Lease - EXHIBIT 10.9
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OFFICE LEASE
THIS AGREEMENT OF LEASE (hereinafter referred to as "the Lease") entered
into this 10/th/ day of August 1999, by and between East Main Properties, LLC.,
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(hereinafter referred to as the Landlord"), and Salem Bank & Trust.,
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(hereinafter referred to as "the Tenant"), and REALSTAR REALTORS, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "the
Agent").
WITNESSETH, THAT FOR AND IN CONSIDERATION of the mutual entry Into this
Lease by the parties hereto, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by each party hereto, the
Landlord hereby leases to the Tenant and the Tenant hereby leases from the
Landlord all that real property situated and lying In City of Salem which
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consists of the space (containing approximately 550 rentable square feet)
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outlined on attached "Exhibit A" (hereinafter referred to as "the Premises") and
located in a building hereinafter referred to as "the Building" at ▇▇▇ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (suite 10)
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SUBJECT TO THE OPERATION AND EFFECT of any and all instruments and matters
of record or In fact, UPON THE TERMS AND SUBJECT TO THE CONDITIONS which
are hereinafter set forth;
Section 1. TERM. This Lease shall be for a term (hereinafter referred to as
the Term commencing on September 1, 1999 purely referred to as the Commencement
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Date, and terminating at 11:59 PM local time on the 31 st day of August 2000
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provided Tenant gives Landlord notice at least 90 days prior to the expiration
of the term of it's intent not to renew this lease. Otherwise, it shall renew
month-to-month under the provisions set forth In subsection 9.1.
Section 2. USE.
2.1 The Tenant shall, continuously throughout the term, occupy and use the
Premises for and only for office purposes and in strict accordance with all
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applicable laws and regulations of governmental authorities. In its use of the
Premises and the remainder of the Property, Tenant will not use or permit or
suffer the use of the Leased Premises for any unwanted or offensive business or
purpose. Tenant will not, without the prior written consent of Landlord, use or
permit the walls, fences or roof of the Leased Premises to be used for
advertising purposes.
2.2 In its use of the Premises and the remainder of the Property, the
Tenant shall not violate any applicable law, ordinance or regulation.
2.3 Except for the parking of automobiles In the ordinary course, the
Tenant shall not place or permit its agents or employees to place any trash or
other objects anywhere within the Building or the rest of the Property (other
than within the Premises) without first obtaining Landlord's express written
consent thereto.
Section 3. RENT.
3.1 AMOUNT. As rent for the Premises (all of which is hereinafter
referred to collectively as "Rent" ), the Tenant shall pay to the Landlord all
of the following:
(a) BASE RENT. Tenant shall pay as base rent for the demised premises for
each year of the term hereof the sum of $6,600 Dollars ($6,600.00), payable in
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advance in equal monthly installments of $550.00 Dollars ($550.00), plus (if the
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term commences on a day other than the first (1st) of a calendar month), one
three hundred sixty-fifth (1/365) of the base rent for each day of such calendar
month falling within the term. For monthly rent over term.
(b) ADDITIONAL RENT. Additional rent (hereinafter referred to as
"Additional Rent") is the amount of any payment referred to as such in any
provision of this Lease which accrues whiles this Lease is in effect.
(c) LEASE YEAR. As used in the provisions of this Lease, the term "Lease
Year" means a period of twelve (12) consecutive calendar months. The first
Lease Year shall commence on September 1 1999 and each succeeding Lease Year
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shall commence on the anniversary date of the first Lease year.
3.2 WHEN DUE AND PAYABLE.
(a) The Base Rent for any Lease Year shall be due and payable in twelve
(12) consecutive, equal monthly installments, in advance, on the first (1st) day
of each calendar month during with Lease Year; provided that the installment of
the Base Rent payable for the first full calendar month of the Term (and, if the
Term commences on a day other than the first (1st) day of a calendar month, that
portion of the Base Rent which is payable for such month) shall be due and
payable on the full execution and delivery of this Lease.
3.3 WHERE AND HOW PAYABLE. The Tenant shall pay the Rent, In lawful
currency of the United States of America, without offset or deduction, to the
Landlord by delivering or mailing (postage prepaid) to the Agent, REALSTAR
REALTORS, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or to such other
address or in such other manner as this Lease by giving written notice thereof
to the Tenant. Any payment made by the Tenant to the Landlord on account of
Rent may be credited by the Landlord to the payment of any Rent then past due
before being credited to Rent currently falling due. Any such payment which is
less than the amount of Rent then due shall constitute a payment made on account
thereof, the parties hereto hereby agreeing that the Landlord's acceptance of
such payment (whether or not with or accompanied by an endorsement or statement
that such lesser amount or the Landlord's acceptance thereof constitutes payment
in full of the amount of Rent then due) shall not alter or impair the Landlord's
rights hereunder to be paid all of such amount then due, or in any other
respect.
3.4 LATE CHARGE. In the event any installment of rent is not paid within
five (5) business days after it becomes due, a late fee of 5% may be charged.
3.5 TAX ON LEASE. If federal, state or local law hereafter imposes any
tax, assessment, levy or other charge (other than any income tax) directly or
indirectly upon (a) the Landlord with respect to this Lease or the value
thereof, (b) the Tenants use or occupancy of the Premises (c) the Base Rent,
Additional Rent or any other sum payable under this Lease, or (d)
this transaction, except it and to the extent that such tax assessment, levy or
other charge is included in the Annual Operating Costs the Tenant shall pay the
amount thereof as Additional Rent to the Landlord upon demand, unless the Tenant
is prohibited by law from doing so, in which event the Landlord may, at its
election, terminate this Lease by giving written notice thereof to the Tenant.
Section 4. ASSIGNMENT AND SUBLETTING.
