LEASE THE DWIGHT FOSTER BUILDING WORCESTER, MASSACHUSETTS Lease Dated as of DECEMBER 1, 2001
Exhibit
10.1
THE
XXXXXX XXXXXX BUILDING
00
XXXXX XXXXXX
XXXXXXXXX,
XXXXXXXXXXXXX
Lease
Dated
as
of
DECEMBER
1, 2001
ARTICLE
I
1.
REFERENCE
DATA:
1.1. SUBJECTS
REFERRED TO:
Each
reference in this Lease to any of the following subjects shall be construed
to
incorporate the data stated for each such subject in this Article.
LANDLORD:
J. Xxxxxx Xxxxx
LANDLORD'S
ADDRESS:
000
Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
TENANT:
Commonwealth National Bank
THE
PREMISES:
The
entire interior of the second floor (Waldo Street level) of the building known
as the Xxxxxx Xxxxxx Building, 33 Waldo Street, Worcester, Massachusetts (the
"Building"), excepting the lobby, stairs, and elevator thereof containing
approximately 7,450 square feet and approximately 1,657 square feet in the
interior of the westerly portion of the third floor of the Building; and store
room #5 in the basement of the Building, containing approximately 850 square
feet.
PARKING:
(a)
During the Lease Term, the right and license is granted by the Landlord to
the
Tenant’s employees to park twenty-eight (28) motor vehicles between the hours of
7:00 a.m. and 6:00 p.m. on property of Landlord contiguous to the
Building; twelve (12) parking unassigned places in the parking lot with entry
from the Waldo Street level (the "Lot") and sixteen (16) parking places, as
assigned by Landlord in the garage contiguous to the Building at the Commercial
Street level thereof (the "Garage").
(b)
Landlord grants to Tenant’s customers and invitees a license to park their motor
vehicles in the Lot for one-half (.5) hour at no cost only when such persons
are
visiting the Premises for banking business, subject to a validation system
mutually agreeable to Landlord and Tenant. The license granted in this
subparagraph (b) is subject to availability of space in the Lot.
Tenant
acknowledges that other tenants of Landlord and their employees have been
granted similar licenses. Parking spots allocated to employee parking may not
be
used by Tenant for any other purpose.
At
all
times the license granted herein is subject to compliance with Landlord's Rules
and Regulations in effect from time to time governing the use of the Lot and
the
Garage, a copy of which (as in force as of the date hereof) is annexed hereto
as
Exhibit
“A”).
LEASE
TERM:
Term
fifteen (15) years.
LEASE
TERM COMMENCEMENT DATE:
December 1, 2001.
RENT:
See
Paragraph 2.3
ADDITIONAL
TENANT’S CHARGES:
Tenant
shall pay:
(1.)(a)
for all electricity charges for lighting and electrical outlets on the
Premises;
(b)
for
all electricity charges for drive-through lighting from portico and
drive-through control gate and pedestrian warning in Lot contiguous to the
Building; and
(c)
for
all electricity charges for all of Tenant’s signage which is electrified and/or
lit by electric lighting.
All
of
such charges shall be paid to the utility providing such electricity, as
separately metered to Tenant.
(2.)
annually, as additional rent, and within twenty (20) days of Landlord’s invoice
delivered to the Tenant therefor, an amount equal to thirty percent (30%) of
the
cost of electricity incurred by Landlord for Building electricity (including
cost of air conditioning) which exceeds such cost for the twelve (12) month
period ending December 31, 2000. Landlord’s said cost for the twelve (12) month
period ending December 31, 2000 was Twenty Thousand Five Hundred Fifty-seven
and
42/100 Dollars ($20,557.42). Upon request of Tenant, Landlord shall present
evidence of said cost of electricity to Tenant, no more often than
annually.
-2-
(3.)
annually, as additional rent, and within twenty (20) days of Landlord’s invoice
delivered to the Tenant therefor, an amount equal to thirty percent (30%) of
the
cost of heating incurred by Landlord for heating the Building which exceeds
such
cost for the twelve (12) month period ending December 31, 2000. Landlord’s said
cost for the twelve (12) month period ending December 31, 2000 was Thirteen
Thousand One Hundred Twelve and 18/100 dollars ($13,112.18). Upon request of
Tenant, Landlord shall present evidence of said cost of heating to Tenant,
no
more often than annually.
(4.)
quarter-annually (or such other times as real estate tax bills are issued),
as
additional rent, and within twenty (20) days of Landlord’s invoice delivered to
the Tenant therefor, an amount equal to thirty percent (30%) of the real estate
tax assessed on the Building (but not the Lot) which exceeds the real estate
taxes assessed on the Building for the twelve (12) month period ending December
31, 2000. The real estate taxes assessed on the Building for the twelve (12)
month period ending December 31, 2000 were $45,767.49.
(5.)
for
all cleaning of the Premises including carpet cleaning and the removal of
rubbish to rubbish room on the first floor of the Building, by Tenant’s own
cleaning contractor.
(6.)
for
the cost of removal (not plowing) of snow from the Lot. (Tenant may, if Tenant
so desires hire its own snow removal contractor). If Tenant does not hire its
own snow removal contractor for such snow removal, Tenant shall pay Landlord
therefor as additional rent, within ten (10) days of Landlord’s invoice therefor
having been delivered to Tenant. If Tenant shall hire its own contractor to
plow
and remove snow from the Lot, Landlord shall reimburse Tenant for snow plowing
only if (a) Landlord shall have approved the calculation of the cost thereof
prior to the first snowfall in each autumn/winter; and (b) the cost of snow
plowing is stated separately on all invoices received from Tenant’s snow removal
contractor.
