UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
- -------------------------------------------------------------------------------
Form 10-Q
[X] Quarterly Report Under Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended June 30, 1997
[ ] Transition Report Under Section 13 or 15(d) of the Exchange
Act
- -------------------------------------------------------------------------------
EAGLE FINANCIAL SERVICES, INC
(Exact name of registrant as specified in its charter)
Virginia 54-1601306
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Post Office Box 391, Berryville, Virginia 22611
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 540-955-2510
<PAGE>
Indicate by check mark whether the registrant (1) has filed all documents and
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate the number of shares outstanding of each of the Registrant's classes of
common stock as of the latest practicable date:
Class Common Stock Number of shares 1,404,355 Outstanding at August 11, 1997
($2.50 par value)
<PAGE>
EAGLE FINANCIAL SERVICES, INC.
INDEX TO FORM 10-Q
Part I. Financial Information
Item 1. Financial Statements (Unaudited) ............................ 3
Consolidated Balance Sheets as of
June 30, 1997 and December 31, 1996 ......................... 3
Consolidated Statements of Income for the Three
and Six Months Ended June 30, 1997 and 1996 ................ 4
Consolidated Statement of Changes in
Stockholder's Equity for the Six Months
Ended June 30, 1997 and 1996 ................................ 6
Consolidated Statements of Cash Flows for the
Six Months Ended June 30, 1997 and 1996 ..................... 7
Notes to Consolidated Financial Statements .................. 9
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations .............. 12
Part II. Other Information
Item 6. Exhibits and reports on Form 8-K ........................... 14
Signatures .............................................................. 15
Exhibit 27 - Financial Data Schedule .................................... 16
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Eagle Financial Services, Inc. and Subsidiary
Consolidated Balance Sheets
As of June 30, 1997 and December 31, 1996
<TABLE>
<CAPTION>
June 30, 1997 December 31, 1996
------------- -----------------
<S> <C>
Assets
Cash and due from banks $ 5,454,001 $ 4,409,250
Securities held to maturity (fair value:
1997, $29,511,349; 1996, $24,042,342) 29,800,363 24,345,102
Securities available for sale, at fair value 3,743,733 1,744,472
Federal funds sold 31,000 1,553,000
Loans, net of unearned discounts 83,363,910 87,870,194
Less allowance for loan losses (831,557) (913,955)
------------- -------------
Net loans 82,532,353 86,956,239
Bank premises and equipment, net 4,142,173 4,251,675
Other real estate owned 71,417 46,605
Intangible assets 628,357 653,624
Other assets 2,643,927 2,281,774
------------- -------------
Total assets $ 129,047,324 $ 126,241,741
============= =============
Liabilities and Stockholders' Equity
Liabilities
Deposits:
Noninterest bearing $ 16,147,575 $ 15,175,041
Interest bearing 97,063,124 95,912,826
------------- -------------
Total deposits $ 113,210,699 $ 111,087,867
Federal funds purchased 0 0
Other liabilities 1,094,879 957,018
------------- -------------
Total liabilities $ 114,305,578 $ 112,044,885
------------- -------------
Stockholders' Equity
Preferred Stock, $10 par value;
authorized 500,000 shares; no
shares outstanding $ 0 $ 0
Common Stock, $2.50 par value;
authorized 1,500,000 shares;
issued 1997, 1,404,356; issued
1996, 1,399,885 shares 3,510,889 3,499,714
Surplus 2,025,990 1,945,891
Retained Earnings 9,203,510 8,756,281
Unrealized loss on securities
available for sale, net 1,357 (5,030)
------------- -------------
Total stockholders' equity $ 14,741,746 $ 14,196,856
------------- -------------
Total liabilities and stockholders'
equity $ 129,047,324 $ 126,241,741
============= =============
</TABLE>
- 3 -
<PAGE>
Eagle Financial Services, Inc. and Subsidiary
Consolidated Statements of Income
For the Periods Ended June 30, 1997 and 1996
<TABLE>
<CAPTION>
Three Months Ended
June 30,
1997 1996
---------- -----------
<S> <C>
Interest Income
Interest and fees on loans $ 1,846,204 $ 1,947,835
Interest on securities held to
maturity:
Taxable interest income 402,492 327,895
Interest income exempt from
federal income taxes 37,562 42,201
Interest and dividends on securities
available for sale, taxable 37,440 35,360
Interest on federal funds sold 23,619 13,800
----------- -----------
Total interest income $ 2,347,317 $ 2,367,091
----------- -----------
Interest Expense
Interest on deposits $ 956,024 $ 976,287
Interest on federal funds purchased 2,911 6,098
----------- -----------
Total interest expense $ 958,935 $ 982,385
----------- -----------
Net interest income $ 1,388,382 $ 1,384,706
Provision For Loan Losses 91,667 60,000
----------- -----------
Net interest income after
provision for loan losses $ 1,296,715 $ 1,324,706
----------- -----------
Other Income
Trust Department income $ 55,373 $ 41,891
Service charges on deposits 133,265 146,854
Other service charges and fees 46,921 46,329
Gain (loss) on equity investment (996) 1,495
Other operating income 55,093 6,534
----------- -----------
$ 289,656 $ 243,103
----------- -----------
Other Expenses
Salaries and wages $ 480,536 $ 433,785
Pension and other employee benefits 103,577 119,915
Occupancy expenses 65,476 85,864
Equipment expenses 112,076 142,447
FDIC assessment 2,633 500
Stationary and supplies 35,105 38,647
Postage 32,280 27,243
Credit card expense 24,567 25,174
Bank franchise tax 21,844 27,213
ATM network fees 27,397 32,341
Intangible amortization 12,705 12,710
Other operating expenses 164,840 162,280
----------- -----------
$ 1,083,036 $ 1,108,119
----------- -----------
Income before income taxes $ 503,335 $ 459,690
Income Tax Expense 136,823 115,342
----------- -----------
Net Income $ 366,512 $ 344,348
=========== ===========
Earnings Per Share $ 0.26 $ 0.24
=========== ===========
</TABLE>
- 4 -
<PAGE>
Eagle Financial Services, Inc. and Subsidiary
Consolidated Statements of Income
For the Periods Ended June 30, 1997 and 1996
<TABLE>
<CAPTION>
Six Months Ended
June 30,
1997 1996
----------- -----------
<S> <C>
Interest Income
Interest and fees on loans $ 3,709,445 $ 3,858,349
Interest on securities held to
maturity:
Taxable interest income 751,502 636,319
Interest income exempt from
federal income taxes 73,310 83,626
Interest and dividends on securities
available for sale, taxable 57,926 77,099
Interest on federal funds sold 52,270 17,307
----------- -----------
Total interest income $ 4,644,453 $ 4,672,700
----------- -----------
Interest Expense
Interest on deposits $ 1,879,767 $ 1,934,225
Interest on federal funds purchased 2,911 53,358
----------- -----------
Total interest expense $ 1,882,678 $ 1,987,583
----------- -----------
Net interest income $ 2,761,775 $ 2,685,117
Provision For Loan Losses 166,667 120,000
----------- -----------
Net interest income after
provision for loan losses $ 2,595,108 $ 2,565,117
----------- -----------
Other Income
Trust Department income $ 104,035 $ 90,244
Service charges on deposits 256,029 265,250
Other service charges and fees 93,284 89,962
Gain (loss) on equity investment (3,146) 189
Other operating income 93,243 19,211
----------- -----------
$ 543,445 $ 464,856
----------- -----------
Other Expenses
Salaries and wages $ 935,132 $ 840,877
Pension and other employee benefits 231,883 225,469
Occupancy expenses 162,287 162,205
Equipment expenses 219,735 203,416
FDIC assessment 6,465 1,500
Stationary and supplies 78,629 82,937
Postage 56,231 66,263
Credit card expense 56,831 48,089
Bank franchise tax 45,892 54,426
ATM network fees 59,950 58,192
Intangible amortization 25,268 14,909
Other operating expenses 371,350 387,172
----------- -----------
$ 2,249,653 $ 2,145,455
----------- -----------
Income before income taxes $ 888,900 $ 884,518
Income Tax Expense 217,508 230,071
----------- -----------
Net Income $ 671,392 $ 654,447
=========== ===========
Earnings Per Share $ 0.48 $ 0.47
=========== ===========
</TABLE>
- 5 -
<PAGE>
Eagle Financial Services, Inc. and Subsidiary
Consolidated Statements of Changes in Stockholders' Equity
For the Six Months Ended June 30, 1997 and 1996
<TABLE>
<CAPTION>
Unrealized
Gain (Loss)
on Securities
Common Retained Available for
Stock Surplus Earnings Sale, Net Total
------------ ------------ ------------- ------------- ------------
<S> <C>
Balance, Dec 31, 1995 $ 1,738,212 $ 1,782,186 $ 9,612,627 ($ 12,606) $ 13,120,419
Net income 654,447 654,447
Issuance of common
stock, dividend
investment plan
(2,268 shares) 4,330 59,841 64,171
Dividend declared
($.22 per share) (152,962) (152,962)
Net change in
unrealized (loss)
on securities avail-
able for sale (9) (9)
Fractional shares
purchased (9) (132) (141)
------------ ------------ ------------ ------------ ------------
Balance, June 30, 1996 $ 1,742,533 $ 1,841,895 $ 10,114,112 ($ 12,615) $ 13,685,925
============ ============ ============ ============ ============
Balance, Dec 31, 1996 $ 3,499,714 $ 1,945,891 $ 8,756,281 ($ 5,030) $ 14,196,856
Net income 671,392 671,392
Issuance of common
stock, dividend
investment plan
(4,472 shares) 11,179 80,131 91,310
Dividend declared
($.16 per share) (224,163) (224,163)
Net change in
unrealized (loss)
on securities avail-
able for sale 6,387 6,387
Fractional shares
purchased (4) (32) (36)
------------ ------------ ------------ ------------ ------------
Balance, June 30, 1997 $ 3,510,889 $ 2,025,990 $ 9,203,510 $ 1,357 $ 14,741,746
============ ============ ============ ============ ============
</TABLE>
- 6 -
<PAGE>
Eagle Financial Services, Inc. and Subsidiary
Consolidated Statements of Cash Flows
For the Six Months Ended June 30, 1997 and 1996
<TABLE>
<CAPTION>
1997 1996
----------- -----------
<S> <C>
Cash Flows from Operating Activities
Net income $ 671,392 $ 654,447
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation 207,559 177,408
Amortization of intangible assets 25,268 21,209
(Gain) loss on equity investment 3,146 (189)
Provision for loan losses 166,667 120,000
Premium amortization on securities, net 25,347 21,074
Deferred tax 0 15,747
(Increase) in other assets (233,500) (158,824)
Increase in other liabilities 137,861 55,930
----------- -----------
Net cash provided by operating activities $ 1,003,740 $ 906,802
----------- -----------
Cash Flows from Investing Activities
Proceeds from maturities and principal
payments of securities held to maturity $ 1,863,774 $ 2,456,878
Proceeds from maturities and principal
payments of securities available for sale 377,000 1,344,000
Purchases of securities held to maturity (7,344,416) (4,582,753)
Purchases of securities available for sale (2,366,549) (194,500)
Purchases of bank premises and equipment (233,148) (998,239)
Acquisition of intangible assets 0 (692,830)
Net (increase) decrease in loans 4,232,407 (272,554)
----------- -----------
Net cash (used in) investing activities ($3,470,932) ($2,939,998)
----------- -----------
Cash Flows from Financing Activities
Net increase (decrease) in demand deposits,
money market, and savings accounts ($1,119,073) $ 4,936,296
Net increase in certificates of deposit 3,241,905 1,001,112
Net (decrease) in federal funds purchased 0 (1,867,000)
Cash dividends paid (132,853) (88,791)
Fractional shares purchased (36) (141)
----------- -----------
Net cash provided by financing activities $ 1,989,943 $ 3,981,476
----------- -----------
Increase (decrease) in cash and
cash equivalents ($ 477,249) $ 1,948,280
Cash and Cash Equivalents
Beginning 5,962,250 4,106,467
----------- -----------
Ending $ 5,485,001 $ 6,054,747
=========== ===========
</TABLE>
- 7 -
<PAGE>
Eagle Financial Services, Inc. and Subsidiary
Consolidated Statements of Cash Flows
For the Six Months Ended June 30, 1997 and 1996
<TABLE>
<CAPTION>
1997 1996
---------- ----------
<S> <C>
Supplemental Disclosures of Cash Flow Information
Cash payments for:
Interest $ 1,854,902 $ 1,975,021
=========== ===========
Income taxes $ 262,988 $ 259,523
=========== ===========
Supplemental Schedule of Non-Cash Financing
Activities:
Issuance of common stock,
dividend investment plan $ 91,310 $ 64,171
=========== ===========
Unrealized gain (loss) on securities
available for sale $ 9,678 ($ 14)
=========== ===========
Other real estate acquired in settlement
of loans $ 24,812 $ 0
=========== ===========
</TABLE>
- 8 -
<PAGE>
EAGLE FINANCIAL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 1997
(1) The accompanying unaudited financial statements have been prepared in
accordance with generally accepted accounting principals for interim
financial information and with the instructions to Form 10-Q and Article 10
of Regulation S-X. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles.
(2) In the opinion of management, the accompanying unaudited financial
statements contain all adjustments (consisting of only normal recurring
accruals) necessary to present fairly the financial position as of June 30,
1997 and December 31, 1996, and the result of operations and cash flows for
the three and six months ended June 30, 1997 and 1996. The statements
should be read in conjunction with the Notes to Financial Statements
included in the Company's Annual Report for the year ended December 31,
1996.
