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EXHIBIT 10.8
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into this 3rd day of January,1995,
by and between CENTURY NATIONAL BANK, hereinafter referred to as "Tenant," and
PENNSYLVANIA BUILDING ASSOCIATES, a District of Columbia limited partnership,
hereinafter referred to as "Landlord."
WITNESSETH:
That for and in consideration of the rents herein reserved and to be paid
by the Tenant to the Landlord and of the covenants and agreements herein set
forth to be kept, performed and observed by the respective parties hereto, the
Landlord does hereby rent, demise and lease to the Tenant and the Tenant does
hereby take, lease and hire from the Landlord, upon the terms and conditions
hereinafter set forth, the following described premises situated in the
District of Columbia, namely:
Approximately 2,750 square feet of area in the "as is" condition located in
the building (the "building") having a street address of 0000 Xxxxxxxxxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X., more fully described in Exhibit "A" attached
hereto and made a part hereof, the premises demised hereunder being hereinafter
referred to as the "demised premises."
1. Premises and Term.
(A) Landlord does hereby grant, demise and lease unto Tenant, and
Tenant hereby accepts and leases form Landlord, for the term as hereinbelow
provided, and at the rental and upon the terms and conditions hereinafter set
forth, the demised premises.
(B) The term of this Lease shall be for a period of ten (10) years,
commencing on October 1, 1994 (the "effective commencement date"), and expiring
on the last day of the 120th consecutive full month following the effective
commencement date (September 30, 2004), or until such term shall sooner cease
and expire as hereinafter provided. Landlord and Tenant acknowledge the
effective commencement date, under the terms of this Agreement.
2. Possession of Premises.
Tenant has inspected and shall accept from Landlord possession of the
demised premises in "as is" condition, without the requirement of necessity of
Landlord to perform or provide any labor or material of any type, kind or
description.
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3. Rental.
(A) Rent. (i) Tenant's obligations to pay rent of any kind as
may be specified in this Lease shall begin on the effective commencement date.
Tenant hereby covenants and agrees to pay to Landlord for the demised premises
as basic annual rent (subject to adjustments and increases as below provided)
during the respective portions of the lease term as designated herein below the
following sums:
Period Basic Annual Monthly
Rent Installment
(BAR)
10/1/94 - 9/30/94 $68,750.00 $5,729.17
10/1/95 - 9/30/96 $68,750.00 $5,729.17
10/1/96 - 9/30/97 $68,750.00 $5,729.17
10/1/97 - 9/30/98 $68,750.00 $5,729.17
10/1/98 - 9/30/99 $68,750.00 $5,729.17
10/1/99 - 9/30/00 $77,000.00 $6,416.17
10/1/00 - 9/30/01 $77,000.00 $6,416.17
10/1/01 - 9/30/02 $77,000.00 $6,416.17
10/1/02 - 9/30/03 $77,000.00 $6,416.17
10/1/03 - 9/30/04 $77,000.00 $6,416.17
Provided Tenant is not in default of the Lease, Landlord shall xxxxx
fifty percent (50%) of the monthly installment of Basic Annual Rent for the
period of October 1, 1994, through September 30, 1995. In the event Tenant
defaults the Lease, Landlord shall have the right to recover all abated rent,
together with other remedies pursuant to the Lease. Landlord shall credit
Tenant's rent to reflect overpayment of rent for the period of September 17,
1994 through September 30, 1994 in the amount of $2,287.33.
(ii) In addition to monthly installments of Basic Annual Rent
pursuant to Provisions of Paragraph (A)(i), herein, Tenant shall pay
Supplemental Quarterly Rent (determined by the Excess Deposit Percentage as
defined in paragraph 3(B)(v)), herein during the respective portions of the
Lease term as designated herein below for the following sums:
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Quarter Benchmark Maximum
Ending Deposits Supplemental
Quarterly Rent
(BD) (MSQR)
Dec 31, 1994 $ 8,000,000 $ 5,000
Mar 31, 1995 $ 9,000,000 $ 5,000
June 30, 1995 $10,000,000 $ 5,000
Sept 30, 1995 $11,000,000 $ 5,000
Dec 31, 1995 $12,000,000 $ 6,000
Mar 31, 1996 $13,000,000 $ 6,000
June 30, 1996 $14,000,000 $ 6,000
Sept 30, 1996 $15,000,000 $ 6,000
Dec 31, 1996 $16,000,000 $ 7,000
Mar 31, 1997 $17,000,000 $ 7,000
June 30, 1997 $18,000,000 $ 7,000
Sept 30, 1997 $19,000,000 $ 7,000
Dec 31, 1997 $20,000,000 $ 8,000
Mar 31, 1998 $21,000,000 $ 8,000
June 30, 1998 $22,000,000 $ 8,000
Sept 30, 1998 $23,000,000 $ 8,000
Dec 31, 1998 $24,000,000 $ 9,000
Mar 31, 1999 $25,000,000 $ 9,000
June 30, 1999 $26,000,000 $ 9,000
Sept 30, 1999 $27,000,000 $ 9,000
Dec 31, 1999 $28,000,000 $ 8,000
Mar 31, 2000 $29,000,000 $ 8,000
June 30, 2000 $30,000,000 $ 8,000
Sept 30, 2000 $31,000,000 $ 8,000
Dec 31, 2000 $32,000,000 $ 9,000
Mar 31, 2001 $33,000,000 $ 9,000
June 30, 2001 $34,000,000 $ 9,000
Sept 30, 2001 $35,000,000 $ 9,000
Dec 31, 2001 $36,000,000 $10,000
Mar 31, 2002 $37,000,000 $10,000
June 30 2002 $38,000,000 $10,000
Sept 30, 2002 $39,000,000 $10,000
Dec 31, 2002 $40,000,000 $11,000
Mar 31, 2003 $41,000,000 $11,000
June 30, 2003 $42,000,000 $11,000
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Sept 30, 2003 $43,000,000 $11,000
Dec 31, 2003 $44,000,000 $12,000
Mar 31, 2004 $45,000,000 $12,000
June 30, 2004 $46,000,000 $12,000
Sept 30, 2004 $47,000,000 $12,000
(iii) Notwithstanding the provisions in Paragraph 3(A)(i) and (ii),
in the event the Average Branch deposits are $35,000,000.00 or higher for more
than four (4) consecutive quarters, monthly installments of the Basic Annual
Rent shall be adjusted to $7,333.33 (based upon $32.00 per square foot) and
shall continue through the term of the Lease, provided the Average Branch
Deposits do not at any time decrease below $35,000,000 for more than two (2)
consecutive quarters and the Maximum Supplemental Quarterly Rent due the
Landlord pursuant to Paragraph (A)(ii) shall be adjusted to credit difference
between the specified Basic Annual Rent per Paragraph (A)(i) and the increased
Basic Annual Rent herewith.
(iv) The following examples of rent calculation based upon
provisions of Paragraph (A)(i),(ii) and (iii) are for clarification only:
Example 1: First fifteen months:
a. December 31, 1994, Average Branch Deposits (ABD) exceeds $8,000,000.00
by 25%, Tenant obligated to pay: $22,187.51
($5,729.17 (Basic Rent per month) x 3 mos + $5,000
Maximum Supplemental quarterly Rent (MSQR)
b. March 31, 1995, ABD exceeds $9,000,000.00 by 25%.
Tenant obligated to pay:
$22,187.51 ($5,729.17 x 3 + $5,000)
c. June 30, 1995, ABD exceeds $10,000,000.00 by 10%.
Tenant obligated to pay:
$19,187.51 (($5,729.17 x 3) + .40 x $5,000)
d. September 30, 1995, ABD exceeds $10,000,000.00 but does not exceed
$11,000,000.00. Tenant obligated to pay:
$17,187.51 ($5,729.17 x 3)
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e. December 31, 1995, ABD exceeds $12,000,000.00 by 25%
Tenant obligated to pay:
$23,187.51 ($5,729.17 x 3 + $6,000)
Example 2: In the event provisions of (iii) occur, the following will be
the rent calculation:
a. June 30, 1999, ABD continues to exceed $35,000,000 which means ABD
also exceeds BD of $26,000,000 by more than
25%. Tenant obligated to pay:
$26,187.49 ($7,333.33 x 3 + ($9,000 - 4,812.50))
The $4,812.50 is the product of 2,750 sf x $7.00 psf (difference between
$25.00 psf and $32.00 psf) on a quarterly
basis, which is credited against the $9,000 MSQR which would otherwise be
due.
b. September 30, 2000, ABD continues to exceed $35,000,000.00 and exceeds
$31,000,000 by 25%. Tenant obligated to
pay:
$27,250.00 ($7,333.33 x 3 + ($8,000 - $2,750))
The $2,750 is the product of 2,750 sf x $4.00 psf (difference between
$28.00 psf and $32.00 psf) on a quarterly
basis, which is credited against the $8,000.00 MSQR which would otherwise
be due.
c. March 31, 2001, ABD is $38,000,000 which exceeds BD of $33,000,000 by
15%, which means the Supplemental Rent
Percentage is 60%, and the Supplemental Quarterly Rent is $5,400.00 (60% of
$9,000 MSQR). Tenant obligated to pay:
$24,649.99 ($7,333.33 x 3 + ($5,400 - 2,750))
d. March 31, 2002, ABD is $36,500,000.00. Tenant obligated to pay:
$21,999.99 ($7,333.33 x 3)
In the event the effective commencement date shall occur on a date other
than the first day of a calendar month, basic monthly rent for such partial
calendar month shall be pro-rated using a thirty (30) day month and such
pro-rated sum shall be due and payable to Landlord no later than the expiration
of five (5) days following the effective commencement date.