4.1 The Tenant shall not mortgage, pledge or encumber this Lease.
4.2 The Tenant shall not assign this Lease, or sublet or underlet any or
all of the Premises, or permit any other person or entity to occupy any or all
of the Premises, without on each occasion first obtaining the Landlord's written
consent thereto (which consent shall not be unreasonably withheld, but may be
conditioned, inter alia, upon the entry by the assignee into an appropriate
instrument by which it assumes the Tenant's obligations under the provisions of
this Lease). For purposes of the foregoing provisions of this subsection, a
transfer, by any person or persons controlling the Tenant on the date hereof, of
such control to a person or persons not controlling the Tenant on the date
hereof shall be deemed to be an assignment of this Lease. No such action taken
with or without the Landlord's consent shall in any way relieve or release the
Tenant from liability for the timely performance of all of the Tenant's
obligations hereunder. The Landlord shall be entitled to receive and retain,
and the Tenant shall promptly remit to the Landlord, any profit which may inure
to the Tenants benefit as a result of any such assignment, subletting or
underletting, whether or not consented to by the Landlord.
4.3 Anything contained in the foregoing provisions of this Section to the
contrary notwithstanding, neither the Tenant nor any other person having an
interest in the possession, use, occupancy or utilization of the Premises or any
other portion of the Property shall enter into any lease, sublease, license,
concession or other agreement for the use, occupancy or utilization of space in
the Premises or any other portion of the Property which provides for any rental
or other payment for such use, occupancy or utilization based in whole or in
part upon the net income or profit derived by any person from the space in the
premises or other portion of the Property so leased, used, occupied or utilized
(other than any amount based on a fixed percentage or percentages of receipts or
sales).
Section 5. TENANT'S PLAN FOR IMPROVEMENTS.
5.1 LEASEHOLD IMPROVEMENTS. The tenant shall make said leashold
improvements.
5.2 ACCEPTANCE OF POSSESSION. Except for (a) latent defects or incomplete
work which would not reasonably have been revealed by an inspection of the
Premises made for the purpose of discovering the same at the time of the
Tenant's assumption of possession of the Premises, and (b) any other items of
incomplete work which are set forth on a punch list submitted to and approved in
writing by the Landlord prior to such assumption of possession, by its
assumption of possession of the Premises, the Tenant shall for all purposes of
this Lease be deemed to have accepted them and to have acknowledged them to be
in the condition called for hereunder.
Section 6. FIRE AND OTHER CASUALTY.
6.1 GENERAL If the Premises are damaged by fire or any other casualty
during the Term, (a) the Landlord shall restore the Premises with reasonable
promptness (taking Into
account the time required by the Landlord to effect a settlement with, and to
procure any insurance proceeds from, any insurer against such casualty, but in
any event within one hundred fifty (150) days after the date of such casualty)
to substantially their condition immediately prior to such casualty, and may
temporarily enter and possess any or all of the Premises for such purpose
(provided, that the Landlord shall not be obligated to repair, restore or
replace any fixture, improvement, alteration, furniture or other property owned,
installed or made by the Tenant); but
(b) the times for commencement and completion of any such restoration
shall be extended for the period (not longer than sixty (60) days) of any delay
occasioned by the Landlord in doing so arising out of any of the causes
enumerated in the provisions of subsection 5.1. If the Landlord undertakes to
restore the Premises and such restoration is not accomplished within the said
period of one hundred fifty (150) days plus the period of any extension thereof,
as aforesaid, the Tenant may terminate this Lease by giving written notice
thereof to the Landlord within thirty (30) days after the expiration of such
period, as so extended; and
(c) for so long as the Tenant is deprived of the use of any or all of the
Premises on account of such casualty, the Base Rent and any Additional Rent
payable under the provisions of subsection 3.2 shall be abated in proportion to
the number of square feet of the Premises rendered substantially unfit for
occupancy by such casualty, unless, because of any such damage, the undamaged
portion of the Premises is made materially unsuitable for use by the Tenant for
the purposes set forth in the provisions of Section 2, in which event the Base
Rent and any such Additional Rent shall be abated entirely during such period of
deprivation.
6.2 SUBSTANTIAL DESTRUCTION. Anything contained in the foregoing
provisions of this Section to the contrary notwithstanding.
(a) if during the Term the Building is so damaged by fire or any other
casualty that (i) either the Premises or (whether or not the Premises are
damaged) the Building are rendered substantially unfit for occupancy, as
reasonably determined by the Landlord, or (II) the Building is damaged to the
extent that the Landlord reasonably elects to demolish the Building, then in
either case the Landlord may elect to terminate the Term as of the date of the
occurrence of such damage, by giving written notice thereof to the Tenant within
thirty (30) days after such date; and
(b) in such event, (i) the Tenant shall pay to the Landlord the Base Rent
and any Additional Rent (apportioned, where applicable) to the time of such
termination (ii) the Landlord shall repay to the Tenant any and all prepaid Rent
for periods beyond such termination, and (iii) the Landlord may enter upon and
repossess the Premises without further notice.
6.3 TENANT'S NEGLIGENCE. Anything contained in any provision of this Lease
to the contrary notwithstanding, if any such damage to the Premises, the
Building or both are caused by or result from the negligent or intentionally
tortious act or omission of the Tenant, those claiming under the Tenant or any
of their respective officers, employees, agents or invitees,
(a) the Rent shall not be suspended or apportioned as aforesaid, and
(b) except it and to the extent that the Landlord upon demand, as
Additional Rent, the cost of (i) any repairs and restoration made or
to be made as a result of damage, of (ii) (if the Landlord elects not
to restore the Building) any damage or loss which the Landlord may
incur as a result of such damage.
Section 7. MAINTENANCE AND SERVICES.
7.1 ORDINARY SERVICES. The Landlord shall furnish the Premises with (a)
electricity suitable for their intended use for the purposes set forth in the
provisions of Section 2, (b) heating and air conditioning for the comfortable
use and occupancy of the Premises between 8:00 o'clock a.m. and 6:00 o'clock
p.m. Monday through Friday and 8:00 o'clock a.m. and 1:00 o'clock p.m. on
Saturday (except for legal holidays) of each week during the Term.
