Tenant's personal property therefrom and deliver up peaceable
possession thereof to the Landlord or to such other party designated by the
Landlord. The Tenant shall repay the Landlord for such costs, expenses,
damages and losses as the Landlord may incur by reason of the Tenant's
breach hereof.
15. Fire and Other Casualty. In case of fire or other casualty, the Tenant
shall give immediate notice to the Landlord. If the premises shall be
partially damaged by fire, the elements or other casualty, the Landlord shall
repair the same as speedily as practicable, but the Tenant's obligation to pay
the rent hereunder shall not cease. If; in the opinion of the Landlord, the
premises are so substantially damaged as to render them untenantable, then the
rent shall cease until such time as the premises shall be made tenantable by
the Landlord. However, if; in the opinion of the Landlord, the premises
are so substantially damaged that the Landlord decides not to rebuild, then
the rent shall be paid up to the time of such destruction and thenceforth this
Lease shall come to an end. However, the provisions of this clause shall not
become effective or be applicable, if the fire or other casualty and damage
shall be the result of the carelessness, negligence or improper conduct of the
Tenant or the Tenant's agents, employees, guests, licensees, invitees,
subtenants, assignees or successors. In such case, the Tenant's liability
for the payment of the rent and the performance of all the covenants,
conditions and terms hereof on the Tenant's part to be performed shall
continue and the Tenant shall be liable to the Landlord for the damage
and loss suffered by the Landlord. If the Tenant shall have been insured
against any of the risks herein covered, then the proceeds of such insurance
shall be paid over to the Landlord to the extent of the Landlord's costs and
expenses to make the repairs hereunder, and such insurance carriers shall
have no recourse against the Landlord for reimbursement.
16. Reimbursement of Landlord. If the Tenant shall fail or refuse to comply
with any of the terms and conditions of this Lease, the Landlord may carry out
and perform such conditions at the cost and expense of the Tenant, which
amounts shall be payable on demand to the Landlord. This remedy shall be in
addition to such other remedies as the Landlord may have by reason of the
breach by the Tenant of any of the terms and conditions of this Lease.
17. Increase of Insurance Rates. If for any reason it shall be impossible to
obtain fire and other hazard insurance on the buildings and improvements on
the leased premises, in an amount and in the form and in insurance
companies acceptable to the Landlord, the Landlord may, at any time, terminate
this Lease, upon giving to the Tenant fifteen (15) days' notice in writing of
the Landlord's intention so to do. Upon the giving of such notice, this Lease
shall terminate.
Page 2
If by reason of the use to which the premises are put by the Tenant or
character of or the manner in which the Tenant's business is carried on,
the insurance rates for fire and other hazards shall be increased, the
Tenant shall upon demand, pay to the Landlord, as rent, the amounts by which
the premiums for such insurance are increased.
18. Inspection and Repair. The Tenant agrees that the Landlord and the
Landlord's agents, employees or other representatives, shall have the right
to enter into and upon the said premises or any part thereof, at all
reasonable hours, for the purpose of examining the same or making such
repairs or alterations therein as may be necessary for the safety and
preservation thereof. This clause shall not be deemed to be a covenant by the
Landlord or be construed to create an obligation on the part of the Landlord
to make such inspection or repairs.
19. Right to Exhibit. The Tenant agrees to permit the Landlord and the
Landlord's agents, employees or other,after ninety (90) days next preceding
the expiration of the term hereof, to place notices on the front of said
premises or any part thereof, offering the premises for rent or for sale; and
the Tenant hereby agrees to permit the same to remain thereon without
hindrance or molestation. Premises may be shown to prospective tenants with
prior notice during this period.
20. Removal of Tenant's Property. Any equipment, fixtures, goods or other
property of the Tenant, not removed by the Tenant upon the termination of
this Lease, or upon any quitting, vacating or abandonment of the premises by
the Tenant, or upon the Tenant's eviction, shall be considered as abandoned
and the Landlord shall have the right, without any notice to the Tenant, to
sell or otherwise dispose of the same, at the expense of the Tenant, and
shall not be accountable to the Tenant for any part of the proceeds of such
sale, if any.
21. Remedies Upon Tenant's Default. If there should occur any default on
the part of the Tenant in the performance of any conditions and covenants
herein contained, or if during the term hereof the premises or any part
thereof shall be or become abandoned or deserted, vacated or vacant, or
should the Tenant be evicted, the Landlord, in addition to any other remedies
herein contained or as may be permitted by law, may either by force or
otherwise, without being liable for prosecution therefor, or for damages, re-
enter, possess and enjoy the said premises. The Landlord may then re4et the
premises and receive the rents therefor and apply the same, first to the
payment of such expenses, reasonable attorney fees and costs, as the Landlord
may have been put to in re-entering and repossessing the same and in making
such repairs and alterations as may be necessary; and second to the payment
of the rents due hereunder. The Tenant shall remain liable for such rents as
may be in arrears and also the rents as may accrue subsequent to the re-entry
by the Landlord, to the extent of the difference between the rents reserved
hereunder and the rents, if any, received by the Landlord during the
remainder of the unexpired term hereof, after deducting the aforementioned
expenses, fees and costs; the same to be paid as such deficiencies arise and
are ascertained each month.