(7.)
for
and provide all replacement lamps, light bulbs, replacement fixture ballasts
(and installation thereof) on the Premises, the drive-through portico, and
with
respect to Tenant’s signage.
(8.)
for
and provide all bathroom supplies, including soap, towels and toilet tissue
used
on the Premises.
PERMITTED
USES:
Banking, financial services and general office and associated uses.
-3-
ARTICLE
II
2.
PREMISES:
2.1.
(a)
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the
Premises identified in Article I in the Building, excluding (a) the common
stairways, stairwells, elevators and elevator xxxxx, the exterior faces of
the
exterior walls, and (b) the pipes, ducts, conduits, wires and appurtenant
fixtures serving the Premises and/or other parts of the Building, and reserving
to the Landlord the right to relocate same within or without the Premises,
upon
reasonable advance notice to Tenant, and in such a manner as to minimize
interference with Tenant’s business operations (except for
emergencies).
(b)
Tenant, its agents, employees and invitees shall have, in common with other
tenants of Landlord and their respective agents, employees and invitees, the
use
of the common areas of the Building, the Lot and the Garage, subject to parking
privileges and the Rules and Regulations set forth in Exhibits “A”
and
“B”
annexed
hereto.
(c)
Tenant, in common with other tenants of the Building and the Landlord, shall
have the use of the area above the ceilings in the Premises for cabling, wiring,
piping, and associated uses, at no additional rent.
(d)
Tenant may, at Tenant’s expense, install a satellite dish and/or an antenna on
the roof of the Building or on a structure located thereon provided (i) Tenant
shall promptly repair all roof punctures made on account thereof, (ii) Tenant
shall place such items as Landlord shall direct, and (iii) wiring to any such
installation shall comply with all codes applicable thereto and shall be
effected by contractors reasonably satisfactory to Landlord.
2.2.
TERM:
Tenant
shall have and hold the Premises for a period commencing December 1, 2001 and
continuing for the Lease Term unless sooner terminated as provided
herein.
2.3.
RENT:
-4-
|
Lease
Year
|
Period
|
Annual
Rent
|
Payable
monthly on the
1st
day of each month,
in
advance
|
|
1
|
12/1/01
to 11/30/02
|
$152,399.00
|
$12,699.92
|
|
2
|
12/1/02
to 11/30/03
|
$152,399.00
|
$12,699.92
|
|
3
|
12/1/03
to 11/30/04
|
$152,399.00
|
$12,699.92
|
|
4
|
12/1/04
to 11/30/05
|
$163,066.93
|
$13,588.91
|
|
5
|
12/1/05
to 11/30/06
|
$163,066.93
|
$13,588.91
|
|
6
|
12/1/06
to 11/30/07
|
$163,066.93
|
$13,588.91
|
|
7
|
12/1/07
to 11/30/08
|
$174,481.61
|
$14,540.13
|
|
8
|
12/1/08
to 11/30/09
|
$174,481.61
|
$14,540.13
|
|
9
|
12/1/09
to 11/30/10
|
$174,481.61
|
$14,540.13
|
|
10
|
12/1/10
to 11/30/11
|
$186,695.32
|
$15,557.94
|
|
11
|
12/1/11
to 11/30/12
|
$186,695.32
|
$15,557.94
|
|
12
|
12/1/12
to 11/30/13
|
$186,695.32
|
$15,557.94
|
|
13
|
12/1/13
to 11/30/14
|
$199,763.99
|
$16,646.99
|
|
14
|
12/1/14
to 11/30/15
|
$199,763.99
|
$16,646.99
|
|
15
|
12/1/15
to 11/30/16
|
$199,763.99
|
$16,646.99
|
ARTICLE
III
3.
LANDLORD
COVENANTS:
3.1.
SERVICES:
(a) To
keep in good order and condition, and furnish through Landlord's employees
or
independent contractors, repairs to the foundation, roofs, exterior walls,
windows in common areas, common areas, and structural components of the Building
and the Premises in a manner consistent with the standards applicable to office
space comparable to the Premises and the Building.
(b)
To
provide and pay for the removal of Tenant’s usual trash from the rubbish room on
first floor. “Usual trash” means trash emptied from waste baskets. Trash such as
bulk quantities of brochures, cardboard boxes, and the like which is removed
by
Landlord will result in extra expense to Tenant, which Tenant shall pay to
Landlord within ten (10) days of the delivery to Tenant of Landlord’s invoice
therefor.
(c)
To
remove snow and ice from the sidewalks abutting the Building.
-5-
3.2.
QUIET
ENJOYMENT:
That
Landlord has the right to make this Lease and that Tenant on timely paying
the
rent and performing the Tenant’s obligations in this Lease shall peacefully and
quietly have, hold and enjoy the Premises, subject to all of the terms and
provisions hereof.
3.3.
INTERRUPTIONS:
(a)
That Landlord shall not be liable to Tenant for compensation or reduction of
rent by reason of inconvenience or annoyance or for loss of business arising
from the necessity of Landlord's entering the Premises for any of the purposes
in this Lease authorized, or for repairing the Premises or any portion of the
Building, however the necessity may occur, except as otherwise specifically
provided in this Lease. In case Landlord is prevented or delayed from
making any repairs, alterations or improvements, or furnishing any services
or
performing any other covenant or duty to be performed on Landlord's part, by
reason of any cause beyond Landlord's control, Landlord shall not be liable
to
Tenant therefor, nor, except as expressly otherwise provided in Section 5.1
shall Tenant be entitled to any abatement or reduction of rent by reason
thereof, nor shall the same give rise to a claim in Tenant's favor that such
failure constitutes actual or constructive, total or partial, eviction from
the
Premises.