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(B) Definitions.
(i) "Lease Year" means each period of twelve (12) consecutive
months, commencing on the 1st day of October and ending on the last day of the
following September with the first such lease year to commence October 1, 1994.
(ii) "Average Branch Deposits" means, for a calendar quarter,
the mathematical average of Total Branch Deposits as of the lst day of the
month for each of the three months of the quarter. (for example, Average
Branch Deposits for the second quarter would be calculated by adding the Total
Branch Deposits as of April 30, May 31, and June 30, then dividing the sum by
three).
(iii) "Total Branch Deposits" means, as of a given date, the sum
of all the balances in Deposit Accounts which were either opened by the Tenant
at the demised premises or acquired by the Tenant pursuant to the Tenant's
Agreement with the Resolution Trust Corporation dated September 16, 1994.
(iv) "Deposit Accounts" means deposit liabilities of the Tenant
to its customers in all types of accounts (demand, NOW, money market, savings,
certificates of deposit, etc.) included within the definition of "Total
Deposits" for regulatory reporting purposes.
(v) "Excess Deposit Percentage" means, for a calendar quarter,
the quotient obtained by first subtracting Benchmark Deposits (as set forth in
the second column of Paragraph 3(A)(ii) herein) from Average Branch Deposits,
then dividing the result by Benchmark Deposits; provided, however, that if the
Excess Deposit Percentage is computed to be less than zero, it is defined as
zero, and if it is computed to be greater than 25%, it is defined as 25%.
(vi) "Supplemental Rent Percentage" means, for a calendar
quarter, the result obtained by multiplying the Excess Deposit Percentage by
four.
(vii) "Supplemental Quarterly Rent" means, for a calendar
quarter, the result obtained by multiplying the Supplemental Rent Percentage by
the Maximum Supplemental Rent, as set forth in the third column of Paragraph
3(A)(ii) herein. The Tenant will pay the Quarterly Supplemental Rent due for
each calendar quarter, if any, within thirty (30) days after the end of the
quarter.
(C) No Set Off or Waiver. Tenant will pay all monthly installments of
basic annual rent in advance without demand, deduction or set off, by check to
Landlord c/o Willco construction Co., Inc., 0000 Xxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxx 00000, or to such other party or to such other address as Landlord may
designate from time to time by written notice to Tenant, on
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or before the first day of each month during the term hereof, with the first
such installment of basic monthly rent to be paid to Landlord upon the
execution hereof by Tenant. If Landlord shall at any time or times accept said
rent after it shall become due and payable, such acceptance shall not excuse
delay upon subsequent occasions, or constitute a waiver of any or all of
Landlord's rights hereunder. If Tenant shall present to Landlord more than two
times during the term hereof any checks or drafts for payment of rent and/or
additional rent hereunder not honored by the institution upon which such checks
or drafts are issued, then Landlord, at its option, may require that all future
payments of rent and additional rentals and other sums thereafter payable by
Tenant be made by certified or cashier's check (in addition to and not in
limitation of any other remedies available to Landlord under this Lease).
(D) Late Charges. In the event that Tenant pays Landlord any
installment of basic monthly rental after the tenth (10th) day from the due
date, or any additional rent more than ten (10) days after billing therefor,
then and in such event Tenant shall pay to Landlord, together with and in
addition to said installment of rental or payment of additional rent, a late
charge of five percent (5%) of said installment of rental or additional rent
past due. Further, in the event that Tenant pays Landlord any installment of
rental after the expiration of twenty (20) days for which such installment is
due, or any installment of additional rent after twenty (20) days form billing
therefor by Landlord, then and in such event Tenant shall pay to Landlord
together with and in addition to said installment of rental or payment of
additional rent an additional late charge of five percent (5%) of said
installment past due. Any installments of basic monthly rent or payments of
adjustment rent not made within thirty (30) days from the date due shall, in
addition to the foregoing late charges, bear interest from the date due at the
rate of eighteen percent (18%) per annum.
(E) Additional Rent - Taxes. Tenant further covenants and agrees to
pay as additional rental during the term hereof, including any extensions or
renewal terms thereof its proportionate share (calculated to be 1.27%) of the
annual Taxes which may be levied, assessed or imposed against the land and
building comprising Xxx 00 xx Xxxxxx 000 xx xxx Xxxxxxxx xx Xxxxxxxx (said lot
including the building or any part thereof). For purposes hereof, the Tenant's
proportionate share shall mean that percentage found by dividing the Rentable
Area (2,750 square feet) by the total rentable square foot area of all
commercial and office space contained within the building (216,454 square
feet). In no event shall any garage space or storage space be considered to
constitute either commercial or office space for purposes of making the
foregoing determination. For purposes hereof, "Taxes" shall mean all taxes,
rates and assessments, general and special and including also any increases in
tax rate and/or in assessed valuation, which are now or at any time(s)
hereafter levied, assessed or imposed with respect to the building and all land
related or appurtenant thereto, and/or upon Landlord's leasehold interest (if
applicable) in the said land, and including also without limitation real estate
taxes, personal property taxes applicable to the personality in the building
owned by Landlord and used or usable in connection with the operation of the
building an/or land appurtenant thereto, vault rental, and assessments of any
and every kind and nature whatsoever, and
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shall also mean and include any and all unincorporated and other business
license and/or franchise taxes (except any such taxes calculated at Landlord's
net income), and any taxes, assessments or other levies which may at any time
be imposed and/or collected by any federal, state, county, municipal,
quasi-governmental or corporate entity in respect of bus, subway or other
public transportation facilities operating in the metropolitan area of the
District of Columbia, and including also any tax assessment or other charges in
the nature of a sales, use or other tax upon the Landlord, the demised
premises, the building, the land and/or the rents payable hereunder (except
income taxes, estate or inheritance taxes of the Landlord). If the system of
real estate taxation shall be altered or varied and any new tax or levy shall
be levied or imposed on the building and/or land and/or Landlord, in addition
to or in substitution for real estate taxes and/or personal property taxes
presently levied or imposed on immovables in the District of Columbia, and
including also without limitation any taxes on rents, then any such new tax or
levy shall be in included within the term "Taxes." If any such tax is levied
or assessed in such a manner that the amount thereof required to be paid by
Tenant hereunder in respect of the Tenant's proportionate share of the
aforesaid Taxes is not ascertainable because such tax relates to more than the
demised premises or to more than the rent payable hereunder, then the
proportionate share of said items to be paid by Tenant forming a part of the
Taxes aforesaid shall be determined by Landlord in the Landlord's reasonable
discretion. If any governmental authorities require that a tax, other than the
taxes above mentioned, be paid by Tenant, but collected by Landlord for and on
behalf of said governmental authorities, and from time to time forwarded by the
Landlord to said governmental authorities, the same shall be timely paid by
Tenant to Landlord, and such payment may be enforced by Landlord in the same
way and manner as provided for the enforcement of the payment of the basic
monthly rental and additional rent hereunder, and for the purpose of enforcing
such payment the same shall be deemed additional rent under this Lease. It
shall be the primary responsibility of Tenant to pay all taxes assessed or
imposed during the term of this Lease upon or against Tenant, or against
Tenant's income or interest in this Lease, or against personal property of any
kind owned by or in placed in, upon or about the demised premises by the
Tenant, including any penalty or interest assessed thereon in the event of late
payment. In the event that the taxing authority includes or calculates in the
over-all taxes the value of improvements or betterments made or installed by
the Tenant in the demised premises, or machinery, equipment, fixtures, or other
assets of the Tenant, then Tenant shall be responsible and liable for all taxes
to the extent applicable to such items. Tenant shall deliver to Landlord a
copy of all paid tax bills for taxes paid by Tenant within fifteen (15) days
after payment or upon request of Landlord. Copies of real estate tax bills
received by Landlord and sent to Tenant shall be deemed conclusive evidence as
of the amount of all such taxes as well as the items so taxed. All amounts
billed to Tenant by Landlord as additional rent pursuant to this paragraph
shall be due and payable within ten (10) days after billing.