(3) The results of operations for the six month period ended June 30, 1997 and
1996 are not necessarily indicative of the results to be expected for the
full year.
(4) Securities held to maturity and available for sale as of June 30, 1997 and
December 31, 1996, are:
<TABLE>
<CAPTION>
June 30, 1997 December 31, 1996
Held to Maturity Amortized Cost Amortized Cost
- --------------------- -------------- -----------------
<S> <C>
U.S. Treasury securities $ 622,290 $ 821,632
Obligations of U.S. government
corporations and agencies 7,721,622 5,467,491
Mortgage-backed securities 17,988,892 14,960,458
Obligations of states and political
subdivisions 3,417,559 2,995,521
Other securities 50,000 100,000
----------- -----------
$29,800,363 $24,345,102
=========== ===========
<CAPTION>
June 30, 1997 December 31, 1996
Fair Value Fair Value
-------------- -----------------
<S> <C>
U.S. Treasury securities $ 624,184 $ 823,361
Obligations of U.S. government
corporations and agencies 7,658,118 5,396,463
Mortgage-backed securities 17,754,233 14,730,775
Obligations of states and political
subdivisions 3,424,811 2,991,733
Other securities 50,003 100,010
----------- -----------
$29,511,349 $24,042,342
=========== ===========
</TABLE>
- 9 -
<PAGE>
<TABLE>
<CAPTION>
June 30, 1997 December 31, 1996
Available for Sale Amortized Cost Amortized Cost
- ----------------------- -------------- ----------------
<S> <C>
Obligations of U.S. government
corporations and agencies 2,999,477 999,994
Other securities 742,200 752,100
----------- -----------
$ 3,741,677 $ 1,752,094
=========== ===========
<CAPTION>
June 30, 1997 December 31, 1996
Fair Value Fair Value
------------- -----------------
<S> <C>
Obligations of U.S. government
corporations and agencies 3,001,533 992,372
Other securities 742,200 752,100
----------- -----------
$ 3,743,733 $ 1,744,472
=========== ===========
</TABLE>
(5) Net loans at June 30, 1997 and December 31, 1996 are summarized as follows:
<TABLE>
<CAPTION>
June 30, 1997 December 31, 1996
------------- -----------------
<S> <C>
Loans secured by real estate:
Construction and land development $ 995,853 $ 1,434,277
Secured by farmland 3,788,026 4,013,322
Secured by 1-4 family residential 44,682,013 45,156,222
Nonfarm, nonresidential loans 10,415,348 9,517,839
Loans to finance agricultural production 1,055,607 1,446,108
Commercial and industrial loans 5,127,541 6,145,077
Loans to individuals 16,443,747 19,632,667
Loans to U.S. state and political
subdivisions 1,435,111 1,517,111
All other loans 196,751 214,483
------------ ------------
Gross loans $ 84,139,997 $ 89,077,106
Less:
Unearned income (776,087) (1,206,912)
Allowance for loan losses (831,557) (913,955)
------------ ------------
Loans, net $ 82,532,353 $ 86,956,239
============ ============
</TABLE>
- 10 -
<PAGE>
(6) Allowance for Loan Losses
<TABLE>
<CAPTION>
June 30, 1997 December 31, 1996
------------- ------------------
<S> <C>
Balance, beginning $ 913,955 $ 828,104
Provision charged to operating expense 166,667 290,000
Recoveries added to the allowance 15,440 63,561
Loan losses charged to the allowance (264,505) (267,710)
--------- ---------
Balance, ending $ 831,557 $ 913,955
========= =========
</TABLE>
(7) New Accounting Pronouncements
FASB Statement No. 125, "Accounting for Transfers and Servicing of Financial
Assets and Extinguishments of Liabilities," was issued in June 1996 and esta-
blishes, among other things, new criteria for determining whether a transfer of
financial assets in exchange for cash or other consideration should be accounted
for as a sale or as a pledge of collateral in a secured borrowing. Statement 125
also establishes new accounting requirements for pledged collateral. As issued,
Statement 125 is effective for all transfers and servicing of financial assets
and extinguishments of liabilities occurring after December 1996.
FASB Statement No. 127, "Deferral of the Effective Date of Certain Provisions of
FASB Statement No. 125," defers for one year the effective date (a) of para-
graph 15 of Statement 125 and (b) for repurchase agreement, dollar-roll, secur-
ities lending, or similar transactions, of paragraph 9-12 and 237(b) of
Statement 125.
FASB Statement No. 128, "Earnings per Share", was issued in February 1997 and
establishes standards for computing and presenting earnings per (EPS) and
applies to entities with publicly held common stock or potential common stock.
This Statement simplifies the standards for computing earnings per share
previously found in APB Opinion No. 15, "Earnings per Share", and makes them
comparable to international EPS standards. It replaces the presentation of
primary EPS with a presentation of basic EPS. It also requires dual presentation
of basic and diluted EPS on the face of the income statement for all entities
with complex capital structures and requires a reconciliation of the numerator
and denominator of the basic EPS computation to the numerator and denominator of
the diluted EPS computation. This Statement is effective for financial
statements issued for periods ending after December, 15 1997 including interim
periods.
FASB Statement No. 129, "Disclosure of Information About Capital Structure", was
issued in February 1997 and establishes standards for disclosing information
about an entity's capital structure. It applies to all entities. This Statement
continues the previous requirements to disclose certain information about an
entity's capital structure found in APB Opinions No. 10, "Omnibus Opinion -
1966", and No. 15, "Earnings per Share", and FASB Statement No. 47, "Disclosure
of Long-Term Obligations", for entities that were subject to the requirements of
those standards. This Statement is effective for financial statements for
periods ending after December 15, 1997.
FASB Statement No. 130, "Reporting Comprehensive Income", was issued in June
1997 and establishes standards for reporting and display of comprehensive income
and its components (revenues, expenses, gains, and losses) in a full set of
general-purpose financial statements. This Statement requires that all items
that are required to be recognized under accounting standards as components of
comprehensive income be reported in a financial statement that is displayed with
the same prominence as other financial statements.
This Statement requires that an enterprise (a) classify items of other
comprehensive income by their nature in a financial statement and (b) display
the accumulated balance of other comprehensive income separately from retained
earnings and additional paid-in capital in the equity section of a statement of
financial position. This Statement is effective for fiscal years beginning after
December 15, 1997.
The effects of these Statements on the Bank's financial statements are not
expected to be material.
- 11 -
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Performance Summary
Net income of the company for the first six months of 1997 and 1996 was $671,392
and $654,447, respectively. This is an increase of $16,945 or 2.59%. The results
of operations for the six month periods ended June 30, 1997 and 1996 are not
necessarily indicative of the results to be expected for the full year. Net
interest income after provision for loan losses for the first six months of 1997
and 1996 was $2,595,108 and $2,565,117, respectively. This is an increase of
$29,991 or 1.17%. Total other income increased $78,589 or 16.91% from $464,856
for the first six months of 1996 to $543,445 for the first six months of 1997.
Total other expenses increased $104,198 or 4.86% from $2,145,455 during the
first six months of 1996 to $2,249,653 during the first six months of 1997.
Earnings per common share outstanding was $0.48 and $0.47 for the six months
ended June 30, 1997 and 1996, respectively. Annualized return on average assets
for the six month periods ended June 30, 1996 and 1997 was 1.06%. Annualized
return on average equity for the six months ended June 30, 1997 was 9.31% as
compared to 9.77% for the six months ended June 30, 1996.
Provision and Allowance for Loan Losses
The provision for loan losses is based upon management's estimate of the amount
required to maintain an adequate allowance for loan losses reflective of the
risks in the loan portfolio. The Company reviews the adequacy of the allowance
for loan losses monthly and utilizes the results of these evaluations to
establish the provision for loan losses. The allowance is maintained at a level
believed by management to absorb potential losses in the loan portfolio. The
methodology considers specific identifications, specific and estimate pools,
trends in delinquencies, local and regional economic trends, concentrations,
commitments, off balance sheet exposure and other factors. The provision for
loan losses increased $46,667 from $120,000 for the six months ended June 30,
1996 to $166,667 for the six months ended June 30, 1997. The allowance for loan
losses decreased $82,398 or 9.02% during the first six months of 1997 from
$913,955 at December 31, 1996 to $831,557 at June 30, 1997. The allowance as a
percentage of total loans decreased from 1.04% at December 31, 1996 to 1.00% at
June 30, 1997. The Company had net charge-offs of $249,065 and $148,039 for the
first six months of 1997 and 1996, respectively. The ratio of net charge-offs to
average loans was 0.29% for the first six months of 1997 as compared to 0.17%
for the first six months of 1996.
The coverage of the allowance for loan losses over non-performing assets and
loans 90 days past due and still accruing interest has decreased from 90.14% at
December 31, 1996 to 73.47% at June 30, 1997. Loans past due greater than 90
days and still accruing interest decreased from $967,319 at December 31, 1996 to
$274,162 at June 30, 1997.
Potential problem loans are included in the loans past due 90 days or more and
still accruing interest. Loans are viewed as potential problem loans when
management questions the ability of the borrower to comply with current
repayment terms. These loans are subject to constant review by management and
their status is reviewed on a regular basis. The amount of problem loans as of
June 30, 1997 was $178,259. Most of these loans are well secured and management
expects to incur only immaterial losses on their disposition.
Loans are placed on nonaccrual when they are greater than ninety days past due
without being in the process of collection or where the collection of their
principal or interest is doubtful. Interest and fees are not accrued on these
loans from the day they enter nonaccrual status and any interest or fees which
were earned previously are reversed. As of June 30, 1997 nonaccrual loans
totalled $816,505, of which $601,066 is secured by real estate. Management does
not expect to incur any material losses on the nonaccrual loans secured by real
estate upon foreclosure.
- 12 -
<PAGE>
Balance Sheet
Total assets increased $2.81 million or 2.22% from $126.24 million at December
31, 1996 to $129.05 million at June 30, 1997. Securities increased $7.45 million
or 28.57% during the first six months of 1997 from $26.09 million at December
31, 1996 to $33.54 million at June 30, 1997. Loans, net of unearned discounts
decreased $4.51 million or 5.13% during the same period from $87.87 million at
December 31, 1996 to $83.36 million at June 30, 1997.
Total liabilities increased $2.27 million or 2.02% during the first six months
of 1997 from $112.04 million at December 31, 1996 to $114.31 million at June 30,
1997. Total deposits increased $2.12 million or 1.91% during the same period
from $111.09 at December 31, 1996 to $113.21 million at June 30, 1997. Total
stockholders' equity increased $0.54 million during the first six months of 1997
from $14.20 million at December 31, 1996 to $14.74 million at June 30, 1997.
Stockholders' Equity
The Company continues to be a strongly capitalized financial institution.
Stockholders' equity per share increased $0.36 or 3.55% from $10.14 per share at
December 31, 1996 to $10.50 per share at June 30, 1997. During 1996 the Company
paid $0.30 per share in dividends. During 1997, the Company changed its dividend
policy to begin paying quarterly dividends. The Company has paid $0.16 per share
in dividends during the first six months of 1997. The Company has a Dividend
Investment Plan that reinvests the dividends of participating shareholders in
Company stock.
Liquidity
Asset and liability management assures liquidity and maintains the balance
between rate sensitive assets and liabilities. Liquidity management involves
meeting the present and future financial obligations of the Company with the
sale or maturity of assets or through the occurrence of additional liabilities.
Liquidity needs are met with cash on hand, deposits in banks, federal funds
sold, securities classified as available for sale and loans maturing within one
year. Total liquid assets were $30.1 million at June 30, 1997 and $34.5 million
at December 31, 1996. These represent 26.3% and 30.8% of total liabilities as of
June 30, 1997 and December 31, 1996, respectively.
- 13 -
<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal proceedings.
None
Item 2. Changes in securities.
None.
Item 3. Defaults upon senior securities.
None.
Item 4. Submission of matters to a vote of security holders.
None.
Item 5. Other Information.
None
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits.
Exhibit 2 Not applicable
Exhibit 3 (i) Articles of Incorporation of Registrant
(incorporated herein by reference as
Exhibit 3.1 of Registrant's Form S-4
Registration Statement, Registration No.
33-43681.)
(ii) Bylaws of Registrant (incorporated
herein by reference as Exhibit 3.2 of
Registrant's Form S-4 Registration
Statement, Registration No. 33-43681).
Exhibit 4 Not applicable
Exhibit 10 Material Contracts
10.1 Description of Executive Supplemental
Income Plan, Incorporated by reference to
Exhibit 10.1 to the Company's Annual Re-
port on Form 10-K for the year ended
December 31, 1996
10.2 Lease Agreement between Bank of
Clarke County (tenant) and Winchester
Development Company (landlord) dated
August 1, 1992 for the branch office at
625 East Jubal Early Drive, Winchester,
Virginia, Incorporated herein by reference
to Exhibit 10.2 of the Company's Annual
Report on Form 10-K for the year ended
December 31, 1995, File No. 0-20146
10.3 Lease Agreement between Bank of
Clarke County (tenant) and Winchester
Development Company (landlord) dated
July 1, 1997 for an office at 615 East
Jubal Early Drive, Winchester, Virginia,
Incorporated herein as Exhibit 10.3 of
the Company's Annual Report on Form
10-Q for the quarter ended June 30, 1997.