7.2 MAINTENANCE AND ALTERATIONS BY TENANT.
(a) Tenant will be responsible for all minor interior repairs. (example:
leaking faucets, loose door handles, etc.)
(b) The Tenant shall not make or permit to be made any alteration,
addition or improvement to the Premises without first obtaining the Landlord's
written consent thereto (which, in the case of non-structural alterations,
additions and improvements only, shall not be unreasonably withheld). If the
Landlord consents to any such proposed alteration, addition or improvements, it
shall be made at the Tenants sole expense (and the Tenant shall hold the
Landlord harmless from any cost incurred on account thereon, and at such time
and in such manner as not unreasonably to interfere with the use and enjoyment
of the remainder of the Property by any tenant thereof or any other person.
(c) Tenant shall change lock to fit existing master system.
7.3 MAINTENANCE BY LANDLORD.
(a) The Landlord shall maintain the roof, structure and the remainder of
the exterior of the Building, as well as each sidewalk and parking lot from time
to time existing within the Property, all in good order and repair (which
maintenance shall include the removal of snow from each such sidewalk and
parking lot). Landlord shall also be responsible for all major interior repairs
including, but not limited to, mechanical, plumbing, heating and electrical.
(b) COMMON AREAS. The Landlord shall furnish, supply and maintain any and
all hallways, stairways, lobbies, elevators, heating and air conditioning
facilities, electrical, sanitary sewer and water lines and facilities, restroom
facilities, grounds and parking areas, the other common areas of the Building
not contained within the Premises, and the rest of the Property (other than the
Premises), all at the Landlord's expense except as is set forth in the provision
of Section 3 or any other provision of this lease. Tenant will furnish
janitorial services for the premises.
(c) If the Tenant determines that the Landlord has not taken any action
which it is required to take under the foregoing provisions of this subsection,
the Tenant shall take no action hereunder on account hereof unless the Landlord
has failed to take such action diligently and within a reasonable time after the
Tenant has given written notice to the Landlord.
7.4 PERSONAL PROPERTY INSURANCE. That all personal property in said
premises shall be and remain at Tenant's sole risk, and Landlord shall not be
liable for any damage to nor loss of such personal property arising from any
acts of negligence of any other persons, nor from the leaking of the roof, not
from the bursting, leaking or overflowing of water, sewer or steam pipes, not
from heating or plumbing fixtures, nor from electric wires or fixtures, nor from
any other cause whatsoever; nor shall the Landlord be liable for any injury to
the person of the Tenant or other persons in said premises; the Tenant expressly
agreeing to save the Landlord harmless in ail such cases.
Section 8. DEFAULTS BY THE TENANT.
8.1 DEFINITION. As used in the provisions of this Lease, each of the
following events shall constitute, and is hereinafter referred to as, an "Event
of Default":
(a) If the Tenant (i) fails to pay the Rent or any other sum which the
Tenant is obligated to pay by any provision of this Lease, when and as it is due
and payable hereunder and without demand therefore, or (ii) in any respect
violates any of the terms, conditions or covenants set forth in the provisions
of this Lease; or
(b) if the Tenant (i) applies for or consents to the appointment of a
receiver, trustee or liquidator of the Tenant or of all or a substantial part of
its assets, (ii) files a voluntary petition in bankruptcy or admits in writing
its inability to pay its debts as they come due, (iii) makes an assignment for
the benefit of its creditors, (iv) files a petition or an answer seeking a
reorganization or an arrangement with creditors, or seeks to take advantage of
any insolvency law, (v) performs any other act of bankruptcy, or (vi) files an
answer admitting the material allegations of a petition filed against the Tenant
in any bankruptcy, reorganization or insolvency proceeding; or
(c) if (i) an order, Judgement or decree is entered by any court of
competent jurisdiction adjudicating the Tenant a bankrupt or an insolvent,
approving a petition seeking such a reorganization, or appointing a receiver,
trustee or liquidator of the Tenant or of all or a substantial part of its
assets, or (ii) there otherwise commences with respect to the Tenant or any of
its assets any proceeding under any bankruptcy, reorganization, arrangement,
insolvency, readjustment receivership or similar law, and if such order,
judgment, decree or proceeding continues unstayed for more than sixty (60)
consecutive days after the expiration of any stay thereof.
8.2 NOTICE TO TENANT: GRACE PERIOD. Anything contained in the provisions
of this Section to the contrary notwithstanding, upon the occurrence of an Event
of Default the Landlord shall not exercise any right or remedy which it holds
under any provision of this Lease or under applicable law unless and until
(a) the Landlord has given written notice thereof to the Tenant, and
(b) the Tenant has failed, (i) if such Event of Default consists of the
failure to pay money, within ten (10) days thereafter to pay all of such money,
or (ii) if such Event of Default consists of something other than the failure to
pay money, within thirty (30) days thereafter actively, diligently and in good
faith to proceed to cure such Event of Default and to continue to do so until it
is fully cured; provided, that
(c) such notice shall be required, and the Tenant shall be entitled to
such grace period, (i) more than twice during any twelve (12) month period, or
(ii) if the Tenant has substantially terminated or is in the process of
substantially terminating its continuous occupancy and use of the Premises for
the purpose set forth in the provisions of Section 2, or (iii) if any Event of
Default enumerated in the provisions of paragraphs 8.1 (b) or 8.1 (c) has
occurred.
8.3 LANDLORD'S RIGHTS UPON EVENT OF DEFAULT. Upon the occurrence of any
Event of Default, the Landlord may
(a) re-enter and repossess the Premises and any and all improvements
thereon and additions thereto;
(b) declare the entire balance of the Rent for the remainder of the Term
to be due and payable, and collect such balance if any manner not inconsistent
with applicable law;
(c) relet any or all of the Premises for the Tenant's account for any or
all of the remainder of the Term as hereinabove defined, or for a period
exceeding such remainder, in
which event the Tenant shall pay to the Landlord any deficiency in the Base rent
and any additional rent resulting, with respect to such remainder, from such
reletting, as well as the cost to the Landlord of any attorney's fees or of any
repairs or other action (including those taken in exercising the Landlord's
rights under any provision of this Lease) taken by the Landlord on account of
such Event of Default; and/or
(d) pursue any combination of such remedies and/or any other remedy
available to the Landlord on account of such Event of Default under applicable
law.