(F) Additional Rent - Operating Expenses. Tenant further covenants
and agrees to pay as additional rental during the term hereof its aforesaid
proportionate share (28.80%) of any of the Operating Expenses which shall be
incurred by Landlord in connection with the
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ownership, management, servicing, repair, maintenance and/or operation of the
building, to the extent same are allocated by Landlord to the commercial space
contained within the building. Tenant's proportionate share for Operating
Expense purposes shall mean that percentage found by dividing the square foot
rentable area contained within the Premises (2,750 square feet), by the total
rentable square foot area of all commercial space contained within the building
(9,550 square feet). In no event shall any garage space or storage space be
considered to constitute commercial space for purposes of making the foregoing
determination. Such Operating Expenses shall include without limitation (to
the extent same are applicable to the commercial space) utilities for common
areas, management fees (not including brokerage fees) incurred for the
building, insurance for the building char and cleaning of common areas, water
and sewer charges, trash removal, maintenance and repair of building systems
and its structure, and all other expenses incurred by Landlord which would be
included in operating expenses in accordance with generally accepted management
practices and/or accounting principles in the Washington, D.C. metropolitan
area. Notwithstanding the foregoing, Operating Expenses shall not include any
expenses for solely the office areas of the building; capital improvements;
interest and principal amortization on mortgages; depreciation of the building;
Taxes (as defined hereinabove); and expenses reimbursed to Landlord by any
tenant within the building or by insurance; char and cleaning services provided
to any tenant or occupant of the building within their respective premises; any
income or franchise taxes assessed against the net income of Landlord from the
operation of the building; any expenses for repairs, restoration or other work
necessitated by fire or other casualty; or any leasing or brokerage commissions
or fees. To the best of its knowledge and belief, Landlord represents that the
operating expense amounts for prior years that have been disclosed in writing
to the Tenant are true and accurate.
(G) Payment of Additional Rent. All amounts billed to Tenant by
Landlord as additional rent pursuant to subparagraph 3(D) or 3(E) above, shall
be due and payable within ten (10) days after billing. Landlord shall be
entitled to estimate from time to time during the term hereof the liability of
Tenant hereunder for such additional rent, and in such event Tenant shall pay
concurrently with each installment of basic monthly rent due hereunder one-
twelfth (1/12th) of the amount so estimated by Landlord. Within forty-five
(45) days following the expiration of any fiscal year of the Landlord in which
Tenant paid monthly estimates, Landlord shall render to Tenant a computation
showing Tenant's liability under this paragraph for such fiscal year. In the
event the foregoing computation reveals that the estimated payments paid by
Tenant during the preceding fiscal year were less than the amount of Tenant's
liability hereunder, Tenant shall within ten (10) days pay any amounts due. In
the event the computation shall disclose that Tenant paid more than its
liability hereunder, Tenant shall receive credit therefor against the next
installment of basic monthly rent then due, provided that if the term hereof
shall have expired, Tenant shall in such event receive a refund for the excess
amount paid by Tenant. Notwithstanding the foregoing, Tenant's proportionate
share of Operating Expenses, as defined in Paragraph (F) herein (excluding
insurance and utilities for common area) shall not exceed an increase for each
calendar year of seven percent (7%) above the like Operating Expenses for the
calendar year immediately preceding.
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(H) Net Lease. Except as otherwise provided in Paragraph 5 with
respect to the maintenance of the structural portions of the building, the
Landlord shall not be required to pay any charges, or provide any services or
do any act in connection with the demised premises, including, but not limited
to furnishing heat, air conditioning, ventilation, or electricity; and Landlord
shall not be liable or accountable to the Tenant for any failure of water
supply or electric current or of any service by any utility, and the rent
hereunder shall be paid to the Landlord without any claim on the part of Tenant
for discontinuance or abatement. If Landlord shall incur any charge or expense
on behalf of Tenant under the terms of this Lease, such charge or expense shall
be considered as additional rent hereunder, and shall be repaid to Landlord
within ten (10) days after demand therefor. The provisions of this
subparagraph and of subparagraph (C) above shall be in addition to and not in
limitation of any other rights and remedies which Landlord may have and in the
event Tenant shall fail to pay any sums required under this Lease when due,
such non-payment shall entitle Landlord to all remedies available to it under
applicable law.
4. Use of Premises.
(A) Tenant hereby covenants and agrees that the demised premises shall
not be used for any purpose other than for a bank branch whose primary business
is the conduct of financial services, except as may be permitted under
Paragraph 12 below.
It is understood that Tenant shall conduct such business in a first-class
manner consistent with the operations customarily conducted in other
first-class developer-owned office buildings of high quality and image in the
downtown Washington, D.C. area. Tenant hereby covenants and agrees to
continuously conduct during the term hereof such business in good faith, in a
first-class manner, during ordinary commercial banking hours. In no event
shall the demised premises be used for any other purpose whatsoever, except as
may be permitted under Paragraph 12 below, without the prior written consent of
Landlord nor for any disorderly, unlawful or extra hazardous purpose.
(B) Tenant, at its own expense, shall comply with and carry out
promptly, all orders, requirements or conditions imposed by the ordinances,
laws and regulations of the District of Columbia and of all other governmental
authorities having jurisdiction over the demised premises, which are occasioned
by or required in the conduct of Tenant's business in the demised premises.
Tenant will indemnify Landlord and save it harmless of its business in the
demised premises. Tenant shall be responsible for obtaining all licenses,
permits, certificates of occupancy, variances, special exceptions or any other
permission necessary for use of the demised premises as contemplated herein,
and Landlord hereby makes no representation or warranty with regard thereto.
(C) Tenant shall not suffer or permit the demised premises or any
portion thereof to be used by the public without restriction or in such manner
as might reasonably tend to
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impair Landlord's title to the demised premises, or any portion thereof, or in
such manner as might reasonably make possible a claim or claims of adverse
usage or adverse possession by the public, as such, or of implied dedication of
the demised premises or any portion thereof. Tenant hereby expressly
recognizes that in no event shall it be deemed the agent of Landlord under
Title 38-101 of the District of Columbia code (1981 Edition), and no contractor
of Tenant shall by virtue of its contract be entitled to assert any lien
against the building or premises.
5. Operating Costs and Maintenance.
(A) Throughout the term of this Lease, and any renewal terms hereof,
the Tenant shall, at its sole cost and expense, keep the demised premises in
good repair and clean order and condition (and free of all building code
violations), and make all necessary repairs thereto, ordinary and
extraordinary, normal wear and tear from reasonable use excepted, as reasonably
determined by Landlord. The Tenant shall, at its sole cost and expense, keep
and maintain in good condition, repair and order, the plumbing, heating,
ventilating, and air conditioning equipment and systems, electrical wiring,
floor, interior walls, ceilings, plate glass and all interior and exterior
pipes, lines an conduits, to the extent they service the demised premises.
When used in this Paragraph 5 the term "repair" shall include all necessary
replacements, renewals, alterations, additions, betterments and any work
required as a condition to the continued use of the then existing improvements
or any work required by any order of any governmental agency. Provided,
however, that Tenant shall not be required to replace any major component
(i.e., costing in excess of $5,000, adjusted to reflect increases in the
Consumer Price Index elapsing during the Lease term) of the heating,
ventilating and/or air- conditioning equipment or systems servicing the demised
premises during the last Lease year of the term hereof. All repairs made by
Tenant shall be equal in quality and class to the original work, and shall be
performed in a good and workmanlike manner and in accordance with all
applicable governmental requirements.
(B) Landlord agrees to keep in good repair the roof, exterior walls,
and foundation of the building. Tenant shall advise Landlord in writing of the
need for any such repairs promptly. Landlord represents that all common areas
are in good repair and clean order and condition.
(C) From and after the date the Tenant shall obtain access to the
demised premises, and at all other times during the term hereof the Tenant
covenants and agrees to pay for all electric current, gas, telephones and all
other utilities (excepting water and sewer which shall be an Operating Expense
for purposes of Paragraph 3(E)) used or consumed in or on the demised premises,
including all costs to heat and air condition said demised premises. Tenant
shall be required to install at its expense appropriate meters or submeters for
determining Tenant's electricity usage within the premises, and following such
installation, Tenant's electricity usage shall be
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determined by such submeters. If such charges or rentals are not so paid, the
same shall be added to the next monthly installment of rental.
(D) Tenant shall have no authority to incur any debt or to make any
charge against Landlord, or to create any lien upon the demised premises for
any work or materials furnished the same, and if any such lien should be filed
against the demised premises on account of work done to or labor or materials
furnished on the demised premises at Tenant's request (whether or not Tenant
obtained Landlord's approval), Tenant shall have a period of thirty (30) days
from the date notice of such lien is brought to its attention to pay off said
lien and have the same discharged of record, or if Tenant disputes such lien or
the amount thereof, to post with the Court having appropriate jurisdiction
adequate bond required to release said lien of record.