Exhibit 11 Not applicable
Exhibit 15 Not applicable
Exhibit 18 Not applicable
Exhibit 19 Not applicable
Exhibit 22 Not applicable
Exhibit 23 Not applicable
Exhibit 24 Not applicable
Exhibit 27 Financial Data Schedule, Incorporated
herein as Exhibit 27
Exhibit 99 Not applicable
(b) Reports on Form 8-K.
None.
- 14 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EAGLE FINANCIAL SERVICES, INC.
Date: May 13, 1997 /s/ LEWIS M. EWING
----------------------------------
Lewis M. Ewing
President and CEO
Date: May 13, 1997 /s/ JOHN R. MILLESON
----------------------------------
John R. Milleson
Vice President, Secretary and
Treasurer
Date: May 13, 1997 /s/ JAMES W. MCCARTY, JR.
----------------------------------
James W. McCarty, Jr.
Controller
- 15 -
LEASE AGREEMENT
LANDLORD: Winchester Development Company
TENANT: Bank of Clarke County
SHOPPING CENTER: Apple Blossom Convenience Center
ARTICLE I: GRANT AND BASIC TERMS
1.01 Basic Terms and Definitions 1
1.02 Commencement of Lease 3
1.03 Use of Common Areas 3
1.04 Commencement of Minimum Rent and Additional Rent 3
1.05 Lease Term 3
1.06 Condition of Leased Premises 3
1.07 Tenant's Work 3
1.08 Shopping Center Provisions 3
ARTICLE II: RENT
2.01 Minimum Annual Rent 3
2.02 Percentage Rent 3
2.03 Gross Receipts Defined 4
2.04 Tenant's Records 4
2.05 Audit 4
2.06 Taxes and Insurance 4
2.07 Interest on Delinquent Rent 4
2.08 Late Fee 5
2.09 Returned Checks 5
ARTICLE III: CLEANING AND REPAIR OF LEASED PREMISES
3.01 Landlord's Obligations 5
ARTICLE IV: CONDUCT OF BUSINESS
4.01 Use of Leased Premises 5
4.02 Operation of Business 5
ARTICLE V: COMMON AREAS
5.01 Control of Common Areas by Landlord 5
5.02 Common Area Maintenance 5
5.03 Definitions 5
ARTICLE VI: ALTERATIONS, LIENS AND SIGNS
6.01 Alterations 5
6.02 Tenant Shall Discharge All Liens 6
6.03 Signs, Awnings and Canopies 6
ARTICLE VII: MAINTENANCE OF LEASED PREMISES, SURRENDER AND RULES
7.01 Maintenance, Repair, and Replacement by Tenant 6
7.02 Maintenance by Landlord 6
7.03 Surrender of Leased Premises 6
7.04 Rules and Regulations 6
ARTICLE VIII: INSURANCE AND INDEMNITY
8.01 Casualty Insurance 7
8.02 Waiver of Subrogation 7
8.03 Increase in Fire Insurance Premiums 7
8.04 Liability Insurance 7
8.05 Indemnification of Landlord 7
8.06 Plate Glass Insurance 7
8.07 Liquor Liability Insurance 7
8.08 Insurance Policy 7
ARTICLE IX: UTILITIES
9.01 Utility Charges 8
ARTICLE X: PRIORITY OF LEASE
10.01 Subordination 8
10.02 Notice to Landlord of Default 8
10.03 Estoppel Certificate 8
10.04 Attornment 8
ARTICLE XI: ASSIGNMENT AND SUBLETTING
11.01 Consent Required 8
ARTICLE XII: WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS,
AND HAZARDOUS SUBSTANCES
12.01 Waste or Nuisance 9
12.02 Governmental and Insurance Requirements 9
12.03 Hazardous Substances 9
ARTICLE XIII: PROMOTION FUND
13.01 Promotion Fund 9
ARTICLE XIV: DESTRUCTION OF LEASED PREMISES
14.01 Partial Destruction 9
14.02 Substantial Destruction 9
14.03 Partial Destruction of Shopping Center 10
ARTICLE XV: EMINENT DOMAIN
15.01 Condemnation 10
ARTICLE XVI: DEFAULT OF TENANT
16.01 Tenant's Default 10
16.02 Remedies 10
16.03 Further Remedies of Landlord 11
16.04 Legal Expenses 12
16.05 Failure to Pay; Interest 12
ARTICLE XVII: ACCESS BY LANDLORD
17.01 Right of Entry 12
ARTICLE XVIII: TENANT'S PROPERTY
18.01 Taxes on Leasehold 12
18.02 Loss and Damage 12
18.03 Notice by Tenant 12
ARTICLE XIX: HOLDING OVER; SUCCESSORS
19.01 Holding Over 12
19.02 Successors and Assigns 12
ARTICLE XX: QUIET ENJOYMENT
20.01 Landlord's Covenant 12
ARTICLE XXI: MISCELLANEOUS
21.01 Waiver 13
21.02 Accord and Satisfaction 13
21.03 No Partnership 13
21.04 Force Majeure 13
21.05 Landlord's Liability 13
21.06 Notices and Payments 13
21.07 Financial Statements 13
21.08 Guarantors 13
21.09 Captions and Section Number 13
21.10 Definitions 13
21.11 Partial Invalidity 13
21.12 Recording 13
21.13 Entire Agreement 13
21.14 Jury Trial; Claims; Survival 13
21.15 Applicable Law 13
21.16 Consents and Approvals 14
21.17 Authority 14
21.18 Interpretation 14
21.19 Brokers 14
ARTICLE XXII: SECURITY AND RENT DEPOSITS
22.01 Amount of Security Deposit 14
22.02 Use and Return of Security Deposit 14
22.03 Rent Deposit 14
ARTICLE XXIII: TENANT COVENANTS; EASEMENTS
23.01 Tenant Covenants 14
23.02 Easements 14
EXHIBITS
Site Plan Exhibit A
Description of Landlord's Work and Tenant's Work Exhibit B
Guaranty Exhibit C
Sign Criteria Exhibit E
Estoppel Certificate Exhibit F
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is entered into pursuant to the following
terms and conditions:
ARTICLE I: GRANT AND BASIC TERMS
1.01 Basic Terms and Definitions. This Lease is subject to
the following basic terms and definitions:
(a) Date of Lease: June 3, 1997
(b) "Landlord": Winchester Development Company Address: c/o
R.J.Waters & Associates,Inc.,402 Bayard Road, Suite 200,Kennett
Square,PA 19348
(c) "Tenant": Bank of Clarke County Address: P. O. Box 391,
Berryville, VA 22611 Billing Address: P.O.Box 391, Berryville, VA
22611
(d) "Shopping Center": Apple Blossom Convenience Center Located in
Winchester ("Municipality") Frederick ("County") VA ("State")
(e) Tenant's "Leased Premises": Shop E containing approximately 1,400
square feet of Gross Leasable Area ("Gross Leasable Area in
Leased Premises"); 20 ft. (approximately in width) by 70 ft.
(approximately in depth)
The Gross Leasable Area of the Leased Premises shall be measured From the
center of all interior demising walls and the outside of all exterior
walls.
(f) Lease Term: Three (3) years, Zero (0) months, subject to
adjustment pursuant to Section 1.05 and subject to validly
exercised Renewal Term(s).
(g) Est. Construction Commencement Date: n/a subject to Section 1.06
Est. Possession Date: 6/9/97 subject to Section 1.02
Est. Lease Commencement Date: 7/1/97 subject to Sections
1.02 and 1.05
Est. Lease Expiration Date: 6/30/2000 subject to Sections 1.02
and 1.05
Est. Rent Commencement Date: 7/1/97 subject to Section 1.04
Est. Additional Rent Commencement Date: 7/1/97 subject to
Section 1.04
The aforementioned dates are estimates. Once known, these dates shall be
confirmed in writing by both parties in an estoppel certificate, the form
of which is attached hereto as Exhibit F.
(h) Minimum Rent: (see Section 2.01)
(1) Dates 7/1/97-6/30/98 $16,310.00 annually; $1,359,17 monthly
(2) Dates 7/1/98-6/30/99 : $ CPI annually
(3) Dates 7/1/99-6/30/00 : $ CPI annually
(I) Percentage Rent: N/A % of Gross Receipts in excess of: (see
Section 2.02)
(j) Option(s) to Renew: Two (2) for Three (3) Years
1. Minimum Annual Rent:
(1) Dates 7/1/00-6/30/01 $ CPI annually
(2) Dates 7/1/01-6/30/02 $ CPI annually
(3) Dates 7/1/02-6/30/03 $ CPI annually
(4) Dates 7/1/03-6/30/04 $ CPI annually
(5) Dates 7/1/04-6/30/05 $ CPI annually
(6) Dates 7/1/05-6/30/06 $ CPI annually
2. Percentage Rent: N/A % of gross receipts in excess of :
(k) Use of Leased Premises (see Section 4.01): Mortgage Banking
(l) Trade Name of Tenant Bank of Clarke County (see Section 4.01):
(m) "Broker": R. J. Waters & Associates, Inc. (see Section 21.19)
(n) Security Deposit: $ 00.00 (see Section 22.01)
(o) Rent Deposit: $ 1391.17 (see Section 22.03)
(p) "Additional Rent": Estimated contributions for current calendar
year as indicated below:
Annual Amount
per Square Foot Monthly
Taxes $.61 $71.17
Insurance $.05 $5.83
Common Area $ .34 $39.67
Operating Costs
Promotion Fund $ 0 $ 0
HVAC Filter Change $ 0 $ 0
Water $ 0 $ 0
Sewer $ 0 $ 0
Other $ 0 $ 0
(q) Condition of Leased Premises (See Section 1.06): Tenant will take
"as is" ___________ or upon substantial completion of Landlord's
Work described on Exhibit B _____________.
(r) Guarantor(s) Bank of Clarke County: (see Exhibit C).
(s) Riders: Riders consisting of a total of zero (0 ) pages are
attached to this Lease and incorporated herein.
Landlord demises and leases to Tenant, and Tenant rents from Landlord the Leased
Premises outlined in red on Exhibit "A".
1.02 Commencement of Lease. The Lease Term shall commence on 7/1/97 The
term "Possession Date" shall be defined as the date Landlord notifies Tenant in
writing that the Leased Premises have been substantially completed and are
available to Tenant for installation of its fixtures and improvements. The term
"substantially completed" as used in this Lease shall mean that work, if any,
performed by Landlord as described in Exhibit "B" hereof ("Landlord's Work") has
been completed with the exception of minor items which can be completed without
material interference of the installation of fixtures or improvements for
Tenant's business.
1.03 Use of Common Areas. The use and occupation by Tenant of the Leased
Premises shall include the use, in common with others entitled thereto, of the
Common Areas, employees' parking areas, service roads, loading facilities,
sidewalks and customer car parking areas of the Shopping Center, and such other
facilities as may be designated from time to time by Landlord, subject, however,
to the terms and conditions of this Lease. Landlord may designate certain
portions of the parking areas as reserved for use of certain tenants or
customers of certain tenants. All parking rights are also subject to ordinances
of the Municipality, County, or State in which the Shopping Center is located.
1.04 Commencement of Minimum Rent and Additional Rent. Tenant's obligation
to pay Minimum Rent shall commence on 7/1/97. The estimated Rent Commencement
Date shall be the date set forth in Section 1.01 (g). Tenant's obligation to pay
Additional Rent shall commence on 7/1/97. The estimated Additional Rent
Commencement Date shall be the date set forth in Section 1.01 (g).
1.05 Lease Term. The term of this Lease shall be as set forth in Section
1.01 (f) (subject to any validly exercised Renewal Terms) commencing with the
Lease Commencement Date determined in accordance with Section 1.02 hereof. In
the event such date is other than the first day of the month, the Lease
Commencement Date shall be the first day of the first full month next succeeding
and the first year of the Lease Term shall be deemed to be extended to include
such partial month and the following twelve (12) months, so as to end on the
last day of the month.
1.06 Condition of Leased Premises. If Tenant is to take the Leased Premises
"as is" pursuant to Section 1.01(q), Landlord shall have no obligation to
prepare the Leased Premises for Tenant's use and there shall be no Landlord's
Work. If Tenant is not taking the Leased Premises "as is" pursuant to Section
1.01(q), Landlord agrees at its cost and expense to complete Landlord's Work and
to deliver possession of the Leased Premises to Tenant in a substantially
completed condition (as defined in Section 1.02) on or before one year from the
date of the commencement of Landlord's Work; provided, however, that in the
event Landlord's Work is delayed or hindered by strike, casualty, fire,
injunction, inability to secure materials, or restraint of law, unusual action
of the elements, or any other cause beyond the control of Landlord, then the
said period shall be extended to the extent of such delays. If Landlord fails to
commence Landlord's Work for the Shopping Center within one (1) year from the
estimated Construction Commencement Date, as set forth in Section 1.01 (g), plus
any extensions agreed upon by both parties, then Tenant or Landlord shall have
the option of canceling and terminating this Lease by giving notice in writing
to the other party. In the event Tenant elects to terminate, it shall give
Landlord written notice of its election and if Landlord commences construction
on the Shopping Center (including any site work activities) within sixty (60)
days, such termination shall be nullified. In the event this Lease is so
terminated, Tenant shall not be liable to Landlord on account of any covenant or
obligation herein contained, and any security deposit shall be refunded to
Tenant. Tenant's sole remedy for the breach of Landlord's obligations under this
Section 1.06 shall be the foregoing option to terminate this Lease as herein
provided, and Tenant shall not have an action for damages, specific performance,
or any other remedy arising out of this provision.
