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EXHIBIT 10B
LEASE COMMENCEMENT AGREEMENT AND CERTIFICATE
THIS AGREEMENT made and entered into this 9th day of March, 1992, by and
between 0000 XXX XXXXX XXXXXX XXXX ASSOCIATES, (hereinafter referred to as
"Landlord"), and THE XXXXXX XXXXX BANK, (hereinafter referred to as "Tenant").
W I T N E S S E T H
WHEREAS, by Lease Agreement dated the 13th day of December, 1991, Landlord
and Tenant entered into a Lease for approximately 2,852 square feet of gross
floor area on the 1st floor, in a building known as the Madison Building, 0000
Xxx Xxxxx Xxxxxx Xxxx, XxXxxx, Xxxxxxxx 00000, on terms and conditions as more
specifically set forth in said Lease; and,
WHEREAS, the parties hereto desire to set forth certain matters concerning
the date upon which the Lease term has commenced, and the date that the original
term of the Lease is to terminate.
NOW, THEREFORE, the parties hereto agree as follows:
The Landlord and Tenant do hereby declare that possession of the
Demised Premises was accepted by Tenant on the 9th day of March, 1992, and that
the Lease is now in full force and effect; the Rent Commencement Date, as that
term is defined in paragraph 2(a) of the Lease, is established as beginning on
the 1st day of April, 1992; and the original term of the Lease shall expire on
the 31st day of March, 1997.
IN WITNESS WHEREOF the parties hereto have executed this Agreement under
their respective seals on the day and date first above written.
LANDLORD:
0000 XXX XXXXX XXXXXX XXXX ASSOCIATES
/s/ XXXXX XXXXXXXXX
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Xxxxx Xxxxxxxxx, General Partner
Date: 3/12/92
TENANT:
THE XXXXXX XXXXX BANK
/s/ XXXXXXX X. XXXXXXXXX
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Date: 3/14/92
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[XXXXXX XXXXX BANK LETTERHEAD]
CERTIFIED MAIL #Z 191 033 779
RETURN RECEIPT REQUESTED
September 23, 1996
0000 Xxx Xxxxx Xxxxxx Xxxx Associates
0000 Xxx Xxxxx Xxxxxx Xxxx
Xxxxx 000
XxXxxx, Xxxxxxxx 00000
RE: Xxxxxx Xxxxx Bank, Madison Building, 0000 Xxx Xxxxx Xxxxxx Xxxx, XxXxxx, Xx
In accordance with the terms of the lease under Page 1, Section 2(e), Xxxxxx
Xxxxx Bank hereby gives notice to Landlord to renew the term of the lease for
one (1) additional period of five (5) years on the same terms and conditions
contained in the lease effective April 1, 1997.
The minimum annual rent shall increase three percent (3%) per annum during the
option term. Remaining, will be one (1) five (5) year option term.
Sincerely yours,
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Executive Vice President
Retail Banking
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OFFICE
LEASE
Between
0000 XXX XXXXX XXXXXX XXXX ASSOCIATES
and
THE XXXXXX XXXXX BANK
TABLE OF CONTENTS
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1. Premises
2. Term
3. Rent And Other Charges
4. Adjustment Of Rent
5. Deposit
6. Conditions Of Lease
7. Tenant's Covenants
8. Use Of Demised Premises
9. Leasehold Improvements And Alterations
10. Signs And Advertising
11. Safes, Fixtures And Equipment; Repair Of Damage
12. Insurance
13. Insurance Rating
14. Landlord's Covenants Services And Utilities
15. Default
16. No Waiver
17. Landlord's Cure Of Default By Tenant/Reimbursement of Expenses
18. Landlord's Lien
19. Inspection Of Demised Premises
20. Liability For Damage To Personal Property And Persons; Xxxxxxxxxxxxxxx
00. Xxxxxxxxx Xx Xxxxxxxx
00. Conduct Of Business
23. Damage Or Destruction To Building
24. Condemnation
25. Parking Areas
26. Assignment And Sub-Letting
27. Holding Over
28. Subordination
29. Estoppel Certificates
30. Managing Agent
31. Notices
32. No Partnership
33. No Representations By Landlord
34. Brokerage
35. Waiver Of Trial By Jury
36. Quiet Enjoyment
37. Binding Effect Of Lease
38. Rules And Regulations
39. Necessary Approvals
40. Applicable Law and Construction
41. Permitted Uses Exclusive
42. Gender
43. Entire Agreement
EXHIBITS
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Exhibit "A" - Floor Plan
Exhibit "B" - Legal Description
Exhibit "C" - Site Plan
Exhibit "D" - Work Letter
Exhibit "E" - Rules And Regulations
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XXX XXXXXXX XXXXXXXX
XXXXXX, XXXXXXXX
OFFICE BUILDING LEASE
THIS LEASE is made this 13th day of December, 1991, between x000 XXX
XXXXX XXXXXX XXXX ASSOCIATES, a Virginia Limited Partnership, ("Landlord"),
whose address is 0000 Xxx Xxxxx Xxxxxx Xxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000
and THE XXXXXX XXXXX BANK, ("Tenant"), whose address is 00000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000.
1. PREMISES
Landlord hereby leases to Tenant those certain premises outlined in red
on the Plans attached hereto as Exhibit "A" (the "Demised Premises"), consisting
of a total of approximately 2,852 square feet of gross floor area on the 1st
floor, as measured from the outside wall of all exterior and common area walls,
and from the centerline of all demising walls between contiguous tenant space,
and which includes a thirteen percent (13%) core factor, in a building located
on the real property described on Exhibit "B" attached hereto and known as the
Madison Building, 0000 Xxx Xxxxx Xxxxxx Xxxx, XxXxxx, Xxxxxxxx, (hereinafter the
"Building"), together with a non-exclusive right, subject to the provisions
hereof, to use all appurtenances thereunto, including but not limited to, other
areas and facilities designated by Landlord for use in common by tenants of the
Building. The Building, real property on which the same is situated, other areas
and appurtenances are hereinafter collectively sometimes called the "Building
Complex". This Lease is subject to the terms, covenants and conditions set forth
herein and Tenant and Landlord each covenant as a material part of the
consideration of this Lease to keep and perform each and all of said terms,
covenants and conditions by it to be kept and performed and that this Lease is
made upon the conditions of such performances.
2. TERM
(a) The term of this Lease shall commence upon execution hereof, and
shall be for a term of five (5) years (the "Primary Lease Term") commencing on
the Rent Commencement Date, as hereinafter defined, and terminating at 12:00
midnight on the last day of the sixtieth (60th) calendar month thereafter,
unless sooner terminated pursuant to this Lease.
(b) Upon the Rent Commencement Date, Landlord and Tenant shall execute
a commencement of Lease certificate, setting forth the exact date of
commencement and expiration of the term hereof.
(c) The "Rent Commencement Date" shall occur on the date which Tenant
has received all approvals from Federal, State and County Banking authorities,
but in no event later that sixty (60) days following full execution hereof. In
the event that Tenant has failed to obtain all such approvals within said sixty
(60) day period, Tenant shall have the option to terminate this Lease within
three (3) days of expiration of said sixty (60) day period, or Tenant's right to
terminate shall cease and this Lease shall be in full force and effect.
(d) The first "lease year" during the term hereof shall be the period
commencing on the Rent Commencement Date and terminating on the last day of the
twelfth (12) full calendar month after the Rent Commencement Date. Each
subsequent "lease year" during the term hereof (including any extensions or
renewals) shall commence on the date immediately following the last day of the
preceding lease year, and shall continue for a period of twelve (12) full
calendar months, except that the last lease year during the term hereof shall
terminate on the date that this Lease expires.
(e) Provided that Tenant is not in default, Tenant shall have the
option, upon one hundred eighty (180) days advance written notice to Landlord,
to renew the term of this Lease for two (2) additional periods of five (5) years
on the same terms and conditions contained herein, provided however that the
Minimum Annual Rent shall increase three percent (3%)per annum during the option
term.
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3. RENT AND OTHER CHARGES
(a) During the term hereof, commencing on the Rent Commencement Date,
Tenant covenants and agrees to pay to Landlord, without previous notice or
demand therefor, and without deduction, set-off or abatement, minimum annual
rent as set forth below, and as adjusted annually pursuant to Paragraph 4
hereinafter, payable in equal monthly installments in advance, (hereinafter
referred to as the "Minimum Annual Rent"), on the first day of each calendar
month during the term hereof. The first monthly installment of Minimum Annual
Rent shall be paid at the time of execution of this Lease. In the event that the
Lease commences on a day other than the first day of the month, Minimum Annual
Rent for any partial month shall be prorated at the rate of one-thirtieth
(1/30th) of the basic monthly rent per day. Tenant covenants and agrees to pay,
as additional rent, a late fee equal to five percent (5%) of any monthly
installment of Minimum Annual Rent, or other payments due under this Lease, if
said payments are not paid within ten (10) days of their due date. In addition
such unpaid installment shall bear interest at the lesser of eighteen percent
(18%) per annum or the highest non-usurious rate of interest permitted between
the parties hereto by the laws of the jurisdiction in which the Demised Premises
are located, and shall constitute additional rent hereunder, due and payable
with the monthly installment of Minimum Annual Rent next due.