6. Present Condition and Use.
The Tenant accepts the demised premises in its present condition, and
without any representation or warranty by Landlord as to the condition of said
demised premises or as to the use or occupancy which may be made thereof, and
the Landlord shall not be responsible for any latent defect in any structural
component of the demised premises or change of condition in the demised
premises. The rent hereunder shall in no case be withheld or denied on account
of any (i) defect in the demised premises, (ii) change in condition of the
demised premises, (iii) damage occurring within the demised premises, or (iv)
the existence of any defect within the demised premises.
7. Signs and Personal Property.
(A) Tenant agrees that no sign, awning, decal, sticker, graphics,
advertisement or notice shall be inscribed, affixed or displayed on any part of
the demised premises, or the building, with the exception of Tenant's
"permitted sign" and/or Tenant's "permitted decal" (as above defined in
Paragraph 7(B)) or which may in any manner be visible from the exterior of the
premises without Landlord's consent which shall not be unreasonably withheld
provided Tenant's proposed signage complies with applicable governmental
regulations and Pennsylvania Avenue Development Corporation, and is consistent
in quality and appropriateness with other bank branches in first-class office
buildings in the downtown business district of Washington, D.C.
Notwithstanding the foregoing sentence, Tenant's permitted sign, as defined
herein, must be in compliance with the approved design, attached hereto, in
regards to number of signs, size of sign box, height of letters and color of
sign box, background and letters. If any such sign, awning, decal, sticker,
graphics, advertisement or notice is inscribed, affixed or displayed without
Landlord's written consent, then and in such event Landlord shall have the
right to either cause Tenant to remove or to have immediately removed said item
or matter, in addition to any other rights or remedies provided under this
Lease. No cloth, paper, stamp, sticker, decal or other similar signs,
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advertising or other notices, nor any flashing lights or noise-making devices
which may be visible or audible from the exterior of the premises shall be
installed by Tenant. The provisions hereof shall not prohibit normal bank
interior signage not intended to be visible from the exterior of the demised
premises. For purposes of this Lease the term "display windows" shall mean and
refer to all windows which shall be in any manner visible from any portion of
the exterior thereof and shall be of a first-class nature, and shall be
subject to the Landlord's prior written consent. Tenant shall maintain any
items referred to hereinabove which are installed by it and which have been
approved by Landlord, in good repair and clean order and condition at all times
during the term hereof.
(B) Notwithstanding any provisions contained in Paragraph 7(A) to the
contrary, Tenant shall be entitled to install at its own cost and expense a
sign visible from the exterior of the premises containing solely Tenant's name,
which sign shall be of first-class quality and in conformity with the
specifications shown on Exhibit "B." Such sign is referred to herein as the
"permitted sign." In addition, Tenant shall be entitled to affix to the
display windows, any decal required under federal banking laws to be displayed.
Such decals are referred to herein as the "permitted decals."
(C) All personal property of the Tenant in the demised premises shall
be at the sole risk of the Tenant. The Landlord shall not be liable for any
accident or damage to the property of Tenant resulting from use or operation of
any heating, cooling, electrical, or plumbing system or equipment situated at
the demised premises. Landlord shall not, in any event, be liable, for damages
to property resulting form water, steam or other causes. Tenant hereby
expressly releases Landlord from any liability incurred or claimed by reason of
damage to Tenant's property, unless caused by the negligence of the Landlord.
(D) The Tenant covenants and agrees to maintain in good repair, clean
order and condition all the fixtures, equipment, and improvements to be
installed or to be made by Tenant within the demised premises, and will make
all repairs thereto and replacements thereof; and at the expiration or other
termination of this Lease, Tenant will fully account to the Landlord therefor
and surrender same to the Landlord in the same order and condition as when
received, usual and normal wear and tear, damage by fire or other casualty only
excepted. If any of said fixtures, equipment or improvements are destroyed or
so damaged that the same cannot be properly repaired, the Tenant shall, at its
own expense, replace the same with property of at least equal quality and
value. Notwithstanding the foregoing, provided Tenant shall not be in default
hereunder at the expiration of the basic term, Tenant shall be entitled to
remove all of its movable trade fixtures, equipment and furnishings not affixed
to the demised premises. Any damage caused by removal of same to the building,
including the demised premises, shall be promptly repaired at the cost and
expense of Tenant.
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8. Alterations.
Tenant shall not make any exterior or structural alterations,
installations, changes, replacements, additions or improvements in or to the
demised premises or any part thereof, except as required under Paragraph 5(A).
All other alternations, installations, changes, replacements, additions or
improvements in or to the demised premises or any part thereof, which are not
structural or exterior, may be made by Tenant, provided Landlord has first
expressly consented to same in writing. The consent of Landlord under this
paragraph may be granted, withheld or conditioned upon such terms as Landlord
may in its sole discretion determine appropriate. Tenant agrees to provide
Landlord with the name of any proposed contractor of Tenant, certificates of
liability insurance maintained by such contractor in amount reasonably
acceptable to Landlord and copies of all plans for such improvements at the
time request for Landlord's approval is made by Tenant. Upon approval by
Landlord of same, Tenant shall provide Landlord with a copy of all requisite
permits from District of Columbia prior to commencement of any such work. It
is distinctly understood that all structural alterations, installations,
changes, replacements, additions to or improvements, upon the demised premises
(whether with or without the Landlord's consent) made subsequent to the initial
leasehold improvements shall the election of the Landlord remain upon the
demised premises and be surrendered with the demised premises at the expiration
of this Lease without disturbance, molestation or injury. The foregoing shall
not apply with respect to Tenant's equipment, fixtures and non-structural
alterations, installations, changes, replacements, additions or improvements
to the demised premises without Landlord's prior written consent, provided that
no such work shall affect any of the mechanical, electrical or other systems
servicing the building, but Tenant shall provide Landlord with plans or working
drawings prior to the commencement of any non-structural alterations,
installations, changes, replacements, additions or improvements to the demised
premises costing in excess of Five Thousand Dollars ($5,000.00). All of
Tenant's aforesaid alterations, installations, changes, replacements, additions
or improvements shall be performed in a good and workmanlike manner and in
compliance with all applicable laws, codes, rules and ordinances. (However,
Landlord at its option and discretion may require the Tenant, at Tenant's
expense, to remove at the expiration or any termination of this Lease any or
all alterations to the demised premises made by Tenant, unless at the time that
Tenant shall have obtained Landlord's consent thereto, Landlord shall have
agreed in writing to waive its rights under the preceding provisions for the
removal of same.) Further, Landlord may at its option and discretion require
Tenant, at Tenant's expense, to repair any damage to the demised premises
caused by either the removal of the aforesaid alterations, or the removal of
any of Tenant's equipment or fixtures that are removable, and Tenant will
promptly comply with such directions. In addition to all legal, equitable and
other rights and remedies available to Landlord, it is greed that if Tenant
does not comply with its obligations under this paragraph or any other
provision or provisions of this lease, the Landlord shall have the right (but
not the obligation) to perform or cause to be performed Tenant's obligations,
duties and covenants, under this paragraph or any other provisions of this
Lease in which event Tenant shall reimburse to Landlord within ten (10) days
after demand all costs
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incurred by Landlord as a result thereof. It is understood that all
alternations, signs or other modifications proposed by Tenant shall be subject
to requisite governmental approvals.
9. Rules and Regulations.
The Tenant recognizes that, since the demised premises is situated in
a building containing premises which will be occupied by others, it is
imperative in the interests of the Landlord and of the other tenants and
occupants of the building that extreme care be exercised by the Tenant in
operating its business in said premises in a manner that will not detract from
the high standards of the building, or that will be objectionable to such other
tenants and occupants. Accordingly, the Tenant covenants and agrees to utilize
reasonable efforts to enforce and comply with the following rules and standards
throughout the term hereof. Landlord covenants and agrees to utilize
commercially reasonable measures to enforce all rules and regulations uniformly
on all commercial tenants.
(A) Garbage and trash shall not be permitted to accumulate in or about the
demised premises but shall be disposed of at least once during each day that
Tenant shall be open for business. No trash may be removed from the store
premises between the hours of 7:00 A.M. and 7:00 P.M. Proper and adequate
receptacles for collection of garbage and trash shall be maintained by Tenant
so that offensive odors shall not be permitted to exude therefrom at any time.
In no vent shall any trash be stored by Tenant in any area which would be
visible form the interior or exterior of the premises. Such garbage and trash
shall be placed in odor-free receptacles located in areas designated therefor
by the Landlord, and in no event shall any garbage or trash be stored in any
other portion of the building.
(B) Adequate exterminating service shall be employed and maintained at all
times by the Tenant, so that the demised premises shall at all times be
protected against and free of rodents, insects, pests and vermin, consistent
with the highest and best extermination services available in the greater
Washington, D.C. area.
(C) The Tenant shall provide, at its own cost and expense, adequate
janitorial and cleaning service so that the demised premises, shall at all
times be kept clean and orderly, recognizing the Landlord's desire to maintain
the first- class image of the building. Exterior surfaces of all windows shall
be cleaned daily by Tenant.