(b)
The
Landlord reserves the right to close the Lot for a period not to exceed six
(6)
consecutive months in order to construct a parking deck over the Lot. So long
as
the Lot is closed, and if and to the extent the Tenant shall not have available
to it parking space for its employees in the Lot and/or the use of the
drive-through window, monthly rent shall be abated by the number of employee
parking spots not available to the Bank x $80.00 plus, if the drive-in window
traffic cannot be accommodated, $1,040.00 per month (the portion of the rent
attributable thereto, to be adjusted, if Lot closing occurs after year three
(3)
of the lease term).
3.4
INDEMNITY:
To save
harmless, and indemnify Tenant from any liability for injury, loss, accident
or
damage to any person or property, and from any claims, actions, proceedings,
and
expenses and costs in connection therewith (including without limitation
reasonable counsel fees), (excepting for any liability arising from Tenant's
own
actions or the actions of any of Tenant’s contractors, agents, or employees) (i)
arising from the omission, fault, willful act, negligence or other misconduct
of
Landlord or its agents, servants, employees, invitees, licensees and independent
contractors hired by Landlord, or (ii) resulting from the failure of Landlord
to
perform and discharge his covenants and obligations under this
Lease.
-6-
3.5
INSURANCE.
To
maintain all-risk hazard insurance on the Building in an amount which shall
be
at least eighty percent (80%) of the value of the Building.
ARTICLE
III-A
3.A.1.
EMERGENCIES:
The
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed, provided, however, that in each instance of stoppage, Landlord
shall exercise reasonable diligence to eliminate the cause thereof. Except
in case of emergency repairs, Landlord will give Tenant reasonable advance
notice of any contemplated stoppage and will use reasonable efforts to avoid
inconvenience to Tenant by reason thereof.
ARTICLE
IV
4.
TENANT
COVENANTS:
During
the Lease Term and such further time as Tenant occupies any part of the
Premises, Tenant covenants:
4.1.
RENT:
To pay
when due all rent, and additional rent.
4.2.
CONDITION:
Except
as otherwise provided in Article V, to keep the Premises in good order, repair
and condition, reasonable wear and tear, damage by fire or casualty only
excepted, and all glass in windows and doors of the Premises whole and in good
condition with glass of the same quality as that injured or broken, damage
by
fire or casualty only excepted, and at the expiration or termination of the
Lease Term or any extension of the Lease Term, peaceably to yield up the
Premises and all alterations and additions thereto in good order, repair and
condition, reasonable wear and tear, damage by fire or other casualty only
excepted, first removing all goods and effects of Tenant and, to the extent
specified by Landlord by notice to Tenant given at least ten (10) days before
such expiration or termination, all alterations and additions made by Tenant
after the Lease Term Commencement Date, and repairing any damage caused by
such
removal and restoring the Premises and leaving them neat, and in broom-clean
condition.
4.3.
USE:
To use
and occupy the Premises for the Permitted Uses only and not to injure or deface
the Premises, Building, Lot, or Garage, not to permit in the Premises any
auction sale, vending machine, or inflammable fluids or chemicals, or nuisance,
or the emission from the Premises of any objectionable noise or odor, nor to
permit any use thereof which is improper or
-7-
offensive,
contrary to law or ordinance or liable to invalidate or increase the premiums
for any insurance on the Building or its contents or liable to render necessary
any alteration or addition to the Building.
4.3.A
PLATE
GLASS INSURANCE.
To
maintain plate glass insurance insuring the plate glass windows on the Waldo
Street side of the Building against breakage, and in any event, in the event
of
breakage, Tenant shall be responsible for the cost of replacing any and all
of
the plate glass in such windows.
4.4.
RULES:
Not to
obstruct in any manner any portion of the Building, Lot or Garage not hereby
leased or any portion thereof used by Tenant in common with others; and to
comply with all reasonable Rules and Regulations uniformly in force now as
set
forth in Exhibit
"B"
or
hereafter made by Landlord for the care and use of Building, and the Lot and
the
Garage and their facilities and approaches.
4.5.
SAFETY:
To keep
the Premises equipped with all safety appliances required by law or ordinance
or
any other regulation of any public authority, because of any use thereof made
by
Tenant which use is different from most banks and commercial offices and to
procure all licenses and permits so required because of such use and, if
requested by Landlord, to do any work so required because of such use, it being
understood that the foregoing provisions shall not be construed to broaden
in
any way Tenant's Permitted Uses.
4.6.
ASSIGNMENT:
Not,
without prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, to assign, mortgage, pledge or otherwise
transfer this Lease, including by operation of law, or to make any sublease,
or
to permit occupancy of the Premises or any part thereof by anyone other than
Tenant, provided however, that Tenant shall remain liable as a primary obligor
under and pursuant to all of Tenant’s obligations under this Lease. At the
option of the Landlord, to be exercised after request of the Tenant to assign
this Lease or sublet all or any portion of the Premises, the Tenant shall
specifically agree that the Premises shall be restored to the condition they
were in at the time of the Tenant’s request to assign this Lease or sublet all
or any portion of the Premises. If any amount is payable to Tenant by any
assignee or sublessee which exceeds the rent and additional rent reserved
hereunder, such amount shall be paid to Landlord, in full, within ten (10)
days
after its receipt by Tenant.
4.7.