MINIMUM ANNUAL RENT SCHEDULE
ANNUAL RENT MONTHLY RENT
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Year 1 4-92 - 3-31-93 $69,874.00 $5,822.83
Year 2 4-93 - 3-31-94 $74,152.00 $6,179.33
Year 3 4-94 - 3-31-95 $78,430.00 $6,535.83
Year 4 4-95 - 3-31-96 $82,708.00 $6,892.33
Year 5 4-96 - 3-31-97 $86,986.00 $7,248.83
(b) Tenant shall be entitled to three (3) parking spaces in the
underground garage at no additional charge during the entire term hereof, at
such location as is designated by Landlord. Tenant shall also be entitled to the
exclusive use of six (6) parking spaces in the front of the building for use of
their customers.
(c) The Minimum Annual Rent for the first lease year provided in
Paragraph 3(a) is calculated on the basis of Twenty-Four Dollars and Fifty
Cents ($24.50), full service, per square foot of gross floor area in the Demised
Premises, as specified in Paragraph 1 hereinabove.
4. ADJUSTMENT OF RENT
(a) In addition to the rental adjustment provided for in Paragraph 3 above,
the Minimum Annual Rent shall be adjusted annually, commencing July 1, 1992, and
each July 1st thereafter, (it being understood that the fiscal year from July 1,
1990 until June 30, 1991, shall serve as the base year for determining increases
in operating expenses) by Tenant's pro rata share of the amount of increases in
Landlord's Operating Expenses (as hereinafter defined). Tenant's pro rata share
shall be computed by multiplying .035 (3.5%) (being the approximate proportion
that the floor area of the Demised Premises bears to the total gross rentable
area of the Building, times the increase, if any, in Operating Expenses of the
Building for such fiscal year over the Operating Expenses during the base year.
In no event shall the Minimum Annual Rent be reduced as a result of any such
adjustment.
(b) Initial Operating Expenses for the base year are estimated to be Six
Dollars and Four Cents ($6.04) per square foot of gross floor area of Office
Space, which amount is included in the calculation of Minimum Annual Rent. In
the event that during any fiscal year the actual Operating Expenses exceed Six
Dollars and Four Cents ($6.04), Tenant shall pay its proportionate share of any
increase in such actual amount of Operating Expenses above Six Dollars and
Four Cents ($6.04). Any payment required by Tenant under this Paragraph shall be
deemed an increase in the Minimum Annual Rent.
(c) "Operating Expenses" shall mean: (i) All Operating Expenses of any kind
or nature with respect to the Building Complex as determined in accordance with
generally accepted accounting principles to which shall be added an additional
amount equal to fifteen percent (15%) of such expenses as an administration
charge, and shall include, but not be limited to, all general and special real
estate or ad valorem taxes or special assessments levied against the Building
Complex by any governmental or quasi-governmental authority or any taxes or
assessments, or which shall be levied on the Building Complex in lieu of or in
addition to all or any portion of any such real estate taxes or assessments, or
which shall be levied on the
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rentals of the Building Complex (other than Landlord's income taxes), but in
this case, the computation shall be made as if this were Landlord's only
building, or which shall be levied on Landlord as a result of the use, ownership
or operation of the Building Complex; the cost of Building Complex supplies;
cost incurred in connection with all energy sources for the Building Complex
such as propane, butane, natural gas, steam, electricity, solar energy and fuel
oil, excluding therefrom these costs which are separately metered and paid
directly by other Tenants; the costs of water and sewer services; janitorial
services; provided however that Tenant shall provide nightly cleaning and char
services to the Demised Premises; general maintenance and normal repair of the
Building Complex, including the heating and air conditioning systems of the
Building Complex; landscaping maintenance; the cost of rubbish removal, snow
removal and service contracts for the elevator, HVAC and alarm systems of the
Building Complex; the cost of such security guard and protection services as may
be deemed reasonably necessary by Landlord; insurance in amounts and coverages
determined by Landlord, including fire, extended coverage and all risk casualty
insurance, rental interruption, sprinkler leakage, plate glass and comprehensive
liability insurance (but Tenant shall have no interest in such insurance or the
proceeds thereof); labor costs incurred in the operation and maintenance of the
Building Complex, including wages and other payments, costs to Landlord of
Workmen's Compensation and disability insurance; payroll taxes, and welfare
fringe benefits; building management fees, legal, accounting, inspection and
consultation fees incurred in connection with the Building Complex to the extent
required by any governmental authority or any other inspection or consultation
fees required for the normal prudent operation of the Building Complex and not
normally the responsibility of the managing agent; the cost of any capital
improvements to the Building Complex or of any machinery or equipment installed
in the Building Complex which is installed to reduce operating expenses, and
which costs shall be amortized over the useful life of the capital improvement,
all other common area costs and expenses relating to the Building Complex and
all other charges properly allocable to the repair, operation and maintenance of
the Building Complex in accordance with general accepted accounting principles.
If the Building is not fully occupied during any calendar year, the Operating
Expenses for such year shall be adjusted to reflect the greater of; (a) actual
occupancy; or (b) a ninety-five percent (95%) occupancy of the Building.
(ii) The term Operating Expenses shall expressly exclude Landlord's income
taxes; leasing commissions, interest on debt or amortization payments on any
mortgages or deeds of trust; advertising and promotional expenditures; any
expense borne directly by a Tenant and not included in Building Operating
Expenses, and any other expenses which under generally accepted accounting
principles would not be considered a normal maintenance or operating expense,
except as otherwise specifically provided herein.
5. DEPOSIT
Tenant shall deposit with Landlord at the date of Rent Commencement Date,
a security deposit in the amount of Eleven Thousand Eight Hundred Forty-Five
Dollars and Sixty-Six Cents ($11,845.66) to be held by Landlord, without
interest during the entire term of the Lease, to insure Tenant's faithful
performance hereunder.
6. CONDITIONS OF LEASE
The Tenant does hereby take and hold said Demised Premises at the rent
hereinabove specifically reserved and payable as aforesaid, and upon and subject
to the terms and conditions herein contained.
7. TENANT'S COVENANTS
The Tenant agrees that it will keep the Demised Premises and the fixtures
therein in good order and condition, and will, at the expiration or other
termination of the term hereof, surrender and deliver up the same in like good
order and condition as the same now is or shall be at the commencement of the
term hereof, ordinary wear and tear, and damage by the elements, fire and other
unavoidable casualty not due to the negligence of Tenant, excepted. The Tenant
further agrees not to make any material or permanent additions or alterations,
structural or otherwise, in or upon the Demised Premises, or the Building of
which they are a part, without first having obtained the Landlord's written
consent; and that any such additions or alterations must conform to any and all
applicable building code standards, as well as any and all other applicable
requirements of the federal, state and local governments. It is understood and
agreed that any and all additions, alterations, installations, changes,
replacements or improvements upon the Demised Premises shall remain upon the
Demised Premises, and be surrendered with the Demised Premises at the
expiration or other termination of this Lease without disturbance, molestation
or injury. Should the Landlord elect that certain alterations, installations,
changes, replacements, additions to or improvements upon the Demised Premises
be removed upon expiration or other termination of this Lease, or any renewal
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period hereof, Tenant hereby agrees to cause the same to be removed at Tenant's
sole cost and expense, and to repair any damage to the Demised Premises arising
from the installation of or the removal of same, and should Tenant fail to
remove the same, then and in such event the Landlord shall cause same to be
removed at Tenant's sole risk and expense, and Tenant hereby agrees to reimburse
the Landlord for the cost of such removal, together with any and all damages
which the Landlord may suffer and sustain by reason of the failure of Tenant to
remove the same.
8. USE OF DEMISED PREMISES
Tenant shall use and occupy the Demised Premises solely as a full
service Bank and any incidental use subject to, and in accordance with, all
applicable zoning and other governmental regulations. The Tenant will not
obstruct or interfere with the rights of other tenants, or in any way injure or
annoy them or those having business with them, or conflict with them, or
conflict with the fire laws or regulations, or with any insurance policy upon
said Building or any part thereof, or with any statutes, rules or regulations
now existing or subsequently enacted or established by the local, state or
federal governments. Nor will the Tenant use or permit the Demised Premises,
or any part thereof, to be used for any disorderly, unlawful or hazardous
purpose, not for any purpose other than hereinbefore specified, and will not
manufacture any commodity therein, without the prior written consent of the
Landlord.
9. LEASEHOLD IMPROVEMENTS AND ALTERATIONS
None. Tenant accepts the Demised Premises in "As Is" condition. In
addition, Tenant agrees to pay to Landlord, on the Rent Commencement Date the
sum of Fifty Thousand Dollars ($50,000.00) toward to cost of leasehold
improvements to the Demised Premises which Landlord has made available to Tenant
for Tenant's use.
