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EXHIBIT 10AI
[XXXXXX, XXXXXX, XXXXXX, & XXXXXX MANAGEMENT SERVICES, LLC LETTERHEAD]
May 16, 1996
Xx. Xxxxx X. Xxxxxx
Executive Vice President
Xxxxxx Xxxxx Bank
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
RE: 000 XXXX XXXXXX XXXXXX
XXXXXXXX, XXXXXXXX
Dear Xxxxx:
Enclosed please find one fully executed original of the Assignment and
Assumption Agreement by and among First Union National Bank of Virginia, Xxxxxx
Xxxxx Bank, and Bellewood Associates Limited Partnership, for your files.
Please call me with any questions that you may have.
Sincerely,
BARNES, MORRIS, XXXXXX & XXXXXX MANAGEMENT SERVICES, LLC
/s/ XXXXXXX XXXXXXXX
Xxxxxxx Xxxxxxxx
Retail Leasing
Enclosure
cc: Xxxxx Xxxxxxxxx, Esq. (w/copy of enclosure)
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ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the Assignment), dated as of
the 18 day of April, 1996 (the Effective Date), by and among FIRST UNION
NATIONAL BANK OF VIRGINIA (the Assignor), XXXXXX XXXXX BANK (the Assignee), and
BELLEWOOD ASSOCIATES LIMITED PARTNERSHIP (the Lessor), recites and provides:
RECITALS:
By Xxxxx dated April 23, 1993 (the Lease), between the Lessor (as
landlord) and the Assignor, successor to Columbia First Bank, (as tenant), the
Lessor leased to the Assignor certain real estate located in the County of
Loudoun, Virginia, and more particularly described in the Lease (the Leased
Premises). A true and complete copy of the Lease is attached hereto as Exhibit
A. Under the terms of the Lease, the Assignor may not assign its interest in the
Lease except with the prior written consent of the Lessor.
The Assignor now wishes to assign and transfer to the Assignee all of
the Assignor's right, title, and interest in and to the Lease. The Lessor is
willing to consent to such assignment on the terms and conditions set forth
herein.
ASSIGNMENT AND ASSUMPTION AGREEMENT:
FOR and in consideration of the premises, the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Assignment. The Assignor hereby assigns and transfers to the
Assignee all of the Assignor's right, title, and interest in and to the Lease
for the remainder of the term thereof (including any rights to renew the Lease
or extend the term thereof) subject to the rental, terms, covenants, and
conditions of the Lease. Notwithstanding the foregoing, however, Assignee shall
have the right to
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terminate this Assignment on or before sixty (60) days from the Effective Date
(the [OCC] Bureau of Financial Institutions of the Commonwealth of Virginia
Approval Period) in the event Assignee is not able to obtain, or is denied,
approval from the [Office of Comptroller of the Currency (OCC)] Bureau of
Financial Institutions of the Commonwealth of Virginia before the expiration of
the [OCC] Bureau of Financial Institutions of the Commonwealth of Virginia
Approval Period. Assignee shall exercise due diligence to obtain such approval.
In the event [OCC] Bureau of Financial Institutions of the Commonwealth of
Virginia approval is not obtained within the [OCC] Bureau of Financial
Institutions of the Commonwealth of Virginia Approval Period, either party may
extend the [OCC] Bureau of Financial Institutions of the Commonwealth of
Virginia Approval Period for an additional thirty (30) days by written notice to
the other party received prior to the expiration of the [OCC] Bureau of
Financial Institutions of the Commonwealth of Virginia Approval Period. Upon
receipt of approval from the [OCC] Bureau of Financial Institutions of the
Commonwealth of Virginia, Assignee shall pay Fifty Thousand Dollars ($50,000) to
Assignor.
Assignee acknowledges that it has had an opportunity to examine the
Leased Premises. This assignment and transfer is made "as is" and there are no
warranties, express or implied, with respect to the Leased Premises.
2. Representations and Warranties. The Assignor and Assignee each
represent and warrant to the other that (a) it has full power and authority to
execute and deliver this Assignment, and (b) the execution and delivery hereof
and the terms and obligations hereof do not contravene any agreement to which it
is a party or by which it or the Leased Premises is bound. Assignor and Lessor
represent and warrant to the Assignee: (i) that the Lease is in full force and
effect, (ii) that to the best of their knowledge, there exists no event of
default thereunder on the part of either Assignor or Lessor, (iii) that to the
best of their knowledge, there exists no event which with the giving of notice
or the expiration of any applicable cure period would constitute an event of
default by either Assignor or Lessor under the Lease, and (iv) that the Leased
Premises as of this date contains among other equipment, the following items (as
they were on March 15, 1995, the date Assignor and Assignee walked through the
Leased Premises): (a) one night depository unit, (b) a drive through banking
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facility including one remote station and one drive up window, (c) one night
teller safe, and (d) under-counter teller equipment for six stations plus the
drive-in teller station.
3. Indemnity by Assignor. The Assignor covenants to hold the Assignee
harmless from and indemnify the Assignee for any loss, damage, cost, or expense
(including reasonable attorneys' fees) arising out of any failure of the
Assignor to perform any of its obligations under the Lease up to and including
the Effective Date.
4. Acceptance, Assumption, and Indemnity by Assignee. The Assignee (a)
accepts the assignment of all of Assignor's right, title, and interest in and to
the Lease, (b) agrees to be bound by all of the terms, covenants, and conditions
thereof, and (c) assumes the obligations of the Assignor under the Lease from
and after the Effective Date; provided, however, that Assignee's obligation to
pay rent under the Lease shall not commence until May 1, 1996. The Assignee
covenants and agrees to perform each term, covenant, and condition directly for
the benefit of the Lessor and to hold the Assignor harmless from and indemnify
the Assignor for any loss, damage, cost, or expense (including reasonable
attorneys' fees) arising out of any failure of the Assignee to perform any of
its obligations under the Lease from and after the Effective Date.
Notwithstanding the foregoing, Assignee shall have no responsibility with
respect to any of the obligations under the Lease up to and including the
Effective Date or at any time after the date Assignee terminates this
Assignment, if it terminates this Assignment pursuant to Paragraph 1 hereof.
5. Consent of Lessor. The Lessor executes this Agreement to evidence
its consent to the assignment effected hereby; provided, however, that such
consent shall neither be nor be deemed to be a consent to, or a waiver of the
necessity of obtaining the consent of the Lessor to, any proposed future
assignment.
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6. Release by Lessor. The Lessor hereby remises, releases and forever
discharges the Assignor and it successors and assigns of and from all manner of
action, causes of actions, suits, debts, dues, sums of money, contracts,
agreements, promises, claims, and demands whatsoever in law or in equity, which
the Lessor ever had or now has or which its successors and assigns hereafter
can, shall, or may have against the Assignor upon or by reason of any matter,
cause, or thing whatsoever arising with respect to the Lease.
7. Change of Address. For all purposes under the Lease, including, but
not limited to paragraph thereof, the mailing address for the tenant thereunder
shall be changed to the following:
Xx. Xxxxxx Xxxxx, AVP, Facilities Dept.
Xxxxxx Xxxxx Bank
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
8. Further Assurances. Each party hereto covenants and agrees to
execute and deliver, or cause to be executed and delivered, and to do or make,
or cause to be done or made, upon the reasonable request of any other party, any
and all instruments, papers, deeds, acts, or things, supplemental, confirmatory,
or otherwise, as may be reasonably required by such other party for the purpose
of effecting the assignment described herein.
9. Completeness and Modification. This Agreement constitutes the entire
agreement between the parties hereto as to the transactions contemplated hereby
and supersedes all prior discussions, understandings, or agreements between the
parties hereto.
10. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
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11. Governing Law. This Agreement and all other instruments referred to
herein shall be governed by, and shall be construed according to the laws of the
Commonwealth of Virginia.
12. Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear on each counterpart
hereof, and it shall be sufficient that the signature on behalf of each party
hereto appear on one or more such counterparts. All counterparts shall
collectively constitute a single agreement.
13. Incorporation by Reference. All of the Exhibits attached hereto or
referred to herein and all documents in the nature of such Exhibits are by
reference incorporated herein and made a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives.
ASSIGNOR:
FIRST UNION NATIONAL BANK OF VIRGINIA
By: [SIG]
---------------------------------
Its: V.P.