INSPECTION:
To
permit Landlord and Landlord's agents and designees, on reasonable advance
notice, to examine the
-8-
Premises
at reasonable times and, if Landlord shall so elect, to make any repairs or
replacements Landlord may deem necessary; to remove, at Tenant's expense, any
alterations, additions, signs, curtains, blinds, shades, awnings, aerials,
or
the like not consented to in writing by Landlord; and to show the Premises
to
prospective Tenants and post “For Rent” signs on the Premises during the six (6)
months preceding expiration of the Lease Term (unless Tenant shall have properly
exercised it’s option to extend the Lease Term, as hereinafter provided), and
any extended Lease Term, and to prospective purchasers and mortgagees at all
reasonable times.
4.8.
FLOOR
LOAD:
Not to
place a load upon the Premises exceeding the live load for which the floors
have
been designed; and not to move any safe, vault or other heavy equipment in,
about or out of the Premises except in such manner and at such time as Landlord
shall in each instance authorize; and to isolate and maintain all of Tenant's
business machines and mechanical equipment, which cause or may cause air-borne
or structure-borne vibration or noise, whether or not it may be transmitted
to
any other leased space in the Building, in such manner acceptable to Landlord
so
as to eliminate such vibration or noise.
4.9.
PERSONAL
PROPERTY:
To pay
promptly when due all taxes which may be imposed upon personal property
(including without limitation, fixtures and equipment) in the Premises by
whomsoever assessed.
4.10.
COSTS
AND FEES:
To pay
as additional rent all such reasonable costs (including attorneys’ reasonable
fees incurred by Landlord arising out of any breach by Tenant of any of its
obligations under this Lease in connection with the successful enforcement
by
Landlord of said obligations of Tenant.
4.11.
INDEMNITY:
To save
harmless, and indemnify Landlord from any liability for injury, loss, accident
or damage to any person or property, and from any claims, actions, proceedings,
and expenses and costs in connection therewith (including without limitation
reasonable counsel fees), (excepting for any liability arising from Landlord's
own actions or the actions of any of Landlord’s contractors, agents, or
employees) (i) arising from the omission, fault, willful act, negligence or
other misconduct of Tenant or its agents, servants, employees, invitees,
licensees and independent contractors hired by Tenant, or (ii) resulting from
the failure of Tenant to perform and discharge its covenants and obligations
under this Lease.
4.12.
INSURANCE:
To
procure, keep in force and pay for comprehensive public liability insurance
to
the limit of its
-9-
policy
(which is $1,000,000.00 per person, $5,000,000.00 in the aggregate, and
$100,000.00 in property damage) indemnifying Landlord and Tenant as their
interests may appear against all claims and demands for injury to, or death
of,
persons or damage to property which may be claimed to have occurred upon the
Premises in the amounts which shall from time to time be approved by
Landlord. Such insurance shall provide that it shall not be cancelled
without at least twenty (20) days’ prior written notice to Landlord, who shall
be named an additional insured, and certificates thereof shall be promptly
delivered to Landlord upon request of the Landlord.
Any
insurance carried by either party with respect to the Premises and property
therein or occurrences thereon shall include a clause or endorsement denying
the
insurer rights of subrogation against the other party to the extent rights
have
been waived by the insured prior to occurrence of injury or loss. Each party,
notwithstanding any provisions of this Lease to the contrary, hereby waives
any
rights of recovery against the other for injury or loss due to hazards covered
by insurance containing such clause or endorsement to the extent of the
indemnification received thereunder.
4.13.
PROPERTY
DAMAGE:
In
addition to and not in limitation of the foregoing, Tenant covenants and agrees
that all merchandise, furniture, fixtures and property of every kind, nature
and
description of Tenant or Tenant's employees, agents, contractors, invitees,
visitors or guests which may be in or upon the Premises or Building in the
public corridors or on the sidewalks, areaways, Lot or Garage and approaches
adjacent thereto, during the Lease Term (as it may be extended), shall be at
the
sole risk and hazard of Tenant, and that if the whole or any part thereof shall
be damaged, destroyed, stolen or removed by reason of any cause or reason
whatsoever, other than the negligence or willful act of Landlord, no part of
said damage or loss shall be charged to or borne by Landlord.
4.14.
SIGNAGE:
The
Tenant, at its own expense, may affix its signage to the sign band of the
Building and other locations thereof, subject to the prior approval of the
Landlord. In addition, the Tenant, at its expense and with the prior approval
of
the Landlord, may erect up to two (2) signs in the Lot. Tenant may use the
existing sign (and change the lettering thereof) on the easterly side of the
Building, provided that, at Tenant’s expense, the electricity therefor is
metered to Tenant.
4.15.
ALTERATIONS.
Not to
make alterations (except for cosmetic changes) to the Premises unless (i) the
same shall have been approved in advance by the Landlord, and (ii) the
contractor
-10-
making
any such alterations shall have been approved in advance by Landlord. Landlord’s
approval required hereunder shall not be unreasonably withheld, delayed or
conditioned.
ARTICLE
V
5.
CASUALTY
AND TAKING:
5.1.