Tenant will not make or permit anyone to make any material or permanent
alterations, decorations, additions or improvements, structural or otherwise, in
or to the Demised Premises or the Building, without prior written consent of
Landlord. All of such alterations, decorations, additions or improvements
permitted by Landlord must conform to all rules and regulations established from
time to time by the Underwriters' Association of the local area and conform to
all requirements of the Federal, state and local governments. As a condition
precedent to such written consent of Landlord, Tenant agrees to obtain and
deliver to Landlord written and unconditional waivers of mechanics' and
materialmens' liens upon the Land and Building of which the Demised Premises
are a part, for all work, labor and services to be performed, and materials to
be furnished, by them in connection with such work, signed by all contractors,
subcontractors, materialmen and laborers to become involved in such work. If
notwithstanding the foregoing, any mechanic's or materialmen's lien is filed
against the Demised Premises, the Building and/or the Building Complex, for work
claimed to have been done for, or materials claimed to have been furnished to,
Tenant, such lien shall be discharged or bonded off by Tenant within thirty (30)
days thereafter, at Tenant's sole cost and expense, by the payment thereof or by
filing any bond required by law. If Tenant shall fail to discharge any such
mechanics's or materialmen's lien, Landlord may, at its option, discharge the
same and treat the cost thereof as additional rent payable with the monthly
installment of rent next becoming due; it being hereby expressly covenanted and
agreed that such discharge by Landlord shall not be deemed to waive, or release,
the default of Tenant in not discharging the same. It is understood and agreed
by Landlord and Tenant that any such alterations, decorations, additions or
improvements shall be conducted on behalf of Tenant. It is further understood
and agreed that in the event Landlord shall give its written consent to Tenant's
making any such alterations, decorations, additions or improvements, such
written consent shall not be deemed to be an agreement or consent by Landlord
to subject Landlord's interest in the Demised Premises, the Building or the
Building Complex to any mechanic's or materialmen's liens which may be filed in
respect of any such alterations, decorations, additions or improvements made by
or on behalf of Tenant. It is expressly agreed between the parties that all
improvements, including the three front desks, will remain the property of the
Landlord upon expiration of this Lease. All furniture purchased by the Lessee
shall remain the property of the Lessee upon termination of this Lease.
10. SIGNS AND ADVERTISING
No signs, advertising or notices shall be inscribed, affixed or displayed
on any part of the outside or the inside of the Building, except as approved in
writing in advance by Landlord, and then only in such place, number, size,
color and style as approved by Landlord, and if any such sign, advertisement or
notice is improperly exhibited, Landlord shall have the right to remove the
same, and Tenant shall be liable for any and all expenses incurred by Landlord
by said removal. Tenant understands that any sign on the exterior of the Demised
Premises shall be in individual white molded letters of such size and design as
may
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be approved by Landlord. Landlord hereby consents to signs on the front of the
building facing Old Chain Bridge Road and further agrees to signage on the side
of the building if Tenant is able to obtain permission for said sign from the
County of Fairfax. Landlord makes no representation or accepts no liability
regarding Tenant's ability to obtain signage on the side of the building. Any
such permitted use shall be at the sole expense and cost of the Tenant. Tenant
shall be entitled to construct a free standing sign in size and color approved
by Landlord at the location designated on Exhibit "A", and further conditioned
upon Tenant first obtaining all necessary County approvals.
11. SAFES, FIXTURES AND EQUIPMENT; REPAIR OF DAMAGE
Landlord shall have the right to prescribe the weight and position of safes
and other heavy equipment or fixtures. Tenant shall not install or operate in
the Demised Premises any electrically operated equipment or machinery, other
than typewriters, adding machines, personal computers, copying machines, and
such other electrically operated office machinery and equipment normally used in
modern offices, excluding main frame computers and other equipment requiring
high energy consumption, without first obtaining the prior written consent of
the Landlord, who may condition such consent upon the payment by Tenant of
additional rent as compensation for such excess consumption of water and/or
electricity, as well as the cost of such additional wiring as may be occasioned
by the operation of said equipment or machinery; nor shall Tenant install any
other equipment of any kind of nature whatsoever which will or may necessitate
any changes, replacements or additions to, or require the use of the water
system, plumbing system, heating system, air conditioning systems or the
electrical system of the demised premised without the prior written consent of
the Landlord, who may condition such consent upon the payment by Tenant of the
cost of any such changes, replacements or additions to any of said systems. The
Landlord shall have the right to require at Tenant's expense such shielding and
other protection around x-ray machines and other similar equipment installed by
Tenant as Landlord in its sole discretion may designate.
No furniture, equipment or other bulky matter of any description will be
received into the Building or carried in the elevators except as approved by
Landlord. Tenant agrees promptly to remove from the public areas adjacent to the
Building, any of the Tenant's furniture, equipment or other material there
delivered or deposited. All injury to the Demised Premises or the Building of
which they are a part, caused by moving any property of Tenant into or out of
the said Building, and all breakage done by Tenant, or the agents, servants,
employees and visitors of Tenant, shall be repaired by Tenant, at the expense of
the Tenant. In the event that Tenant shall fail to do so, then the Landlord
shall have the right to make such necessary repairs, alterations and
replacements (structural, non-structural or otherwise), and any charge or cost
so incurred by the Landlord shall be paid by Tenant, with the right on the part
of the Landlord to elect, in its discretion, to regard the same as additional
rent, in which event such cost or charge shall become additional rent payable
with the installment of rent next becoming or thereafter falling due under the
terms of this Lease. This provision shall be construed as an additional remedy
granted to the Landlord, and not in limitation of any other rights and remedies
which the Landlord has or may have in said circumstances.
12. INSURANCE
Landlord shall insure the Building, of which the Demised Premises are a
part, against damage by fire, including extended coverage and all risk casualty,
in any amount Landlord in its sole discretion shall deem adequate, and shall
maintain such insurance throughout the term hereby demised. The cost of such
insurance shall be included in Operating Expenses.
Tenant shall procure and keep in effect comprehensive liability and
property damage insurance, naming the Landlord as a named insured in the sum of
One Million Dollars ($1,000,000.00) combined single limit for damages resulting
from one casualty, and One Million Dollars ($1,000,000.00) for damage to
property resulting from any one occurrence, and shall deliver said policies or
certificates to Landlord prior to initial occupancy and continuously maintain
such coverage thereafter. Landlord shall have the right, upon not less than
thirty (30) days prior written notice, to raise the limits hereinabove set forth
not more often than annually during the term of this lease. Landlord may, at its
option, procure the same for the account of Tenant, provided Tenant fails to do
so, and the cost thereof shall be paid to Landlord upon receipt by Tenant of
bills therefor. Tenant shall procure and maintain at its own cost during the
term of this Lease and any extension hereof fire and extended coverage insurance
on property of Tenant. All such insurance carried by Tenant shall be with
companies approved in advance by Landlord, and shall have a Best's rating of A+
or better.
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Each party agrees to use its best efforts to include in each of its
policies insuring against loss, damage or destruction by fire or other casualty
(insuring the Building and Landlord's Property therein and rental value thereof,
in the case of Landlord, and insuring Tenant's Property and business interest in
the Demised Premises (business interruption insurance) in the case of the
Tenant), a waiver of the insurer's right of subrogation against the other party,
or if such waiver should be unobtainable or unenforceable (i) an express
agreement that such policy shall not be invalidated if the insured waives the
right of recovery against any party responsible for a casualty covered by the
policy before the casualty, or (ii) any other form of permission for the release
of the other party. If such waiver, agreement or permission shall not be, or
shall cease to be, obtainable without additional charge or at all, the insured
party shall so notify the other party promptly after learning thereof. In such
case, if the other party shall so elect and shall pay the insurer's additional
charge therefore, such waiver, agreement or permission shall be included in the
policy, or other party shall be named as an additional insured in the policy.
Each such policy which shall so name a party hereto as an additional insured
shall contain agreements by the insurer that the policy will not be canceled
without at least thirty (30) days prior notice to all insured and that the act
of omission of one insured will not invalidate the policy as to the other
insured. The failure by Tenant, if named as an additional insured, promptly to
endorse to the order of Landlord, without recourse, any instrument for the
payment of money under or with respect to the policy of which Landlord is the
owner or primary insured, shall be deemed a default under this lease.
Each party hereby releases the other party with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party for loss, damage or destruction with respect to its property
(including the Building, Building Complex, the Demised Premises and rental value
or business interruption) occurring during the term of this Lease to the extent
to which it is insured under a policy or policies containing a waiver of
subrogation or permission to release liability or naming the other party as an
additional insured as provided above.
Any building employee to whom property shall be entrusted by or on
behalf of Tenant shall be deemed to be acting as Tenant's agent with respect to
such property and neither Landlord nor its agents shall be liable for any damage
to the property of Tenant or others entrusted to employees of the Building, nor
for the loss of or damage to any property of Tenant by theft or otherwise.
13. INSURANCE RATING
Tenant will not conduct or permit to be conducted any activity, or
place any equipment in or about the Demised Premises, which will, in any way,
increase the rate of fire insurance or other insurance on the Building; and if
any increase in the rate of fire insurance or other insurance is stated by any
insurance company or by the applicable Insurance Rating Bureau to be due to
activity or equipment in or about the Demised Premises, such statement shall be
conclusive evidence that the insurance in such rate is due to such activity or
equipment and, as a result thereof, Tenant shall be liable for such increase and
shall reimburse Landlord therefor.
14. LANDLORD'S COVENANTS SERVICES AND UTILITIES
Landlord shall furnish reasonably adequate electricity, water, lavatory
supplies, and automatically operated elevator service, during normal building
hours and on the days specified below, and normal and customary cleaning and
char service in the Common Areas of the Building Complex, after business hours.