22. Termination on Default. If any of the contingencies set forth in the
preceding clause occur, or should the Tenant be adjudicated as bankrupt,
insolvent or placed in receivership, or should proceedings be instituted by
or against the Tenant for bankruptcy, insolvency, receivership, agreement of
composition or assignment for the benefit of creditors, or if this Lease or
the estate of the Tenant hereunder shall pass to another by virtue of any
court proceedings, writ of execution, levy, sale, or by operation of law, the
Landlord may, at any time thereafter, terminate this Lease and the term
hereof, upon giving to the Tenant, five (5) days' notice in writing, of the
Landlord's intention so to do. Upon the giving of such notice, this Lease and
the term hereof shall end on the date fixed in such notice as if the said
date was the date originally fixed in this Lease for the expiration hereof;
and the Landlord shall have the right to remove all persons, goods, fixtures
and chattels therefrom, by force or otherwise, without liability for damage.
23. Non-Liability of Landlord. The Landlord shall not be liable for any
damage or injury which may be sustained by the Tenant or any other person, as
a consequence of the failure, breakage, leakage or obstruction of the water,
plumbing, steam, sewer, waste or soil pipes, roof, drains, leaders, gutters,
valleys, downspouts or the like or of the electrical, gas, power conveyor,
refrigeration, sprinkler, air-conditioning or heating systems, elevators or
hoisting equipment; or by reason of the elements; or resulting from the
carelessness, negligence or improper conduct on the part of any other Tenant
or of the Landlord or the Landlord's or this or any other Tenant's agents,
employees, guests, licensees, invitees, subtenants, assignees or successors;
or attributable to any interference with, interruption of, or failure beyond
the control of the Landlord, of any services to be furnished or supplied by
the Landlord.
24. Non-Waiver by Landlord. The various rights, remedies, options and
elections of the Landlord, expressed herein, are cumulative. The failure of
the Landlord to enforce strict performance by the Tenant of the conditions
and covenants of this Lease or to exercise any election or option, or to
resort or have recourse to any remedy herein conferred or the acceptance by
the Landlord of any installment of rent after any breach by the Tenant, in
any one or more instances, shall not be construed or deemed to be a waiver or
a relinquishment for the future by the Landlord of any such conditions and
covenants, options, elections or remedies, but the same shall continue in
full force and effect.
25. Non-Performance by Landlord. This Lease and the obligation of the
Tenant to pay the rent hereunder and to comply with the covenants and
conditions hereof, shall not be affected, curtailed, impaired or excused
because of the Landlord's inability to supply any service or material called
for herein, by reason of any rule, order, regulation or preemption by any
governmental entity, authority, department, agency or subdivision or for any
delay which may arise by reason of negotiations for the adjustment of any
fire or other casualty loss or because of strikes or other labor trouble or
for any cause beyond the control of the Landlord.
26. Validity of Lease. The terms, conditions, covenants and provisions of
this Lease shall be deemed to be severable. If any clause or provision herein
contained shall be adjudged to be invalid or unenforceable by a court of
competent jurisdiction or by operation of any applicable law, it shall not
affect the validity of any other clause or provision herein, but such other
clauses or provisions shall remain in full force and effect.
27. Notices. All notices required under the terms of this Lease shall be
given and shall be complete by mailing such notices by certified or
registered mail, return receipt requested, to the address of the parties as
shown at the head of this Lease, or to such other address as may be
designated in writing, which notice of change of address shall be given in
the same manner.
Page 3
29. Title and Quiet Enjoyment. The Landlord covenants and represents that
the Landlord is the owner of the premises herein leased and has the right and
authority to enter into, execute and deliver this Lease; and does further
covenant that the Tenant on paying the rent and performing the conditions and
covenants herein contained, shall and may peaceably and quietly have, hold
and enjoy the leased premises for the term aforementioned.
29. Entire Contract. This Lease contains the entire contract between the
parties. No representative, agent or employee of the Landlord has been
authorized to make any representations or promises with reference to the
within letting or to vary, alter or modify the terms hereof. No additions,
changes or modifications, renewals or extensions hereof, shall be binding
unless reduced to writing and signed by the Landlord and the Tenant.
30. Tax Increase. If in any calendar year during the term and of any
renewal or extension of the term hereof, the annual municipal taxes assessed
against the land and improvements leased hereunder or of which the premises
herein leased are a part, shall be greater than the municipal taxes assessed
against the said lands and improvements for the calendar year 2002, which is
hereby designated as the base year, then, in addition to the rent herein
fixed, the Tenant agrees to pay a sum equal to their proportionate share
as to the entire building of the amount by which said tax exceeds the
annual tax for the base year, inclusive of any increase during any such
calendar year. The said sum shall be considered as additional rent and shall
be paid in as many equal installments as there are months remaining in the
calendar year in which said taxes exceed the taxes for the base year, on the
first day of each month in advance, during the remaining months of that year.