8.4 LANDLORD'S RIGHT TO CURE. Upon the occurrence of an Event of Default,
the Landlord shall be entitled (but shall not be obligated), in addition to any
other rights which it may have hereunder or under applicable law as a result
thereof, and after giving the Tenant written notice of the Landlord's intention
to do so except in the case of emergency, to cure such Event of Default, and the
Tenant shall reimburse the Landlord for all expenses incurred by the Landlord in
doing so, plus interest thereon at a lesser of the rate of twelve percent (12%)
per annum or the highest rate then permitted on account thereof by applicable
law, which expenses and interest shall be additional rent and shall be payable
by the Tenant immediately upon demand therefore by the Landlord.
Section 9. HOLDING OVER. The Tenant shall not continue to occupy the
Premises after the expiration or earlier termination of the Term or any renewal
thereof, unless the Landlord consents in writing to such continuation of
occupancy, in which event
9.1 such occupancy shall (unless the parties hereto otherwise agree in
writing) be deemed to be under a month-to-month tenancy, which shall continue
until either party hereto notifies the other in writing, by at least sixty (60)
days before the first day of any calendar month, that the parity giving such 60
days notice elects to terminate such tenancy at the end of 60 days, in which
event such tenancy shall so terminate. If such written notice is not given, the
Tenant will owe rent for 60 days starting from the first day of any calendar
month until 60 days written notice is given on the first of any calendar month.
9.2 anything contained in the foregoing provisions of this Section to the
contrary notwithstanding, the rental payable with respect to each monthly period
shall equal one hundred twenty-five (125%) percent of one-twelfth (1/12) of the
base rent plus any increases during the term and the additional rent payable
under the provisions of Section 3 (calculated in accordance with such provisions
of Section 3 as if this lease had been renewed for a period of twelve (12) full
calendar months after such expiration or earlier termination of the Term or such
renewal); and
9.3 such month-to-month tenancy shall be upon the same terms and subject
to the same conditions as those set forth in the provisions of this lease,
provided, that if the Landlord gives to the Tenant, by at least sixty (60) days
before the end of any calendar month during such month-to-month tenancy, written
notice that such terms and conditions (including any thereof relating to the
amount and payment of Rent) shall, after such month, be modified in any manner
specified in such notice, then such tenancy shall, after such month, be upon the
said terms and subject to the said conditions, as so modified.
Section 10. LANDLORD'S RIGHT OF ENTRY. The Landlord and its agents shall
be entitled to enter the Premises at any reasonable time.
10.1 to inspect the Premises,
10.2 to exhibit the Premises to any existing or prospective purchaser or
mortgagee thereof or any prospective tenant thereof,
10.3 to make any alteration, improvement or repair to the Building or the
Premises, or
10.4 during the last three (3) months of the original term and all renewals
or extensions thereof, Landlord shall have the right to place "For Rent" or "For
Sale" signs in conspicuous places on the Leased Premises and to otherwise
advertise the Leased Premises for rent or sale, in addition to having the rights
of entry and inspection set forth herein.
10.5 for any other purpose relating to the operation or maintenance of the
Property; provided, that the Landlord shall (a) (unless doing so is impractical
or unreasonable because of emergency) give the Tenant at least twenty-four (24)
hours, prior notice of its intention to enter the Premises, and (b) use
reasonable efforts to avoid thereby interfering any more than is reasonably
necessary with the Tenant's use and enjoyment thereof.
Section 11. INSURANCE AND INDEMNIFICATION.
11.1 INCREASE IN RISK. The Tenant
(a) shall not do or permit to be done any act or thing as a result of
which either (i) any policy of insurance of any kind covering any or all of the
Property or any liability of the Landlord in connection therewith may become
void or suspended, or (ii) the insurance risk under any such policy would (in
the opinion of the insurer thereunder) be made greater; and
(b) shall pay as additional rent the amount of any increase in any premium
for such insurance resulting from any breach of such covenant.
11.2 INSURANCE TO BE MAINTAINED BY TENANT. The Tenant shall maintain at
its expense, throughout the Term, insurance against loss or liability in
connection with bodily injury, death, property damage and destruction, occurring
within the Premises or arising out of the use thereof by the Tenant or its
agents, employees, officers or invitees, visitors and guests under one or more
policies of general public liability insurance having such limits as to each as
are reasonably required by the Landlord from time to time (but in any event of
not less than (a) Five Hundred Thousand only ($500.000.00) combined single limit
for injury to or death of any one or more persons during any one occurrence, and
for property damage or destruction during any one occurrence. Such policies
shall name the Landlord, the Tenant (and, at the Landlord's request, any
Mortgagee), and the Agent as the insured parties, shall provide that they shall
not be cancelable without at least thirty (30) days, prior written notice to the
Landlord (and at the Landlord's request, any such Mortgagee), and shall be
issued by insurers of recognized responsibility licensed to do business in
Virginia. A Certificate of insurance for this coverage shall be on file with
the Agent at all times during this lease or any extensions or renewals thereof.
11.3 INSURANCE TO BE MAINTAINED BY LANDLORD. The Landlord shall maintain
throughout the Term all-risk or fire and extended coverage insurance upon the
Building, in such minimum amounts and having such forms of coverage as are
required from the time to time by the Landlord's lender. The cost of the
premiums for such insurance and of each endorsement thereto shall be deemed, for
purposes of Section 3, to be part of the costs of operating and maintaining the
property.