Landlord shall furnish hot and cold water at those points of supply provided for
the general use of all of the tenants in the Building, as well as heat and air
conditioning which shall be controlled by the Tenant. The proper electrical
facilities will be furnished by Landlord in accordance with Exhibit "D" to
supply sufficient power for standard office machines of low electrical
consumption; provided, however, that Tenant shall bear the utilities costs
occasioned by electro-data processing machines, commercial copying machines,
computers and similar machines of high electrical consumption including air
conditioning costs therefor. Landlord shall provide routine maintenance,
painting, and electrical lighting service for all public areas and special
services areas of the Building, in the manner and to the extent deemed by
Landlord to be standard. The electrical wiring, risers and other equipment in
the Building are not represented by Landlord to be adequate for any purpose
other than general office use including standard office machines of low
electrical consumption. Tenant agrees that it will not make any use of the
electrical equipment of the Building which exceeds the capacity of such
equipment. Failure by Landlord to any extent to furnish these defined services,
or any cessation thereof, shall not render Landlord liable in any respect for
damages to either person or property, nor shall such events be construed an
eviction of Tenant, nor work an abatement of rent, nor relieve Tenant from
fulfillment of any term, condition covenant or agreement hereof. Should any of
the common area building equipment or machinery break down, or for any cause or
reason cease to function properly,
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Landlord shall use reasonable diligence to repair the same promptly but Tenant
shall have no claim for rebate of rent or for any damages on account of any
interruptions in services occasioned thereby or resulting therefrom. Tenant
shall be responsible for the maintenance of the heating and air conditioning
unit, char service for their suite, and bulb replacement of lighting fixtures.
15. DEFAULT
(a) The following events (herein referred to as an "event of default")
shall constitute defaults of Tenant hereunder;
(1) Tenant shall default in the due and punctual payment of
rent, or any other amounts payable hereunder, and such default shall continue
for five (5) days after written notice to Tenant;
(2) This Lease or the estate of Tenant hereunder shall be
transferred to or shall pass to or devolve upon any other person or party except
as permitted herein;
(3) This Lease or the Demised Premises or any part thereof
shall be taken upon execution or by other process of law directed against
Tenant, or shall be taken upon or subject to any attachment at the instance of
any creditor or claimant against Tenant, and said attachment shall not be
discharged or disposed of within fifteen (15) days after the levy thereof;
(4) Tenant shall file a petition in bankruptcy or insolvency
or for reorganization or arrangement under the bankruptcy laws of the United
States or under any insolvency act of any state, or shall voluntarily take
advantage of any such law or act by answer or otherwise, or shall be dissolved
or shall make an assignment for the benefit of creditors, unless such action
will permit Tenant to continue performance of this Lease;
(5) Involuntary proceedings under any such bankruptcy law or
insolvency act or for the dissolution or Tenant shall be instituted against
Tenant, or a receiver of trustee shall be appointed of all or substantially all
of the property of Tenant, and such proceeding shall not be dismissed or such
receivership or trusteeship vacated within thirty (30) days after such
institution or appointment unless such action will permit Tenant to continue
performance of this Lease.
(6) Tenant shall fail to take possession of the Demised
Premises within thirty (30) days of the Rent Commencement Date;
(7) Tenant shall abandon the Demised Premises, or
(8) Tenant shall fail to perform any of the other agreements,
terms, covenants or conditions hereof on Tenant's part to be performed, and such
non-performance shall continue for a period of thirty (30) days after written
notice thereof by Landlord to Tenant, or if such performance cannot be
reasonably had within such thirty (30) day period, Tenant shall not in good
faith have commenced such performance with such thirty (30) day period and shall
not diligently proceed therewith to completion.
(b) Upon the occurrence of an event of default, Landlord shall have the
right, at its election, then or at any time thereafter and while any such event
of default shall continue, either;
(1) To give Tenant written notice of Landlord's intention to
terminate this Lease on the date of such given notice or on any later date
specified therein, whereupon on the date specified in such notice, Tenant's
right to possession of the Demised Premises shall cease and this Lease shall
thereupon be terminated, except as to Tenant's liability, as if the expiration
of the term fixed in such notice were the end of the term herein originally
demised, or,
(2) To re-enter and take possession of the Demised Premises or
any part thereof, and repossess the same as Landlord's former estate and expel
Tenant and those claiming through or under Tenant, and remove the effects of
both or either without being deemed guilty of any manner of trespass, and
without prejudice to any remedies for arrears of rent or preceding breach of
covenants or conditions. Should Landlord elect to re-enter as provided in this
Paragraph 15(b)(2) or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, Landlord may, from
time to time, without terminating this Lease, relet the Demised Premises or any
part thereof in Landlord's or Tenant's name, but for the account of Tenant, for
such term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Lease) and on such
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conditions and upon such other terms (which may include concessions of free rent
and alteration and repair of the Demised Premises) as Landlord, in its sole
discretion, may determine, and Landlord may collect and receive the rents
therefor. Landlord shall in no way be responsible or liable for any failure to
relet the Demised Premises, or any part thereof or for any failure to collect
any rent due upon such reletting. No such re-entry or taking possession of the
Demised Premises by Landlord shall be construed as an election on Landlord's
part to terminate this Lease unless a written notice of such intention be given
to Tenant. No notice from Landlord hereunder or under a forcible entry and
detainer statute or similar law shall constitute an election by Landlord to
terminate this Lease unless such notice specifically so states. Landlord
reserves the right following any such re-entry and/or reletting to exercise its
right to terminate this Lease by giving Tenant such written notice, in which
event this Lease will terminate as specified in such notice.
(c) In the event that Landlord does not elect to terminate this lease
as permitted in Paragraph 15 (b)(1) hereof, but on the contrary, elects to take
possession as provided in Paragraph 15(b)(2), Tenant shall pay to Landlord: (i)
the rent and other sums as herein provided, which would be payable hereunder if
such repossession had not occurred, less (ii) the net proceeds, if any, of any
reletting of the Demised Premises after deducting all Landlord's expenses in
connection with such reletting, including, but without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
expenses of employees, alteration and repair costs and expenses of preparation
for such reletting. If, in connection with any reletting, the new lease term
extends beyond the existing term, or the Demised Premises covered thereby
include other promises not part of the Demised Premises, a fair apportionment of
the rent received from such reletting and the expenses incurred in connection
therewith as provided aforesaid will be made in determining the net proceeds
from such reletting.
(d) In the event this Lease is terminated, Landlord shall be entitled
to recover forthwith against Tenant as damages for loss of the bargain and not
as a penalty, an aggregate sum which, at the time of such termination of this
Lease, represents the excess, if any, of the aggregate of the rent and all other
sums payable by Tenant hereunder that would have accrued for the balance of the
term over the aggregate rental value of the Demised Premises for the balance of
such term, both discounted to present value at the rate of ten percent (10%) per
annum.
(e) Suit or suits for the recovery of the amounts of damages set forth
above may be brought by Landlord, from time to time, at Landlord's election and
nothing herein shall be deemed to require Landlord to await the date whereon
this Lease or the term hereof would have expired by limitation had there been no
such default by Tenant or no such termination, as the case may be. Each right
and remedy provided for in this Lease shall be cumulative and shall be in
addition to every other rights or remedy provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise, including,
but not limited to, suits for injunctive relief and specific performances. The
exercise or beginning of the exercise by Landlord of any one or more of the
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the simultaneous
or later exercise by Landlord or any and all other right or remedies provided
for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise. All costs incurred by Landlord in connection with collecting any
amounts and damages owing by Tenant pursuant to the provisions of this Lease or
to enforce any provision of this Lease, including reasonable attorneys' fees
from the date any such matter is turned over to an attorney, shall also be
recoverable by Landlord from Tenant.
(f) No failure by Landlord to insist upon the strict performance of any
agreement, term, covenant or condition hereof or to exercise any right or remedy
consequent upon a breach thereof, and no acceptance of full or partial rent
during the continuance of any such breach, shall constitute a waiver of any such
breach of such agreement, term, covenant or condition. No agreement, term,
covenant or condition hereof to be performed or complied with by Tenant, and no
breach thereof, shall be waived, altered or modified except by written
instrument executed by Landlord. No waiver of any breach shall affect or alter
this Lease, but each and every agreement, term, covenant and condition hereof
shall continue in full force and effect with respect to any other than existing
or subsequent breach thereof. Notwithstanding any unilateral termination of this
Lease, this Lease shall continue in full and effect as to any provisions hereof
which require observance or performance of Landlord or Tenant subsequent to
termination.
16. NO WAIVER
If under the provisions of this Lease, a compromise or settlement
thereof shall be made, it shall not be considered a waiver of any breach of any
covenant, condition, or agreement herein contained, and that no waiver of any
breach of any covenant, condition, or agreement itself shall be considered a
waiver of any subsequent breach thereof. No payment by Tenant or receipt by the
Landlord of a lesser amount than the
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monthly installments of rent herein stipulated shall be deemed to be other than
on account of earliest stipulated rent, nor shall any endorsement or statement
on any check, or any letter accompanying any check or payment as rent, be deemed
an accord and satisfaction, and the Landlord may accept any such check or
payment without prejudice to the Landlord's right to recover the balance of such
rent, or to pursue any other remedy in this Lease. No re-entry by the Landlord,
and no acceptance by Landlord of keys from Tenant, shall be considered an
implied acceptance of a surrender of this Lease.