In case during the Lease Term (or any extension thereof) all or any part of
the
Premises or the Building or the Lot or the Garage are damaged materially by
fire, force majeure,
civil
commotion, war, or casualty or by action of public or other authority in
consequence thereof, or are taken by eminent domain or Landlord receives
compensable damage by reason of anything lawfully done in pursuance of public
or
other authority, this Lease shall terminate at Landlord's election, which
election may be made only if all or a material part of the Premises, the
Building, the Lot and/or the Garage are so taken or damaged. If the Landlord
elects to terminate, the Landlord must give notice to Tenant of such election
within ninety (90) days after the event which gives rise to the right to elect
termination. The effective date of termination shall be not less than fifteen
(15) nor more than thirty (30) days after the date of notice of such
termination. Rent and additional rent shall xxxxx effective on the date of
termination or such earlier date as the Premises are not fit for the Permitted
Uses. If in any such case, the Premises, Building, Lot and/or Garage are
rendered unfit for the Permitted Uses and the Lease is not so terminated,
Landlord shall use due diligence (following the expiration of all periods in
which Landlord may terminate this Lease pursuant to the foregoing provisions
of
this Section 5.1) to put the Premises, Building, Lot and/or Garage, or in case
of taking what may remain thereof (excluding any items installed or paid for
by
Tenant which Tenant may be required to remove pursuant to Section 4.2) into
proper condition for the Permitted Uses. In the event of a casualty, a just
proportion of the rent and additional rent according to the nature and extent
of
the injury shall be abated until the Premises, Building, Lot and/or Garage
or
such remainder shall have been put by Landlord in such condition as the same
may
be used and occupied for the Permitted Uses. In the event of a taking which
permanently reduces the areas of the Premises, Building, Lot and/or Garage,
a
just proportion of the rent and additional rent shall be abated for the
remainder of the Lease Term. In case of such damage or taking, Landlord shall
notify Tenant within thirty (30) days after the occurrence thereof of Landlord’s
estimate of the time needed to do the construction work necessary to put the
Premises, Building, Lot and/or Garage or such remainder in proper condition
for
the Permitted Uses. If Landlord has not commenced such repairs within sixty
(60)
days of
-11-
such
damage or taking having occurred, and/or shall not thereafter cause such repairs
to be diligently pursued until completion, Tenant may terminate this Lease
upon
thirty (30) days’ prior notice to Landlord.
5.2.
CONDEMNATION
AWARDS:
Landlord reserves to itself any and all rights to receive awards made for
damages to the Premises and Building and Lot and the leasehold hereby created
or
any one or more of them, accruing by reason of exercise of eminent domain or
by
reason of anything lawfully done in pursuance of public or other
authority. Tenant hereby releases and assigns to Landlord all Tenant's
rights to such awards, and covenants to deliver such further assignments and
assurances thereof as Landlord may from time to time request, hereby irrevocably
designating and appointing Landlord as its attorney-in-fact to execute and
deliver in Tenant's name and behalf all such further assignments thereof.
Notwithstanding the foregoing, Tenant shall have the right to prosecute a claim
arising from the exercise of eminent domain and/or anything lawfully done in
pursuance of public or other authority which results in the loss or damage
to
the leasehold improvements created at Tenant’s expense and for its moving costs
and expenses, and to retain any recovery thereby effected.
ARTICLE
VI
6.
DEFAULT:
6.1.
This
Lease is upon this condition, that if Tenant shall neglect or fail to perform
any one or more of its terms, covenants, agreements, or conditions contained
herein and any such neglect or failure continues after notice, in case of
payment of rent or additional rent for more than ten (10) days, or in any other
case for more than thirty (30) days and such additional time, if any, as is
reasonably necessary to cure the default, if the default is of such a nature
that it cannot reasonably be cured in said thirty (30) days; or if Tenant makes
any assignment for the benefit of creditors, fails or admits in writing its
inability to pay its debts generally as they become due; files a petition in
bankruptcy or a petition to take advantage of any insolvency law; is subject
to
the appointment of a receiver, trustee, liquidator, conservator or similar
officer of itself or of the whole or any substantial part of its business or
property, or on voluntary or involuntary petition in bankruptcy filed by or
against it (if said petition is not discharged within sixty (60) days after
filing of the same), has an order for relief entered with respect to it or
is
otherwise adjudicated a bankrupt or insolvent; or files a petition or answer
seeking reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or consents to
-12-
the
filing of such petition or complaint or answer under the Federal bankruptcy
laws
or any other applicable law or statute of the United States of America or any
state thereof, now or hereafter in effect; or if any attachment or execution
is
levied upon this Lease, or if the leasehold is taken on execution or other
process of law in any action against the Tenant, then in any such case, Landlord
may immediately, or at any time while such default exists and without further
notice, terminate this Lease by notice to Tenant, specifying a date not less
than ten (10) days after the giving of such notice on which this Lease shall
terminate and this Lease shall come to an end on the date specified therein
as
fully and completely as if such date were the date herein originally fixed
for
the expiration of the Lease Term, (or if during an extended Lease Term, the
date
originally fixed for the termination thereof) or Landlord, at his election,
may
lawfully or at any time after such default and without further notice, enter
into and upon the Premises or any part thereof in the name of the whole, and
repossess the same as of Landlord's former estate and expel Tenant and those
claiming through or under Tenant and remove their effects (forcibly if
necessary) without being deemed guilty of any manner of trespass and without
prejudice to any remedies for arrears of rent or any other preceding breach
of
covenant and Landlord may, at his election, store any effects so removed in
a
public warehouse or otherwise for the account of, and at the expense of, Tenant,
and upon termination of this Lease as aforesaid or under any provision of any
statute, whether or not Landlord enters the Premises, Tenant will then quit
and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
6.2.