1.07 Tenant's Work. Other than Landlord's Work, Tenant shall make all other
necessary improvements to the Leased Premises to operate Tenant's business
("Tenant's Work"). Tenant's Work shall comply with all applicable statutes,
ordinances, regulations, and codes and shall strictly comply with the
requirements of Article VI hereof. Tenant may not puncture the roof or interfere
with the sprinkler system without specific written permission from Landlord.
Tenant prior to the Lease Commencement Date, shall with the prior consent of
Landlord (which consent may be withheld or delayed by Landlord due to
requirements of Landlord's Work), be permitted to install its fixtures and
equipment provided it first delivers to Landlord a copy of its liability
insurance certificate in accordance with Section 8.04. Any work done by Tenant
prior to completion of the Leased Premises shall be performed in a manner as
will not interfere with the progress of the work by Landlord of completing
construction and Landlord shall have no liability or responsibility for loss of
or any damage to fixtures, equipment or other property of Tenant so installed or
placed on the Leased Premises.
1.08 Shopping Center Provisions. No rights or remedies shall accrue to
Tenant arising out of the failure of Landlord to construct or lease any other
parts of the Shopping Center or from any changes in occupancy by tenants in the
Shopping Center. It is understood that said Exhibit "A" sets forth the general
layout of the Shopping Center but shall not be deemed as a warranty,
representation or agreement on the part of Landlord that the Shopping Center
layout will be exactly as depicted on said Exhibit, and Landlord specifically
reserves the right from time to time and without the consent of Tenant: (I) to
change the number, size, height (including additional stories) or locations of
the buildings or common areas in the Shopping Center as Landlord may deem
proper; (ii) to change or modify any means of ingress or egress; (iii) construct
building(s) and/or kiosk(s) on or in the common area; or (iv) to add additional
land or buildings or both to the Shopping Center. The Landlord states and Tenant
acknowledges that from time to time circumstances may arise under which it would
be beneficial to the Shopping Center to relocate one or more tenants within the
Shopping Center. The parties hereto do all agree that Landlord shall and does
reserve the right at Landlord's sole discretion to relocate Tenant to similar
premises upon ninety (90) days prior written notice for the same Minimum Rent,
Percentage Rent, and Additional Rent (which may be adjusted to reflect minimal
change in size of new premises) within the Shopping Center at its sole cost.
Landlord shall notify Tenant of the relocation period it shall grant Tenant to
relocate Leased Premises and Minimum Rent and Additional Rent shall abate during
this period. In the event Tenant does not want to be relocated, Tenant shall
have the option of terminating this lease upon thirty (30) days written notice
after Landlord notifies Tenant of its intentions to relocate Tenant.
ARTICLE II: RENT
2.01 Minimum Rent. Minimum Rent hereunder shall be as set forth in Section
1.01(h) and shall be payable in monthly installments in advance, without set
off, on the first day of each and every month throughout the Lease Term from the
Rent Commencement Date at the office of Landlord or at such other place
designated by Landlord, without any prior demand. Minimum Rent for any
fractional month shall be prorated and payable in advance. The Minimum Rent
shall be adjusted on the anniversary of the Lease Commencement Date in
accordance with Sections 1.01 (h) and (j). For purposes of this Lease, the Gross
Leasable Area of the Leased Premises shall be deemed to be that set forth in
Section 1.01(e).
2.06 Taxes and Insurance. Tenant shall pay to Landlord as Additional Rent
its proportionate share of real estate taxes, special taxes and assessments and
all insurance for the Shopping Center (excluding any tenants separately taxed or
charged for insurance or insurance paid pursuant to Section 5.03). Insurance
shall include all risk coverage, fire insurance for the full replacement value
of the improvements, extended coverage and all other perils coverage, loss of
rents coverage, sinkhole coverage, plus all endorsements and other coverages
deemed reasonable and necessary by Landlord or mortgagee. Landlord shall notify
Tenant of the amount of such charges, and Tenant shall pay Landlord such amounts
within fifteen (15) days from the date of notice to it by Landlord. Tenant's
proportionate share is the fraction, the numerator of which is the Gross
Leasable Area in the Leased Premises and the denominator of which is the total
Gross Leasable Area of the Shopping Center (excluding any tenants separately
taxed or charged for insurance), provided that if the taxes for the Shopping
Center are increased materially because of assessment of Tenant's improvements
at a higher rate than other tenants in the Shopping Center, Tenant agrees to pay
any such excess taxes and provided further that Tenant shall be responsible for
all additional fire insurance premiums as set forth in Section 8.03. Landlord,
at Landlord's option, may bill Tenant on a monthly basis based on one-twelfth
(1/12) of the estimated annual amount for taxes and insurance as estimated by
Landlord, and Tenant shall pay said cost for tax and insurance with monthly
Minimum Rent on the first day of each month in advance. The initial estimate
shall be as set forth in Section 1.01(p). In the event that Tenant's payments in
such year exceed Tenant's proportionate share of the actual tax and insurance
costs, Tenant shall be credited the amount of the overpayment. If Tenant's
proportionate share of the actual tax and insurance costs exceeds the payments
made in such year by Tenant, Tenant shall pay the difference to Landlord within
thirty (30) days of receiving a detailed statement therefor from Landlord or
Tenant shall be in default of the Lease. In the event Tenant does not make said
payment monthly, Tenant shall be in default of this Lease. Landlord, at
Landlord's option, may obtain separate taxable status for the Leased Premises,
and in such event, Tenant's tax contribution shall be based thereon.
Additionally, with respect to taxes:
(a) Right to Contest Assessments. Landlord may contest any and all such
real estate taxes. If the result of any such contest shall be a reduction in the
amount of the real estate taxes so contested, that portion of any refund,
reduction, credit or recovery from the taxing authorities with respect to such
real estate taxes which is in the same proportion of the total refund or
recovery as Tenant's share of taxes, shall belong to Tenant, and the balance
shall belong to Landlord. The cost of any such contest shall be paid as
Additional Rent in the same proportionate share as the real estate taxes are
paid.
(b) Real Estate Tax. Real estate tax means: (I) any fee, license fee,
license tax, business license fee, commercial rental tax, levy, charge,
assessment, penalty or tax imposed by any taxing or judicial authority against
the Shopping Center or land upon which the Shopping Center is located; (ii) any
tax on Landlord's right to receive, or the receipt of, rent or income from the
Shopping Center or against Landlord's business of leasing the Shopping Center;
(iii) any tax or charge for fire protection, streets, sidewalks, road
maintenance, refuse or other services provided to the Shopping Center by any
governmental agency; (iv) any tax imposed upon this transaction, or based upon a
re-assessment of the Shopping Center due to a change in ownership or transfer of
all or part of Landlord's interest in the Shopping Center; and (v) any charge or
fee replacing any tax previously included within the definition of real property
tax.
2.07 Interest on Delinquent Rent. All delinquent Minimum Rent, Additional
Rent, Percentage Rent and all other charges due under this Lease shall accrue
interest at a rate equal to the maximum amount permitted by law, from the due
date of such payment and shall constitute other rent payable by Tenant under
this Lease and shall be paid by Tenant to Landlord upon demand. Payment shall
not be deemed received if Tenant's payment is not actually collected (such as
charges for returned checks).
2.08 Late Fee. In the event any payment of rent provided for in this Lease
or any other charge provided for in this Lease shall become overdue for a period
in excess of five (5) days, Tenant shall pay to Landlord a late charge of five
($.05) cents for each dollar (($1.00) overdue, each month that it remains
overdue, to cover the extra expense involved in handling delinquent payments.
Payment of the late charge by Tenant shall in no way prevent Landlord from
treating the late payment as an item of default as provided in Paragraph 16.01
of this Lease subject to any applicable cure period.
2.09 Returned Checks. In the event Landlord receives a check from Tenant
written on insufficient funds, Landlord may charge Tenant a $25.00 fee to
reimburse Landlord for its costs and expenses.
ARTICLE III: CLEANING AND REPAIR OF LEASED PREMISES
3.01 Landlord's Obligations. As of the time Tenant takes possession of the
Leased Premises, Landlord, shall deliver the Leased Premises broom clean and the
air conditioning, heating, plumbing, electrical systems and equipment shall be
in good working condition. Landlord shall warrant proper operation of all
systems installed by Landlord for a period of one year from the Lease
Commencement Date provided Tenant shall be responsible for all repairs due to
improper usage, improper maintenance or damage caused by the acts or omissions
of the Tenant, its agents, servants, employees, contractors, and invitees.
Landlord shall provide Tenant, upon written request, copies of all extended
warranties applicable to Leased Premises. Except as above, the respective
obligations of Landlord and Tenant as regards maintenance and repairs are
governed by Article VII hereinafter.
ARTICLE IV: CONDUCT OF BUSINESS
4.01 Use of Leased Premises. Tenant shall use the Leased Premises solely
for the purpose set forth in Section 1.01(k) and shall operate under the trade
name set forth in Section 1.01(l), and for no other business or purpose or under
any other name without the prior written consent of Landlord. Consent may be
subject to conditions as Landlord deems appropriate. The Consent in no event
will be granted for any of the following "Noxious Uses" including but not
limited to non-retail purposes or for any entertainment purposes such as a
bowling alley, a movie theater, a flea market, a skating rink, a bar (except for
restaurants with liquor licenses that include bars) a nightclub, a discotheque,
an amusement gallery or a poolroom or for an establishment selling or exhibiting
pornographic materials, a health club, a gas station, an automobile repair shop,
a sales office or showroom for automobiles, an offtrack betting establishment, a
bingo parlor, a furniture store or a flea market or House of Worship.
4.02 Operation of Business. Tenant shall open for business in accordance
with Section 4.01 within ninety days (90) after the Possession Date and shall
continuously operate and keep open to the public the entire Leased Premises in
good faith during the term hereof with due diligence and efficiency so as to
produce the maximum Gross Receipts, carry a reasonably complete stock of
merchandise, maintain reasonably adequate personnel for efficiently
accommodating its customers, and at all times maintain displays of merchandise
in the display windows (if any) of the Leased Premises. This provision shall
apply whether or not Percentage Rent is applicable to this Lease. The Leased
Premises shall not be used in any manner that would necessitate (in accordance
with any requirement of law or of any public authority) the making of an
addition or alteration in or to the Leased Premises by Landlord. Tenant agrees
not to open another store for the same use described in Section 4.01 within a
N/A mile radius of the Shopping Center so long as the Lease is in effect.
ARTICLE V: COMMON AREAS
5.01 Control of Common Areas by Landlord. The Common Areas as defined in
this Lease shall at all times be subject to the exclusive control and management
of Landlord, and Landlord shall have the right from time to time to establish,
revoke, modify and enforce reasonable rules and regulations with respect to all
or any part of said facilities. Landlord shall also have the right to close all
or any portion of said areas or facilities to such extent as may, in the opinion
of Landlord's counsel, be legally sufficient to prevent a dedication thereof or
the accrual of any rights to any person or the public therein; and to do and
perform such other acts in and to said areas and improvements, and/or revise and
develop the same, as Landlord shall determine to be advisable, with a view to
the improvement of the convenience and use thereof by the tenants of the
Shopping Center and their customers, provided proper access to the Leased
Premises is maintained.
5.02 Common Area Maintenance Contribution. During each calendar year or any
portion thereof during the lease term, Tenant will pay to Landlord as Additional
Rent, subject to the limitations hereinafter set forth, a proportion of the
common area maintenance costs hereinafter defined based upon the ratio that the
square feet of Gross Leasable Area in Leased Premises leased to Tenant herein
bears to the total square feet of all of the Gross Leasable Area leased and
available for lease to all tenants in the Shopping Center, excluding for any
item of costs the square footage of Gross Leasable Area allocated to any tenant
responsible for directly paying such costs; provided, however, if any item of
common area maintenance cost for the Shopping Center is increased materially
because of Tenant's use, Tenant shall additionally pay for such excess cost.
Tenant's share of such costs shall be estimated by Landlord on an annual basis
for each calendar twelve (12) month period ending on December 31, prorating
fractional years. The initial estimate shall be as set forth in Section 1.01(p).
Tenant shall pay such estimated charge in monthly installments on the first day
of each month in advance, and shall pay any excess charge within thirty (30)
days of receiving a detailed statement therefor from Landlord or Tenant shall be
in default of the Lease. In the event that Tenant's payments in such year exceed
Tenant's proportionate share of the actual common area maintenance costs, Tenant
will be credited the amount of the overpayment.
5.03 Definitions. For the purpose of this paragraph, "common area
maintenance costs" means the total costs and expense incurred in operating,
managing, maintaining, repairing, relocating, modifying, renovating and
replacing the Common Areas hereinafter defined, including without limitation the
costs of maintaining flags, banners, retaining walls, fences, bird houses,
bridges, equipment and fees for the operation of loud speakers and other
equipment supplying music to Common Areas, detention ponds, fire sprinkler
system, utility lines and resurfacing or patching the parking areas and labor
associated with line painting, sidewalks and curbs, security and traffic
control, security alarm systems, public liability and umbrella insurance,
gardening, watering and landscaping, lighting, maintenance of sanitary control,
all costs for utilities to Common Areas, removal of snow, ice, drainage,
rubbish, and other refuse, costs to remedy and/or comply with governmental
and/or environmental and hazardous waste matters, repair or installation of
equipment for energy-saving or safety purposes, reserves for future maintenance
and repair work (which Tenant hereby authorizes Landlord to use as necessary),
any costs associated with any merchants' association for the Shopping Center,
Christmas and seasonal decorations, depreciation on equipment and machinery used
in maintenance, cost of personnel required to provide such services, including
all wages, workmen's compensation insurance, employee benefits, unemployment
insurance, social security insurance, medical insurance and all other taxes and
costs of maintaining such employees, all costs and expenses associated with
Landlord's obligation to repair and maintain the areas described in the
agreement (if any) described in Section 23.02 hereof, and such other items of
cost and expense which are relatable to proper maintenance of the Common Areas,
plus fifteen percent (15%) of all of the foregoing costs to cover the
administrative cost relative to the Common Areas.