17. LANDLORD'S CURE OF DEFAULT BY TENANT/REIMBURSEMENT OF EXPENSES
If the Tenant defaults in the making of any payment or in the doing of
any act herein required to be made or done by Tenant, then the Landlord may, but
shall not be required to, make such payment or do such act, or if the Landlord
shall incur any charge or expense on behalf of Tenant under the terms of this
Lease, the amount of the expense thereof, if made or done by the Landlord, with
interest thereon at the lesser of eighteen percent (18%) per annum or the
highest non-usurious rate of interest permitted between the parties hereto by
the laws of the jurisdiction in which the Demised Premises are located, from the
date paid by Landlord, shall be paid by Tenant to Landlord, and shall constitute
additional rent hereunder, due and payable with the monthly installment of rent
next due and payable after Landlord sends a written invoice therefor; provided,
however, that the making of such payment or the doing of such act by the
Landlord shall not operate to cure such default by Tenant, or to stop Landlord
from the pursuit of any remedy to which Landlord would otherwise be entitled.
18. LANDLORD'S LIEN
INTENTIONALLY DELETED
19. INSPECTION OF DEMISED PREMISES
Tenant further agrees that it will allow the Landlord, its agents or
employees, to enter the Demised Premises at all reasonable times, without charge
therefor to Landlord, and without diminution of the rent payable by Tenant, to
examine, inspect or to protect the same, or to prevent damage or injury to the
same, or to make such alterations and repairs as the Landlord may deem
necessary, or to exhibit the same to prospective tenants.
20. LIABILITY FOR DAMAGE TO PERSONAL PROPERTY AND PERSONS: INDEMNIFICATION
Landlord shall not be liable for any accident or damage caused by
electric lights or wires, or any accident or damage which may occur through the
operation of elevators, heating, electrical or plumbing apparatus, or any
accident or injury occurring in connection with said Building and its services,
unless caused by the negligence of Landlord or its employees, agents, or
contractors. Landlord will not be liable for loss of or damage to property of
Tenant caused by rain, snow, water or steam that may leak into or flow from any
part of said Building through any defects in the roof or plumbing or from any
other source, including but not limited to acts or omissions on the part of
other tenants of the Building or persons using the Building, or present therein,
not resulting from acts of negligence on the part of Landlord. All goods,
property or personal effects stored or placed by Tenant in or about the Building
shall be at the risk of the tenant, unless the loss is caused by the negligence
of Landlord or its employees, agents, or contractors.
Tenant shall indemnify Landlord and its Managing Agent, and shall save
them harmless from and against any and all claims, actions, damages, liability
and expense, including reasonable attorneys' fees, in connection with loss of
life, personal injury and/or damage to property arising from or out of any
occurrence in, upon or at the Demised Premises, or the occupancy or use by
Tenant of the Demised Premises or any part thereof, or occasioned wholly or in
part by any action or omission of Tenant, its agents, servants, employees,
subtenants, assignees or invitees. In case Landlord and/or its Managing Agent
shall, without fault on their part, be made a party(ies) to any litigation
commenced by or against Tenant, the Tenant shall protect and hold them harmless,
and shall pay all costs, expenses and reasonable attorneys' fees incurred or
paid by the Landlord and/or its Managing Agent in connection with such
litigation. Tenant shall also pay all costs, expenses and reasonable attorneys'
fees that may be incurred or paid by Landlord in enforcing the covenants and
agreements in this Lease.
Landlord shall indemnify Tenant, and shall save it harmless from and
against any and all claims, actions, damages, liability and expense, including
reasonable attorneys' fees, in connection with loss of life, personal injury
and/or damage to property arising from or out of any occurrence in, upon or at
the Demised Premises, or occasioned wholly or in part by any action or omission
of Landlord, its agents, servants,
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employees, subtenants, assignees or invitees. In case Tenant shall, without
fault on its part, be made a party(ies) to any litigation commenced by or
against Landlord, the Landlord shall protect and hold it harmless, and shall pay
all costs, expenses and reasonable attorneys' fees incurred or paid by the
Tenant in connection with such litigation.
21. LIABILITY OF LANDLORD
Tenant shall look only to Landlord's estate and interest in the Building
for the satisfaction of Tenant's remedies for the collection of any judgement
(or other judicial process) requiring the payment of money by Landlord in the
event of any default by Landlord under this Lease, and no other property or
other assets of Landlord shall be subject to levy, execution or other
enforcement, procedure for the satisfaction of Tenant's remedies under or with
respect to this Lease. Neither Landlord nor any of the partners comprising the
partnership which is the Landlord herein, shall be liable for any deficiency.
Nothing contained in this Paragraph shall be construed to permit Tenant to
offset against rents due a successor landlord, a judgement (or other judicial
process) requiring the payment of money by reason of any default of a prior
landlord, except as otherwise specifically set forth herein.
22. CONDUCT OF BUSINESS
The Landlord and its Managing Agent assume no liability or responsibility
whatever with respect to the conduct and operation of Tenant's business to be
conducted in the Demised Premises nor with respect to the conduct and operation
of any other use of the Demised Premises.
23. DAMAGE OR DESTRUCTION TO BUILDING
(a) In the event the Demised Premises or the Building are damaged by fire
or other insured casualty and the insurance proceeds have been made available
therefor by the holder or holders of any mortgages or deed of trust covering the
Building, the damage shall be repaired by and at the expense of Landlord to the
extent of such insurance proceeds available therefor, provided such repairs and
restoration can, in Landlord's reasonable opinion, be made within two hundred
seventy (270) days after the occurrence of such damage without the payment of
overtime or other premiums, and until such repairs and restoration are completed
the rent shall be abated in proportion to the part of the Demised Premises
which is unusable by Tenant in the conduct of its business to the extent of
rental interruption insurance (but there shall be no abatement of rent by
reason of any portion of the Demised Premises being unusable for a period equal
to three (3) days or less). Landlord agrees to notify Tenant within thirty (30)
days after such casualty if it estimates that it will be unable to repair and
restore the Demised Premises within said two hundred seventy (270) day period.
Such notice shall set forth the approximate length of time Landlord estimates
will be required to complete such repairs and restoration. Notwithstanding
anything to the contrary contained herein, if Landlord cannot or estimates it
cannot make such repairs and restoration within said two hundred seventy (270)
day period, then Tenant, may by written notice to Landlord, terminate this Lease
as of the date of the occurrence of such damage, provided such notice is given
to Landlord within fifteen (15) days after Landlord notifies Tenant of the
estimated time for completion of such repairs and restoration. Except as
provided in this Paragraph 23, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business or property arising from the making of any such repairs, alterations or
improvements in or to fixtures, appurtenances and equipment. Tenant understands
that Landlord will not carry insurance of any kind on Tenant's furniture and
furnishings or on any fixtures or equipment removable by Tenant under the
provisions of this Lease, and that Landlord shall not be obligated to repair any
damage thereto or replace the same unless damage is caused by Landlord's
negligence. Landlord shall not be required to repair any injury or damage by
fire or other cause, or to make any repairs or replacements of improvements
installed in the Demised Premises by or for Tenant.
(b) In case the Building throughout shall be so injured or damaged,
whether by fire or otherwise (though the Demised Premises may not be affected,
or if affected, can be repaired within said two hundred seventy (270) days)
that Landlord, within sixty (60) days after the happening of such injury, shall
decide not to reconstruct or rebuild the Building, then notwithstanding anything
contained herein to the contrary, upon notice in writing to that effect given by
Landlord to Tenant within said sixty (60) days, Tenant shall pay the rent,
properly apportioned up to date of such occurrence, and this Lease shall
terminate from the date of delivery of said written notice, and both parties
hereto shall thereafter be discharged from all further obligations hereunder.
24. CONDEMNATION
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If the whole of the Demised Premises or so much thereof as to render the
balance unusable by Tenant for the proper conduct of its business shall be taken
under power of eminent domain or transferred under threat thereof, then this
Lease, at the option of either Landlord or Tenant exercised by either party
giving notice to the other of such termination within thirty (30) days after
such conveyance or taking possession whichever is earlier, shall forthwith cease
and terminate and the rent shall be duly apportioned as of the date of such
taking or conveyance. No award for any partial or entire taking shall be
apportioned, and Tenant hereby assigns to Landlord any award which may be made
in such taking or condemnation, together with any and all rights of Tenant now
or hereafter arising in or to the same or any part thereof; provided, however,
that nothing contained herein shall be deemed to give Landlord any interest in
or to require Tenant to assign to Landlord any award made to Tenant for the
taking of personal property, fixtures and leasehold improvements belonging to
Tenant and/or for expenses of moving to a new location. In the event of a
partial taking which does not result in a termination of this Lease, rent shall
not be reduced. Promptly after obtaining knowledge hereof, Landlord or Tenant,
as the case may be, shall notify the other of any pending or threatened
condemnation or taking affecting the Demised Premises or the Building.