11.4 WAIVER OF SUBROGATION. If either party hereto is paid any proceeds
under any policy of insurance naming such party as an insured, on account of any
loss, damage or liability, then such party hereby releases the other party
hereto, to and only to the extent of the amount of such proceeds, from any and
all liability for such loss, damage or liability, notwithstanding that such
loss, damage or liability may arise out of the negligent or intentionally
tortious act or omission of the other party, its agents or employees; provided,
that such release shall be effective only with respect to loss or damage
occurring during such time as the appropriate policy of insurance of the
releasing party provides that such release shall not impair the effectiveness of
such policy or the insured's ability to recover thereunder. Each party hereto
shall use reasonable efforts to have a clause to such effect included in its
said policies, and shall promptly notify the other in writing if such clause
cannot be included in any such policy.
11.5 LIABILITY OF PARTIES. Except if and to the extent that such party
is released from liability to the other party hereto pursuant to the provisions
of subsection 1 1.4,
(a) the Landlord (i) shall be responsible for, and shall indemnify and
hold harmless the Tenant against and from any and all liability arising out of,
any injury to or death of any person or damage to any property, occurring
anywhere upon the Property, if, only if and to the extent that such injury,
death or damage is approximately caused by the negligent or intentionally
tortuous act or omission of the Landlord or its agents, officers or employees,
but (ii) shall not be responsible for or be obligated to indemnify or hold
harmless the Tenant against or from any liability for any such injury, death or
damage occurring anywhere upon the Property (including the Premises), by reason
of the Tenant's occupancy or use of the Premises or any other portion of the
Property, or because of fire, windstorm, act of God or other cause unless
proximately caused by such negligent or intentionally tortious act or omission,
as aforesaid; and (b) subject to the operation and effect of the foregoing
provisions of this subsection, the Tenant shall be responsible for, and shall
indemnify and hold harmless the Landlord against and from, any and all Lability
arising out of any injury to or death of any person or damage to any properly,
occurring within the Premises.
Section 12. EMINENT DOMAIN.
12.1 RIGHT TO AWARD.
(a) If any or all of the Premises are taken by the exercise of any power
of eminent domain or are conveyed to or at the direction of any governmental
entity under a threat of any such taking (each of which is hereinafter referred
to as a "Condemnation") the Landlord shall be entitled to collect from the
condemning authority thereunder the entire amount of any award made in any such
proceeding or a consideration of such deed, without deduction therefrom for any
leasehold or other estate held by the Tenant by virtue of this Lease.
(b) The Tenant hereby (i) assigns to the Landlord all of the Tenant's
right, title, and interest, if any, in and to any such award, (ii) waives any
right which it may otherwise have In connection with such Condemnation, against
the Landlord or such condemning authority, to any payment for (A) the value of
the then unexpired portion of the Term, (B) leasehold damage and (C) any damage
to or diminution of the value of the Tenant's leasehold interest hereunder or
any portion of the Premises not covered by such Condemnation; and (iii)i agrees
to execute any and all further documents which may be required in order to
facilitate the Landlord's collection of any and all such awards.
(c) Subject to the operation and effect of the foregoing provisions of
this Section, the Tenant may seek, in a separate proceeding, a separate award on
account of any damages of costs incurred by the Tenant as a result of such
Condemnation, so long as such separate award in no way diminishes any award or
payment which the Landlord would otherwise receive as a result of such
Condemnation.
12.2 EFFECT OF CONDEMNATION.
(a) If (i) all of the Premises are covered by a Condemnation, or (ii) any
part of the Premises is covered by a Condemnation and the remainder thereof is
insufficient for the reasonable operation therein of the Tenant's business, or
(iii) any of the Building is covered by a Condemnation and, in the Landlord's
reasonable opinion, it would be impractical to restore the remainder thereof,
then, in any such event the Term shall terminate on the date upon which
possession of so much of the Premises or the Building, as the case may be, as is
covered by such Condemnation is taken by the condemning authority thereunder,
and all Rent (including, by way of example rather than of limitation, any
Additional Rent payable pursuant to the provisions of subsection 3.2), taxes,
and other charges payable hereunder shall be prorated and paid to such date.
(b) If there is a Condemnation and the Term does not terminate pursuant to
the foregoing provisions of this subsection, the operation and effect of this
Lease shall be unaffected by such Condemnation, except that the Base Rent and
the Additional Rent payable under the provisions of Section 3 shall be reduced
in proportion to the square footage of floor area, if any, of the Premises
covered by such Condemnation.
12.3 If there is a Condemnation, the Landlord shall have no Lability to the
Tenant on account of any (a) interruption of the Tenant's business upon the
Premises, (b) diminution in the Tenant's ability to use the Premises, or (c)
other injury or damage sustained by the Tenant as a result of such Condemnation.
12.4 Except for any separate proceeding brought by the Tenant under the
provisions of paragraph 12.1 (c), the Landlord shall be entitled to conduct any
such condemnation proceeding and any settlement thereof free of interference
from the Tenant, and the Tenant hereby waives any right which it might otherwise
have to participate therein.
Section 13. MECHANICS' AND MATERIALMEN'S LIENS. The Tenant shall:
13.1 Bond, remove or have removed any mechanics', materialman's or other
lien filed or claimed against any or all of the Premises, the Property, or any
other property owned or leased by the Landlord, by reason of labor or materials
provided for or at the request of the Tenant or any of its contractors or
subcontractors (other than labor or materials provided by the Landlord pursuant
to the provisions of Section 5), or otherwise arising out of the Tenant's use or
occupancy of the Premises or any other portion of the Property, and
13.2 Indemnify and hold harmless the Landlord against and from any and all
liability or expense (including, by way of example rather than of limitation,
that of reasonable attorneys, fees) incurred by the Landlord on account of any
such lien or claim.
Section 14. QUIET ENJOYMENT; SURRENDER. The Landlord hereby covenants that
the Tenant, on paying the Rent and performing the covenants set forth herein,
shall peaceably and quietly hold and enjoy, throughout the Term, (a) the
Premises, and (b) such right as the Tenant may hold hereunder with respect to
the remainder of the Property (including, by way of example rather than of
limitation, any such right to use any parking lot within the Property).