ASSIGNEE:
XXXXXX XXXXX BANK
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Its: Executive Vice President
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LESSOR:
BELLEWOOD ASSOCIATED LIMITED PARTNERSHIP
By: [SIG]
-----------------------------------
By: [SIG]
-----------------------------------
By: [SIG]
-----------------------------------
Its: President
STATE OF VIRGINIA
County of Fairfax, to wit:
The foregoing instrument was duly acknowledged before me in the County
of Fairfax, this 18 day of April, 1996, by Xxxxx X. Xxxxxx, [, as EVP of Xxxxxx
Xxxxx Bank, a N/A on behalf of the BANK.
/s/ XXXXXXXXX X. XXXX
-------------------------------------
Notary Public
My commission expires: 7-31-97.
STATE OF ________
_______________ of ______________, to wit:
The foregoing instrument was duly acknowledged before me in the
______________ of ____________, this ____ day of ________, 1996, by
________________, [,as _______ of ___________________________, a _______________
on behalf of the ________________________.
[SIG]
---------------------------------------
Notary Public
My commission expires: _____________.
STATE OF ________
_______________ of ______________, to wit:
The foregoing instrument was duly acknowledged before me in the
______________ of ____________, this ____ day of ________, 1996, by
________________, [,as _______ of ___________________________, a _______________
on behalf of the ________________________.
______________________________________
Notary Public
My commission expires: _____________.
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LEASE
Between
Bellewood Associates Limited Partnership
as
LANDLORD
and
Columbia First Bank, a Federal Savings Bank
as
TENANT
-----------------
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LEASE
THIS LEASE dated April 23, 1993, for identification purposes only,
is between Landlord and Tenant.
For and in consideration of the covenants and agreements set forth
in the Lease to be kept and performed by both parties, Landlord demises and
leases to Tenant, and Tenant leases from Landlord, the Premises for the Term
specified below.
ARTICLE 1
BASIC LEASE PROVISIONS
1.0l PROVISIONS This Article 1.01 is an integral part of this Lease
and all of its terms (collectively, the "Basic Lease Provisions") are
incorporated into and made a part of this Lease. Each reference in this Lease to
any of the following subjects shall be construed to incorporate the data stated
for that subject in this Section 1.01. In the event of any conflict between a
Basic Lease Provision and the balance of this Lease (including Exhibits and
Riders, if any), the latter shall control.
(a) LANDLORD: Bellewood Associates Limited Partnership
(b) TENANT: Columbia First Bank, a Federal Savings Bank
(c) PREMISES: Store Number 36 as marked on the site plan attached as
Exhibit A.
(d) SIZE OF THE
PREMISES: An area consisting of approximately 3,000 square feet, to
be measured from the center line of all walls common to
other tenant premises to the exterior faces of all other
walls, and to the building line.
(e) STREET ADDRESS
OF PREMISES: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx
(f) SHOPPING
CENTER: Bellewood Commons Shopping Center
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(g) BUILDING: Building D of Bellewood Commons Shopping Center
(h) RENT
COMMENCEMENT
DATE: May 1, 1993
(i) SIGNS: Xxxxxx's building signs and dedicated freestanding sign at
the street curb.
(j) TERM: Beginning on the Rent Commencement Date and expiring 120
months after the Rent Commencement Date, and thereafter as
extended upon the exercise of any renewal option or options
pursuant to Section 2.03.
(k) OPTIONS: Two additional five-year periods.
(l) BASE ANNUAL
RENT: (for $42,000. This figure shall be adjusted after measurement of
months 1-60) the Premises and shall be calculated at the rate of $14 per
square foot.
BASE ANNUAL
RENT: (for
months 61-120) $48,000. This figure shall be adjusted after measurement of
the Premises and shall be calculated at the rate of $16.00
per square foot.
BASE ANNUAL
RENT: (for
first and
second Option
Period) Market Value Rent determined in accordance Article 3.03.
(m) ESTIMATED
FIRST YEAR
CAM: $3.00 per square foot
(n) TENANT'S PRO
RATA SHARE: A percentage, based on a fraction, the numerator of which
shall be the leasable square feet of the Premises and the
denominator of which shall be the aggregate leasable square
feet of the Shopping Center. As of the Commencement Date,
Xxxxxx's Pro Rata Share is 4.86%.
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(o) ADDRESS FOR
NOTICES AND
PAYMENTS: Landlord:
Bellewood Associates Limited Partnership
c/x Xxxxxxxx Property Management Services and
HM Leesburg Limited Partnership
0000 Xxxxx Xxxxxx X. X.
Washington, D. C. 20016
Tenant:
Columbia First Bank, a Federal Savings Bank
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
President & CEO
(p) INSURANCE: Public Liability:
$2,000,000/$500,000/$2,000,000.
Fire and Extended Coverage: Replacement Cost
(q) TRADE
FIXTURES: The fixtures located on the Premises and listed on
Exhibit C.
(r) EXHIBITS:
EXHIBIT A - Site Plan
EXHIBIT B - Confirmation of Rent Commencement Date
EXHIBIT C - Trade Fixtures
EXHIBIT D - Estoppel Certificate
All Exhibits attached to this Lease are incorporated by this
reference and made a part of this Lease.
ARTICLE 2
DEMISED PREMISES, TERM AND USE
2.01 PREMISES Landlord hereby leases the Premises to Tenant for the
Term and grants to Tenant, for the Term, all easements, rights and privileges
appurtenant to the Premises, including the right to use the banking drive-thru
lanes, parking
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areas, driveways, loading docks, roads, alleys and means of ingress and egress.
Landlord also grants Tenant the right to use the Trade Fixtures for the Term
and, in Tenant's discretion, to upgrade or replace the Trade Fixtures. Tenant
agrees to maintain the Trade Fixtures at its expense.
2.02 CHARACTER OF SHOPPING CENTER Tenant has entered into this Lease in
reliance upon representations by Landlord that the Shopping Center is and will
remain retail in character and well maintained.
2.03 TERM When the Rent Commencement Date has been ascertained,
Landlord and Tenant shall enter into a Confirmation of Rent Commencement Date
substantially in the form of Exhibit B confirming the Rent Commencement Date and
specifying the actual expiration date for the initial Term. If the Term would
otherwise end on a day other than the 1st day of the month, the Term shall be
extended to the last day of such month.
2.04 OPTION(S) TO RENEW PROVIDED that Tenant is not then in default of
any material term, condition or covenant contained in this Lease, Tenant shall
have the option(s) to renew this Lease for a First Option Period of 60 months
and a Second Option Period of 60 months. Tenant shall give Landlord notice of
the exercise of such option(s) in writing not later than 180 days prior to
expiration of the initial Term or of the First Option Period, as the case may
be. The terms and conditions of the Lease applicable at the Expiration Date will
govern the applicable Option Period, except as follows: (i) Tenant will have no
further right to extend the Lease Term following Tenant's exercise of its second
option to renew; and (ii) rent shall be payable at the Market Value Rent rate
agreed to by Landlord and Tenant no later than 3 months prior to the Expiration
Date of the Date of the Lease Term or Extended Lease Term, as applicable. If
Landlord and Tenant are unable to agree on the Base Annual Rent payable during
the Extended Lease Term prior to 3 months before the Expiration Date, then the
rent shall be determined in accordance with Article 3.03. The Market Value Rent
so determined shall be deemed the Base Annual Rent during the related Option
Period.
2.05 ACCESS TO PREMISES Upon reasonable prior notice (but in no event
less than 24 hours except in the case of an emergency), Landlord may enter the
Premises, so long as such entry does not interfere with Xxxxxx's business,
during Xxxxxx's business hours to inspect the Premises, to show them to
prospective purchasers and lenders, or to perform maintenance and repairs.
2.06 USE The Premises will be used as an office of a financial
institution, for uses incidental to such purposes and for no other purpose.
Tenant will not do or permit to be done in or about the Premises, nor bring to,
keep or permit to be brought
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or kept in the Premises, anything which is prohibited by any law, statute,
ordinance or governmental rule or regulation which is now in force or which may
be enacted or promulgated after the Lease Date; use or allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose; cause,
maintain or permit any nuisance in, on, or about the Premises or commit or allow
to be committed any waste in, on, or about the Premises.