(D) Tenant will not cause or permit objectionable odors to emanate or be
dispelled from the demised premises.
(E) Tenant will not place or maintain any merchandise, equipment or
machinery or other articles in any vestibule or entry of the premises, on the
footwalks adjacent thereto or
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elsewhere on the exterior thereof, or any public corridors, lobby areas, halls
or stairwells or sidewalks adjacent thereto.
(F) Tenant shall not maintain or operate nor permit to be maintained or
operated in the demised premises or any portion thereof, any music machines or
other instruments emitting noises that are objectionable to other occupants or
tenants of the building.
(G) Tenant shall not install any automatic teller machines or other
equipment or machinery on the exterior of the building.
(H) Landlord reserves the right to promulgate additional reasonable rules
and regulations, from time to time, for the maintenance of standards of the
building in which the premises is situated, and which the Landlord reasonably
deems to be in the best interests of the building; and the Tenant expressly
covenants agrees to perform, observe and abide by such rules and regulations,
it being agreed that this Lease is granted to the Tenant in reliance on
Tenant's covenant to comply with the provisions hereof.
(I) Tenant shall, at its own cost, make all repairs required for the
interior of the demised premises promptly upon the occurrence of the necessity
therefor and will maintain said premises at a high standard of cleanliness (to
the satisfaction of Landlord) at Tenant's own expense. In no event shall
Landlord be required to provide any char or cleaning services for Tenant; it
being agreed that Tenant shall provide such services at its own expense daily
and in a proper and adequate manner. All elements of Tenant's interior design
shall be professionally designed and shall at all times during the term remain
subject to Landlord's prior written approval. Landlord reserves the right to
correct any non-conformity of Tenant throughout the term.
(J) The Landlord shall have the right at all times during the term hereof
to prescribe the manner in which Tenant shall comply with the provisions of
this Article 9. If, in the opinion of the Landlord, the Tenant does not
maintain said premises to the satisfaction of the Landlord, the Tenant shall
correct the fault complained of by the Landlord promptly after receipt of
notice from the Landlord.
10. Insurance.
(A) The Landlord assumes no liability or responsibility whatsoever
with respect to the conduct and operation of the business to be conducted
within the demised premises. The Landlord shall not be liable for any accident
or injury to any person or persons or property in or about the demised premises
which are caused by the conduct and operation of said business, or by virtue of
equipment or property of the Tenant in the demised premises. The Tenant agrees
to hold the Landlord harmless against all such claims. Furthermore, Tenant
shall and hereby does defend,
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indemnify and save harmless Landlord and Landlord's agents and employees
(collectively, "Indemnitees") from and against all liability (statutory or
otherwise), claims, suits, causes of action, demands, judgments, costs,
interest and expenses (including also reasonable counsel fees and disbursements
incurred in the defense thereof) to which any Indemnitees may (except insofar
as it arises out of the fault or neglect of such Indemnitees) be subject or
suffered, whether by reason of any claim for, any injury to, or death of, any
person or persons or damage to or loss of property (including also any loss of
use thereof) or otherwise, and arising from or in connection with the use by
Tenant of, or from any work or anything whatsoever done by Tenant (or any of
its officers, directors, agents, contractors, employees, licensees or while
within the premises, invitees) in any part of the demised premises (other than
by Landlord or its agents or contractors) during the term of this Lease, or
arising from any condition of the demised premises due to or resulting from any
default by Tenant in the keeping, observance or performance of any covenant or
agreement contained in this Lease or from any fault or neglect of Tenant or any
of its officers, directors, agents, contractors, employees, licensees or while
within the premises, invitees.
(B) In order to assure the indemnity referred to in Paragraph 10(A)
hereinabove, Tenant shall carry and keep in full force and effect at all times
during the terms of this Lease, for the protection of Landlord and Tenant and
naming both Landlord and Tenant as parties insured, public liability insurance
with limits for bodily injury or death of at least ONE MILLION DOLLARS
($1,000,000.00) for any one person and at least THREE MILLION DOLLARS
($3,000,000.00) for any one accident, and at least TWO HUNDRED FIFTY THOUSAND
DOLLARS ($250,000.00) for property damage. Landlord shall be entitled to
increase the aforesaid minimum amounts during the term hereof (but not more
than once in any lease year) to commercially reasonable amounts of coverage.
(C) Tenant shall carry fire and extended coverage insurance on all of
Tenant's furniture, equipment, decor and furnishings (collectively, the
"Furnishings") in an amount not less than eighty percent (80%) of the full
insurable replacement cost at all times. Tenant shall carry statutory
xxxxxxx'x compensation insurance covering its employees in, on and about the
premises, and plate glass insurance. In the event of any loss or damage to any
of the Tenant Furnishings or Tenant's plate glass, by fire or other casualty
for which Tenant is required to carry insurance, the proceeds of such insurance
shall be payable to Landlord and Tenant jointly, which proceeds shall be used
by Tenant towards the cost of replacing or repairing and property so damaged,
and Landlord agrees to release said insurance proceeds for that purpose.
(D) All insurance policies required to be obtained by Tenant shall be
issued by recognized and responsible insurance companies qualified to do
business in the District of Columbia, and shall provide that such policies
shall not be canceled without fifteen (15) days' prior written notice to
Landlord. Landlord shall be named as an additional insured on all such
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policies, with the exception of the statutory workmen's compensation coverage
referred to hereinabove. Tenant shall deliver to Landlord a copy of all such
insurance policies or a certificate thereof showing the same to be in full
force and effect.
(E) In the event Tenant shall fail to keep in force and maintain any
such policy of insurance, Landlord shall have the right, at its option, and at
the sole cost of Tenant, in addition to all other rights and remedies, to
purchase such policy or policies of insurance and to pay the premiums thereon,
and if not reimbursed to Landlord by Tenant within ten (10) days following
written request therefor, the amounts so paid, with interest thereon at the
rate of eighteen percent (18%) per annum, shall at the option of the Landlord
be added to the next installment of rent payable under provisions of the Lease.
11. Licenses and Permits.
Tenant shall at its own cost and expense promptly obtain from
appropriate governmental authorities (and maintain in full force and effect
throughout the term of this Lease), all permits, licenses, and the like
required to permit Tenant to occupy the demised premises for the purposes
stated in Paragraph 4 hereinabove. Landlord agrees to cooperate at no cost or
expense to Landlord with procurement of all permits requiring the joinder of
the Landlord, promptly following Tenant's request to Landlord. Landlord agrees
to maintain all of its permits and licenses for the building and Landlord's
operation thereof.
12. Assignment and Subletting.
(A) Tenant shall not assign, mortgage, or hypothecate this Lease or
any interest therein, or otherwise transfer any legal or equitable interest in
this Lease, nor shall Tenant sublet the demised premises or any part thereof,
whether voluntarily or involuntarily or by operation of law, without the prior
written consent of Landlord. Landlord may grant, withhold or condition its
consent upon such terms and provisions which Landlord in its sole and exclusive
discretion determine, unless otherwise below provided in Paragraph 12(B).
Further, Tenant shall not have any right hereunder to mortgage or encumber any
of Tenant's leasehold improvements to be made within the demised premises, and
all such improvements shall be installed free and clear of any and all liens or
encumbrances of any kind whatsoever. Any assignment or other transfer
consented to by Landlord shall not relieve Tenant for any of its obligations
under this Lease, and any such assignment or other transfer not first
consented to in writing by Landlord shall be null and void. Any attempted
assignment of this Lease by operation of any of the aforesaid events not
consented to by Landlord in writing shall be null and void. In the event
Landlord shall determine, in its sole and exclusive discretion, to approve a
proposed subtenant or assignee of Tenant, such assignee or subtenant shall in
any event be consistent with the type of tenants commonly found in other first-
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class developer-owned office buildings of the highest quality in Washington,
D.C. Consent of the Landlord to any such assignment or subletting shall not
operate as a waiver of the necessity for a consent to any subsequent assignment
or subletting, and the terms of such consent shall be binding upon any person
holding by, or through the Tenant.
(B) Notwithstanding the aforesaid provisions contained in Paragraph
12(A) of the Lease, the Landlord shall be required to consent to any proposed
assignment of this Lease or subletting (in whole) of the demised premises,
provided that the proposed assignment or subletting shall occur in connection
with any merger, acquisition or consolidation of Tenant whereby the party
succeeding to all (or substantially all) of Tenant's assets prior to such
merger, consolidation or acquisition shall succeed to Tenant's interest in this
Lease, and further provided that the party succeeding to such interest shall
execute and deliver unto Landlord such documents as Landlord shall reasonably
request in order to evidence its or their assumption of all of the obligations,
covenants, duties and agreements under this Lease of the Tenant, and further
that the use of the demised premises is in compliance with Paragraph 4, herein.