14.2 SURRENDER.
(a) Upon the expiration or earlier termination of the Term, the Tenant
shall surrender the Premises and a full set of keys to the Landlord in good
order and repair (damages reasonably beyond the Tenant's control and ordinary
wear and tear excepted), and broom clean.
(b) Any and all improvements, repairs alterations and all other property
attached to, sued in connection with or otherwise installed upon the Premises
(i), shall become the Landlord's property without payment therefore by the
Landlord at the expiration of the lease term, and (ii) shall be surrendered to
the Landlord upon the expiration of earlier termination of the Term, except that
any machinery, equipment or fixtures installed by the Tenant and used in the
conduct of the Tenants trade or business (rather than to service the Premises or
any of the remainder of the Building or the property generally) shall remain the
Tenants property and shall be removed by the Tenant at the expiration or earlier
termination of the Term and the Tenant shall promptly thereafter fully restore
any of the Premises or the Building damaged by such installation or removal
thereof.
Section 15. RULES AND REGULATIONS. The Landlord hereby reserves the right
to prescribe, at its sole discretion, reasonable rules and regulations
(hereinafter referred to as the "Rules and Regulations"), having uniform
applicability to all tenants of the Building and governing the use and the
enjoyment of the Building and the remainder of the Property; provided, that the
Rules and Regulations shall not materially interfere with the Tenants use and
enjoyment of the Premises, in accordance with the provisions of this Lease, for
the purposes enumerated in the provisions of Section 2. The Tenant shall adhere
to the Rules and Regulations and shall cause its agents, employees, invitees,
visitors and guests to do so. If required by the Landlord of this property, a
copy of the Rules and Regulations in effect on the date hereof is attached
hereto as "Exhibit B".
Section 16 SUBORDINATION; ATTORNMENT AND NON-DISTURBANCE.
16.1 SUBORDINATI0N. This Lease shall be subject and subordinate at all
times to the lien of any first mortgage, first deed of trust, ground lease
and/or other instrument of encumbrance heretofore or hereafter placed by the
Landlord upon any or all of the Premises or the remainder of the Property and of
all renewals, modifications, consolidations, replacements and extensions thereof
(each of which is herein referred to as a "Mortgage"), all automatically and
without the necessity of any further action on the part of the Tenant to
effectuate such subordination.
16.2 ATTORNMENT AND NON-DISTURBANCE. The Tenant shall, within five (5)
days at the request of the Landlord or the holder of any Mortgage (herein
referred to as a "Mortgagee"),
(a) execute, enseal, acknowledge and deliver such further instrument or
instruments evidencing such subordination as the Landlord or such Mortgagee may
deem necessary or desirable and
(b) attorn to such Mortgagee, provided that such Mortgagee agrees with the
Tenant that such Mortgagee will, in the event of a foreclosure of any such first
mortgage or deed of trust (or termination of any such ground lease) take no
action to interfere with the Tenant's rights hereunder, except upon the
occurrence of an Event of Default.
16.3 Anything contained in the provisions of this Section to the contrary
notwithstanding, any Mortgagee may at any time subordinate the lien of its
Mortgage to the operation and effect of this lease without the necessity of
obtaining the Tenant's consent thereto, by giving the Tenant written notice
thereof, in which event this lease shall be deemed to be senior to such Mortgage
without regard to their respective dates of execution, delivery and/or
recordation among the land Records of the said County, and thereafter such
Mortgagee shall have
the same rights with respect to this lease as though this lease had been
executed and recorded among the said land Records before the execution and
delivery of such Mortgage.
Section 17. ESTOPPEL CERTIFICATE. The Tenant shall from time to time,
within five (5) days after being requested to do so by the landlord or any first
Mortgagee, execute, enseal, acknowledge and deliver to the Landlord an
Instrument in recordable form,
17.1 Certifying
(a) that this lease is unmodified and in full force and effect (or, if
there has been any modification thereof, that It is In full force and effect as
to so modified, stating therein the nature of such modifications;
(b) as to the dates to which the Base Rent and any Additional Rent and
other charges arising hereunder have been paid In advance of the dates on which
payment thereof Is due hereunder, If any;
(c) as to the amount of any prepaid Rent or any credit duo to the Tenant
hereunder;
(d) that the Tenant has accepted possession of the Premises, and the date
on which the Term commenced;
(e) as to whether, to the best knowledge information and belief of the
signer of such certificate, the Landlord is then in default In the performance
of any of Its obligations hereunder (and, If so, specifying the nature of each
such default); and
(f) as to any other fact or condition reasonably requested by the
Landlord, any first Mortgagee or prospective first Mortgagee or purchaser of any
or all of the Promises, the Properly or any Interest therein, or any assignee or
prospective assignee If any interest of the Landlord under this Lease; and 17.2
Acknowledging and agreeing that any statement contained In any such certificate
may be relied upon by the Landlord and any such other ▇▇▇▇▇▇.
Section 18. NOTICES. Any notice, demand, consent, approval, request or
other communication or document to be provided hereunder to a party hereto shall
be
18.1 In writing to:
Realstar Realtors TENANT: Salem Bank & Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇ ▇. ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
18.2 And deemed to have been provided (a) forty-eight (48) hours after
being sent as certified or registered mail In the United States malls, postage
prepaid, return receipt requested, to the address of such parity set forth
hereinabove or to such other address in the United States of America as such
party may designate from time to time by notice to the other, or (b) (if such
party's receipt thereof Is acknowledged in writing) given by hand or other
delivery to such party.
Section 19. GENERAL
19.1 EFFECTIVENESS. This Lease shall become effective upon and only upon
the execution and delivery hereof by each party hereto.
19.2 COMPLETE AND FINAL UNDERSTANDING. This Lease represents the complete
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior negotiations, representations, warranties, statements or
agreements, either written or oral, between the parties hereto as to the same.
19.3 AMENDMENT. This Lease may be amended by and only by an instrument
executed and delivered by each party hereto.