2.07 COMPLIANCE WITH LAW Xxxxxx and Landlord agree to comply with all
laws, ordinances, orders and regulations affecting the use and occupancy of the
Premises and the Shopping Center, respectively, and the cleanliness, safety or
operation thereof. Xxxxxx agrees to comply with the reasonable regulations and
requirements of any insurance underwriter, inspection bureau or similar agency
with respect to that portion of the Premises installed by Xxxxxx. Xxxxxx also
agrees to permit Xxxxxxxx to comply with the reasonable regulations and
requirements of any insurance underwriter, inspection bureau or similar agency
with respect to that portion of the Premises installed by Landlord.
2.08 ADVERTISING AND PROMOTION Landlord and Xxxxxx agree that it is in
their mutual interest to advertise and promote the Shopping Center. Accordingly,
Xxxxxx agrees to use the name "Bellewood Commons" in describing the location of
its branch to the same extent that Tenant uses the names of shopping centers
when describing the location of its other branches. Xxxxxx also agrees to pay
Landlord, in advance, on the first day of each calendar month, Xxxxxx's Pro Rate
Share of Landlord's cost of advertising and promoting the Shopping Center as a
whole but not individual tenants of the Shopping Center ("Landlord's Advertising
Costs"). Landlord and Tenant agree that, during calendar year 1993, Tenant shall
not be obligated to pay a share of Landlord's Advertising Costs to the extent
such costs exceed $12,000 or, during subsequent calendar years during the term
of this Lease, to the extent Landlord's Advertising Costs increase by more than
3% over the previous calendar year. Within 90 days after the end of each
calendar year, Landlord shall furnish to Tenant a statement, certified as
correct by a certified public accountant or an officer of Landlord, showing
Xxxxxxxx's Advertising Costs for the previous calendar year and the monthly
payments paid or payable shall be adjusted between Landlord and Tenant, by
Xxxxxxxx's crediting Xxxxxx's account or by Xxxxxx's paying Landlord, as the
case may be.
ARTICLE 3
RENT
3.01 RENT COMMENCEMENT DATE The Base Annual Rent and all other charges
shall begin to accrue on the Rent Commencement
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Date.
3.02 BASE ANNUAL RENT Tenant agrees to pay for the use and occupancy of
the Premises, at the times and in the manner hereinafter provided, an amount
equal to one-twelfth of the Base Annual Rent ("Monthly Rent Installment"), in
advance, without notice or invoice from Landlord, on the first day of each
calendar month during the Term, beginning upon the Rent Commencement Date and
ending on the first day of the month in which the Lease expires. In the event
the Rent Commencement Date shall be a day other than the first day of a calendar
month, then the Monthly Rent Installment for the period from the Rent
Commencement Date until the first day of the month next following shall be
prorated based on the number of days during such month and the number of days
during such month from and after the Rent Commencement Date.
3.03 MARKET VALUE RENT (a) The term "Market Value Rent" shall mean the
annual fixed rent that a willing lessee would pay and a willing lessor would
accept in an arms-length lease of the demised premises as of the Exercise Date.
If Landlord and Tenant shall fail to agree upon the Market Value Rent within 30
days after the date of Tenant's Notice to extend this lease, then Landlord and
Tenant each shall give notice (the "Determination Notice") to the other setting
forth their respective determinations of the Market Value Rent, and, subject to
the provisions of subsection (b) below, either party may apply to the American
Arbitration Association or any successor to it for the designation of an
arbitrator satisfactory to both parties to render a final determination of the
Market Value Rent. The arbitrator shall be a real estate appraiser or consultant
who shall have at least 15 years continuous experience in the business of
appraising. The arbitrator shall conduct such hearings and investigations as the
arbitrator shall deem appropriate and shall, within 30 days after having been
appointed, choose one of the determinations set forth in either Landlord's or
Tenant's Determination Notice, and that choice by the arbitrator shall be
binding upon Landlord and Tenant. Each party shall pay its own counsel fees and
expenses, if any, in connection with any arbitration under this subsection (a),
and the parties shall share equally all other expenses and fees of any such
arbitration. The determination rendered in accordance with the provision of this
subsection (a) shall be final and binding in fixing the Market Value Rent. The
arbitrator shall not have the power to add to, modify, or change any of the
provisions of this lease.
(b) In the event that the determination of the Market Value Rent set forth
in the Landlord's and Tenant's Determination Notices shall differ by less than
$1.00 per leasable square foot per annum for each year during the Renewal Lease
Term, then the Market Value Rent shall not be determined by arbitration, but
shall instead be set by taking the average of the determinations set forth in
Landlord's and Tenant's Determination Notices. Only
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if the determinations set forth in Landlord's and Tenant's Determination Notices
shall differ by more than $1.00 per leasable square foot per annum for any year
during the Renewal Lease Term shall the actual determination of Market Value
Rent be made by an arbitrator as set forth in subsection (a) above.
(c) If for any reason the Market Value Rent has been determined prior to
the commencement of the Renewal Lease Term, then, until the Market Value Rent
and, accordingly, the Base Annual Rent, is finally determined, the Base Annual
Rent shall remain the same as payable during the last year of the initial Term
or the First Option Period, as the case may be. Upon final determination of the
Market Value Rent, an appropriate adjustment to the Base Annual Rent shall be
made reflecting such final determination, and Landlord or Tenant, as the case
may be, shall promptly refund or pay to the other any overpayment or deficiency,
as the case may be, in the payment of Base Annual Rent from the commencement of
the Renewal Lease Term to the date of such final determination.
ARTICLE 4
COMMON AREAS
4.01 MAINTENANCE Landlord covenants and agrees to maintain, or cause to
be repaired or maintained, the Common Areas in good order and repair. The Common
Areas shall consist of all those areas and items described in Article 7.02(a) as
Landlord's responsibility, and shall include parking areas, landscaped areas,
streets, sidewalks, driveways, loading platforms, and any other facilities of
the Shopping Center as they may from time to time exist, but repair and
maintenance shall not include ordinary janitorial services nor shall Common
Areas include those items excluded from Landlord responsibility under Article
7.02(b).
4.02 COMMON AREA COSTS Common Area Costs shall mean costs reasonably
incurred for operation, maintenance, management and repair of the Common Areas,
including Taxes determined under Article 5.01 and Insurance determined under
Article 14.01; certified public accountant fees; repairing, repainting and
restriping and repaving when necessary the parking areas; refuse collection;
snow removal from the Shopping Center; cleaning, sweeping and other janitorial
services outside of the Premises; sanitation and maintenance of refuse
receptacles; planting and replanting landscaping; maintenance of directional
signs and other markers; and upkeep of lighting and other utilities. Common Area
Costs may include any expenditures which, in accordance with generally accepted
accounting principles, are not fully chargeable to current account in the year
the expenditure is incurred
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(capital expenses). Items which are capital in nature shall be amortized
according to such principles, and only the part thereof attributable to a
particular year, pro-rated for each day in the Term, shall be included in Common
Area Costs for that year.
4.03 PAYMENT BY TENANT Effective on the Rent Commencement Date, Tenant
shall pay to Landlord, in advance, on the first day of each calendar month,
Xxxxxx's Pro Rata Share of the monthly allocation for Common Area Costs (based
upon Xxxxxxxx's estimates), subject to readjustment under Article 4.04.
4.04 STATEMENT FROM LANDLORD Within 90 days after the end of each
calendar year, Landlord shall furnish to Tenant a statement, certified as
correct by a certified public accountant or an officer of Landlord, showing the
total Common Area Costs for the calendar year just expired (including any
allocation of capital expenses or special assessments), the actual allocated
monthly and annual amount of Common Area Costs, and the payments actually made
by Tenant during such calendar year. If the actual Common Area Costs for such
calendar year shall exceed Xxxxxx's payments as shown on such statement, then
Tenant shall, within 30 days after receipt of such statement, pay the difference
to Landlord. If the statement indicates an overpayment by Tenant, then Tenant
shall, at its option, be entitled to offset such excess against payments
becoming due or any other payment obligations under this Lease. Upon termination
of the Lease, Landlord shall refund any overpayment of Common Area Costs. Common
Area Costs shall be subject to audit by Tenant, and Landlord shall use its best
efforts to minimize such costs in a manner consistent with good building
management practices. The obligations under this Article shall survive the
expiration of the Lease.