In the event of any such permitted transfer of this Lease as hereinabove
provided, the original named Tenant shall remain fully liable for all
obligations under this Lease and no such permitted transfer shall relieve any
such party of any liability hereunder. Tenant shall pay to Landlord upon
request, the administrative expenses and reasonable attorneys' and accountants'
fees incurred by Landlord in review of any proposed assignment or subletting,
and in preparing or reviewing any documents, financial data or other
information concerning a proposed assignment or subletting by Tenant.
13. Examination of Premises.
Tenant shall allow Landlord and its agents free access to the demised
premises upon reasonable advance notice, except in the case of an emergency,
for the purpose of examining the same to ascertain and determine if the demised
premises are in good repair and condition, and to exhibit the same to (i)
prospective purchasers at any reasonable time during the term hereof, and (ii)
to prospective tenants during the last six (6) months of the Lease term (as
same may be extended by Tenant). Notwithstanding the foregoing, Landlord's
access shall not unreasonably interfere with Tenant's business.
14. Subordination.
(A) Tenant agrees that this Lease shall be subject and subordinate to
the lien or liens of any mortgages, deed or deeds of trust, or other security
interests (collectively the "Interests") that may now be placed against the
demised premises, and, all such Interests which shall at any time hereafter be
placed against the demised premises. Tenant agrees, at any time hereafter, on
demand, to execute any instruments, releases or other documents that may be
required for the
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purpose of subjecting and subordinating this Lease to the lien of any mortgage
or mortgages or deed or deeds of trust, whether original or substituted.
Tenant covenants and agrees in the event any proceedings are brought for the
foreclosure of any such mortgage or deed of trust, to attorn to the purchaser
upon any such foreclosure sale and to recognize such purchaser as the Landlord
under this Lease. Tenant agrees to execute and deliver at any time and from
time to time, upon the request of Landlord or of any such holder, any
instrument which, in the sole judgment of Landlord, may be necessary or
appropriate in any such foreclosure proceeding or otherwise to evidence such
attornment. Tenant further 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 or election to terminate or otherwise adversely affect this Lease and the
obligations to Tenant hereunder in the event any such foreclosure proceeding is
brought, and agrees that this Lease shall not be affected in any manner
whatsoever by any such foreclosure proceedings.
(B) Landlord agrees to use reasonable best efforts to obtain for the
benefit of Tenant a non-disturbance and attornment agreement duly executed by
the holder of any first mortgage or ground lease new or hereafter affecting the
building, whereunder Tenant's rights under this Lease shall recognized,
notwithstanding any foreclosure by such holder.
15. Bankruptcy.
(A) For purposes of this Lease, the following shall be deemed "Events
of Bankruptcy" of Tenant: (i) if Tenant becomes "insolvent", as defined in
Title 11 of the United States Code, entitled "Bankruptcy", 11 U.S.C. Section
101 et. seq. (hereinafter called the "Bankruptcy Code"), or under the
insolvency laws of any state, district, commonwealth or territory of the United
States of America ("Insolvency Laws"); or (ii) if a receiver or custodian is
appointed for any or all of Tenant's property or assets, or there is instituted
a foreclosure action on any of Tenant's property; or (iii) if Tenant files a
voluntary petition under the Bankruptcy Code or Insolvency Laws; or (iv) if
there is filed an involuntary petition against Tenant as the subject debtor
under the Bankruptcy Code or Insolvency Laws, which is not dismissed within
thirty (30) days of filing, or results in issuance of an order for relief
against the debtor; or (v) if Tenant makes or consents to an assignment of its
assets, in whole or in part, for the benefit of creditors, or a common law
composition of creditors.
(B) Upon the occurrence of an Event of Bankruptcy, or if Tenant takes
advantage of any Insolvency Laws, then in any such event Landlord at its option
and sole discretion may terminate this Lease by written notice to Tenant
(subject, however, to applicable provisions of the Bankruptcy Code or
Insolvency Laws during the pendency of any action thereunder involving Tenant
as the subject debtor). If this Lease is terminated under this paragraph,
Tenant shall immediately surrender and vacate the demised premises, waive all
statutory or other notice to quit,
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and agree that Landlord's obligations under this Lease shall cease from
termination date, and Landlord may recover possession by process of law or in
any other lawful manner. Furthermore, if this Lease terminates under this
Paragraph, Landlord shall have all rights and remedies against Tenant provided
in case of default of Tenant in payment of rent.
(C) If Tenant becomes the subject debtor in a case pending under the
Bankruptcy Code, Landlord's right to terminate this Lease under this Paragraph
shall be subject to the applicable rights (if any) of the Trustee in Bankruptcy
to assume or assign this Lease as then provided for in the Bankruptcy Code.
However, the Trustee in Bankruptcy must give to Landlord and Landlord must
receive proper written notice of the Trustee's assumption or rejection of this
Lease, within sixty (60) days after the date of the Trustee's appointment; it
being agreed that failure of the Trustee to give notice of such assumption
hereof within said sixty (60) day period shall conclusively and irrevocably
constitute the Trustee's rejection of this Lease and waiver of any rights of
the Trustee to assume or assign this Lease. The Trustee shall not have the
right to assume or assign this Lease unless said Trustee (i) promptly and fully
cures all defaults under this Lease, (ii) promptly and fully compensates
Landlord for all monetary damages incurred as a result of such default, and
(iii) provides to Landlord "adequate assurance of future performance" (as
defined hereinbelow). Landlord and Tenant hereby agree in advance that
"adequate assurance of future performance", as used in this paragraph, shall
mean that all of the following minimum criteria must be met: (a) Tenant's
gross receipts in the ordinary course of its business during the thirty (30)
days immediately preceding the initiation of the case under the Bankruptcy Code
must be at least ten (10) times greater than the next payment of rent due under
this Lease, (b) both the average and median of Tenant's monthly gross receipts
in the ordinary course of its business during the six (6) months immediately
preceding initiation of the case under the Bankruptcy Code must be at least ten
(10) times greater than next payment of monthly rent due under this Lease, (c)
Tenant must pay to Landlord all rentals and other sums payable by Tenant
hereunder, and (d) the Tenant's business shall be conducted in a first class
manner, and that no liquidating sales, auctions, or other non-first class
business operations shall be conducted on the demised premises, and that the
use of the demised premises as stated in this Lease will remain unchanged, and
that the assumption or assignment of this Lease will not violate or affect the
rights of other lessees in the building. In the event Tenant is unable to: (i)
cure its defaults, (ii) reimburse Landlord for its monetary damages, (iii) pay
the rents due under this Lease or any other payments required of Tenant under
this Lease on time, or (iv) meet the criteria and obligations imposed by (a)
through (d) above in this Paragraph 15, the Tenant hereby agrees in advance
that it has not met its burden to provide adequate assurance of future
performance, and this Lease may be terminated by Landlord in accordance with
Paragraph 15(B) above.
(D) It is further stipulated and agreed that, in the event of the
termination of the term of this Lease by the happening of any such event
described in this Xxxxxxxxx 00, Xxxxxxxx shall forthwith, upon such
termination, and any other provisions of this Lease to the
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contrary notwithstanding, become entitled to recover as and for the liquidated
damages caused by such breach of the provisions of this Lease an amount equal
to the difference between the then cash value of the rent reserved hereunder
for the unexpired portion of the term hereby demised, and the then cash rental
value of the demised premises for such unexpired portion of the term hereby
demised, unless the statute which governs or shall govern the proceeding which
such damages are to be proved limits or shall limit the amount of such claim
capable of being so proved, in which case Landlord shall be entitled to prove
as and for liquidated damages as an amount equal to that allowed by or under
any such statute. The provisions of this paragraph of this Lease shall be
without prejudice to (a) Landlord's right to prove in full damages for rent
accrued prior to the termination of this Lease, but not paid, or (b) any rights
given to Landlord by any pertinent statute to prove for any amounts allowed
thereby. In making any such computation, the then cash rental value of the
demised premises shall be deemed prima facie to be the rental realized upon any
reletting, if such reletting can be accomplished by Landlord within a
reasonable time after such termination of this Lease, and the then present cash
value of the future rents hereunder reserved to Landlord for the unexpired
portion of the term hereby demised shall be deemed to be such sum, if invested
at six per centum (6%) simple interest, as will produce the future rent over
the period of time in question.