25. PARKING AREAS
Subject to the provisions of Article 3(b), the Landlord agrees to provide
for the use of Tenant in common with others, a surface parking area adjacent to
the Building in which the Demised Premises are located. The Landlord reserves
the right to promulgate rules and regulations relating to the use of such
surface parking area, including such limitations as may, in the opinion of the
Landlord, be necessary and desirable. Tenant and Tenant's employees shall park
their cars only in those portions of the parking areas designated for employee
parking by the Landlord. Further, Tenant and its employees are expressly
prohibited from parking in any portion of the parking area designated or marked
for visitor or retail parking only. Tenant shall, within five (5) days after
taking possession of the Demised Premises, furnish Landlord or its agent with
the automobile license numbers assigned to Tenant's cars and the cars of
Tenant's employees, and shall thereafter notify the Landlord or its agent of any
changes within five (5) days after such changes occur. In the event that the
Tenant or any of its employees shall park their cars in any portion of the
parking area other than that portion designated for that purpose, then the
Landlord shall have the right, at Landlord's option, to assess Tenant a fine or
penalty for any such improperly parked car, and/or to have any such improperly
parked car towed at Tenant's expense.
26. ASSIGNMENT AND SUB-LETTING
Tenant will not sublet the Demised Premises or any part thereof, or
transfer possession or occupancy thereof, to any person, partnership, firm or
corporation, or transfer or assign this Lease, without the prior written
consent, of Landlord, nor shall any subletting or assignment hereof be effected
by operation of law or otherwise, without the prior written consent of Landlord,
which consent may be granted or withheld by Landlord for any reason in
Landlord's sole discretion. Landlord shall consent to the assignment or
subleasing of the Demised Premises to another Bank, Financial Institution, or a
tenant otherwise engaged in financial services. In the event that Tenant
requests Landlord's consent to assign this Lease or to sublet all of the Demised
Premises (which request must be made in writing), Landlord shall upon receipt of
such written request have the option of terminating this Lease, which option
shall be exercisable by submitting written notice thereof to Tenant within sixty
(60) days following receipt of such a written request. Landlord's options shall
in no way affect or limit Landlord's right to withhold consent to Tenant's
request. Consent by Landlord to any assignment, transfer or subletting to any
party, shall not be construed as a waiver or release of Tenant from the terms of
any covenant or obligation under this Lease, nor shall a consent to one
assignment, transfer or sublease to any person, partnership, firm or corporation
be deemed to be a consent to any subsequent assignment, transfer or subletting
to another person, partnership firm or corporation. Any assignment or subletting
consented to by Landlord shall not relieve Tenant of any of its primary
responsibility for all obligations under this Lease, and such consent by
Landlord shall not be effective unless and until (i) Tenant gives written notice
thereof to Landlord, and (ii) such transferee, assignee or sublessee shall
deliver to Landlord (A) a written agreement in form and substance satisfactory
to Landlord pursuant to which such transferee, assignee or sublessee assumes all
of the obligations and liabilities of Tenant hereunder, and (B) a certified copy
of the assignment agreement or sublease. Any assignment, transfer or subletting
without Landlord's written consent shall be void, and shall, at the option of
Landlord, constitute a default under the terms of this Lease unless Tenant's
stock is publicly traded, if at any time during the term of this Lease any part
or all of the shares of Tenant's stock or Tenant's partnership interests shall
be transferred by sale, assignment, merger, operation of law or other
disposition so as to result in a transfer of more than twenty-five percent (25%)
of Tenant's stock or partnership interest, such transfer shall be deemed as an
assignment and, therefore, prohibited without the express written consent of
Landlord.
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27. HOLDING OVER
In the event that Tenant shall not immediately surrender the Demised
Premises on the date of expiration of the term hereof, Tenant shall, by virtue
of the provisions hereof, become a Tenant by the month at a monthly rent equal
to the greater of (a) the then fair market rental value of the Demised Premises
or (b) twice the monthly rental in effect during the last month of the term of
this Lease, which said monthly tenancy shall commence with the first day next
after the expiration of the term of this Lease. The Tenant as a monthly tenant
shall be subject to all of the conditions and covenants of this Lease as though
the same had originally been a monthly tenancy. Tenant shall give to Landlord at
least thirty (30) days written notice of any intention to quit the Demised
Premises, and Tenant shall be entitled to thirty (30) days written notice to
quit the Demised Premises, except in the event of nonpayment of rent in advance
or of the breach of any other covenant by the Tenant, in which event Tenant
shall not be entitled to any notice to quit, the usual thirty (30) days notice
to quit being hereby expressly waived. Notwithstanding the foregoing provisions
of the paragraph, in the event that Tenant shall hold over after the expiration
of the term hereby created, and if Landlord shall desire to regain possession of
the Demised Premises promptly at the expiration of the term of this Lease, then
at any time prior to Landlord's acceptance of rent from Tenant as a monthly
tenant hereunder, Landlord at its option, may forthwith re-enter and take
possession of the Demised Premises without process, or by any legal process in
force in the jurisdiction in which the Demised Premises are located.
28. SUBORDINATION
This Lease is subject and subordinate to all ground or underlying,
leases, and to any first mortgage and/or first deed of trust (which terms shall
include both construction and permanent financing) which may now or hereafter
encumber or otherwise affect the real estate (including the Building) of which
the Demised Premises form a part, or Landlord's leasehold interest therein, and
to all renewals, extensions, modifications, consolidations, replacements,
recasting and/or refinancing thereof. This clause shall be self-operative, and
no further instrument of subordination shall be required by any mortgagee or
trustee to effect the subordination of this Lease. Nonetheless, in confirmation
of such subordination, Tenant shall, at Landlord's request, promptly execute any
requisite or appropriate certificate or document. Tenant hereby constitutes and
appoints Landlord as Tenant's attorney-in-fact to execute any such certificate
or documents for or on behalf of Tenant. Tenant agrees that in the event that
any proceedings are brought for the foreclosure of any such mortgage, Tenant
shall attorn to the purchaser at such foreclosure sale, if requested to do so by
such purchaser, and to recognize such purchaser as the Landlord under this
Lease, and Tenant waives the provisions of any statute or rule of law, now or
hereafter in effect, which may give or purport to give Tenant any right to
terminate or otherwise adversely affect this Lease and the obligations of Tenant
hereunder, in the event that any such foreclosure proceeding is prosecuted or
completed. And Tenant covenants and agrees that it will, at the written request
of the party secured by any such deed of trust, execute, acknowledge and
deliver any instrument that has for its purpose and affect the subordination of
said deed of trust to the lien of the Lease. Landlord shall use its "best
efforts" to obtain a non-disturbance agreement from Landlord's Mortgagee.
29. ESTOPPEL CERTIFICATES
Tenant agrees, at any time and from time to time, upon not less than
five (5) days prior written notice by Landlord, to execute, acknowledge and
deliver to Landlord, a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect, or, if there have been modifications,
that this Lease is in full force and effect as modified, and stating any such
modifications; (ii) certifying that Tenant has accepted possession of the
Demised Premises, and that any improvements required by the terms of this Lease
to be made by the Landlord have been completed to the satisfaction of the
Tenant; (iii) stating that no rent under this Lease has been paid more than
thirty (30) days in advance of its due date; (iv) stating the address to which
notices to Tenant should be sent; (v) certifying that Tenant, as of the date of
any such certification, has no charge, lien or claim of set-off under this
Lease, or otherwise, against rents or other charges due or to become due
hereunder; and (vi) stating whether or not, to the best of Tenant's knowledge,
Landlord is in default in the performance of any covenant, agreement or
condition contained in this Lease, and, if so, specifying each such default of
which Tenant may have knowledge. Any such statement delivered pursuant hereto
may be relied upon by any owner of the Building, any prospective purchaser of
the Building, any mortgagee or prospective mortgagee of the Building or of
Landlord's interest, or any prospective assignee of any such mortgagee.
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Tenant further agrees that, from the date of execution of this Lease,
it will not seek any redress under this Lease by reason of any act or omission
of the Landlord, until the Tenant shall have given written notice of such act or
omission to Landlord's mortgagee, and until a reasonable period of time shall
have elapsed following the giving of such notice, during which period of time
Landlord's mortgagee shall have the right, but shall not be obligated, to remedy
such act or omission.
30. MANAGING AGENT
Tenant is hereby notified that the Landlord has appointed Xxxxxxx
Development Limited Partnership, its Managing Agent. The Landlord has authorized
said Managing Agent to act for, and in the name of, the Landlord for any and all
purposes under this Lease, and Tenant shall direct any and all notices and
inquiries or any kind whatsoever pursuant to or regarding this Lease to said
Managing Agent after execution hereof. The Landlord reserves the right to
substitute any other person, firm or corporation for said Managing Agent, and
upon written notice thereof by the Landlord to Tenant, Tenant hereby
acknowledges the authority of any such substitute Managing Agent to act for, and
in the name of, the Landlord for any and all purposes under this Lease, and
Tenant shall direct any and all notices and inquiries of any kind whatsoever
pursuant to or regarding this Lease to said Managing Agent.