ARTICLE 5
TAXES
5.01 TENANT'S PAYMENT OF REAL PROPERTY TAXES Tenant shall pay its Pro
Rata Share of all real property taxes, general assessments and special
assessments that may he levied or assessed against the Premises by any lawful
authority, beginning on the Rent Commencement Date ("Taxes"). Taxes for the tax
year in which the Term begins and the Term expires shall be prorated daily based
on the number of days of the tax year included in the Term; and special
assessments shall be prorated based on a reasonable estimate of the useful life,
if any, of the work for which the special assessment is made and the portion of
that useful life included in the Term. Taxes shall be paid under Article 4.02 as
Common Area Charges.
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5.02 PAYMENT OF PERSONAL PROPERTY TAXES, CHARGES AND LEVIES Tenant
shall pay before delinquency all taxes, license fees and public charges levied,
assessed or imposed upon its business operation in the Premises and upon its
leasehold improvements, fixtures, equipment and personal property in or upon the
Premises or any other taxes, charges of levies (including judgments) which may
either immediately or after the passage of time become a lien on the Premises or
charge upon Xxxxxx's estate in the Premises. If there are any such taxes,
charges or levies assessed or imposed on Xxxxxx's property together with
property of Landlord, then such assessment shall be equitably divided between
Landlord and Tenant so that Tenant shall pay only its equitable share of such
assessment. Landlord shall determine the basis of such proration based upon the
records of the tax assessor. No taxes, assessments, fees or charges referred to
in this paragraph shall be considered Taxes under the provisions of Article 4.
ARTICLE 6
UTILITIES
6.01 TENANT'S RESPONSIBILITY Tenant shall be solely responsible for and
promptly pay all charges for the use or consumption within the Premises of
sewer, gas, electricity, water and all other utility services.
6.02 LIMITED LIABILITY FOR DAMAGE Landlord shall not be liable to
Tenant in damages or otherwise if the utilities or services are interrupted or
terminated because of necessary repairs, installations or improvements, or any
cause beyond Landlord's reasonable control; nor shall any such interruption or
termination relieve Tenant of the performance of any of its obligations
hereunder, except that if Tenant is unable to operate its business without
material impediment for longer than 30 days, all rent obligations hereunder
shall xxxxx thereafter until reasonable service is restored. "Reasonable
service" shall be such as to permit Tenant to operate its business substantially
as it did prior to the interruption or termination. If such interruption
continues for more than 180 days, Tenant may elect to terminate this Lease.
ARTICLE 7
CONDITION OF PREMISES
7.01 CONDITION OF THE PREMISES Tenant is fully familiar with the
physical condition of the Premises and the Building, including the improvements,
Trade Fixtures, and
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equipment. Landlord has made no representations of any nature in connection with
the condition of the Premises or of the Building, improvements, Trade Fixtures,
or equipment, and the Landlord shall not be liable for any latent or patent
defects. Tenant understands and agrees that the Premises are leased in "as is"
condition, subject to Landlord's agreements to repair and maintain the Premises,
and Tenant shall be presumed to have accepted possession of the Premises on the
Rent Commencement Date.
7.02 REPAIR AND MAINTENANCE (a) Landlord covenants and agrees, at its
expense, to keep in good condition and repair the foundations, exterior paint,
plumbing system, electrical system, utility lines and connections to the
Premises, sprinkler mains, if any, structural components (including without
limitation the roof, roof covering and load-bearing walls and floor slabs) and
masonry walls of the Premises, after notice from Tenant of the need for such
repairs. Tenant shall promptly notify Landlord of any condition respecting such
structure or exterior that may need repair. Xxxxxxxx's obligation with respect
to maintenance of and repairs of the Premises shall be only as expressly set
forth in this Article and Landlord shall not be responsible for wall cracks
which in the sole opinion of Landlord do not constitute a danger to the
Premises. Landlord shall not be in default unless Landlord fails to perform its
obligations within a reasonable time, but in no event later than 30 days after
written notice from Tenant specifying Landlord's failure to perform; provided,
however, that if the nature of Landlord's obligation is such that more than 30
days are required for performance, Landlord shall not be in default if Landlord
commences performance within such 30 day period and thereafter diligently
carries out its duties.
(b) Tenant, at its expense, shall make all necessary repairs and
replacements not required to be made by Landlord under paragraph (a) above
(including but not limited to repairs and replacements to the plumbing, heating,
air conditioning and sprinkler system and equipment in the Premises, and the
floors, interior walls, and ceiling of the Premises and the windows, doors, and
store front thereof, and repairs necessitated by the act or failure to act of
Tenant and/or its agents, employees, customers or invitees). If Xxxxxx refuses
or fails to make or complete with reasonable dispatch any required repairs or
replacements, Landlord may make such repairs or replacements or cause them to be
made at Tenant's expense, and, upon demand, Tenant shall pay the cost to
Landlord as additional rent. Tenant agrees to place its trash in the dumpster
assigned by Landlord from time to time.
7.03 ALTERATIONS Tenant will not alter the exterior of the Premises
without the prior written consent of Landlord; provided, however, Landlord will
not unreasonably delay or withhold its consent to alterations reasonably
intended to promote or improve Tenant's banking services or operations. Tenant
may at
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its expense make such alterations or improvements to the interior of the
Premises as may be required for the conduct of its business, provided the
written approval of Landlord as to the improvement and the contractor has been
first obtained; and further provided that such alterations and improvements
shall be performed in a workmanlike manner and shall not be harmful to the
structure nor overload the electrical, plumbing, heating or air conditioning
facilities of the Premises or the Building. Tenant shall not to cause any
protrusions to be made in, to or through the roof without Landlord's prior
written consent. At the expiration of the Lease, Tenant shall, at its expense,
restore the Premises to their original condition, reasonable wear and tear
excepted and shall be broom clean. If Tenant fails to perform such restoration,
Landlord may do it at Tenant's expense and Tenant shall on demand pay the cost
to the Landlord.
7.04 MECHANICS LIENS Tenant shall not permit to be created or to remain
undischarged any lien, encumbrance or charge arising out of any work performed
for Tenant by any contractor, mechanic, laborer or any material supplied or
claimed to be supplied by any materialman to or for Tenant that might be or
become a lien, encumbrance or charge upon the Premises or the income therefrom.
If any lien or notice of lien on account of an alleged debt of Tenant or any
contractor to work in the Premises shall be filed against the Premises or the
Shopping Center, Tenant shall, within 30 days after notice of the filing
thereof, cause the same to be discharged of record by payment, deposit or bond,
by order of a court of competent jurisdiction or otherwise. If Tenant shall fail
to cause such lien or notice of lien to be discharged by either paying the
amounts claimed to be due or by procuring the discharge of such lien by deposit
or by bonding proceedings, Landlord shall be entitled to defend any foreclosure
action of such lien by the lienor. Tenant shall reimburse Landlord, upon demand,
for any money paid by Landlord and all costs and expenses, including reasonable
attorneys' fees, incurred by Landlord in connection therewith, together with 10%
annual interest thereon from the date of Landlord's making of the payment or
incurring of the cost and expense. If Tenant diligently contests any such claim,
but does not cause such lien or notice of lien to be discharged, Xxxxxx agrees
to indemnify, defend and hold harmless Landlord from any and all costs,
liabilities and damages, including reasonable attorneys' fees resulting
therefrom, and upon demand, to deposit with Landlord cash or a surety bond, in
form and with a company reasonably satisfactory to Landlord, in an amount equal
to the amount of such contested claim.
ARTICLE 8
SUBORDINATION AND ATTORNMENT
8.01 SUBORDINATION Xxxxxx agrees that this Lease is
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subject and subordinate to the lien of any first mortgages or deeds of trust now
on or which at any time may be made a lien upon the Shopping Center, or any part
of it, and to all advances made or hereafter to be made upon the security
thereof. This subordination provision shall be self-operative and no further
instrument of subordination shall be required. Xxxxxx agrees to execute and
deliver, upon request, such further instrument or instruments confirming this
subordination as shall be desired by Landlord or by any mortgagee or proposed
mortgagee; and Tenant appoints Landlord as Xxxxxx's attorney-in-fact to execute
any such instrument or instruments. Xxxxxx further agrees that, as the option of
the holder any first mortgagee or of the trustee under any first deed of trust,
this Lease may be made superior to said first mortgage or first deed of trust by
the insertion therein of a declaration that this Lease is superior thereto.