If the term hereof shall commence after the first day of January or shall
terminate prior to the last day of December in any year, then such additional
rent resulting from a tax increase shall be proportionately adjusted for the
fraction of the calendar year involved.
31. Liens. If any construction or other liens shall be created or filed
against the leased premises by reason of labor performed or materials
furnished for the Tenant in the erection, construction, completion,
alteration, repair or addition to any building or improvement, the Tenant
shall upon demand, at the Tenant's own cost and expense, cause such lien or
liens to be satisfied and discharged of record together with any lien claims
that may have been filed. Failure so to do, shall entitle the Landlord to
resort to such remedies as are provided herein in the case of any default of
this Lease, in addition to such as are permitted by law.
32. Waiver of Subrogation Rights. The Tenant waives all rights of recovery
against the Landlord or Landlord's agents, employees or other
representatives, for any loss, damages or injury of any nature whatsoever to
property or persons for which the Tenant is insured. The Tenant shall obtain
from Tenant's insurance carriers and will deliver to the Landlord, waivers of
the subrogation rights under the respective policies.
33. Security. The Tenant has this day deposited with the Landlord the sum
of $5490.00 as security for the payment of the rent hereunder and the full
and faithful performance by the Tenant of the covenants and conditions on the
part of the Tenant to be performed. Said sum shall be returned to the Tenant,
without interest, after the expiration of the term hereof, provided that the
Tenant has fully and faithfully performed all such covenants and conditions
and is not in arrears in rent. During the term hereof, the Landlord may, if
the Landlord so elects, have recourse to such security, to make good any
default by the Tenant, in which event the Tenant shall, on demand, promptly
restore said security to its original amount. The Landlord shall assign or
transfer said security, for the benefit of the Tenant, to any subsequent
owner or holder of the reversion or title to said premises, in which case the
assignee shall become liable for the repayment thereof as herein provided,
and the assignor shall be released by the Tenant from all liability to return
such security. This provision shall be applicable to every change in title
and does not permit the Landlord to retain the security after termination of
the Landlord's ownership. The Tenant shall not mortgage, encumber or assign
said security without the written consent of the Landlord.
34. Conformation with Laws and Regulations. The Landlord may pursue the
relief or remedy sought in any invalid clause, by conforming the said clause
with the provisions of the statutes or the regulations of any governmental
agency as if the particular provisions of the applicable statutes or
regulations were set forth herein at length.
35. Number and Gender. In all references herein to any parties, persons,
entities or corporations the use of any particular gender or the plural or
singular number is intended to include the appropriate gender or number as
the text of the within instrument may require. All the terms, covenants and
conditions herein contained shall be for and shall inure to the benefit of
and shall bind the respective parties hereto, and their heirs, executors,
administrators, personal or legal representatives, successors and assigns.
In Witness Whereof, the parties have set their hands and seals, or caused
these presents to be signed by their proper corporate officers and their
proper corporate seal to be hereto affixed, the day and year first above
written. See attached addendum
Witnessed or Attested by:
__________________________ ________________________________________
THE XXXX HILLS REALTY CO., LP, Landlord
__________________________ ________________________________________
Xxxxxxx X. Xxxxxxxxx
CAPITAL FINANCIAL CORP., TENANT
ADDENDUM to Lease between THE XXXX HILLS REALTY CO., Landlord and CAPITAL
FINANCIAL CORP., Tenant, dated December 10, 2002.
36th: Tenant shall be responsible for all internal janitorial services
pertaining to their own offices.
37th: The Tenant shall have the option to renew this lease for an
additional 2 year term at a rental rate of $3,880 per month. In order to
exercise said option, tenant must notify landlord in writing on or before the
32nd month of this lease (July 1, 2005)
38th: It is understood and agreed that Tenant shall give at least ninety
(90) days notice, in writing, to the landlord of their desire to extend their
Lease or vacate upon the expiration of this lease. Failure to give property
notice, in writing, shall result in the loss of security.
39th: It is understood and agreed that these premises contain wall-to-wall
carpeting, which is the property of the Landlord, and shall be returned to
the Landlord in a manner and condition similar to its present condition,
reasonable wear and tear excepted.
40th: Heating and air-conditioning to be provided Monday through Friday,
8:30 a.m. to 5:30 p.m. excluding holidays.
41st: The landlord, at this cost and expense will perform the following
renovations:
1. 3rd Floor office will receive 100% new 26 oz. Nylon commercial grade
carpet, color from Landlord supplied chart.
2. (4) private offices shall be constructed in accordance with
attached sketch
3. Closet adjoining conference room shall be modified to accept coats.
4. All walls and trim shall be repainted and any damaged ceiling
tile replaced.
5. This work shall be accomplished between 12/01 and 12/14/02.
2nd floor renovations shall commence on or about 12/20/02.
1. Divide large rear office in two (2) approx. equal rooms
2. Removal of wall to create new reception area
3. Carpet, paint and tile work idential to 3rd floor specs
4. Work to be complete by 12/30/02
THE XXXX HILLS REALTY CO., LP, Landlord
By: s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
By: s/Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx, President
CAPITAL FINANCIAL CORP., Tenant