16. Default.
(A) In the event that (i) Tenant shall fail to pay when due any
payment of the rental or any other sum payable by Tenant hereunder, and such
failure shall continue for a period of five (5) days beyond the due date
thereof, or (ii) Tenant shall violate any other term, covenant or condition of
this Lease or neglect or fail to perform or to observe any of the other terms,
conditions or covenants herein contained on Tenant's part to be performed or
observed and Tenant shall fail to remedy the same within thirty (30) days after
Landlord shall have given Tenant written notice specifying such violation,
neglect or failure, or (iii) in the event that 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 of or claimant against Tenant, and
said attachment shall not be discharged or disposed of within thirty (30) days
after the levy thereof; or (iv) if Tenant shall abandon, vacate or desert the
demised premises, or fail to continuously operate the demised premises for the
purposes provided in Paragraph 4 hereof, then in any one or more of such
events, Landlord shall have the right, at its option, exercisable by sending
written notice thereof to Tenant, to terminate this Lease, in which event
Tenant agrees to immediately surrender possession of the demised premises,
without any notice to quit or demand for possession of the demised premises
whatsoever, notice to quit or intention to re-enter the same being hereby
expressly waived by Tenant, and Tenant hereby grants Landlord full and free
entrance to, into and upon the demised premises or any part thereof, or take
possession thereof with or without process of law and to expel and remove
Tenant or any other person occupying the demised premises or any part hereof,
and may repossess itself of the same as of its former estate, but such entry
shall
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not constitute a trespass or forcible entry or detainer, nor shall it cause a
forfeiture of rents due by virtue hereof nor waiver of any covenant, agreements
or promises of this Lease contained to be performed by Tenant. If this Lease
shall be terminated as aforesaid, the demised premises, or any part thereof,
may be re-let by Landlord for the account and benefit of Tenant, for such rent
and upon such terms and to such person or persons and for such period or
periods as may seem fit to Landlord and if a sufficient sum shall not be
received from such reletting to satisfy the rent reserved in this Lease, after
paying the expense of reletting and collection, including reasonable
commissions to agents and reasonable attorneys' fees, and any court costs,
Tenant agrees to pay and satisfy any and all such deficiencies; but the
acceptance of a tenant by Landlord in place of Tenant, shall not operate as a
release of Tenant from the performance of any covenant, promise or agreement
herein contained, and the performance of any substitute tenant by the payment
of rent, or otherwise, shall constitute only satisfaction pro-tanto of the
obligations of Tenant arising hereunder. Any damages or deficiencies, at the
option of Landlord, may be recovered by Landlord in separate actions, from time
to time, as Tenant's obligations to payment would have accrued if the term had
continued, or from time to time as said damages or deficiencies shall have been
made more easily ascertainable by relettings of the demised premises, or any
such action by Landlord may, at the option of Landlord, be deferred until the
expiration of the term.
(B) Tenant hereby expressly waives any provision of law now in force
or which hereafter may be enacted giving Tenant the right under any condition
after default to the redemption and repossession of the demised premises or any
part thereof.
(C) No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly installments of rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed in accord and satisfaction, and the Landlord may
accept such check or payment without prejudice to the Landlord's right to
recover the balance of such rent or pursue any other remedy in this Lease
provided.
(D) Tenant shall reimburse Landlord any reasonable legal fees or other
costs incurred in the event of a default of Tenant hereunder, in pursuit of
Landlord's rights and remedies hereunder, whether or not suit shall be brought.
17. Effect of Waiver.
If, under the provisions of this Lease, a summons or other notice
shall, at any time, be served upon Tenant by Landlord and a compromise or
settlement shall be effected either before of after judgment or decree, whereby
Tenant shall be allowed or permitted to retain possession of the demised
premises, the same shall not constitute a waiver of any covenant or
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agreement herein contained, or of this Lease itself. No waiver by Landlord or
any breach of agreement herein contained shall be construed to be a waiver of
the covenant itself or of any subsequent breach hereof.
18. Estoppel Certificates.
Tenant agrees at any time and from time to time, upon not less than
ten (10) days' prior written notice by Landlord, to execute, acknowledge and
deliver to Landlord a statement in writing certifying (1) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the Lease is in full force and effect as modified and stating the
modifications), (2) the date to which the rent and other charges hereunder have
been paid by Tenant, (3) whether or not 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,
and (4) the address to which notices to Tenant should be sent. Any such
statement delivered pursuant hereto may be relied upon by any owner of the
demised premises, any mortgagee or prospective mortgagee of the demised
premises or of Landlord's interest therein or any prospective assignee of any
such interest.
19. Eminent Domain.
Tenant agrees that if the demised premises, or any part thereof, shall
be taken or condemned for public or quasi-public use or purpose by any
competent authority, Tenant shall have no claim against the Landlord and shall
not have any claim or right to any portion of the amount that may be awarded as
damages or paid as a result of any such condemnation; and all right of the
Tenant to damages thereof, if any, are hereby assigned by the Tenant to the
Landlord. And upon any condemnation or taking affecting all or any substantial
part of the demised premises, the term of this Lease shall cease and terminate
at the option of either Landlord or Tenant by written notice to the other from
the date of such governmental taking or condemnation. The Tenant shall have no
claim against the Landlord for the value of any unexpired term of this Lease.
If less than the whole of the demised premises is taken or condemned by any
governmental authority for any public or quasi-public use or purpose, and in
the event neither Landlord nor Tenant shall desire to terminate this Lease,
then and in such event the rent shall be equitably adjusted on the date when
title vests in such governmental authority and the Lease shall otherwise
continue in full force and effect. Tenant shall be entitled to pursue a
separate claim for the value of the Tenant's furnishings, equipment and movable
trade fixtures so taken, together with relocation expenses, provided such claim
shall in no manner diminish the award or other compensation to which Landlord
would otherwise be entitled.
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20. Quiet Enjoyment.
Landlord covenants and agrees that it has the right to execute this
Lease and that if the covenants and agreements on the part of Tenant shall be
kept, performed and observed by Tenant as in this Lease provided, Tenant shall
have the quiet, peaceable and uninterrupted possession and enjoyment of the
demises premises, subject to the terms and provisions contained herein.
21. Notices.
Until further notice by either party to the other, in writing, all
notices or communications required or permitted hereunder shall be sent by
registered or certified mail, return receipt requested, (a) if to Landlord,
addressed to:
c/o Willco Construction Co., Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
and (b) if to Tenant, addressed to:
Century National Bank
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
22. Tenant Holdover. If the Tenant shall, with the knowledge and written
consent of the Landlord, continue to remain in the demised premises after the
expiration of the term of this Lease, then and in that event, Tenant shall, by
virtue of this agreement become a tenant by the month at the maximum monthly
rental payable (as specified in Paragraph 3, herein) in the last month of the
immediately preceding expired term hereof, commencing said monthly tenancy with
the first day next after the end of the term above demised; and said Tenant
shall give to the 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 quite the demised premises, except in the event of
nonpayment of rent in advance or of the breach of any other covenant by the
said Tenant, in which event the said Tenant shall not be entitled to any notice
to quit, the statutory thirty (30) days' notice and all other notices to quit
being hereby expressly waived; provided, however, that in the event that the
Tenant shall hold over after the expiration of the term hereby created, and if
the Landlord shall desire to regain possession of the demised premises promptly
at the expiration of the term aforesaid, then at any time prior to Landlord's
acceptance of rent from the Tenant as a monthly tenant hereunder, the Landlord,
at Landlord's option, may forthwith re-enter and take possession of the demised
premises without process, or by any legal process in force. Notwithstanding
the foregoing,
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in the event Tenant shall wrongfully holdover subsequent to the expiration of
the term of this Lease, Landlord shall in lieu of rent be entitled to demand
and receive from Tenant monthly use and occupancy payments for each month in
which tenant shall wrongfully holdover subsequent to the expiration of the term
of this Lease, in an amount equal to twice the monthly rental payable in the
last month of the immediately preceding expired term of this Lease. Each such
use and occupancy payment shall be due on or before the first of each calendar
month in which Tenant shall wrongfully holdover hereunder. In no event shall
Landlord's demand or acceptance of such use and occupancy payments be
considered to constitute an acquiescence by Landlord to the extension of the
term hereof, and Landlord shall be entitled to obtain immediate possession of
the premises irrespective of any such demand or acceptance. In the event
Tenant shall pay monthly use and occupancy payments for any calendar month
following expiration of the term hereof, such payment shall be pro-rated upon
Tenant's surrender of full and exclusive possession of the premises to the
Landlord, free of all subtenants and other parties claimed by, through or under
the Tenant.