8.02 ATTORNMENT In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under, any deed
to secure debt given by Landlord and covering the Leased Premises, Tenant shall
attorn to the Purchaser upon any such foreclosure or sale and recognize such
purchaser as the owner and landlord under this Lease, provided such owner, as
landlord, shall recognize Tenant's rights to continue to occupy the Lease
Premises and exercise and enjoy all of its rights hereunder so long as Tenant
complies with the terms and provisions of this Lease and further provided any
such purchaser shall be deemed to assume and agree to perform the duties of the
landlord hereunder.
ARTICLE 9
SIGNS
Landlord and Xxxxxx acknowledge that this Lease is contingent upon
Xxxxxx receiving final approval in writing of Tenant's exclusive use of its
building and curb signs. Upon receipt of such approval, Tenant shall install
such signs at Tenant's expense and Tenant shall be solely responsible for the
expenses of operation, maintenance and replacement of such signs.
ARTICLE 10
DAMAGE TO PREMISES
10.01 REPAIR OF PREMISES (a) In the event the Premises are damaged or
destroyed or rendered partially untenantable for their accustomed uses by fire
or other casualty, which is insured or would be insured under the coverage that
Landlord is obligated
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to carry pursuant to Article 12.01, then Landlord shall, within 60 days after
such casualty, commence to repair the premises, and within 120 days after
commencement of such repair, restore them to substantially the condition in
which they were immediately prior to the happening of such casualty, except as
otherwise provided in this Article 10.
(b) In the event the Premises or the Building are damaged or destroyed
by a peril not covered by the insurance Landlord is obligated to carry pursuant
to Article 12.01 ("Uninsured Risk") and the Premises or the Building are damaged
by such Uninsured Risk to an extent equal to or greater than 25% of the
replacement cost of the Premises or the Building above the foundation, then
Landlord shall have the option to (1) elect to repair the damage, in which event
this Lease shall continue in full force and effect, provided that such repairs
are commenced within 120 days after such casualty and Landlord diligently and
continually pursues such repairs to completion no longer than one year after the
date of the casualty, or (2) elect not to repair the damage, in which event this
lease shall automatically terminate effective as of the date Landlord gives
Tenant written notice of termination. Landlord shall notify Tenant within 90
days after the happening of such casualty of its election to repair the Premises
or to terminate this Lease by not repairing the Premises. If the Premises or the
Building are damaged by an Uninsured Risk to an extent less than 25% of the
replacement cost of the Premises, or the Building above the foundation, then
such damage shall be treated as an insured risk and Landlord shall be obligated
to repair the Premises in accordance with the provisions of Article 10.01.
10.02 RENT ABATEMENT AND TERMINATION From the date of any casualty
described in Article 10.01 until the Premises or Shopping Center are so repaired
and restored (or until Landlord notifies Tenant of its election to terminate
this Lease in accordance with the provisions of Article 10.01) , Base Annual
Rent and all other charges payable under this Lease shall xxxxx in the same
proportion as the untenantable portion of the Premises bears to the entire
Premises.
ARTICLE 11
EMINENT DOMAIN
11.01 ELECTION TO TERMINATE In the event that any portion of the
Premises or all or a substantial portion of the Shopping Center shall be
appropriated or taken under the power of eminent domain by any public or
quasi-public authority, then at the election of either Landlord or Tenant, upon
written notice to the other party within 60 days after receipt of written notice
of
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such taking, this Lease shall terminate and expire as of the date of such taking
and both Landlord and Tenant shall thereupon be released from any liability
thereafter accruing hereunder.
11.02 ELECTING NOT TO TERMINATE If neither Landlord nor Tenant elects
to terminate this Lease, Tenant shall remain in that portion of the Premises
that shall not have been appropriated or taken, and Landlord agrees, at
Landlord's cost and expense, as soon as reasonably possible, to restore the
remaining portion of the Premises to a complete unit of like quality and
character as existed prior to such appropriation or taking; and as of the date
of such appropriation or taking all rent and payment obligations of Tenant shall
be adjusted on an equitable basis, taking into account the relative value of the
portion taken in comparison to the portion remaining. A voluntary sale or
conveyance in lieu of condemnation under threat of condemnation shall be deemed
an appropriation or taking under the power of eminent domain.
ARTICLE 12
INSURANCE
12.01 LANDLORD'S OBLIGATION. Landlord agrees to carry or cause to be
carried during the Term, public liability insurance and fire and extended
coverage with such endorsements as are commonly included in the market area on
the Premises. Public Liability Coverage shall be not less than $1,000,000 for
bodily injury, including death and personal injury arising out of any one
occurrence and insurance for fire, extended coverage, vandalism and malicious
mischief, insuring the improvements located on Landlord's property in the
Shopping Center. Fire and Extended Coverage shall not be for more than the
replacement value of the Premises. Landlord shall have the option to carry
additional insurance or insurance with higher coverage, provided that Tenant
shall be responsible for paying only the insurance coverage specified herein
with limits that are customary and reasonable in the general vicinity of the
Shopping Center for structures similar to the Premises. Such insurance shall
cover the Premises and all appurtenances thereto. Landlord shall provide to
Tenant a certificate of such insurance. Landlord's premiums for such insurance
shall be paid as Common Area Costs under Article 4.
12.02 TENANT'S OBLIGATION. Tenant shall carry public liability
insurance on the Premises covering both Tenant, Landlord and any trustee or
beneficiary under a deed of trust on the Premises as additional insureds with
terms and companies reasonably satisfactory to Landlord and giving Landlord,
Tenant and other additional insureds of which Landlord has previously notified
Tenant in writing a minimum of 10 days written notice by the insurance company
prior to cancellation, termination or change
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in such insurance. Such insurance shall be for limits of not less than
$2,000,000 for bodily injury, including death and personal injury, arising out
of any one occurrence, and not less than $500,000 for damage to property arising
out of any one occurrence or a policy having a combined single limit of
$2,000,000. Tenant shall obtain tenant insurance with standard coverage against
loss by fire, theft or other casualty on its personal property, and such
insurance shall have the same provisions on coverage and notification of
Landlord, trustees and beneficiaries and others as the public liability
insurance. Nothing in this Article 12.02 shall prevent Tenant from carrying and
maintaining any insurance required hereunder within the coverage of a blanket
insurance policy or policies carried by Tenant covering other properties as well
as the Premises. Tenant shall from time to time on Landlord's request provide
such certificates of insurance to Landlord or its lenders as Landlord may
reasonably request.
12.03 MUTUAL RELEASE Landlord and Tenant for themselves and all parties
claiming under them, mutually release and discharge each other and their
respective officers, directors, partners, agents and employees, from all claims
and liabilities arising from or caused by any casualty or hazard, covered or
required hereunder to be covered in whole or in part by insurance on the
Premises, the Shopping Center of in connection with property on or activities
conducted on the Premises or the Shopping Center, and mutually waive (and shall
cause their respective insurers to waive) any right of subrogation that might
otherwise exist in or accrue to any person on account thereof. Landlord and
Tenant shall obtain any endorsements necessary so that such release shall not
operate in any case to invalidate such insurance coverage.
12.04 MUTUAL INDEMNIFICATION Tenant and Landlord hereby agree to
indemnify, defend and hold harmless each other, their agents, officers and
employees, from and against any and all liability, claims, demands, damages,
expenses, fees, fines, penalties, suits, proceedings, actions and causes of
action of every kind and nature arising or growing out of or in any way
connected, as to Landlord, with Xxxxxx's use, occupancy, management or control
of the Premises and, as to Tenant, Landlord's use, occupancy, management or
control of the Shopping Center, respectively. This obligation to indemnify shall
include reasonable legal and investigation costs and all other reasonable costs,
expense and liabilities from the first notice that any claim or demand is to be
made or may be made.
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ARTICLE 13
ASSIGNMENT AND SUBLETTING
Xxxxxx agrees that it will not assign, mortgage or encumber this Lease,
nor sublease, or permit the Premises or any part of the Premises to be used or
occupied by others, without the prior written consent of Landlord in each
instance. Xxxxxxxx's consent shall not be unreasonably withheld if Xxxxxx wishes
to sublet to another financial institution.
Any assignment or sublease in violation of this section will be void.