19.4 APPLICABLE LAW. This lease shall be given effect and construed by
application of the law of the Commonwealth of Virginia and any action or
proceeding arising hereunder shall be brought In the courts of Virginia
provided, that if any such action or proceeding arises under the Constitution,
laws or treaties of the United States of America, or if there is a diversity of
citizenship between the parties thereto, so that it is to be brought in a United
States District Court, it shall be brought in the United States District Court
of the Western District of Virginia.
19.5 WAIVER. The Landlord shall not be deemed to have waived the exercise
of any right which It holds hereunder unless such waiver is made expressly and
In writing (and no delay or omission by the Landlord in exercising any such
right shall be deemed to be a waiver of the future exercise thereof. No such
waiver made with respect to any instance Involving the exercise of any such
right shall be deemed to be a waiver with respect any other such instance, or
any other such right.
19.6 TIME OF ESSENCE. Time shall be of the essence of this Lease.
19.7 HEADINGS. The headings of the Sections, subsections, paragraphs and
sub-paragraphs hereof are provided herein for and only for convenience or
reference, and shall not be considered In construing their contents.
19.8 CONSTRUCTION. As used herein,
(a) the term "person" means a natural person, a trustee, a corporation, a
partnership and any other form of legal entity; and
(b) all references made (i) n the neuter, masculine or feminine gender
shall be deemed to have been made in all such genders (ii) in the singular or
plural number shall be deemed to have been made, respectively, in the plural or
singular number as well, and (iii) to any Section, subsection, paragraph or sub-
paragraph shall, unless therein expressly Indicated to the contrary, be deemed
to have been made to such Section, subsections paragraph or sub-paragraph of
this Lease.
19.9 EXHIBITS. Each writing or plat referred to herein as being attached
hereto as an exhibit or otherwise designated herein as an exhibit hereto is
hereby made a part hereof.
19.10 SEVERABILITY. No determination by any court, governmental body or
otherwise that any provision of this Lease or any amendment hereof is Invalid or
unenforceable in any instance shall affect the validity or enforceability of (a)
any other provision thereof, or (b) such provision in any circumstance not
controlled by such determination. Each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be construed wherever
possible as being consistent with, applicable law.
19.11 DEFINITION OF "THE LANDLORD".
19.11.1 As used herein, the term "the Landlord" means the entity
hereinabove named as such, and Its heirs, personal representatives, successors
and assigns (each of whom shall have the same rights, remedies, powers,
authorities and privileges as it would have had, had It originally signed this
Lease as the Landlord),
19.11.2 No person holding the Landlord's interest hereunder (whether
or not such person Is named as the Landlord" herein) shall have any liability
hereunder after such person ceases to hold such Interest, except for any such
liability accruing while such person holds such interest.
19.11.3 Neither the Landlord nor any principal of the Landlord,
whether disclosed or undisclosed, shall have any personal Liability under any
provision of this Lease, If the Landlord
defaults in the performance of any of its obligations hereunder or otherwise,
the Tenant shall look solely to the Landlord's equity, interest and rights in
the Property for satisfaction of the Tenants remedies on account thereof.
19.12 DEFINITION OF "THE TENANT". As used herein, the term 'the Tenant"
means each person hereinabove named as such and such person's heirs, personal
representatives, successors and assigns, each of whom shall have the same
obligations liabilities, rights and Privileges as ft would have possessed had it
originally executed this Lease as Tenant, provided, that no such right or
privilege shall Inure to the benefit of any assignee of the Tenant, immediate or
remote, unless the assignment to such assignee is made in accordance with the
provisions of Section 4. Whenever two or more persons constitute the Tenant all
such persons shall be jointly and severally liable for the performance of the
Tenant's obligations hereunder.
Section 20. THE AGENT. In consideration of the Agent's services in
procuring this lease, Landlord covenants with and for the benefit of the Agent
as follows: The Agent Is to receive a lease commission Under Separate Agreement
------------------------
of the rent during the original term and all renewals or extensions thereof or
any new lease of the leased Premises between any person and "Tenant, its
successors or assigns" (such phrase used herein to Include such entity in which
Tenant, Its successors or assigns may have an Interest as a stockholder,
partner, lender of money or otherwise), and no sale transfer, assignment
cancellation or release, including a sale or conveyance to Tenant, its
successors or assigns, shall affect the Agents right to such commission which is
hereby made a lien on the leased Premises and all equipment thereon, if any.
The Agent shall have the right to collect all rents due hereunder so that its
commission may be paid in Installments as the rent is received, and retained by
the Agent before remitting the rent (less commissions) to Landlord, but if any
act be done to deprive the Agent of Its right to collect the rent, then the
whole amount of its commission then unpaid shall, at the Agents option,
immediately become due and payable.
Landlord further covenants with and for the benefit of the Agent that if
Tenant, its successors or assigns shall at any time during the original term and
at renewals or extensions thereof (or during any new lease of the Leased
Promises between any person and Tenant, its successors or assigns), purchase the
Leased Premises, then In consideration of the Agents consummating this lease,
the Agent shall receive on the date the Leased Premises are transferred a
commission Under Separate Agreement of gross amount of the purchase price. Such
------------------------
a sales commission shall be in addition to the rental commissions provided for
In the immediately preceding paragraph up to the transfer of said property and
is hereby made a lien on the Leased Promises.
As used in this paragraph, the term "Tenant" shall mean and include not
only Tenant as named in this contract but also the following:
A) If Tenant is a corporation, (1) the successors and/or assigns of
Tenant; (2) any stockholder, director, officer or affiliate of named Tenant or
its successors or assigns; (3) any family member of any stockholder, director,
officer or affiliate of named Tenant or Its successors or assigns; and/or (4)
any corporation which has any stockholder that is also a stockholder or family
member of a stockholder of named Tenant or its successors or assigns.
B) If Tenant is an individual, (1) the heirs and/or assigns of Tenant
or, H plural, of any Tenant; (2) any family member of Tenant or, if plural, of
any Tenant; (3) any corporation in which named Tenant (or, if plural, in which
any Tenant) Is a stockholder and/or (4) any
corporation which has any stockholder that is also a family member of Tenant or,
if plural of any Tenant.