31. NOTICES
All notices required or desired to be given hereunder by either party to
the other shall be given by certified or registered mail, first class postage
prepaid, return receipt requested. Notices to the respective parties shall be
addressed as follows:
If to the Landlord: 0000 XXX XXXXX XXXXXX XXXX ASSOCIATES
0000 Xxx Xxxxx Xxxxxx Xxxx
Xxxxx 000
XxXxxx, Xxxxxxxx 00000
If to Landlord's mortgagee: GENERAL ELECTRIC CAPITAL CORPORATION
000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000-0000
If to the Tenant: THE XXXXXX XXXXX BANK
00000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Either party may, by like written notice, designate a new address to which
such notices shall be directed.
32. NO PARTNERSHIP
Nothing contained in this Lease shall be deemed or construed to create
a partnership or joint venture of or between Landlord and Tenant, or create any
other relationship between the parties hereto other than
that of Landlord and Tenant.
33. NO REPRESENTATIONS BY LANDLORD
Neither Landlord nor any agent or employee of Landlord, has made any
representations or promises, with respect to the Demised Premises or the
Building except as herein expressly set forth, and no rights, privileges,
easements or licenses are acquired by Tenant except as herein set forth. The
Tenant by taking possession of the Demised Premises, shall accept the same "as
is", and such taking of possession shall be conclusive evidence that the Demised
Premises and the Building are in good and satisfactory condition at the time of
such taking of possession.
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34. BROKERAGE
Landlord and Tenant each represents that they had no dealings with any real
estate broker, finder or other person, with respect to this Lease in any manner.
Tenant agrees to indemnify and hold harmless Landlord against and from any
claims for any brokerage commission or other fees and all costs, expenses and
liabilities in connection therewith, including, without limitation, attorneys'
fees and expenses, arising out of any dealings had by Tenant with any broker.
35. WAIVER OF TRIAL BY JURY
The parties hereto shall, and they hereby do, waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
and occupancy of the Demised Premises and/or any claim of injury or damage. In
the event that Landlord commences any proceedings for non-payment of rent,
minimum rent or additional rent, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceedings. This shall not, however,
by construed as a waiver of Tenant's right to assert such claims in any separate
action brought by Tenant.
36. QUIET ENJOYMENT
Upon payment by Tenant of all items of rent, additional rent, and any and
all other sums to be paid by Tenant to Landlord hereunder, and the observance
and performance of all of the covenants, terms and conditions to be observed and
performed by Tenant, Tenant shall have the peaceful and quiet use of the Demised
Premises, and all right, servitudes and privileges belonging, or in anywise
appertaining thereto or granted hereby, for the term of this Lease, without
hindrance or interruption by Landlord, or any other person or persons lawfully
claiming by, through or under Landlord, subject nevertheless to the terms and
conditions of this Lease, and to any mortgage, deed of trust, ground lease or
agreement to which this Lease, and/or Landlord's interest in the Demised
Premises and the Building of which they are a part, is subordinate. Landlord
warrants that it has full right and authority to enter into this Lease for the
full term hereof.
37. BINDING EFFECT OF LEASE
It is agreed that all rights, remedies and liabilities herein given to or
imposed upon either of the parties hereto, shall extend to their respective
heirs, executors, administrators, and except as otherwise expressly provided in
this Lease, their successors and assigns. Landlord may freely and fully assign
its interest hereunder. The term "Landlord" shall mean only the owner at the
time in question of the Building or of a lease of the Building, so that in the
event of any transfer or transfers of title in the Building or of Landlord's
interest in a lease of the Building, the transferor shall be and hereby is
relieved and freed of all obligations of Landlord under this Lease accruing
after such transfer, and it shall be deemed, without further agreement, that
such transferee has assumed and agreed to perform and observe all obligations of
Landlord herein during the period it is the holder of Landlord's interest under
this Lease.
38. RULES AND REGULATIONS
Tenant, its agents, employees, invitees, licensees, customers, clients,
family members and guests shall at all times abide by and observe the rules, and
regulations attached hereto as Exhibit "E". In addition, Tenant, its agents,
employees, invitees, licensees, customers, clients, family members and guests
shall abide by and observe such other rules and regulations as may be
promulgated from time to time by Landlord, with a copy sent to Tenant, for the
operation and maintenance of the Building; provided, however, that the same are
in conformity with common practice and usage in similar buildings and are not
inconsistent with the provisions of this Lease. Nothing contained in this Lease
shall be construed to impose upon Landlord any duty or obligation to enforce
such rules and regulations, or the terms, conditions or covenants contained in
any other leases, as against any other tenant, and Landlord shall not be liable
to Tenant for violation of the same by any other tenant, its employees, agent,
business invitees, licensees, customers, clients, family members or guests. If
there is any inconsistency between this Lease and the rules and regulations as
set forth in Exhibit "E", this Lease shall govern.
Initials: Landlord [SIG]
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39. NECESSARY APPROVALS
This Lease is subject to the approval of General Electric Capital
Corporation, Mortgagee of the Demised Premises prior to Tenant's obligation to
occupy the Demised Premises.
40. APPLICABLE LAW AND CONSTRUCTION
The laws of the jurisdiction in which the Demised Premises are located
shall govern the validity, performance and enforcement of this Lease. If any
provision of this Lease shall at any time be deemed to be invalid or illegal by
any court of competent jurisdiction, this Lease shall not be invalidated
thereby; and in such event, this Lease shall be read and construed as if such
invalid or illegal provision only had not been contained herein, thereby
preserving all of the other terms, conditions and provisions of this Lease.
41. PERMITTED USES EXCLUSIVE
All parties hereby confirm that the Demised Premises are leased exclusively
for uses as specified herein, and such other ancillary and related uses as
Landlord may approve. Notwithstanding any provision to the contrary, the Demised
Premises shall not be used in whole or in part for any residential purposes, and
shall not be subject to any rent control act or redemption right relating to
residential leases, or any other such provision of law now or hereafter in
effect in the jurisdiction in which the Demised Premises are located.
42. GENDER
Feminine or neuter pronouns shall be substituted for the masculine form,
and the plural substituted for the singular number, in any place or places
herein in which the context may require such substitution or substitutions. The
Landlord herein for convenience has been referred to in neuter form.
43. ENTIRE AGREEMENT
This Lease, together with accompanying Exhibits "A" through "E" contains
the entire and only agreement between the parties and no oral statements or
representations or prior written matter not contained or referred to in this
instrument shall have any force or effect. This Lease shall not be modified in
any way except by a writing subscribed by both parties hereto. The failure of
the Landlord or Tenant to insist upon strict performance by the other of any of
the covenants or conditions of this Lease in any one or more instances shall not
be construed as a waiver or relinquishment for the future of any such covenants
or conditions, but the same shall be and remain in full force and effect. No
waiver of any provision of this Lease shall be deemed to have been made, unless
it be in writing and signed by the party to be charged therewith.
IN WITNESS WHEREOF the parties hereto have executed this Lease.
LANDLORD:
WITNESS: 0000 XXX XXXXX XXXXXX XXXX ASSOCIATES
a Virginia Limited Partnership
[SIG] By: /s/ XXXXX XXXXXXXXX
----------------------------- ----------------------------------------
XXXXX XXXXXXXXX, General Partner
Date: 12/13/91
--------------------------------------
WITNESS or ATTEST: TENANT:
THE XXXXXX XXXXX BANK
/s/ XXXXXXX XXXXX By: /s/ XXXXXXX X. XXXXXXXXX
----------------------------- ----------------------------------------
Date: 12/13/91
--------------------------------------
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19
EXHIBIT "A"
[FLOOR PLAN]
20
EXHIBIT "B"
THE MADISON BUILDING
LEGAL DESCRIPTION
All of Lots Eleven (11) through Twenty-five (25), both inclusive, and Lots
Thirty-five (35) through Fifty-two (52), both inclusive, Block D, of the
Subdivision known as Xxxxxxx Manor, as the same appears duly dedicated, platted
and recorded in Deed Book T-9 at Page 353 and in Plat Book 5 at Page 92, among
the Land Records of Fairfax County, Virginia.
and
A vacated portion of Xxxxxxx Road, all as more particularly described as
follows:
Beginning at a point on the Easterly R/W line of Xxxxxxx Road (Route #1807)
marking the Northwesterly corner of Old XxXxxx Village Condominium; thence with
the Easterly R/W line of Xxxxxxx Road with a curve to the left whose radius is
440.00 feet (and whose chord is N 14 degrees 15' 53" E, 108.75 feet) an arc
distance of 109.03 feet and N 05 degrees 05' 10" W, 331.44 feet to a point
marking the Southwesterly corner of Xxx 00 Xxxxxxx Xxxxx, Xxxxx D; thence
departing from the Road with the Southerly line of said Lot 34, N 84 degrees
54' 50" E, 125.00 feet to a point marking the Southeasterly corner of Lot 34;
thence with the Easterly lines of Xxxx 00 - 00 Xxxxxxx Xxxxx X 05 degrees 05'
10" W, 75.00 feet to a point marking the Southwesterly corner of Xxx 00 Xxxxxxx
Xxxxx; thence with the Southerly line of Lot 26 Xxxxxxx Manor N 84 degrees 54'
50" E, 137.29 feet to a point on the Westerly R/W line of Old Chainbridge Road
(Route #1820); thence with the Westerly line of Old Chainbridge Road with curve
to the right whose radius is 289.40 feet (and whose chord is S 11 degrees 00'
09" E, 60.05 feet) an arc distance of 60.16 feet and S 05 degrees 02' 51" E,
315.32 feet to a point marking the Northeasterly corner of Xxx 00, Xxxxx X,
Xxxxxxx Xxxxx; thence departing from the road with the Northerly line of said
Xxx 00 X 00 degrees 54' 50" W, 143.27 feet to a point marking the Northwesterly
corner of Lot 10; thence with a Westerly line of Xxxx 00 - 0 Xxxxxxx Xxxxx,
Xxxxx D S 05 degrees 05' 10" E, 214.15 feet to a point on the Northerly line of
the aforementioned Old XxXxxx Village Condominium; thence with a Northerly
line of Old XxXxxx Village Condominium N 68 degrees 37' 30" W, 179.88 feet to
the point of beginning, containing 2.66233 acres of land.