"Common Areas" means all areas, space, equipment, and special services
provided by Landlord for common or joint use and benefit of the occupants of the
tracts shown on Exhibit "A", their employees, agents, servants, customers and
invitees, including without limitation parking areas, access roads, driveways,
retaining walls, fences, bird houses, bridges, landscaped and vacant areas,
detention ponds, loading facilities, pedestrian malls, walkways, ramps, wash
rooms, fountains, shelters, signs, security, lighting fixtures and equipment,
cost of utility service, and the areas appurtenant to each of the aforesaid, and
any other areas maintained for the benefit of the Shopping Center. Landlord
shall have the right to modify the Common Areas from time to time as deemed
reasonable by Landlord.
ARTICLE VI: ALTERATIONS, LIENS AND SIGNS
6.01 Alterations. The requirements of this Section 6.01 shall apply to
Tenant's Work as described in Section 1.07 and any alterations thereafter.
Tenant shall not, without Landlord's prior written consent, either make or cause
to be made any alterations, including additions and improvements, to the Leased
Premises or to any exterior signs, shades or awnings. Consent shall be at
Landlord's sole discretion. Any alterations consented to by Landlord shall be
made at Tenant's sole expense only upon receipt of Landlord's written approval.
Any roof penetrations necessitated by Tenant's use of Leased Premises shall be
performed by Landlord's contractor at Tenant's expense only upon receipt of
Landlord's written approval. Tenant shall provide its own trash containers for
construction debris; use service entrances to the Leased Premises, if any;
conduct no core drillings during business hours; and disrupt other tenants as
little as possible. Tenant shall secure any and all governmental permits,
approvals or authorizations required in connection with any such work and shall
hold Landlord harmless from any and all liability, costs, damages, expenses
(including attorney's fees) and liens resulting therefrom. All alterations
(expressly including all light fixtures and floor coverings, heating,
ventilating, air conditioning, plumbing, lighting, and electrical systems,
except trade fixtures, trade appliances and trade equipment that do not become a
part of the Leased Premises), shall immediately become the property of Landlord.
Tenant shall utilize only licensed contractors or subcontractors.
6.02 Tenant Shall Discharge All Liens. Tenant shall promptly pay its
contractors and materialmen for all work done and performed by Tenant, so as to
prevent the assertion or imposition of liens upon or against the Leased
Premises, and shall, upon request provide Landlord with lien waivers, and should
any such lien be asserted or filed, Tenant shall bond against or discharge the
same within ten (10) days after written request by Landlord. In the event Tenant
fails to remove said lien within said ten (10) days, Landlord may, at its sole
option, elect to satisfy and remove the lien by paying the full amount claimed
or otherwise, without investigating the validity thereof, and Tenant shall pay
Landlord upon demand the amount paid out by Landlord in Tenant's behalf,
including Landlord's costs and expenses with interest or Tenant shall be in
default hereunder. Landlord's election to discharge liens as provided hereunder
shall not be construed to be a waiver or cure of Tenant's default hereunder.
6.03 Signs, Awnings and Canopies. Tenant will not, without Landlord's prior
written consent, such consent at Landlord's sole discretion, place or suffer to
be placed or maintained upon the roof or on any exterior door, wall or window of
the Leased Premises, any sign, awning or canopy, or advertising matter or other
thing of any kind, and will not without such consent place or maintain any
decoration, lettering or advertising matter on the glass of any window or door
of the Leased Premises. All exterior signs shall be in conformance with Exhibit
E and shall be presented to Landlord for approval prior to their installation.
All signs, awnings, canopies, decorations, lettering, advertising matter or
other thing so installed by Tenant shall be professionally made and tasteful in
design and shall at all times be maintained by Tenant, at its expense, in good
condition and repair. Landlord reserves the exclusive right to use for any
purpose whatsoever of the roof and exterior of the walls of the Leased Premises
or the building of which the Leased Premises are a part. If Tenant installs any
sign that does not meet Landlord's sign criteria, Landlord shall have the
authority without liability to enter the Leased Premises, remove and store the
subject sign and repair all damage caused by the removal of the sign. All
expenses Landlord incurs shall be immediately paid by Tenant as additional rent.
Landlord reserves the right to remove Tenant's sign during any period when
Landlord repairs, restores, constructs or renovates the Leased Premises or the
building of which the Leased Premises are a part.
ARTICLE VII: MAINTENANCE OF LEASED PREMISES, SURRENDER AND RULES
7.01 Maintenance, Repair, and Replacement by Tenant. Tenant shall, at its
expense, at all times repair, maintain, and replace (a) the interior of the
Leased Premises, together with exterior entrances, all glass and all window
moldings, (b) all fixtures, partitions, ceilings, floor coverings and utility
lines in the Leased Premises, and all plumbing and sewage facilities within the
Leased Premises including free flow up to utility owned sewer lines, and all
doors, door openers, equipment, machinery, appliances, signs and appurtenances
thereof (including lighting, heating, air conditioning, and plumbing equipment
and fixtures), in conformity with governmental regulations and all rules and
regulations of the Board of Fire Underwriters, in good order, condition,
maintenance and repair. If any item which Tenant is obligated to repair cannot
be fully repaired, Tenant shall promptly replace such item, regardless of
whether the benefit of such replacement extends beyond the term of this Lease.
Tenant shall be responsible for any structural, interior and exterior
alterations and/or repairs to the Leased Premises required by any governmental
entity or insurance carrier because of Tenant's specific use of the Leased
Premises or arising from damage caused by Tenant, its employees, servants or
agents. If Tenant be required to make any interior alterations or improvements
in the Leased Premises, Tenant shall proceed with same at its own cost after
first obtaining Landlord's written approval of the contractor(s) to be chosen
and the plans therefor and satisfaction of each of the conditions set forth in
Section 6.01 hereof. If Tenant shall be required to make any structural or
exterior alterations, repairs or additions to the Leased Premises, Tenant shall
contact Landlord in writing and Landlord shall complete such work and bill
Tenant for all costs associated with such work. Tenant shall use, at its cost
and at intervals as Landlord shall reasonably require, a reputable service
company to clean and replace air-conditioning filters; or, at Landlord's option,
Landlord may contract for such services and bill such charges to Tenant for
prompt payment. If Tenant refuses or neglects to commence or complete repairs,
maintenance or replacements promptly and adequately, Landlord may make or
complete said repairs, maintenance or replacements and Tenant shall pay the cost
thereof to Landlord upon demand.
7.02 Maintenance by Landlord. Subject to Articles XIV and XV, the
structural portions of the Leased Premises, the roof, exterior walls and the
foundations, shall be maintained by Landlord, except when the condition
requiring such repairs shall result from Tenant's act or the fault of Tenant,
its officers, agents, customers or employees. In the event Landlord fails to
commence repairs it is obligated hereunder to make within thirty (30) days after
written notice from Tenant specifying the necessary repairs, Tenant may make
such repairs and bill the Landlord for the reasonable costs of said repairs.
Landlord shall repair, maintain and replace the sprinkler system within the
Leased Premises (if any) and Tenant shall pay the cost thereof to Landlord upon
demand. Such costs shall include but not limited to: inspections, backflow
tests, and routine maintenance. In addition, if Tenant makes any interior
alterations to the Leased Premises which require additional sprinkler heads or
other adjustments, Landlord shall have such adjustments made and Tenant shall
pay the cost thereof to Landlord upon demand.
7.03 Surrender of Leased Premises. At the expiration of the tenancy hereby
created, Tenant shall peaceably surrender the Leased Premises, including all
alterations, additions, improvements and repairs made thereto; all interior
partition walls; any power wiring or power panels; lighting or lighting
fixtures; wall coverings; drapes, blinds or other window coverings; carpets or
other floor coverings; or other similar building operating equipment (unless
Landlord requests in writing that any or all of such items remain). The Leased
Premises shall be left broom clean and in good condition and repair, reasonable
wear and tear excepted. Tenant shall remove all its property not required to be
surrendered to Landlord before surrendering the Leased Premises (including trade
fixtures, trade equipment, signs, decorations and trade personal property) as
aforesaid and shall repair any damage to the Leased Premises caused thereby. Any
personal property remaining in the Leased Premises at the expiration of the
lease period shall be deemed abandoned by Tenant, and Landlord may claim the
same and shall in no circumstances have any liability to Tenant therefor. The
cost of removing such items which are abandoned by Tenant shall be charged to
Tenant. Upon termination, Tenant shall also surrender all keys for the Leased
Premises to Landlord and, if applicable, inform Landlord of any combinations of
locks or safes in the Leased Premises. If the Leased Premises are not
surrendered at the end of the term as hereinabove set out, Tenant shall
indemnify Landlord against loss or liability resulting from delay by Tenant in
so surrendering the Leased Premises, including without limitation claims made by
the succeeding tenant founded on such delay. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
Lease Term.
7.04 Rules and Regulations. Tenant agrees as follows:
(a) The delivery or shipping of goods, merchandise, supplies and fixtures
to and from the Leased Premises shall be subject to such rules and regulations
as in the judgment of Landlord are necessary for the proper operation of the
Shopping Center.
(b) No loud speakers, televisions, phonographs, radios or other devices
shall be used in a manner so as to be heard or seen outside the Leased Premises
without the prior written consent of Landlord.
(c) Tenant shall not place or permit any obstructions or merchandise in the
outside areas immediately adjoining the Leased Premises or other Common Areas
and shall not use such areas for business purposes other than for ingress and
egress.
(d) Tenant and Tenant's employees shall park their cars only in those
portions of the parking area designated for that purpose by Landlord.
(e) Tenant shall have full responsibility for protecting the Leased
Premises and the property located therein from theft and robbery.
(f) Tenant shall not permit on the Leased Premises any act or practice
which is unlawful, immoral, or which might injure the reputation of the Shopping
Center.
(g) Tenant and Tenant's employees and agents shall not solicit business in
the parking or other Common Areas, nor shall Tenant distribute or place
handbills or other advertising matter in or on automobiles parked in the parking
areas or in other Common Areas.
(h) Tenant shall not conduct any auction, fire, bankruptcy sales or close
out sales in the Leased Premises.
(I) Tenant shall keep the Leased Premises free and clear of rodents, bugs
and vermin, and Tenant shall use, at its cost and at such intervals as Landlord
shall reasonably require, a reputable pest extermination contractor to provide
extermination services in the Leased Premises.
(j) Tenant shall keep the Leased Premises and adjacent Common Areas
orderly, neat, clean and free from rubbish and trash at all times and to permit
no refuse to accumulate around the exterior of the Leased Premises. Tenant shall
not burn any trash, rubbish or garbage in or about the Leased Premises. Trash
shall be stored in a sanitary and inoffensive manner inside the Leased Premises
or in screened areas approved by Landlord, and Tenant shall cause the same to be
removed at reasonable intervals unless Landlord initiates a shopping center-wide
trash removal and recycling program (which may or may not include any or all of
the anchor tenants) in which case Tenant shall participate fully and such cost
shall be billed as part of the Common Area maintenance as described in Article
V.
(k) The Leased Premises shall be open for business each and every day,
except legal holidays, during the minimum hours of 9:30 a.m. to 7:00 p.m. Monday
through Friday and 10:30 a.m. to 5:00 p.m. on Saturdays. Tenant shall not be
required to open on Sundays.
(l) To use or permit the use of the Common Areas by others to whom Landlord
may grant or may have granted such rights in such manner as Landlord may from
time to time designate, including but not limited to truck and trailer sales and
special promotional events.
Landlord reserves the right from time to time to amend or supplement the
foregoing rules and regulations and to adopt and promulgate reasonable
additional rules and regulations applicable to the Leased Premises. Notice of
such rules and regulations and amendments and supplements thereto, if any, shall
be given to Tenant in writing. Tenant agrees to comply with all such rules and
regulations, and Tenant shall be responsible for the observance of these rules
and regulations by Tenant's employees, agents and invitees. The foregoing rules
are solely for the benefit of Landlord, and Landlord shall have no obligation to
enforce such rules for the benefit of Tenant. Landlord, at its option, may waive
certain rules with respect to individual tenants. If Tenant violates any rule,
Landlord may notify Tenant that Tenant is in default.
ARTICLE VIII: INSURANCE AND INDEMNITY
8.01 Casualty Insurance. Tenant shall at all times keep and maintain in
force and effect its own insurance coverage, protecting it from loss, damage or
injury by whatever means, with respect to all furniture, fixtures, machinery,
equipment, stock in trade, and all other items kept, used, or maintained by
Tenant in, on, or about the Leased Premises.
8.02 Waiver of Subrogation. Each of the parties hereto does hereby release
the other party hereto from all liability for damage due to any act or neglect
of the other party (except as hereinafter provided) occasioned to property owned
by said parties which is or might be incident to or the result of a fire or any
other casualty against loss from which either of the parties is now carrying or
hereafter may carry insurance; provided, however, that the releases herein
contained shall not apply to any loss or damage occasioned by the willful acts
of either of the parties hereto. The parties further covenant that any insurance
obtained on their respective properties shall contain an appropriate provision
whereby the insurance company or companies consent(s) to the mutual release of
liability contained in this paragraph.