LANDLORD
REMEDIES:
In the
event that this Lease is terminated under any of the provisions contained in
Section 6.1 or shall be otherwise terminated for breach of any obligation of
Tenant, Tenant covenants to pay forthwith to Landlord, as compensation, the
total rent reserved for the residue of the Lease Term (or extended Lease Term,
as the case may be). In calculating the rent reserved there shall be
included, in addition to the fixed rent and all additional rent, the value
of
all other considerations agreed to be paid or performed by Tenant for said
residue. Tenant further covenants as an additional and cumulative
obligation after any such ending to pay punctually to Landlord all the sums
and
perform all the obligations which Tenant covenants in this Lease to pay and
to
perform in the same manner and to the same extent and at the same time as if
this Lease had not been terminated. In calculating the amounts to be paid
by Tenant under the next foregoing covenant Tenant shall be credited with any
amount with the net proceeds of any rent obtained by Landlord by re-letting
the
Premises after deducting all Landlord's reasonable expenses in connection with
such re-
-13-
letting,
including, without limitation, all repossession costs, brokerage commissions,
fees for legal services and expenses of preparing the Premises for such
re-letting, it being agreed by Tenant that Landlord may (i) re-let the Premises
or any part or parts thereof, for a term or terms which may at Landlord's option
be equal to or less than or exceed the period which would otherwise have
constituted the balance of the Lease Term and any Extended Lease Term (as the
case may be), and may grant such concessions and free rent as Landlord in his
sole judgement considers advisable or necessary to re-let the same and (ii)
make
such alterations, repairs and decorations in the Premises as Landlord in his
sole judgment considers advisable or necessary to re-let the same (which shall
in any event not include alterations, repairs and decorations inconsistent
with
the remainder of the Building), and no action of Landlord in accordance with
the
foregoing or failure to re-let or to collect rent under any re-letting shall
operate as a release of Tenant or be construed to release or reduce Tenant's
liability as aforesaid.
6.3.
BANKRUPTCY:
Nothing
contained in this Lease shall limit or prejudice the right of Landlord to prove
for and obtain in proceedings for bankruptcy or insolvency by reason of the
termination of this Lease, an amount equal to the maximum allowed by any statute
or rule of law in effect at the time when, and governing the proceedings in
which, the damages are to be proved, whether or not the amount be greater,
equal
to, or less than the amount of the loss or damages referred to
above.
ARTICLE
VII
7.
NOTICE
7.1.
NOTICE
OF LEASE:
This
Lease shall not be recorded. Upon request of either party hereto both
parties shall execute and deliver after the Lease Term begins a notice of this
Lease in form appropriate for recording or registration, and if this Lease
is
terminated before the Lease Term expires, an instrument in such form
acknowledging the date of termination.
7.2.
COMMUNICATIONS:
Whenever any notice, approval, consent, request or election is given or made
pursuant to this Lease it shall be in writing. Communications and payments
shall be addressed:
if
to
Landlord,
to
Landlord at: 000 Xxxx Xxxxxx
Xxxxxxxxx,
XX 00000
or
at
such other address or designated person as may have been
-14-
specified
by prior notice by Landlord.
if
to
Tenant,
to
Tenant
at: 00
Xxxxx
Xxxxxx
Xxxxxxxxx,
XX 00000
ATTN:
Chief Financial Officer
or
at
such other address or designated person as may have been specified by prior
notice by Tenant. Any communication so addressed shall be deemed duly
served if mailed by United States registered or certified mail, postage prepaid,
return receipt requested, or delivered in hand.
7.3.
BINDING
EFFECT:
This
Lease shall be binding upon and inure to the benefit of the parties hereto
and
their respective successors, and permitted assigns, except that only the
Landlord shall be liable for obligations accruing prior to the transfer of
the
real estate of which the Premises are a part, and each successive owner of
the
Premises shall be liable only for obligations accruing during the period of
its,
his or her ownership.
7.4.
KEYS:
The
delivery of keys to any employee of Landlord or to Landlord's agent or any
employee thereof shall not operate as a termination of this Lease or a surrender
of the Premises.
7.5.
WAIVERS:
The
failure of Landlord or of Tenant to seek redress for violation of, or to insist
upon the strict performance of, any covenant or condition of this Lease, or
any
of the Rules and Regulations as set forth in Exhibit
“A”
and
Exhibit
“B”
hereto,
as amended, shall not be deemed a waiver of such violation. No consent or
waiver, express or implied, by Landlord or Tenant, to or of any breach of any
agreement or duty shall be construed as a waiver of or consent to any other
breach of the same or any other agreement or duty.
7.6.
REMEDIES:
The
specific remedies to which Landlord and Tenant may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which he or it may be lawfully entitled in
case
of any breach or threatened breach by Landlord or Tenant of any provisions
of
this Lease. In addition to the other remedies provided in this Lease,
Landlord and Tenant shall be entitled to the restraint by injunction of the
violation or attempted or threatened violation of any of the covenants,
conditions or provisions of this Lease or to a decree compelling specific
performance of any such covenants, conditions or provisions.
-15-
7.7.
SEVERABILITY:
If any
terms of this Lease, or the application thereof to any person or circumstances,
shall to any extent be invalid or unenforceable, the remainder of this Lease,
or
the application of such term to persons or circumstances other than those as
to
which it is invalid or unenforceable, shall not be affected thereby, and each
term of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
7.8.
RIGHT
TO CURE:
(a) If
Tenant shall at any time default in the performance of any obligation under
this
Lease, Landlord shall have the right, but shall not be obligated, to enter
upon
the Premises and to perform such obligation notwithstanding the fact that no
specific provision for such substituted performance by Landlord is made in
this
Lease with respect to such default. In performing such obligations,
Landlord may make any payment of money or perform any other act. All sums
so paid by Landlord (together with interest at the rate of twelve percent (12%)
per annum) and all necessary incidental costs and expenses in connection with
the performance of any such act by Landlord, shall be deemed to be additional
rent under this Lease and shall be payable to Landlord immediately on
demand. Landlord may exercise the foregoing rights without waiving any
other of his rights or releasing Tenant from any of its obligations under this
Lease.