If this Lease is assigned, or if the Premises or any part of the Premises are
subleased or occupied by anyone other than Tenant, Landlord may, after default
by Tenant, collect rent from the assignee, subtenant or occupant, and apply the
net amount collected to Rent. No assignment, sublease, occupancy or collection
will be deemed (a) a waiver of the provisions of this section; or (b) the
acceptance of the assignee, subtenant or occupant as tenant; or (c) a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
contained in this Lease. The consent by Landlord to an assignment or sublease
will not be construed as consent to any further assignment or sublease. No
permitted subtenant may assign or encumber its sublease or further sublease all
or any portion of its subleased space, or otherwise permit the subleased space
or any part of its subleased space to be used or occupied by other, without
Xxxxxxxx's prior written consent in each instance.
ARTICLE 14
DEFAULT
14.01 EVENTS OF DEFAULT The following events are referred to
collectively as "Events of Default," or individually as an "Event of Default:"
(a) Tenant defaults in the due and punctual payment of Rent, and such
default continues for more than 5 business days following notice from Landlord;
(b) this Lease or the Premises or any part of the Premises are taken
upon execution or by other process of law directed against Tenant, or are taken
upon or subject to any attachment at the instance of any creditor or claimant
against Tenant, and the attachment is not discharged or disposed of within 45
days after its levy;
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(c) Tenant files a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or
under any insolvency act of any state, or admits the material allegations of any
such petition by answer or otherwise, or is dissolved or makes an assignment for
the benefit of creditors;
(d) voluntary or involuntary proceedings under any such bankruptcy law
or insolvency act or for the dissolution of Tenant are instituted against
Tenant, or a receiver or trustee is appointed for all or substantially all of
the property of Tenant, and such proceeding is not dismissed or such
receivership or trusteeship vacated within 60 days after such institution or
appointment;
(e) Tenant fails to take possession of the Premises on the Commencement
Date of the Term; or
(f) Tenant breaches any of the other agreements, terms covenants or
conditions which this Lease requires Tenant to perform, and such breach
continues for a period of 30 days after written notice from Landlord; or if such
breach cannot be cured reasonably within such 30 day period and Tenant fails to
commence and proceed diligently to cure such breach within a reasonable time
period.
14.02 LANDLORD'S REMEDIES Upon the occurrence and continuance of an
Event of Default, Landlord, without notice to Tenant (except where expressly
provided for below) may do any one or more of the following:
(a) declare the rent for the entire Lease Term immediately due and
payable and collect the same by distress or otherwise;
(b) declare the term of this Lease ended and this Lease terminated,
cancelled and annulled;
(c) with or without terminating this Lease, reenter and take possession
of the Premises and every part thereof and rerent the Premises at the risk and
cost of the Tenant, whose default shall not relieve it of the responsibility for
the difference between the rent due under this Lease and the rent actually
received by landlord during the remaining Lease Term, or, if such rent received
is in excess of the rent called for hereunder, the entire amount shall belong to
Landlord free of any claim of Tenant;
(d) perform, on behalf and at the expense of Xxxxxx, any obligation of
Tenant under this Lease that Xxxxxx has failed to perform and of which Xxxxxxxx
has given Tenant notice, the cost of which performance by Xxxxxxxx, together
with interest at the
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rate of 6% per year from the date of such expenditure, shall be payable on
demand; and/or
(e) institute such other appropriate proceeding as Landlord may be
legally entitled to employ.
If an Event of Default occurs, then Xxxxxx agrees to compensate Landlord
for any costs incurred by Landlord in enforcing the provisions of this Lease,
including Landlord's attorneys' fees.
14.03 CUMULATIVE REMEDIES Any suit or suits for the recovery of the
amounts and damages set forth in this Article may be brought by Landlord, from
time to time, at Landlord's election, and nothing in this Lease will be deemed
to require Landlord to await the date upon which this Lease or the Term would
have expired had there occurred no Event of Default. Each right and remedy
provided for in this Lease is cumulative and is in addition to every other right
or remedy provided for in this Lease or now or after the Lease Date existing at
law or in equity or by statue or otherwise, and the exercise or beginning of the
exercise by Landlord of any one or more of the rights or remedies provided for
in this Lease or now on after the Lease date existing at law or in equity or by
statute or otherwise will not preclude the simultaneous or later exercise by
Landlord of any or all other rights or remedies provided for in this Lease or
now or after the Lease Date existing at law or in equity or by statute or
otherwise. All costs incurred by Landlord in collecting any amounts and damages
owing by Tenant pursuant to the provisions of this Lease or to enforce any
provision of this Lease, including attorneys; fees from the date any such matter
is turned over to an attorney, whether or not on or more actions are commenced
by Xxxxxxxx, will also be recoverable by Landlord from Tenant.
ARTICLE 15
GOVERNMENT APPROVAL
This Lease and Tenant's obligations are conditioned upon Xxxxxx's
receipt of approval from governmental regulatory agencies having jurisdiction
over Tenant. Xxxxxx agrees to pursue such approvals in good faith and with due
diligence and will advise Landlord promptly of its receiving or failing to
receive such approvals. If Tenant fails to receive such approval, this Lease
shall be terminated; provided, however, that if Tenant's application is not
approved within 45 days of the date of this Lease, Landlord shall have the
option to terminate the Lease.
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ARTICLE 16
DEFAULTS BY LANDLORD
TERMINATION BY TENANT
In addition to any rights Tenant may have under this Lease or by law or
in equity, if Landlord fails to perform or observe any material provision of
this Lease to be performed by Landlord or if Tenant is provided under this Lease
a right to terminate this Lease before expiration of its Term, Tenant shall give
Landlord written notice thereof (specifying the condition or default on which
termination or default is based) , and Landlord shall have 30 days to cure any
condition or any default so specified (except that this 30-day period shall be
extended by a reasonable period of time if the alleged condition or default is
not reasonably capable of cure within such 30-day period and Landlord proceeds
diligently to cure the condition or default). If Landlord does not so cure,
Tenant may, at its option and upon written notice, terminate this Lease without
waiving any rights or remedies (including the right to recover damages) or incur
any expense necessary to perform the obligation of Landlord specified in such
notice, and deduct such expense from the rents or other charges next coming due.
ARTICLE 17
SURRENDER OF PREMISES
Tenant shall, upon termination of the Term or any earlier termination
of this Lease for any cause, surrender to Landlord the Premises, including
without limitation all equipment then on the Premises other than equipment and
fixtures owned or leased by Xxxxxx. In addition, provided Tenant is not in
default under this Lease, Tenant may remove the Trade Fixtures. Tenant shall
surrender to Landlord all alterations and other additions that may be made or
installed by either party to, in, upon or about the Premises, without any
damage, injury or disturbance, normal wear and tear and damage by casualty
excepted.
ARTICLE 18
MISCELLANEOUS PROVISIONS
18.01 PAYMENTS All amounts due under this Lease shall be paid on or
before the first day of each month at the address
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specified for Landlord in Article 1 or at such other place as Landlord
designates.
18.02 NOTICES All notices and demands required or permitted to be given
under this Lease shall be in writing and sent by certified mail, return receipt
requested, to the addresses of the parties set forth in Article 1. Either party
may change its address by giving notice as set forth in this Article.
18.03 REMEDIES All rights and remedies of Landlord and Xxxxxx granted
by this Lease or otherwise existing at law are cumulative, and may be exercised
and enforced concurrently and whenever and as often as the exercising party
deems desirable.
18.04 SUCCESSORS AND ASSIGNS Subject to the provisions of Article 18,
all covenants, promises, conditions, representations and agreements herein
contained shall be binding upon, apply and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors and
assigns.
18.05 WAIVERS The failure of either Landlord or Tenant to insist upon
strict performance by the other of any of the covenants, conditions or
agreements of this Lease shall not be deemed a waiver of any subsequent breach
or default in any of such covenants, conditions or agreements. No surrender of
the Premises by Tenant shall be affected by Landlord's acceptance of rent or by
any other means whatsoever unless the same shall be evidenced by Xxxxxxxx's
written acceptance thereof as a surrender.
18.06 HOLDING OVER If Tenant or any party claiming under Xxxxxx remains
in possession of the Premises or any part thereof after any termination or
expiration of this Lease, Landlord, in its sole discretion, may treat such
holdover as an automatic renewal of this Lease for a month-to-month tenancy
subject to all the terms and conditions of this Lease.