23. Damage by Casualty.
If the demised premises shall be partially or totally damaged or
destroyed, then Landlord shall diligently and as soon as practicable after such
damage occurs (taking into account the time necessary to effectuate a
satisfactory settlement with any insurance company, and reasonable delay on
account of "labor troubles" or any other causes beyond Landlord's control)
repair or rebuild the demised premises, provided, however, that in no event
shall Landlord be obligated to expend in such repair or rebuilding any sums in
excess of the amount of insurance proceeds paid to Landlord in connection
therewith, except for any deductible paid by the Landlord. The foregoing
notwithstanding, in no event shall Landlord be required to repair, restore or
rebuild any portions of the demised premises constituting a part of Tenant's
leasehold improvements or other tenant work, trade fixtures, equipment and
personal property. If the demised premises are rendered wholly or partially
untenantable by such damage or destruction, any such damage and destruction was
without the fault or neglect of the Tenant, its servants, employees, agents, or
licensees, then the basic monthly rent payable by Tenant under the Lease during
the period in which the demised premises are so untenantable shall be equitably
abated by the percentage that the unusable floor area of the demised premises
bears to the total floor area thereof. Except as set forth in this Article,
Landlord shall not be liable for any damages (including, without limitation,
business interruption) that may be suffered by Tenant by reasons of any
casualty to the demised premises and/or Landlord's repairing or rebuilding
thereof and/or the deprivation of Tenant's use and possession of the demised
premises. All of the foregoing provisions of this Article notwithstanding, if
the demised premises and/or the common area access to the demises premises, if
necessary to Tenant's business, are rendered wholly untenantable by fire or
other cause, and such damage cannot be repaired by Landlord within one hundred
eighty (180) days following the date of such casualty, then and in such event
Tenant, provided it is not in default hereunder, may, at its option, cancel and
terminate this Lease by giving
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to the Landlord, within two hundred ten (210) days from the date of such
damage, notice in writing of its intention to cancel this Lease. Further, in
the event the demised premises, together with any other substantial portion of
the building (i.e. 25% or more of the building) shall be damaged or destroyed
due to fire or other casualty, Landlord shall be entitled to terminate this
Lease, by giving written notice to Tenant within sixty (60) days following such
fire or other casualty. In the event of termination by either Landlord or
Tenant, as aforesaid, the term of this Lease shall cease and determine upon the
tenth day after such notice is given, and the Tenant shall vacate the demised
premises and surrender the same to the Landlord.
24. Jury Trial Waiver.
Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other one or in respect of any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant hereunder,
Tenant's use or occupancy of the demised premises, and/or claim of injury or
damage.
25. Landlord's Lien.
In the consideration of the mutual benefits arising under this Lease,
the Tenant hereby grants to Landlord a lien on all property of the Tenant in or
on the premises (except such part of any property that may be exchanged,
replaced or sold from time to time in the ordinary course of business operation
of the Tenant while not in default under this Lease), and such property shall
be and remain subject to the lien of Landlord for the payment of all monthly
rental and additional rent and any other sums agreed to be paid by the Tenant
herein. Said lien shall be in addition to any lien provided to the Landlord by
law.
26. General Provisions.
(A) Upon the expiration or sooner termination of the term hereof,
Tenant shall quit and surrender the demised premises to Landlord in good order
except for ordinary wear and tear, as reasonably determined by Landlord, and
shall comply with Paragraphs 7(c) and 8 hereof. Any damage to the demised
premises negligently caused or occasioned by Tenant in the removal of its
property from the demised premises shall be repaired at Tenant's sole cost and
expense.
(B) During the term of this Lease, Tenant shall not use the name of
Landlord in connection with any business operation which Tenant conducts on or
about the demised premises.
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(C) Nothing in this Lease shall be deemed or construed in any way as
constituting the consent or request of Landlord, expressed or implied, by
inference or otherwise, to any contractor, subcontractor, laborer or
materialmen for the performance of any labor or the furnishing of any material
for any specific improvement, alteration or repair of the demised premises or
any part thereof.
(D) Nothing herein contained shall in any way be considered or
construed as creating the legal relation of a partnership or joint venture
between Landlord and Tenant, it being expressly understood and agreed by the
parties hereto that the relationship between the parties shall be one of
landlord and tenant.
(E) It is further understood and agreed that the covenants, agreements
and conditions herein contained shall be binding upon the Landlord and Tenant,
as well as their respective heirs, executors, administrators, successors and
permitted assigns.
(F) This Lease shall be governed and construed in accordance with the
laws of the District of Columbia.
(G) If any covenants or agreement of this Lease or the application
thereof to any person or circumstance shall be held to be invalid or
unenforceable, then and in each such event the remainder of this Lease or the
application of such covenant or agreement to any other person or any other
circumstance shall not be thereby affected, and each covenant and agreement
hereof shall remain valid and enforceable to the fullest extent permitted by
law.
(H) The captions and headings throughout this Lease are for
convenience and reference only, and the words contained in such captions shall
in no way be held or deemed to define, limit, describe, explain, modify,
amplify or add to the interpretation, construction or meaning of any provision
of this Lease.
27. Limitation on Right of Recovery Against Landlord.
It is specifically understood and agreed that there shall be no
personal liability of any shareholder, partner, director, trustee, officer,
employee, representative, or agent of Landlord, in respect to any of the
covenants, conditions or provisions of this Lease. In the event of a breach or
default by Landlord of any of its obligations under this Lease, Tenant shall
look solely to the equity of the Landlord in the Building for the satisfaction
of Tenant's remedies. Accordingly Tenant hereby agrees to look solely to
Landlord's equity in the Building for the satisfaction of any claim arising
from this Lease and shall not seek to impose personal liability on any
shareholder, trustee, partner, officer, employer, representative or agency of
Landlord.
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28. Renewal Term.
(A) Provided that Tenant shall have faithfully kept and performed all
of its obligations and agreements set forth in this Lease, Tenant shall have
the right to extend and renew the term of this Lease for one (1) additional
period of five (5) years commencing therefor upon expiration of the initial
term, and fully ending on the last day of the sixtieth calendar month
thereafter. The renewal term shall be upon the same terms and conditions as
set forth in this Lease with the exception of the following: (1) rent and
increases therein which shall be as set forth in subparagraph 28 (B) below, and
(2) there shall be no right to a further renewal term beyond the aforesaid
renewal term. Tenant shall be required to exercise this renewal term by
written notice delivered to Landlord no later than twelve (12) months prior to
the expiration of the initial lease term. In the absence of such notice, all
rights hereunder of Tenant to a renewal term shall be declared null and void.
(B) In the event Tenant shall exercise its rights to a renewal term,
as aforesaid, Tenant covenants and agrees to pay a basic annual rent during the
aforesaid first renewal term, a sum equal to the market rental for comparable
retail space within the geographical area of Washington, D.C. in which the
building is located, reasonably projected by the parties to be in effect as of
the commencement of the renewal period, together with increases therein
consistent with the prevailing market practices, and shall be agreed upon by
the parties within sixty (60) days following the last day upon which such
option may be exercised by Tenant under Paragraph 28(A) above. In the event
the parties are unable to agree upon the rate of rental and/or determination of
increases therein for such additional term, during the aforesaid sixty (60) day
period, then the basic annual rent and rate of increases therein shall be
determined by a board of three (3) licensed real estate brokers, one of whom
shall be named by the Landlord, one by the Tenant, and the third selected by
the two brokers selected by the Landlord and Tenant. All of said brokers shall
be licensed real estate brokers in Washington, D.C. specializing in commercial
leasing in the central business district having not less than ten (10) years
experience and recognized as ethical and reputable within their industry. The
parties agree to select their respective designated brokers within ten (10)
days after the expiration of the sixty (60) day period herein provided. The
third broker shall be selected within fifteen (15) days after both of the first
two (2) brokers have been selected. Within fifteen (15) days after the third
broker has been selected all of the brokers shall meet to attempt to agree upon
the base rate of rental. If they are unable to reach agreement, they shall
within said fifteen (15) day period submit in writing the rate of rental they
deem appropriate and the base rate of rental shall be the amount which is the
mean between the two (2) closest amounts determined by two (2) of the brokers.
In no event shall the base annual rent for the initial year of the renewal term
be less than the base annual rent in effect in the tenth (10th) year of the
initial term of the Lease. Upon determination of the new rental and rate of
increases therein for the renewal term, Tenant agrees to execute and deliver to
Landlord
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within ten (10) days following Landlord's request, and appropriate amendment to
this Lease confirming the renewal term and the revised basic annual rent and
determination of increases to remain in effect during the renewal term.
29. Entire Agreement.
It is understood and agreed by and between the parties hereto that
this Lease contains the final and entire agreement between the said parties and
they shall not be bound by any terms, statements, conditions or
representations, oral or written, not herein contained.
IN WITNESS WHEREOF, the Tenant has caused these presents to be signed and
sealed and Landlord has caused these presents to be signed and sealed by one of
its general partners, all as of the day and year first written hereinabove.
LANDLORD:
PENNSYLVANIA BUILDING ASSOCIATES
/s/ Illegible By: /s/ S. XXXXXXXXX XXXXXXX (SEAL)
------------------------------ -----------------------------
Witness S. Xxxxxxxxx Xxxxxxx, General
Partner
/s/ XXXXXXX XXXXXXXX By: /s/ XXXXXXX X. XXXXX (SEAL)
------------------------------ -----------------------------
Witness Willco Associates, General
Partner, By Xxxxxxx X. Xxxxx,
its General Partner
TENANT:
CENTURY NATIONAL BANK
/s/ F. XXXXXXX XXXXXXX By: /s/ XXXXXX X. XXXXXXXXX (SEAL)
-------------------------- -----------------------------
Witness Xxxxxx Xxxxxxxxx,
Chairman of the Board
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