(b)
If
Landlord shall at any time default in the performance of any obligation under
this Lease, Tenant shall have the right, but not be obligated, to perform such
obligation notwithstanding the fact that no specific provision for such
substituted performance by Tenant is made in this Lease with respect to such
default. In performing such obligations, Tenant may make any payment of
money. Tenant shall be entitled, upon demand, to reimbursement for all
sums so paid (together with interest at the rate of twelve percent (12%) per
annum) and all necessary incidental costs and expenses in connection with the
performance of any such act by Tenant, but such sums, costs, and expenses shall
not be deductible from the rent or additional rent payable by the Tenant under
this Lease.
7.9.
ESTOPPEL
CERTIFICATE:
Each
party hereto Tenant
agrees
from time to time, upon not less than fifteen (15) days prior written request
from the other, to execute, acknowledge and deliver to the other a statement
in
writing certifying that this Lease is unmodified and in full force and effect
and that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the fixed rent and additional rent and to perform its other
covenants under this Lease and that there are no uncured defaults of Landlord
or
Tenant under this Lease (or if there have been any modifications that the same
are in full force and effect
-16-
as
modified and stating the modifications and, if there are any defenses, offsets,
counterclaims, or defaults, setting them forth in reasonable detail), and the
dates to which the fixed rent, additional rent and other charges have been
paid. Any such statement delivered pursuant to this Section 7.9 may be
relied upon by any prospective purchaser or mortgagee of the Premises or any
prospective assignee of any mortgage of the Premises.
ARTICLE
VIII
8.
UTILITIES
8.1.HEATING,
VENTILATING, AIR CONDITIONING:
Subject
to the provisions of Section 3.A.1. of Article III-A of this Lease, Landlord
shall furnish, at Landlord's expense, space heating and cooling as normal
seasonal changes may require to provide reasonable space temperature and
ventilation for occupants of the Premises under normal business operation,
Monday through Friday from 8:00 a.m. to 6:00 p.m. (Saturday 8:00
a.m. to 1:00 p.m.), Sundays and holidays excepted.
8.2.
WATER:
Landlord
will provide, to Tenant, at Landlord's expense, water for drinking, lavatory,
and toilet
purposes, on the Premises.
8.3.
ELECTRICAL
SERVICE:
Landlord
shall not in any manner be liable or responsible to Tenant for any loss or
damage or expense which Tenant may sustain or incur if, during the Lease Term
(or any extension thereof), for the quantity or character of electrical current
or if electric current is no longer available or suitable for Tenant's
requirements due to a factor or cause beyond Landlord's control. Any riser
or risers or other necessary and proper equipment required to supply Tenant's
electrical requirements (in addition to such risers and equipment initially
installed upon construction of the Building or added subsequently thereto and
prior to the Lease Commencement Date), will upon and within a reasonable time
after written request of Tenant, be furnished and installed by Landlord, at
Tenant's expense, if, in Landlord's judgment, the same will not cause permanent
damage or injury to the Building or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations, repairs or expense,
or interfere with or disturb other tenants of Landlord or occupants of the
Building. Any such risers and equipment shall be maintained by Landlord in
good operating condition and repair. Tenant covenants and agrees that its use
-17-
of
electric current shall not exceed the capacity of the existing feeders to the
Building or the risers or wiring installation, provided that Landlord shall
at
all times maintain the feeders, risers and wiring installation serving the
Premises. All costs and expenses incurred by Landlord which are chargeable
to Tenant pursuant to the provisions of this section shall be paid by Tenant
as
additional rent.
8.4.
EXCESS
SERVICES:
Tenant
requiring services in excess of those described above shall request same through
Landlord and, if Landlord determines to provide same, they shall be at Tenant's
expense.
ARTICLE
IX
9.
BROKERS:
Landlord
and Tenant each represent to the other that he and it have not dealt with a
broker or finder in connection with the transaction which is the subject of
this
Lease.
ARTICLE
X
10.
OPTION
TO EXTEND:
(a)
Landlord hereby grants to Tenant:
(i)
the
option to extend the Lease Term for five (5) years, commencing December 1,
2016
and expiring on November 30, 2021 (the “First Extended Term”); and
(ii)
the
option to extend the Lease Term for five (5) years, commencing December 1,
2021
and expiring on November 30, 2026 (the “Second Extended Term”), provided the
option to extend the Lease Term for the First Extended Term shall have been
exercised.
(b)
the
options to extend the Lease Term granted in Section 10.(a) shall be exercisable
and properly exercised by Tenant only if:
(i)
there
shall be no uncured default in any of Tenant’s obligations under and pursuant to
this Lease when the relevant option is exercised (and none thereafter occurs
prior to the commencement of the relevant extended term); and
(ii)
the
said option shall be deemed properly exercised if Tenant shall have given
Landlord notice of its intention to exercise its said option at least two
hundred and seventy (270) days prior to the expiration of the Lease Term or
the
First Extended Term, as the case may be.
-18-
10.1.
If
an option is exercisable and properly exercised, all of the terms and conditions
of this Lease shall continue in full force and effect except that fixed rent
shall be as set forth on Schedule
10.1
annexed
hereto.
ARTICLE
XI
11.