18.07 ESTOPPEL At any time and from time to time either party, upon
request of the other party, shall execute, acknowledge and deliver a
certificate, stating (if the same be true) that (a) this Lease is a true and
correct copy of the lease between the parties, (b) there are no amendments (or
stating what amendments there may be), (c) the same is then in full force and
effect, (d) to the best of its knowledge, there are no offsets, defenses or
counterclaims with respect to the payment of rent reserved hereunder or the
performance of the other terms, covenants and conditions hereof on the part of
Tenant or Landlords, as the case may be, to be performed, and (e) as of such
date no default has been declared hereunder by either party, and stating such
other information concerning this Lease as shall be reasonably requested. If
such certificate is not executed by the other party and delivered to the
requesting party within 15 days after receipt of the request, the statements
made in the proposed estoppel request
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shall be deemed to be correct. Tenant's certificate shall be substantially in
the form of Exhibit D.
18.08 TIME OF THE ESSENCE Time is of the essence for the performance of
each and every provision hereof.
18.09 FORCE MAJEURE If either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, failure of power, riots, insurrection, war or
other reason of like nature not the fault of the party delayed in performing
work or doing acts, such party shall be excused from performance for the period
of delay and the period for performance shall be extended by the period of the
delay.
18.10 CONSENT Wherever in this Lease Landlord or Tenant is required to
give its consent or approval to any action on the part of the other, such
consent or approval shall not be unreasonably withheld.
18.11 AMENDMENTS This Lease may be modified, amended, changed or
terminated, in whole or in part, only by an agreement in writing duly authorized
and executed by both Landlord and Tenant. This Lease may not be modified,
amended, changed or terminated by any oral agreement or understanding between
the parties unless the same shall be reduced to writing and duly authorized and
executed by both Landlord and Tenant.
18.12 SEVERABILITY Invalidation of any of the provisions of this Lease
or any paragraph, sentence, clause, phrase or work herein, or the application
thereof in any particular circumstance, shall not affect the validity of the
remainder of this Lease.
18.13 EXCLUSIVE AGREEMENT This Lease contains the entire agreement
between the parties hereto and no statement, promise, or inducement made by
either party or its agent that is not contained in this Lease shall be valid or
binding.
18.14 BINDING EFFECT This Lease shall become binding upon the parties
upon the date of the last party signing hereunder, notwithstanding that the Term
shall commence at a future date.
18.15 RELATIONSHIP OF PARTIES Nothing herein shall be deemed by the
parties hereto or by any third party to create any relationship between the
parties other than that of landlord and tenant.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease
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to be executed by their respective duly authorized representatives as of the
date set forth above.
LANDLORD
ATTEST: BELLEWOOD ASSOCIATES
LIMITED PARTNERSHIP
[SIG] By: /s/ H.M. LEESBURG LTD PTR - GENERAL PARTNER
--------------------------- -------------------------------------------
By: /s/ MINSHALL CAPITAL CORP.(SEAL)
-------------------------------------------
By: [SIG]
-------------------------------------------
TENANT
ATTEST: COLUMBIA FIRST BANK, A
FEDERAL SAVINGS BANK
/s/ XXXXX X. XXXXXX By /s/ XXXXXX X. XXXXXXX (SEAL)
--------------------------- -------------------------------------------
AW-101
31
EXHIBIT A
[COUNTY RECORDERS STREET MAP]
32
EXHIBIT B
CONFIRMATION OF RENT C0MMENCEMENT DATE
THIS CONFIRMATION OF RENT COMMENCEMENT DATE is made this 23 day of
April, 1993, by and between Bellewood Associates Limited Partnership
("Landlord") and Columbia First Bank, a Federal Savings Bank ("Tenant").
WHEREAS, Landlord and Xxxxxx entered into a lease dated April 23, 1993
("Lease") ;
WHEREAS, the Rent Commencement Date is dependent upon the occurrence of
certain events; and
WHEREAS, those events have occurred and Landlord and Tenant now desire
to specify the Rent Commencement Date.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Landlord and Tenant agree as follows:
The Rent Commencement Date is May 1, 1993; provided, however, that if
an appeal is filed to the decision of the Leesburg Architectural Review Board
with respect to Xxxxxx's Signs, Tenant shall have the right to terminate this
Lease.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx execute this Confirmation under
seal on the date written above.
LANDLORD:
BELLEWOOD ASSOCIATES
LIMITED PARTNERSHIP
ATTEST: By /s/ HM LEESBURG GENERAL PARTNER
-------------------------------
/s/ [SIG] /s/ MINSHALL CAPITAL CORP.
----------------------- -------------------------------
By [SIG]
-------------------------------
TENANT:
COLUMBIA FIRST BANK, A
FEDERAL SAVINGS BANK
ATTEST:
/s/ XXXXX X. XXXXXX By /s/ XXXXXX X. XXXXXXXX
----------------------- -------------------------------
33
EXHIBIT C
One NCR Model 5085 automated teller machine
One night depository unit
A drive-thru banking facility including one remote station
One night teller safe
34
EXHIBIT D
Estoppel Certificate
, 19__
[Name and address of Landlord,
Secured Lender, or Purchaser
of Bellewood Commons]
Re: Lease dated April 23, 1993 by and between Bellewood Associates
Limited Partnership as Landlord and Columbia First Bank, a Federal
Savings Bank as Tenant
Ladies and Gentlemen:
The undersigned, Tenant under the above Lease, confirms that as of the
date of this Certificate:
1. Tenant is in full and complete possession of the Premises known as
Store 36, Bellewood Commons Shopping Center, possession of such Premises having
been delivered by Landlord and having been accepted by Tenant; the Rent
Commencement Date was May 1, 1993; Tenant is paying Base Annual Rent in monthly
installments of $____________; and rents have been paid through ______________.
2. The Lease is a bona fide lease and is in full force and effect; the
Lease has not been amended or modified except as follows:
_____________________________________
3. A correct copy of the Lease and all amendments are attached to this
Certificate.
4. There is no default on the part of the Landlord except as follows:
_____________________________________
5. No rents have been prepaid except as provided by the Lease; Tenant does
not now have any claim against Landlord which might be set off or credited
against future accruing rents except as follows:
_____________________________________
6. Tenant has received no notice of a prior sale, transfer, assignment,
hypothecation or pledge of the Lease or of the rents secured therein, except
that it has received notice of an Assignment of Leases and Rents (as additional
security) dated
35
______________________________, to ______________________.
7. Tenant has not subordinated and will not subordinate its Lease to the
lien of any other mortgage or deed of trust without the prior written consent of
Xxxxxx.
Very truly yours,
Columbia First Bank, a
Federal Savings Bank
Attachment
36
[BARNES, MORRIS, XXXXXX & XXXXXX MANAGEMENT SERVICES, LLC LETTERHEAD]
May 16, 1996
Xx. Xxxxx X. Xxxxxx
Executive Vice President
Xxxxxx Xxxxx Bank
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
RE: 000 XXXX XXXXXX XXXXXX
XXXXXXXX, XXXXXXXX
Dear Xxxxx:
Enclosed please find one fully executed original of the Assignment and
Assumption Agreement by and among First Union National Bank of Virginia, Xxxxxx
Xxxxx Bank, and Bellewood Associates Limited Partnership, for your files.
Please call me with any questions that you may have.
Sincerely,
BARNES, MORRIS, XXXXXX & XXXXXX MANAGEMENT SERVICES, LLC
/s/ XXXXXXX XXXXXXXX
--------------------
Xxxxxxx Xxxxxxxx
Retail Leasing
Enclosure
cc: Xxxxx Xxxxxxxxx, Esq. (w/copy of enclosure)
37
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the Assignment), dated as of
the 18th day of April, 1996 (the Effective Date), by and among FIRST UNION
NATIONAL BANK OF VIRGINIA (the Assignor), XXXXXX XXXXX BANK (the Assignee), and
BELLEWOOD ASSOCIATES LIMITED PARTNERSHIP (the Lessor), recites and provides:
RECITALS:
By Xxxxx dated April 23, 1993 (the Lease), between the Lessor (as
landlord) and the Assignor, successor to Columbia First Bank, (as tenant), the
Lessor leased to the Assignor certain real estate located in the County of
Loudoun, Virginia, and more particularly described in the Lease (the Leased
Premises). A true and complete copy of the Lease is attached hereto as Exhibit
A. Under the terms of the Lease, the Assignor may not assign its interest in the
Lease except with the prior written consent of the Lessor.