8.03 Increase in Fire Insurance Premiums. Tenant agrees not to keep, use,
sell or offer for sale, in or upon the Leased Premises, any articles or goods
which may be prohibited by the standard form of fire insurance policy. Tenant
agrees to pay upon demand any increase in premium for fire and extended coverage
insurance and all other perils that may be charged during the term of this Lease
on the amount of such insurance which may be carried by Landlord on said
premises, or the building of which the same are a part, resulting from the use
of the Leased Premises by Tenant, whether or not Landlord has consented to such
use.
8.04 Liability Insurance. Upon taking possession of Leased Premises, Tenant
shall, during the entire term hereof, keep in full force and effect a policy of
public liability and property damage insurance with respect to the Leased
Premises and the business operated by Tenant and permitted subtenants of Tenant
in the Leased Premises in which the limits of coverage shall not be less than
$1,000,000 per occurrence for bodily and/or personal injuries, and in which the
coverage for property damage liability shall not be less than $1,000,000 or a
combined single limited of $1,000,000 with limits to be increased as reasonably
requested by Landlord from time to time.
8.05 Indemnification of Landlord. Tenant will protect, indemnify, defend
and save harmless Landlord, its agents and servants, to the extent permitted by
law, from and against any and all claims, actions, damages, suits, judgments,
decrees, orders, liability and expense (including costs and attorney fees) in
connection with loss of life, bodily injury, personal injury and/or damage to
property of whatever kind or character, howsoever caused, arising from or out of
any occurrence in, upon or about the Leased Premises, or in the occupancy or use
by Tenant of the Leased Premises or any part thereof, or occasioned wholly or in
part by any act or omission of Tenant, its agents, contractors, employees,
servants, sublessees or concessionaires, notwithstanding any possible negligence
(whether sole, concurrent or otherwise) on the part of Landlord, its agents,
contractors, employees or servants.
8.06 Plate Glass Insurance. Tenant shall keep and maintain in force during
the term hereof, plate glass insurance upon windows and doors in the Leased
Premises.
8.07 Liquor Liability Insurance. In the event that at any time during the
term of this Lease or any extension or renewal thereof, beer, wines or other
alcoholic liquors or beverages are sold or given away upon or from the Leased
Premises (it being understood and agreed, however, that the foregoing provision
shall not authorize the use of the Leased Premises for such purposes without the
express consent of Landlord being set forth otherwise in this Lease), Tenant
shall, at its sole expense, obtain, maintain and keep in force, adequate liquor
liability insurance protecting Tenant, Landlord and R.J. Waters & Associates in
connection therewith within policy limits acceptable to Landlord. In the event
Tenant shall fail to procure such insurance where applicable, Landlord may
procure the same at Tenant's expense. In the event such insurance is not
carried, sales of the foregoing products shall be suspended until such coverage
is in force.
8.08 Insurance Policy. The insurance required in this Article VIII shall be
in form approved by Landlord. The policy shall name Tenant, Landlord, and
Landlord's Agent(s) as insureds and shall contain a clause that insurer shall
not cancel, materially modify or fail to renew the insurance without first
giving Landlord thirty (30) days prior written notice. The insurance shall be in
an insurance company approved by Landlord, authorized to do business in the
State and have a policyholder's rating of no less than "A" in the most current
edition of Best's Insurance Reports. A copy of the policy or a certificate of
insurance shall be delivered to Landlord prior to Tenant taking possession of
Leased Premises. The policy shall insure Tenant's performance of the indemnity
provisions of Section 8.05 hereof.
ARTICLE IX: UTILITIES
9.01 Utility Charges. Tenant shall be solely responsible for and promptly
pay all charges for heat, water, gas, sewer, electricity, or any other utility
or service used on or attributable to the Leased Premises. Landlord may elect to
furnish any one or more of the above utility services, in which event Tenant
shall accept and use such services as furnished by Landlord. Landlord's charges
therefor shall not exceed the rates charged by local public utility companies to
retail customers for the same or similar services. If any of the above utility
services are billed directly to Landlord by utility companies/authorities,
Landlord may estimate Tenant's usage for each twelve month period and Tenant
shall pay such estimated charge(s) in monthly installments on the first day of
each month in advance and shall pay any excess charge within thirty (30) days
from receipt of a detailed statement from Landlord. In the event that Tenant's
payments exceed Tenant's actual costs for any given year, Tenant will be
credited the amount of the overpayment. The initial estimate shall be as set
forth in Section 1.01(p). In no event shall Landlord be liable for an
interruption or failure in the supply of any such utilities or services supplied
by Landlord because of necessary repairs or improvements or for any cause beyond
Landlord's control. Landlord shall pay for the initial water and sewer tap-in
fees not to exceed one (1) Estimated Dwelling Unit (EDU) each. Any additional
water and sewer tap-in fees and additional water and/or sewer assessments
incurred by Tenant shall be paid for solely by Tenant.
ARTICLE X: PRIORITY OF LEASE
10.01 Subordination. Landlord shall have the right to transfer, mortgage,
assign, pledge, and convey in whole or in part the Leased Premises, the Shopping
Center, this Lease and all rights of Landlord existing and to exist, and rents
and amounts payable to it under the provisions hereof; and nothing herein
contained shall limit or restrict any such right, and the rights of Tenant under
this Lease shall be subject and subordinate to all instruments executed and to
be executed in connection with the exercise of any such right of Landlord,
including, but not limited to, the lien of any mortgage, deed of trust or
security agreement now or hereafter placed upon the Leased Premises and the
Shopping Center and to all renewals, modifications, consolidations,
participations, replacements and extensions thereof. Said subordination shall
not require the agreement or consent of Tenant, but Tenant covenants and agrees,
if requested, to execute and deliver within fifteen (15) days of receipt from
Landlord such further instruments subordinating this Lease to the lien of any
such mortgage, deed of trust or security agreement as shall be requested by
Landlord and/or any mortgage, proposed mortgagee or holder of any security
agreement, and Tenant hereby irrevocably appoints Landlord as its
attorney-in-fact to execute and deliver any such instrument for and in the name
of Tenant. Notwithstanding anything set out in this Lease to the contrary, in
the event the holder of any mortgage or deed of trust elects to have this Lease
superior to its mortgage or deed of trust, then, upon Tenant being notified to
that effect by such encumbrance holder, this Lease shall be deemed prior to the
lien of said mortgage or deed of trust, whether this Lease is adopted prior to
or subsequent to the date of said mortgage or deed of trust.
10.02 Notice to Landlord of Default. In the event of any act or omission by
Landlord which would give Tenant the right to terminate this Lease or claim a
partial or total eviction, or make any claim against Landlord for the payment of
money, Tenant will not make such claim or exercise such right until it has given
written notice of such act or omission to (a) Landlord; and (b) the holder of
any mortgage, deed of trust or other security instrument as to whom Landlord has
instructed Tenant to give copies of all of Tenant's notices to Landlord; and
after thirty (30) days shall have elapsed following the giving of such notice,
during which such parties or any of them has not commenced diligently to remedy
such act or omission or to cause the same to be remedied. Nothing herein
contained shall be deemed to create any rights in Tenant not specifically
granted in this Lease or under applicable provisions of law.
10.03 Estoppel Certificate. Tenant agrees, at any time, and from time to
time, upon not less than ten (10) days' prior notice by Landlord, to execute,
acknowledge and deliver to Landlord, an estoppel certificate in the form
attached as Exhibit F (or such other form provided by Landlord) in writing
addressed to Landlord or other party designated by Landlord certifying that this
Lease is in full force and effect (or, if there have been modifications, that
the same is in full force and effect as modified and stating the modifications),
stating the actual commencement and expiration dates of the Lease, stating the
dates to which rent, and other charges, if any, have been paid, that the Leased
Premises have been completed on or before the date of such certificate and that
all conditions precedent to the lease taking effect have been carried out, that
Tenant has accepted possession, that the Lease Term has commenced, Tenant is
occupying the Leased Premises and is open for business, stating whether or not
there exists any default by either party in the performance of any covenant,
agreement, term, provision or condition contained in this Lease, and, if so,
specifying each such default of which the signer may have knowledge and the
claims or offsets, if any, claimed by Tenant, and any other reasonable
information requested by Landlord or other party designated by Landlord; it
being intended that any such statement delivered pursuant hereto may be relied
upon by Landlord or a purchaser of Landlord's interest and by any mortgagee or
prospective mortgagee of any mortgage affecting the Leased Premises or the
Shopping Center. If Tenant does not deliver such statement to Landlord within
such ten (10) day period, Landlord and any prospective purchaser or encumbrancer
may conclusively presume and rely upon the following facts: (I) that the terms
and provisions of this Lease have not been changed except as otherwise
represented by Landlord; (ii) that this Lease has not been canceled or
terminated except as otherwise represented by Landlord; (iii) that not more than
one (1) month's Minimum Rent, Additional Rent or other charges have been paid in
advance; and (iv) that Landlord is not in default under the Lease. In such
event, Tenant shall be estopped from denying the truth of such facts. Tenant
shall also, on ten (10) days' written notice, provide an agreement in favor of
and in the form customarily used by such encumbrance holder, by the terms of
which Tenant will agree to give prompt written notice to any such encumbrance
holder in the event of any casualty damage to the Leased Premises or in the
event of any default on the part of Landlord under this Lease, and will agree to
allow such encumbrance holder a reasonable length of time after notice to cure
or cause the curing of such default before exercising Tenant's right of
self-help under this Lease, if any, or terminating or declaring a default under
this Lease.
10.04 Attornment. At the option of the holder of any mortgage affecting the
Leased Premises, Tenant agrees that no foreclosure of a mortgage affecting the
Leased Premises, nor the institution of any suit, action, summary or other
proceeding against Landlord herein, or any successor Landlord, or any
foreclosure proceeding brought by the holder of any such mortgage to recover
possession of such property, shall by operation of law or otherwise result in
cancellation or termination of this Lease or the obligations of Tenant
hereunder, and upon the request of the holder of any such mortgage, Tenant
covenants and agrees to execute an instrument in writing satisfactory to such
party or parties or to the purchaser of the Leased Premises in foreclosure
whereby Tenant attorns to such successor in interest.
ARTICLE XI: ASSIGNMENT AND SUBLETTING
11.01 Consent Required. Tenant shall not voluntarily or involuntarily
assign this Lease in whole or in part, nor sublet all or any part of the Leased
Premises without following the procedures detailed herein and the prior written
consent of Landlord in each instance, which consent may be granted or withheld
in Landlord's sole discretion. In the case of any assignment or sublet, the
Landlord shall be entitled to fifty percent (50%) of any profit made by Tenant.
As used herein, the term "profit" shall be limited to the amount paid by the
assignee or sublessee to Landlord and/or Tenant in excess of all payments
otherwise due Landlord under this Lease and shall not include any proceeds or
profit received by Tenant for the sale or lease of fixtures, furniture, and
equipment. In addition, Landlord shall be entitled to receive a processing fee
of $1,000.00 for any approved assignment. The consent by Landlord to any
assignment or subletting shall not constitute a waiver of the necessity for such
consent in any subsequent assignment or subletting. The foregoing shall be
construed to include a prohibition against any voluntary or involuntary
assignment or subletting arising by operation of law.
In the event that Tenant receives a bona fide written offer from a third
party for the sublease or assignment of the Leased Premises, Tenant shall
forthwith notify Landlord in writing attaching a copy of said offer, of Tenant's
desire to sublet or assign this Lease upon the terms of said offer, whereupon
Landlord shall have thirty (30) days to accept or reject said assignment or
sublease, or at Landlord's sole option cancel and terminate this Lease,
including the right to enter into a direct lease with the proposed assignee or
subtenant before or after such termination.
Notwithstanding any assignment or sublease, Tenant shall remain fully
liable on this Lease and shall not be released from performing any of the terms,
covenants and conditions hereof. If Tenant is a corporation or partnership, any
sale, transfer, leveraged buyout or other disposition of more than fifty percent
(50%) of the corporate stock or more than fifty percent (50%) of partnership
ownership, or any reorganization or restructuring which results in the net worth
of Tenant decreasing by more than ten percent (10%) shall be deemed to be an
assignment.
Landlord shall have the right to sell, convey, transfer or assign all or
any part of its interest in the real property and the buildings of which the
Leased Premises are a part or its interest in this Lease, and Tenant agrees to
attorn to Landlord's purchaser or assignee. All covenants and obligations of
Landlord under this Lease shall cease upon the execution of such conveyance,
transfer or assignment, but such covenants and obligations shall run with the
land and shall be binding upon the subsequent owner or owners thereof or of this
Lease.
ARTICLE XII: WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS,
AND HAZARDOUS SUBSTANCES
12.01 Waste or Nuisance. Tenant shall not commit or suffer to be committed
any waste upon the Leased Premises or any nuisance or other act or thing which
may disturb the quiet enjoyment of any other tenant in the building in which the
Leased Premises may be located or in the Shopping Center, or which may disturb
the quiet enjoyment of occupants of adjoining properties.
12.02 Governmental and Insurance Requirements. Tenant shall, at its sole
cost and expense, comply with all of the requirements of any insurance carrier
for the Shopping Center and of all county, municipal, state, federal and other
applicable governmental authorities, now in force or which may hereafter be in
force.