SUBORDINATION
AND NON-DISTURBANCE; NOTICE OF DEFAULT BY LANDLORD
WITH RESPECT TO EXISTING MORTGAGE:
11.1
FUTURE
MORTGAGES/DEEDS OF TRUST.
This
Lease shall be subject and subordinate to the lien of any mortgage and/or deed
of trust which Landlord may hereafter place upon the Premises provided that:
(a)
if there are no uncured defaults hereunder on the part of Tenant, the right
of
possession of Tenant to the Premises and Tenant’s rights arising out of this
Lease shall not be affected or disturbed by the mortgagee, trustee or
beneficiary under the mortgage and/or deed of trust in the exercise of any
of
its rights under the mortgage, deed of trust or the promissory notes secured
thereby; (b) if there are no uncured defaults hereunder on the part of Tenant,
Tenant shall not be named as a party defendant to any foreclosure or other
proceeding under the mortgage or deed of trust nor in any other way be deprived
of its rights under this Lease, nor shall this Lease be terminated or affected
by any foreclosure or sale or any proceeding under any mortgage or deed of
trust; and (c) the mortgagee, trustee and/or beneficiary shall execute and
deliver to Tenant an Agreement of Attornment and Non-Disturbance in substantial
conformance with the form attached hereto as Exhibit
“C”
prior to
the execution of the mortgage or deed of trust. Landlord agrees that in the
event of any foreclosure of any mortgage or deed of trust affecting the
Premises, Tenant shall have the right to withhold the payment of any rent due
hereunder and pay the same directly to the mortgagee or trustee in satisfaction
of its obligations to pay rent to the Landlord hereunder. Within fifteen (15)
days after request from Landlord, Tenant shall execute any and all instruments
requested by Landlord which are necessary or proper to effect the subordination
of this Lease to any mortgage, deed of trust or other encumbrance, but only
if
Tenant, by the same instrument or otherwise, shall have received from the
mortgagor or trustee of such mortgage or deed of trust, the executed attornment
and non-disturbance agreements hereinabove described.
11.2
PRESENTLY
EXISTING MORTGAGES/DEEDS OF TRUST.
-19-
Landlord
may, at any time, provide Tenant with Agreements of Attornment and
Non-Disturbance in forms which are in substantial conformance with the form
attached hereto as Exhibit
“C”
executed
or to be executed by all entities or parties presently holding mortgages, deeds
of trust or other liens upon the Premises, and Tenant shall promptly execute
same and return them to Landlord.
11.3
NOTICE
TO TENANT OF LANDLORD’S DEFAULT UNDER MORTGAGE,
ETC.
If
Landlord receives any notice that Landlord is in default with respect to any
of
Landlord’s obligations under and pursuant to any mortgage encumbering the
Building and/or the Lot (a “Default Notice”), Landlord shall, within five (5)
days of the receipt by Landlord of any Default Notice, send a copy thereof
to
Tenant, and, to the extent permitted by the mortgagee sending the Default
Notice, Tenant may, but shall not be obligated to, cure any default which is
the
subject of a Default Notice. If and to the extent Tenant expends any sums in
connection with curing any such default (including the reasonable fees of its
counsel), Landlord shall reimburse Tenant therefor within five (5) days of
Tenant’s written request for reimbursement. If Landlord shall not make
reimbursement, as aforesaid, Tenant may withhold rental payments due to Landlord
to the extent of and until the amount due to Tenant on account of such
reimbursement shall have been fully reimbursed to Tenant.
Executed
as a sealed instrument as of the day and year first above written.
|
LANDLORD
|
||
|
/s/
Xxxxx Xxxxxxxxx
|
/s/
J. Xxxxxx Xxxxx
|
|
|
Witness
|
J. Xxxxxx
Xxxxx
|
|
|
|
TENANT
|
|
|
|
COMMONWEALTH
NATIONAL BANK
|
|
|
/s/
Xxxxxxxxx Xxxxxxx
|
By:
/s/
Xxxxxxx X. Xxxxxx
|
|
|
Witness
|
Xxxxxxx
X. Xxxxxx, President
|
|
|
and
Chief Executive Officer
|
-20-
SCHEDULE
10.1
FIXED
RENT DURING EXTENDED TERMS
A.
FIRST
EXTENDED TERM
|
Lease
Year
|
Period
|
Annual
Rent
|
Payable
monthly in
advance
on the
first
day of each month
|
|
16
|
12/1/16
to 11/30/17
|
$213,747.46
|
$17,812.28
|
|
17
|
12/1/17
to 11/30/18
|
$213,747.46
|
$17,812.28
|
|
18
|
12/1/18
to 11/30/19
|
$213,747.46
|
$17,812.28
|
|
19
|
12/1/19
to 11/30/20
|
$223,237.84
|
$18,603.15
|
|
20
|
12/1/20
to 11/30/21
|
$223,237.84
|
$18,603.15
|
B.
SECOND
EXTENDED TERM
|
Lease
Year
|
Period
|
Annual
Rent
|
Payable
monthly in
advance
on the
first
day of each month
|
|
21
|
12/1/21
to 11/30/22
|
$223,237.84
|
$18,603.15
|
|
22
|
12/1/22
to 11/30/23
|
$238,864.48
|
$19,905.37
|
|
23
|
12/1/23
to 11/30/24
|
$238,864.48
|
$19,905.37
|
|
24
|
12/1/24
to 11/30/25
|
$238,864.48
|
$19,905.37
|
|
25
|
12/1/25
to 11/30/26
|
$244,430.02
|
$20,369.16
|