The Assignor now wishes to assign and transfer to the Assignee all of
the Assignor's right, title, and interest in and to the Lease. The Lessor is
willing to consent to such assignment on the terms and conditions set forth
herein.
ASSIGNMENT AND ASSUMPTION AGREEMENT:
FOR and in consideration of the premises, the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Assignment. The Assignor hereby assigns and transfers to the
Assignee all of the Assignor's right, title, and interest in and to the Lease
for the remainder of the term thereof (including any rights to renew the Lease
or extend the term thereof), subject to the rental, terms, covenants, and
conditions of the Lease. Notwithstanding the foregoing, however, Assignee shall
have the right to
38
terminate this Assignment on or before sixty (60) days from the Effective Date
(the [OCC] Bureau of Financial Institutions of the Commonwealth of Virginia
Approval Period) in the event Assignee is not able to obtain, or is denied,
approval from the [Office of Comptroller of the Currency (OCC)] Bureau of
Financial Institutions of the Commonwealth of Virginia before the expiration of
the [OCC] Bureau of Financial Institutions of the Commonwealth of Virginia
Approval Period. Assignee shall exercise due diligence to obtain such approval.
In the event [OCC] Bureau of Financial Institutions of the Commonwealth of
Virginia approval is not obtained within the [OCC] Bureau of Financial
Institutions of the Commonwealth of Virginia Approval Period, either party may
extend the [OCC] Bureau of Financial Institutions of the Commonwealth of
Virginia Approval Period for an additional thirty (30) days by written notice to
the other party received prior to the expiration of the [OCC] Bureau of
Financial Institutions of the Commonwealth of Virginia Approval Period. Upon
receipt of approval from the [OCC] Bureau of Financial Institutions of the
Commonwealth of Virginia, Assignee shall pay Fifty Thousand Dollars ($50,000) to
Assignor.
Assignee acknowledges that it has had an opportunity to examine the
Leased Premises. This assignment and transfer is made "as is" and there are no
warranties, express or implied, with respect to the Leased Premises.
2. Representations and Warranties. The Assignor and Assignee each
represent and warrant to the other that (a) it has full power and authority to
execute and deliver this Assignment, and (b) the execution and delivery hereof
and the terms and obligations hereof do not contravene any agreement to which it
is a party or by which it or the Leased Premises is bound. Assignor and Lessor
represent and warrant to the Assignee: (i) that the Lease is in full force and
effect, (ii) that to the best of their knowledge, there exists no event of
default thereunder on the part of either Assignor or Lessor, (iii) that to the
best of their knowledge, there exists no event which with the giving of notice
or the expiration of any applicable cure period would constitute an event of
default by either Assignor or Lessor under the Lease, and (iv) that the Leased
Premises as of this date contains among other equipment, the following items
(as they were on March 15, 1995, the date Assignor and Assignee walked through
the Leased Premises): (a) one night depository unit, (b) a drive through
banking
2
39
facility including one remote station and one drive up window, (c) one night
teller safe, and (d) under-counter teller equipment for six stations plus the
drive-in teller station.
3. Indemnity by Assignor. The Assignor covenants to hold the Assignee
harmless from and indemnify the Assignee for any loss, damage, cost, or expense
(including reasonable attorneys' fees) arising out of any failure of the
Assignor to perform any of its obligations under the Lease up to and including
the Effective Date.
4. Acceptance, Assumption, and Indemnity by Assignee. The Assignee (a)
accepts the assignment of all of Assignor's right, title, and interest in and to
the Lease, (b) agrees to be bound by all of the terms, covenants, and conditions
thereof, and (c) assumes the obligations of the Assignor under the Lease from
and after the Effective Date; provided, however, that Assignee's obligation to
pay rent under the Lease shall not commence until May 1, 1996. The Assignee
covenants and agrees to perform each term, covenant, and condition directly for
the benefit of the Lessor and to hold the Assignor harmless from and indemnify
the Assignor for any loss, damage, cost, or expense (including reasonable
attorneys' fees) arising out of any failure of the Assignee to perform any of
its obligations under the Lease from and after the Effective Date.
Notwithstanding the foregoing, Assignee shall have no responsibility with
respect to any of the obligations under the Lease up to and including the
Effective Date or at any time after the date Assignee terminates this
Assignment, if it terminates this Assignment pursuant to Paragraph 1 hereof.
5. Consent of Lessor. The Lessor executes this Agreement to evidence
its consent to the assignment effected hereby; provided, however, that such
consent shall neither be nor be deemed to be a consent to, or a waiver of the
necessity of obtaining the consent of the Lessor to, any proposed future
assignment.
3
40
6. Release by Lessor. The Lessor hereby remises, releases and forever
discharges the Assignor and it successors and assigns of and from all manner of
action, causes of actions, suits, debts, dues, sums of money, contracts,
agreements, promises, claims, and demands whatsoever in law or in equity, which
the Lessor ever had or now has or which its successors and assigns hereafter
can, shall, or may have against the Assignor upon or by reason of any matter,
cause, or thing whatsoever arising with respect to the Lease.
7. Change of Address. For all purposes under the Lease, including, but
not limited to paragraph thereof, the mailing address for the tenant thereunder
shall be changed to the following:
Xx. Xxxxxx Xxxxx, AVP, Facilities Dept.
Xxxxxx Xxxxx Bank
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
8. Further Assurances. Each party hereto covenants and agrees to
execute and deliver, or cause to be executed and delivered, and to do or make,
or cause to be done or made, upon the reasonable request of any other party, any
and all instruments, papers, deeds, acts, or things, supplemental, confirmatory,
or otherwise, as may be reasonably required by such other party for the purpose
of effecting the assignment described herein.
9. Completeness and Modification. This Agreement constitutes the entire
agreement between the parties hereto as to the transactions contemplated hereby
and supersedes all prior discussions, understandings, or agreements between the
parties hereto.
10. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
4
41
11. Governing Law. This Agreement and all other instruments referred to
herein shall be governed by, and shall be construed according to the laws of the
Commonwealth of Virginia.
12. Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear on each counterpart
hereof, and it shall be sufficient that the signature on behalf of each party
hereto appear on one or more such counterparts. All counterparts shall
collectively constitute a single agreement.
13. Incorporation by Reference. All of the Exhibits attached hereto or
referred to herein and all documents in the nature of such Exhibits are by
reference incorporated herein and made a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives.
ASSIGNOR:
FIRST UNION NATIONAL BANK OF VIRGINIA
By: [SIG]
------------------------------------
Its: V.P.
ASSIGNEE:
XXXXXX XXXXX BANK
By: /s/ XXXXX X. XXXXXX
------------------------------------
Its: Executive Vice President
5
42
LESSOR:
BELLEWOOD ASSOCIATED LIMITED PARTNERSHIP
By: /s/ HM LEESBURG L.P.
------------------------------------
By: /s/ MINSHALL CAPITAL CORP G.P.
------------------------------------
By: [SIG]
------------------------------------
Its: President
STATE OF VIRGINIA
COUNTY OF FAIRFAX, to wit:
The foregoing instrument was duly acknowledged before me in the County
of Fairfax, this 18 day of April, 1996, by Xxxxx X. Xxxxxx, [,as EVP of Xxxxxx
Xxxxx Bank, a N/A on behalf of the Bank.
/s/ XXXXXXXXX X. XXXX
------------------------------------
Notary Public
My commission expires: 7-31-97
STATE OF ________________
___________ of ________________, to wit:
The foregoing instrument was duly acknowledged before me in the
____________ of _________________, this ____ day of ________, 1996, by
_______________, [, as ____________ of ____________________________, a
________________ on behalf of the _______________________.
[SIG]
------------------------------------
Notary Public
My commission expires: ___________.
STATE OF ________________
___________ of ________________, to wit:
The foregoing instrument was duly acknowledged before me in the
____________ of _________________, this ____ day of ________, 1996, by
_______________, [, as ____________ of ____________________________, a
________________ on behalf of the _______________________.
------------------------------------
Notary Public
My commission expires: ___________.
6