12.03 Hazardous Substances. Tenant covenants and warrants that Tenant,
Tenant's Work and any alterations thereto and Tenant's use of Leased Premises
will at all time comply with and conform to all state, federal and local laws,
statutes, ordinances, rules and regulations of any governmental,
quasi-governmental or regulatory authorities ("Laws") which relate to the
transportation, storage, placement, handling, treatment, discharge, generation,
production, release, spill or disposal (collectively "Treatment") of any waste,
petroleum product, waste products, radioactive waste, poly-chlorinated
biphenyls, asbestos, hazardous materials of any kind, and any substance which is
regulated by any law, statute ordinance, rule or regulation (collectively
"Waste"). Tenant further covenants and warrants that it will not engage in or
permit any person or entity to engage in any Treatment of any Waste on or which
affects the Leased Premises, and that Tenant, at Landlord's sole discretion, and
with Landlord's prior written consent, shall clean up, remediate or otherwise
take all actions required by Law with respect to the Treatment of Waste in, on,
upon or affecting the Leased Premises.
Immediately upon receipt of any Notice (as hereinafter defined) from any
person or entity, Tenant shall deliver to Landlord a true, correct and complete
copy of any written Notice. "Notice" shall mean any note, notice or report of
any suit, proceeding, investigation, order, consent order, injunction, writ,
award or action related to or affecting or indicating the Treatment of any Waste
in or affecting the Leased Premises or the Shopping Center.
Tenant hereby agrees it will indemnify, defend, save and hold harmless R.
J. Waters & Associates, Inc., and Landlord, Winchester Development Company and
their officers, directors, shareholders, employees, agents, partners, and their
respective heirs, successors and assigns (collectively "Indemnified Parties")
against and from, and to reimburse the Indemnified Parties with respect to, any
and all damages, claims, liabilities, loss, costs and expense (including,
without limitation, all attorneys' fees and expenses, court costs,
administrative costs and costs of appeals), incurred by or asserted against the
Indemnified Parties by reason of or arising out of: (a) the breach of any
representation or undertaking of Tenant under this Section 12.03 or (b) arising
out of the Treatment of any Waste by Tenant or any licensee, concessionaire,
manager or other party occupying or using the Leased Premises, or in or
affecting the Leased Premises. All of the terms, covenants, warranties and
indemnifications contained in this Section 12.03 shall survive the termination
of this Lease.
Tenant shall not install any storage tanks, vessels, containers, lines,
pipes, conduits or the like at any time in, under, through or from the Leased
Premises or the Shopping Center without the prior express written consent of
Landlord. Landlord may require review of any proposed plans for, and supervision
of the installation of, any such improvements by trained professionals competent
to assess such proposed improvements, at the sole cost and expense of Tenant, as
a condition of the granting of the aforesaid consent.
Landlord is given the right, but not the obligation, to inspect and monitor
the Leased Premises and Tenant's use of the Leased Premises in order to confirm
Tenant's compliance with the terms of this Section 12.03 and the representations
set forth in this Section 12.03. Landlord may require that Tenant deliver to
Landlord concurrent with Tenant's vacating the Leased Premises upon the
expiration of this Lease, or any earlier vacation of the Leased Premises by
Tenant, at Tenant's expense, a certified statement by licensed engineers
satisfactory to Landlord, in form and substance satisfactory to Landlord,
stating that Tenant, Tenant's Work and any alterations thereto and Tenant's use
of the Leased Premises complied and conformed to all Laws which relate to the
Treatment of any Waste in or affecting the Leased Premises.
Tenant agrees to deliver upon request from Landlord estoppel certificates
to Landlord expressly stipulating whether Tenant is engaged in or has engaged in
the Treatment of any Waste in or affecting the Leased Premises, and whether
Tenant has caused any spill, contamination, discharge, leakage, release or
escape of any Waste in or affecting the Leased Premises, whether sudden or
gradual, accidental or anticipated, or any other nature at or affecting the
Leased Premises and whether, to the best of Tenant's knowledge, such an
occurrence has otherwise occurred at or affecting the Leased Premises.
ARTICLE XIII: PROMOTION FUND
ARTICLE XIV: DESTRUCTION OF LEASED PREMISES
14.01 Partial Destruction. In the event of the partial destruction of the
building or improvements located on the Leased Premises by fire or any other
casualty, Landlord shall, to the extent insurance proceeds are available,
restore or repair said building and improvements with reasonable diligence.
Landlord shall expend such sums as required to repair or restore improvements to
the condition they were in immediately prior to the date of the destruction. A
just and proportionate part of the rent payable by Tenant to the extent that
such damage or destruction renders the Leased Premises untenantable shall abate
from the date of such damage or destruction until the Leased Premises are
repaired or restored.
14.02 Substantial Destruction. If the Leased Premises shall be so damaged
by fire or other casualty or happening as to be substantially destroyed, then
Landlord shall have the option to terminate this Lease by giving Tenant written
notice within sixty (60) days after such destruction, and any unearned rent
shall be apportioned and returned to Tenant. If Landlord does not elect to
cancel this Lease as aforesaid, then the same shall remain in full force and
effect and Landlord shall proceed with all reasonable diligence to repair and
replace the Leased Premises to the condition they were in prior to the date of
such destruction, and during the time the Leased Premises are so destroyed and
totally untenantable, the rent shall be abated.
ARTICLE XV: EMINENT DOMAIN
15.01 Condemnation. In the event of any condemnation or conveyance in lieu
thereof of the Leased Premises or the Shopping Center, or both, whether whole or
partial, Landlord may terminate this Lease, and in any event, Tenant shall have
no claim against Landlord or the condemning authority for the value of the
unexpired term, and Tenant shall not be entitled to any part of the compensation
or award, whether paid as compensation for diminution in value to the leasehold
or to the fee of the Leased Premises, and Landlord shall receive the full amount
thereof, Tenant hereby waiving any right to any part thereof and assigning to
Landlord its interest therein; provided, however, to the extent the amount
recoverable by Landlord, as hereinabove set forth, is not diminished thereby,
Tenant shall have the right to claim and recover from the condemning authority
(but not from Landlord) such compensation as may be separately awarded to Tenant
in Tenant's own name and right on account of Tenants' trade fixtures and any
relocation cost. Provided, further, Tenant's rights to recover under this
paragraph shall be subordinate to the rights of Landlord's first mortgagee.
ARTICLE XVI: DEFAULT OF TENANT
16.01 Tenant's Default. The following shall constitute an "Event of
Default" under this Lease:
(a) failure of Tenant to pay in full, within five (5) days after same shall
become due, any and all installments of Minimum Rent, Percentage Rent (if any),
Additional Rent and/or other charge or payment herein reserved, included, or
agreed to be treated or collected as rent and/or any other charge, expense, or
cost herein agreed to be paid by the Tenant; or
(b) if Tenant violates or fails to perform or otherwise breaks any
non-monetary covenant or agreement of this Lease Agreement or the agreements
incorporated herein by reference, and such failure or violation is not cured
within twenty (20) days after written notice from Landlord to Tenant of such
failure or violation, or in the case of a failure or violation which cannot be
cured within said twenty (20) day period, the Tenant has not commenced to cure
such failure or violation within the twenty (20) day period or has not
diligently pursued the completion of such cure.
(c) if Tenant vacates the Leased Premises without first having paid and
satisfied the Landlord in full for all Minimum Rent, Percentage Rent (if any),
Additional Rent and all other charges then due that may thereafter become due
until the expiration of the then current term, above mentioned; or
(d) if Tenant becomes insolvent, makes an assignment for the benefit of
creditors, files or has filed against it a petition in bankruptcy and such
petition remains undismissed sixty (60) days after said petition is filed, or a
bill in equity or other proceeding for the appointment of a receiver for the
Tenant is filed, if proceedings or reorganization or for composition with
creditors under any State or Federal law be instituted by or against Tenant.
(e) if Tenant shall default in the timely payment of Minimum Rent,
Percentage Rent (if any), Additional Rent or other charges payable by Tenant
hereunder or to timely discharge any other monetary obligation three (3) times
in any twelve (12) month period notwithstanding the fact that any such default
have been cured.
(f) if Tenant or any agent of Tenant falsifies any report or statement
(including financial statements) to be furnished to Landlord pursuant to the
terms of this Lease. The falsification of any such document shall be deemed an
incurable material breach of this Lease and, at Landlord's option, constitute an
immediate termination of Tenant's right to possession of the Leased Premises.
(g) failure of Tenant to open for business in accordance with Sections 4.01
and 4.02 of this Lease within ninety (90) days after the Possession Date.
(h) failure of Tenant to execute and return required estoppel certificates
within the ten (10) days of Landlord's request and subordination agreements
within fifteen (15) days of Landlord's request.
16.02 Remedies. If an Event of Default occurs, then upon written election,
but without entry or other action, Landlord shall have the right to:
(a) Accelerate the Minimum Rent and Additional Rent for the entire
unexpired balance of the term of this Lease, all other charges, payments, costs
and expenses herein agreed to be paid by the Tenant or at the option of Landlord
any part of the rent and other charges, payments, costs and expenses, all costs
and officers' commission, watchman's wages, the five percent (5%) chargeable by
Act of Assembly, and reasonable attorney's fees incurred or to be incurred by
Landlord, and shall, in addition to any and all installments of rent, already
due and payable and in arrears and/or other charge or payment herein reserved,
included or agreed to be treated or collected as rent, and/or any other charges,
expenses or costs herein agreed to be paid by the Tenant which may be due and
payable and in arrears, be taken to be due and payable and in arrears as if by
the terms and provisions of this Lease, the whole balance of unpaid Minimum
Rent, Additional Rent and other charges, payments, taxes, costs, and expenses
were on that date payable in advance.
(b) Collect and receive from any assignee or subtenant the Minimum Rents,
Additional Rents, Percentage Rent (if any) and all other charges reserved herein
as rent due by such assignee or sublessee and apply the same to the rent due
hereunder. Receipt of such sums by Landlord shall be credited against the amount
due from Tenant but it shall in no way affect Tenant's obligations to pay any
unpaid balance of rent due hereunder. No payment by subtenant or assignee shall
give such subtenant or assignee any rights greater than those existing between
Landlord and Tenant.
(c) Terminate this Lease without any right on the part of the Tenant to
save the forfeiture by payment of any sum due or by other performance of any
condition, term, or covenant broken; whereupon, Landlord shall be entitled to
recover damages for such breach in an amount of rent reserved for the balance of
the term of this Lease or the residue of said term plus the amount of any prior
rents then due and owing.
(d) Terminate Tenant's right of continued possession of the Leased Premises
and, from time to time, without terminating this Lease and without prejudice to
any right of Landlord under this Lease, to relet the Leased Premises or any part
thereof for the account and in the name of Tenant, for any such term on terms
and conditions as Landlord in its sole discretion may deem advisable with the
right to make alterations and repairs to the Leased Premises deemed by Landlord
to be necessary in conjunction with such reletting; and Tenant shall pay to
Landlord, as soon as ascertained, the costs and expenses incurred by Landlord in
such reletting and in making such alterations and repairs. Rentals received by
Landlord from such reletting shall be applied: first, to the payment of any
indebtedness, other than Minimum Rent, Additional Rent, and Percentage Rent (if
any) due hereunder from Tenant to Landlord; second, to the payment of the cost
of any alterations and repairs to the Leased Premises necessary to return the
Leased Premises to good condition, normal wear and tear expected, for uses
permitted by this Lease and the cost of storing any of Tenant's property left on
the Leased Premises at the time of reletting; third, to the payment of Minimum
Rent, Additional Rent, and Percentage Rent (if any) and all other charges or
payments due and unpaid hereunder; the residue, if any shall be held by Landlord
at interest of six percent (6%) per annum and applied in payment of future rent
or damages in the event of termination as the same may become due and payable
hereunder and the balance, if any, at the end of the Lease Term shall be paid to
Tenant. Should such rentals received from time to time from such reletting
during any month be less than that amount which this Lease requires to be paid
during that month by Tenant hereunder, the Tenant shall pay such deficiency to
Landlord. Nothing in this subparagraph shall prevent Landlord from accelerating
the rent or other amounts due thereunder. Such deficiency shall be calculated
and paid monthly. No such reletting of the Leased Premises by Landlord pursuant
to this subparagraph, shall be construed as an election on its part to terminate
this Lease unless a notice of such intention be given by Landlord to Tenant or
unless the termination thereof be decreed by a court of competent jurisdiction;
and notwithstanding any such reletting without termination, Landlord may at any
time hereafter elect to terminate this Lease for such previous breach provided
it has not been cured.
(e) Lease the Leased Premises or any part or parts thereof to any person or
persons as Landlord in its sole discretion decides, and the Tenant shall be
liable for any loss of rent for the balance of the then current term.
16.03 Further Remedies of Landlord: In the event of any default, as set
forth above, the Landlord, or anyone acting on Landlord's behalf, at Landlord's
option:
(a) May without notice and demand enter the Leased Premises, breaking open
locked doors if necessary to effect entrance, without liability to action for
prosecution or damages for such entry or for the manner thereof, for the purpose
of restraining or levying and for any other purpose and take possession of and
sell all goods and chattels at auction, on three (3) days notice served in
person on the Tenant or left on the Leased Premises and paid to said Landlord
out of the proceeds.