21
[SITE PLAN]
22
EXHIBIT "D"
THE MADISON BUILDING
WORK LETTER - OFFICE SPACE
TENANT INTERIOR IMPROVEMENTS SUPPLIED BY LANDLORD
None. Tenant accepts the Demised Premises in "As Is" condition.
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EXHIBIT "E"
THE MADISON BUILDING
RULES AND REGULATIONS
ATTACHED TO AND MADE A PART OF LEASE, DATED DECEMBER , 1991, BY AND BETWEEN
0000 XXX XXXXX XXXXXX XXXX ASSOCIATES, AS LANDLORD, AND THE XXXXXX XXXXX BANK,
AS TENANT. TENANT AGREES FOR ITSELF, ITS EMPLOYEES AND AGENTS TO COMPLY FULLY
WITH THE FOLLOWING RULES AND REGULATIONS AND WITH SUCH REASONABLE MODIFICATIONS
THEREOF AND ADDITIONS THERETO AS LANDLORD MAY MAKE FOR THE BUILDING:
1. No sign, picture, lettering, notice or advertisement of any kind shall
be painted or displayed on or from the windows, doors, roof, or outside walls of
the Building. All of Tenant's interior signs, sign painting or lettering shall
be done in a manner approved by Landlord, and the cost thereof shall be paid by
Tenant. In the event of the violation of the foregoing by Tenant, Landlord may
remove same without any liability and may charge the expense incurred for such
removal to Tenant.
2. Tenant shall not use the name of the Building for any purpose other than
that of the business address of Tenant. Tenant agrees that Landlord may assign a
name to the Building and/or change the name of the Building at Landlord's
option.
3. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, or halls shall not be obstructed or encumbered by any
tenant or used for any purpose other than ingress and egress to and from the
Demised Premises.
4. No curtains, blinds, shades, screens, awnings, or other projections
shall be attached to or hung in, or used in connection with, any window or door
of the Demised Premises or outside wall of the Building without the prior
written consent of the Landlord, nor shall Tenant place objects against glass
partitions, doors or windows which would be unsightly from the Building's
corridors, or from tile exterior of the Building.
5. Any carpeting cemented down shall be installed with a releasable
adhesive.
6. No animals or pets or bicycles or other vehicles shall be brought or
permitted to be in the Building or the Demised Premises.
7. The water and wash closets and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damage resulting from any misuse of the fixtures shall be borne by the Tenant
who, or whose servants, employees, agents, visitors or licensees, shall have
caused the same. Tenant shall not waste electricity, water or air conditioning,
and shall cooperate fully with landlord to assure the most effective operation
of the Building's heating and air conditioning. Tenant shall not adjust any
controls other than room thermostats installed for Tenant's use. Tenant shall
not tie, wedge or otherwise fasten open any water faucet or outlet. Tenant shall
keep all corridor doors closed.
8. No tenant shall xxxx, paint, drill into, or in any way deface any part
of the Demised Premises or the Building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of the Landlord, and as the Landlord may direct.
9. Tenant shall not cause or permit unusual or objectionable odor to be
produced upon or permeate from the Demised Premises, including duplicating or
printing equipment emitting noxious fumes. Tenant shall not allow any cooking on
the Demised Premises. Tenant shall not disturb any occupants of this or
neighboring buildings or premises by the use of any musical instruments, radio,
television, loudspeakers, or by any unseemingly or disturbing noise.
10. No tenant shall throw anything out of the door, windows, or down any
passageways or elevator shafts.
Initials: Landlord [SIG]
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11. Vending machines will not be permitted to be installed by anyone but
the Landlord.
12. Canvassing, soliciting, and peddling in the Building is prohibited and
each tenant shall cooperate to prevent the same.
13. No additional locks or bolts of any kind shall be placed upon any of
the doors and windows by any tenant, nor shall any change be made in existing
locks or the mechanism thereof. Each tenant must, upon the termination of his
tenancy, restore to the Landlord all keys of stores, offices, and toilet rooms,
either furnished to or otherwise procured by Tenant and in the event of the loss
of any keys, so furnished, such tenant shall pay to the Landlord the cost
thereof.
14. Tenant assumes full responsibility for protecting the Demised Premises
from theft, robbery and pilferage. Except during Tenant's normal business hours,
Tenant shall keep all doors to the Demised Premises locked and other means of
entry of the Demised Premises closed and secured.
15. Tenant is not permitted to use any part of the Building or the common
areas for any manufacturing, storage, or sale of merchandise, or property of any
kind; or for lodging or sleeping, or for any immoral or illegal purpose. Tenant
shall not install or operate any machinery or mechanical devices of a nature not
directly related to Tenant's ordinary use of the Demised Premises for general
office purposes.
16. All loading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse shall be made only through entry ways provided for
such purposes by Landlord.
17. All safes, freight, furniture, or other bulky matter of any description
shall be carried in or out of the Demised Premises only at such times and in
such manner as shall be prescribed in writing by Landlord, and Landlord shall in
all cases have the right to specify the proper position of any such safe,
furniture, or other bulky article, which shall only be used by Tenant in a
manner which will not interfere with or cause damage to the Demised Premises or
the Building. Tenant shall be responsible for any damage to the Building or the
property of it tenants or others and injuries sustained by any person whomsoever
resulting from the use or moving of such articles in or out of the Demised
Premises, and shall make all repairs and improvements required by Landlord or
governmental authorities in connection with the use or moving of such articles.
18. Tenant shall not bring in or allow to be kept upon the Demised Premises
any inflammable, combustible or explosive fluid, chemical or substance or any
article deemed extra hazardous on account of fire or other dangerous property.
19. Tenant shall not employ arty person to perform any cleaning, repairing,
janitorial, decorating, painting, or other services or work in or about the
Demised Premises, except with the approval of Landlord.
20. Tenant shall not overload any floor and shall not install any heavy
objects, safes, business machines, files or other equipment without having
received Landlord's prior written consent as to size, maximum weight, routing
and location thereof. Safes, furniture, equipment, machines and other large or
bulky articles shall be brought through the Building and into and out of the
Demised Premises at such times and in such manner as the Landlord shall direct
(including the designation of elevator) and at Tenant's sole risk and
responsibility. Prior to Tenant's removal of any such articles from the Demised
Premises, Tenant shall obtain written authorization therefor at the Office of
the Building and shall present such writing to a designated employee of
Landlord.
21. Landlord shall not be responsible for any lost or stolen property,
equipment, money or jewelry from the Demised Premises or the public areas of the
Building regardless of whether such loss occurs when the Demised Premises are
locked or not.
22. The Landlord reserves the right to exclude from the Building between
the hours of 6:00 o'clock p.m. and 8:00 o'clock a.m. and at all hours on Sundays
and legal holidays all persons who do not present a pass to the Building signed
by the Landlord. The Landlord will furnish passes to persons for whom any tenant
requests same in writing. Each tenant shall be responsible for all persons for
whom he requests such pass and shall be liable to the Landlord for all acts of
such persons.
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23. The work of the janitor or cleaning personnel shall not be hindered by
Tenant after 5:30 o'clock p.m., and the windows may be cleaned at any time.
Tenant Shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to Landlord in discharging its obligation regarding
cleaning services.
24. Tenant will refer all contractors, installation technicians rendering
any service for Tenant for supervision and approval before performance of any
contractual services. Tenant will not permit any mechanic's liens to be placed
against the Demised Premises.
25. Landlord shall have the right to prohibit any advertising by any tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability for offices, and upon written notice from Landlord, Tenant
shall refrain from or discontinue such advertising.
26. Tenant may request heating mid/or air conditioning for nonbusiness
hours by submitting a written request therefor to the Building Manager's Office
no later than 2:00 o'clock p.m. the preceding workday (Monday through Friday).
The request must clearly state the start and stop of the nonbusiness hour
service. Each Tenant representative designated in the Lease will submit to the
Building Manager a list of personnel who are authorized to made such requests.
Changes, to be determined when the Building is in operation, will be fair
and reasonable and reflect the additional operating costs involved and the
necessity of having maintenance personnel on duty for a full shift, regardless
of the actual time the equipment is in use. If two or more tenants originate
similar requests, charges shall be prorated by hours of operation.
27. Wherever the word "Tenant" occurs, it is understood and agreed that it
shall mean Tenant's associates, agents, clerks, servants and visitors. Wherever
the word "Landlord" occurs, it is understood and agreed that it shall mean
Landlord's assigns, agents, clerks, servants and visitors.
Initials: Landlord [SIG]
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