"Family member(s), "as used In this paragraph shall include one's father,
mother, brother, brothers spouse, sister, sisters spouse, husband, wife, son,
son's spouse, daughter, daughters spouse, grandson, grandson's spouse,
granddaughter and/or granddaughters spouse.
In connection with all acts done or suffered by the Agent for Landlord
concerning the Leased Premises, Landlord further agrees to Indemnify and save
the Agent harmless from all fines, judgements, suits, claims, demands, and
actions of any kind (including any costs and attorneys fees), and from liability
for injury suffered by an employee or contractor (not in the permanent employ of
the Agent) engaged by the Agent for the benefit of Landlord.
All parties acknowledge that the REALTOR Is the Agent of the Landlord, not
the Tenant, The REALTORS fiduciary duties of loyalty and faithfulness are owed
to the Landlord who Is their principal. REALTORS are required by law and their
Code of Ethics to treat the Tenant honestly and fairly.
This is a legal and binding document. Legal assistance should be obtained if
either party deems appropriate.
IN WITNESS WHEREOF, each party hereto has executed and ensealed this Lease,
or has caused it to be executed and ensealed on its behalf by Rs duly authorized
representatives, the day and year first above written.
WITNESS: LANDLORD:East Main Properties, LLC
__________________________________ _____________________________________
WITNESS: TENANT:Salem Bank and Trust
__________________________________ _____________________________________
WITNESS: LEASING AGENT: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
REALSTAR REALTORS, L.L.C.
__________________________________ _____________________________________
EXHIBIT "B"
RULES AND REGULATIONS WHICH ARE REFERRED TO
IN THE FOREGOING LEASE AND ARE A PART THEREOF
1 The sidewalks, entries, halls and passages shall not be obstructed by the
Tenant or used by him for any other purpose than for Ingress and egress to
and from the above demised promises. Fire exits are to be kept free from
obstructions at all times,
2. No doors or windows that reflect or admit light into the premises of said
building shall be covered or obstructed.
3. No sign, advertisement or notice shall be Inscribed, painted or affixed on
any part of the outside or inside of the said building, except (1) on the
doors or adjacent windows of the leased premises, and then only of such
color, style, size and material as the Lessor shall determine, and (2)
otherwise as the Lessor shall approve in writing, and then only In such
place, in such manner, and under such conditions as the Lessor shall
prescribe and at Lessee's expense. At the expiration of this Lease, the
Lessee agrees to remove all such signs at his own expense; nor shall any
additional lock be placed upon any door In the demised premises without the
written consent of the Lessor.
4. The Lessee shall not do or permit anything to be done in said premises, or
bring or keep anything therein, which will increase the rate of fire
insurance on said building, or an the property kept therein, or obstruct or
Interfere with the rights of other tenants, or in any way injure or annoy
them, or do or permit to be done anything In conflict with the regulations
of the Fire Department, or with any Insurance policy upon said building or
any part thereof, or with any rules established by the Board of Health, or
with the ordinances of the County of Roanoke, Virginia, or the laws of the
State of Virginia, or of the United States of America.
5. The Lessor shall have the right to prescribe the weight, size and proper
location of safes and other weighty articles before the same are admitted
into the Building, and any such damage done to the building in the putting
In or out of such articles, or during the time they are In or on the
premises, shall be made good by the Lessee. All persons employed In the
moving of safes, furniture or other bulky articles In and out of the
building must be acceptable to the Lessor, and such work Is to be done only
at the time designated by the Lessor.
6. The Lessee shall not cause unnecessary delay or unreasonable labor by
reason of his carelessness or indifference to the preservation of good
order and cleanliness.
7. No carpet, rug or other articles shall be hung or shaken out of any window
or door, and nothing shall be thrown, swept or dropped by the Lessee, his
agents, employees or visitors out of the windows or doors, or into the
court of the building; nor shall animals or birds be brought or kept in or
about the building.
8. No shades, Venetian blinds, or draperies shall be put up except as approved
by Lessor. The Lessee shall keep shades and Venetian blinds in proper
repair and condition and be responsible for all damage thereto. If the
Lessee desires telegraphic, telephonic, or other connections by wire, the
Lessor will direct the electricians as to where and how the wires are to be
introduced and without such directions no boring or cutting for wires or
attaching of wires to the outside of the building will be permitted.
9. No paintings alterations or decorations of any kind to any part of the
building shall be made by the Lessee.
10. The Lessee shall not use any method of heating or cooling other than that
provided for by the Lessor herein, without the written consent of the
Lessor.
11. Nothing shall be placed on the outside of the building, or on the widows,
window ▇▇▇▇▇ or projections.
12. Before all persons leave the premises at the close of the business, tenants
must see that the doors are securely locked and lights are extinguished.
No tenant, or agent, employee or visitor of the tenant or other person,
shall go upon the roof of the building without the written consent of the
Lessor. No machinery of any kind will be allowed to be operated on
premises Without the written consent of the Lessor, ordinary office
equipment excepted.
13. The use of rooms as sleeping apartments Is absolutely prohibited, No
doormat will be permitted outside Lessee's entry door.
14, Any newspaper, magazine or other advertising done from said premises,
which, In the opinion of the Lessor, Is objectionable, shall be immediately
discontinued upon notice from the Lessor.
15. Except as provided in Tenants Lease, Lessor shall not be responsible to any
tenant for the non-observance or violation of any of the rules and
regulations by any other tenant.
16. Lessee shall provide at its own expense, commercial floor pads which Lessee
shall place and maintain under all desks and secretarial desks In order to
prevent excessive wear and tear of floor covering.
LANDLORD: East Main Properties, LLC
__________________________________
TENANT: Salem Bank and Trust
__________________________________
LEASING AGENT: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
REALSTAR REALTORS, L.L.C.
__________________________________
EXHIBIT A