(b) May enter the Leased Premises and without demand proceed by distress
and sale of the goods there found to levy the rent and/or other charges herein
payable as rent, and all costs and officers' commissions, including watchmen's
wages and sums chargeable to Landlord, and further including a sum equal to five
percent (5%) of the amount of the levy as commissions to the constable or other
person making the levy, shall be paid by the Tenant and in such case all costs,
officer's commissions and other charges shall immediately attach and become part
of the claim of Landlord for rent, and any tender of rent without said costs,
commission and charges made after the issue of a warrant of distress shall not
be sufficient to satisfy the claim of the Landlord.
The Tenant further waives the right to issue a Writ of Replevin under the
Pennsylvania Rules of Civil Procedure and laws of the Commonwealth of
Pennsylvania, or under any other law previously enacted and not enforced, or
which may be hereafter enacted, for the recovery of any articles, furniture,
etc. seized under a distress for rent or levied upon an execution for rent,
damages or otherwise; all waivers hereinbefore mentioned are hereby extended to
apply to any such action.
IF RENT AND/OR ANY CHARGES HEREBY RESERVED AS RENT SHALL REMAIN UNPAID ON
ANY DAY WHEN THE SAME OUGHT TO BE PAID, THE TENANT HEREBY EMPOWERS ANY
PROTHONOTARY, CLERK OF COURT OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR
TENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR MINIMUM RENT, ADDITIONAL
RENT, PERCENTAGE RENT (IF ANY) AND/OR THE CHARGES, PAYMENTS, COSTS AND EXPENSES
RESERVED AS RENT, OR AGREED TO BE PAID BY THE TENANT OR TO SIGN FOR TENANT AN
AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION OR ACTIONS FOR
THE RECOVERY OF MINIMUM RENT, ADDITIONAL RENT, PERCENTAGE RENT (IF ANY) OR ALL
OTHER CHARGES, PAYMENTS, COSTS AND EXPENSES AND IN SAID SUITS OR SAID AMICABLE
ACTION OR COSTS AND EXPENSES AND IN SAID SUITS OR SAID AMICABLE ACTION OR
ACTIONS TO CONFESS JUDGMENT AGAINST TENANT FOR ALL OR ANY PART OF THE MINIMUM
RENT, ADDITIONAL RENT, PERCENTAGE RENT (IF ANY) OR ALL OTHER CHARGES SPECIFIED
IN THIS LEASE AND THEN UNPAID INCLUDING, AT LANDLORD'S OPTION, THE RENT FOR THE
ENTIRE UNEXPIRED BALANCE OF THE TERM OF THIS LEASE AND/OR OTHER CHARGES,
PAYMENTS, COSTS AND EXPENSES RESERVED AS RENT OR AGREED TO BE PAID BY THE
TENANT, AND FOR INTEREST AND COSTS TOGETHER WITH A REASONABLE ATTORNEY'S
COMMISSION. SUCH AUTHORITY SHALL BE EXERCISABLE WITHOUT NOTICE NOR BE EXHAUSTED
BY ONE EXERCISE THEREOF BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO
TIME AS OFTEN AS ANY OF SAID MINIMUM RENT, ADDITIONAL RENT, PERCENTAGE RENT (IF
ANY) AND/OR OTHER CHARGES, PAYMENTS, COSTS AND EXPENSES RESERVED AS RENT SHALL
FALL DUE OR BE IN ARREARS, AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE
EXPIRATION OF THE LEASE TERM AND/OR DURING ANY EXTENSION OR RENEWAL OF THIS
LEASE.
(c) EJECTMENT: WHEN THIS LEASE SHALL BE TERMINATED BY CONDITION BROKEN,
INCLUDING BUT NOT LIMITED TO THE FAILURE TO PAY MINIMUM RENT, ADDITIONAL RENT,
PERCENTAGE RENT (IF ANY) AND/OR ANY CHARGES HEREBY RECEIVED AS RENT, DURING THE
LEASE TERM INCLUDING ANY RENEWALS OF THE LEASE, AND ALSO WHEN AND AS SOON AS THE
TERM HEREBY CREATED OR ANY RENEWAL(S) THEREOF SHALL HAVE EXPIRED, IT SHALL BE
LAWFUL FOR ANY ATTORNEY AS ATTORNEY FOR TENANT TO FILE, WITHOUT NOTICE, AN
AGREEMENT PERMITTING AND AUTHORIZING THE ENTRY IN ANY COURT OF COMPETENT
JURISDICTION AN AMICABLE ACTION AND CONFESSION OF JUDGMENT IN EJECTMENT AGAINST
TENANT AND ALL PERSONS CLAIMING UNDER TENANT FOR THE RECOVERY BY LANDLORD OF
POSSESSION OF THE HEREIN LEASED PREMISES, FOR WHICH THIS LEASE SHALL BE HIS
SUFFICIENT WARRANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF EXECUTION OR OF
POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR NOTICE, WRIT OF PROCEEDINGS
WHATSOEVER. IF SUCH AMICABLE ACTION SHALL THEREAFTER, FOR ANY REASON, BE
TERMINATED AND THE POSSESSION OF THE LEASED PREMISES HEREBY DEMISED REMAIN IN OR
BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT
OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE AS HEREINBEFORE SET FORTH, TO
BRING ONE OR MORE AMICABLE ACTIONS IN EJECTMENT OR CONFESSIONS OF JUDGEMENT IN
EJECTMENT FOR SAID LEASED PREMISES, AND THE TERMINATION FOR ANY REASON OF ANY
SUCH PRIOR ACTIONS SHALL NOT PREVENT, HINDER OR PREJUDICE THE RIGHT AND POWER OF
LANDLORD TO BRING SUBSEQUENT ACTIONS AS SET FORTH IN THIS PARAGRAPH.
(d) Curing Tenant's Default: If Tenant shall be in default in the
performance of any of it obligations hereunder, including, but not limited to
the failure of Tenant to promptly perform any of the covenants of this Lease
requiring Tenant to repair or maintain the Leased Premises, Landlord, without
any obligation to do so, in addition to any other rights it may have in law or
equity, may elect to cure such default on behalf of Tenant after written notice
(except in the case of emergency) to Tenant. Tenant shall reimburse Landlord
upon demand for any sums paid or costs incurred by Landlord in curing such
default, including interest thereon from the respective dates of Landlord's
making the payments and incurring such costs, which sums and costs together with
interest thereon shall be deemed additional rent payable promptly upon being
billed therefor.
(e) Remedies Cumulative: All of the remedies hereinbefore given to Landlord
and all rights and remedies given to it by law and equity shall be cumulative
and concurrent. No determination of this Lease or the taking or recovering of
the Leased Premises shall deprive Landlord of any of his remedies or actions
against the Tenant for rent then due, or rent which under the terms hereof,
would in the future become due as if there has been no termination, or for any
and all sums due at the time of which, under the terms hereof, would in the
future become due as if there had been no termination, nor shall the bringing of
any action for rent or breach of covenant, or the resort to any other remedy
herein provided for the recovery of rent be construed as a waiver of the right
to obtain possession of the Leased Premises.
(f) Self-Help: If Tenant shall default in the performance or observance of
any agreement or condition in this Lease other than an obligation to pay money,
and shall not cure such default within twenty (20) days after notice from
Landlord specifying the default, Landlord may, at its option, without waiving
any claim for damages for breach of agreement, at any time thereafter cure such
default for the account of Tenant, and any amount paid or incurred for the
account of Tenant, and Tenant agrees to reimburse Landlord therefor and save
Landlord harmless therefrom; provided that Landlord may cure any such default as
aforesaid prior to the expiration of said waiting period but after notice to
Tenant, if the curing of such default prior to the expiration of said waiting
period but after notice to Tenant, is reasonably necessary to protect the real
estate or Landlord's interest therein, or to prevent injury or damage to persons
or property. If Tenant shall fail upon demand to reimburse Landlord for any
amount paid for the account of Tenant hereunder, said amount shall be added to
and become due as a part of the next payment of rent due thereunder.
(g) Affidavit of Default: In any procedure or action to enter judgement by
confession for money pursuant Paragraph 16.03(b), or to enter judgement by
confession in ejectment for possession of real property pursuant to Paragraph
16.03(c) hereof, if Landlord shall first cause to be filed in such action an
affidavit or averment of the facts constituting the default or occurrences of
the condition precedent or event, the happening of which default, occurrences,
or event authorizes and empowers Landlord to cause the entry of judgement by
confession, such affidavit or averment shall be conclusive evidence of such
facts, defaults, occurrences conditions precedent or events; and if a true copy
of this Lease (and of the truth of which such affidavit or averment shall be
sufficient evidence) be filed in such procedure of action, it shall not be
necessary to file the original as a Warrant of Attorney, any rule of court,
custom, or practice to the contrary notwithstanding.
(h) Waiver of Errors, Right of Appeal, Stay and Exemption: Tenant hereby
releases to Landlord and to any and all attorneys whom may appear for Tenant all
errors in any procedure of action to enter judgement by confession by virtue of
the warrants of attorney contained in this Lease, and all liability thereof,
Tenant further authorizes the Prothonotary or any Clerk of any Court of Record
to issue a Writ of Execution or other process. If proceedings shall be commenced
to recover possession of the Premises either at the end of the term or sooner
termination of this Lease, or for non-payment of rent or for any other reasons,
Tenant specifically Waives the right to the three (3) months notice to quit
and/or the fifteen (15) or thirty (30) days notice to quit required by the Act
of April 6, 1951, P.L. 69, as amended, and agrees that five (5) days notice
shall be sufficient in either or any such case.
16.04 Legal Expenses: If suit shall be brought or claim shall be made
(whether or not suit is commenced or judgment entered) for recovery of
possession of the Leased Premises, and/or the recovery of rent or any other
amount due under provisions of this Lease, or because of the breach of any other
covenant herein contained, and the breach shall be established, the
non-prevailing party shall pay to the prevailing party, in addition to all other
sums and relief available to the prevailing party, all expenses incurred
therefor, including reasonable attorneys' fees to the extent permitted by law.
16.05 Failure to Pay; Interest. If Tenant at any time shall fail to pay any
taxes, assessments or liens, provide insurance or perform any act required by
this Lease to be made or performed by it, or fail to pay any charge payable by
Tenant or to timely discharge any other monetary obligation of Tenant required
by this Lease, Landlord, without waiving or releasing Tenant from any obligation
or default under this Lease, may (but shall be under no obligation to) at any
time thereafter make such payment or perform such act for the account and at the
expense of Tenant. All sums so paid by Landlord and all costs and expenses so
incurred shall accrue interest at a rate equal to the maximum rate permitted by
law from the date of payment or incurring thereof by Landlord and shall
constitute Other Rent payable by Tenant under this Lease and shall be paid by
Tenant to Landlord upon demand. Notwithstanding anything to the contrary
contained herein, if Tenant fails to contest any invoice or other written demand
for payment of rent or any other sums due within the time frames specified in
the Lease for payment, then Tenant shall have no rights to contest such invoice
or bill thereafter.
ARTICLE XVII: ACCESS BY LANDLORD
17.01 Right of Entry. Landlord or Landlord's agents shall have the right to
enter the Leased Premises at all reasonable times to examine the same and to
show it to purchasers and to make such repairs, alterations, improvements or
additions as Landlord may deem necessary or desirable, and Landlord shall be
allowed to take all material into and upon the Leased Premises that may be
required therefor without the same constituting an eviction of Tenant in whole
or in part. During the six (6) months prior to the expiration of the term of
this Lease or any renewals thereof, Landlord may exhibit the Leased Premises to
prospective tenants or purchasers and place upon the Leased Premises the usual
signage for space rental. Nothing herein contained, however, shall be deemed or
construed to impose upon Landlord any obligation, responsibility or liability
whatsoever for the care, maintenance or repair of the building or any part
thereof, except as otherwise herein specifically provided.
ARTICLE XVIII: TENANT'S PROPERTY
18.01 Taxes on Leasehold. Tenant shall be responsible for and shall pay
before delinquency all municipal, county, or state taxes assessed during the
term of this Lease against any leasehold interest or personal property of any
kind owned by or placed in, upon, or about the Leased Premises by Tenant.
18.02 Loss and Damage. Landlord shall not be liable for any injury or
damage to persons or property or loss of business resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, rain or snow, or
leaks from any part of the Leased Premises, or from the pipes, appliances or
plumbing works, or from the roof, street or subsurface, or from any other place,
or by dampness or by any other cause of whatsoever nature or by rodents, bugs or
vermin, and whether originating in the Leased Premises or elsewhere. All
property of Tenant kept or stored on the Leased Premises shall be so kept or
stored at the risk of Tenant only, and Tenant hereby holds Landlord harmless
from any claims arising out of damage to the same, including subrogation claims
by Tenant's insurance carriers, a waiver of which shall be obtained in advance
by Tenant.
18.03 Notice by Tenant. Tenant shall give immediate notice to Landlord in
case of fire or accidents, or damage to or of defects in the Leased Premises or
in the building of which the Leased Premises are a part.
ARTICLE XIX: HOLDING OVER; SUCCESSORS
19.01 Holding Over. Any holding over after the expiration of the term
hereof, with or without the consent of Landlord, shall be construed to be a
tenancy from month to month at the rents herein specified (prorated on a monthly
basis) and shall otherwise be on the terms and conditions herein specified, so
far as applicable; provided, however, if such holding over is without the
consent of Landlord, Minimum Rent for such holdover period shall be two (2)
times the Minimum Rent due for the last month of the Lease Term.
19.02 Successors and Assigns. Except as otherwise herein provided, this
Lease and all the covenants, terms, provisions and conditions herein contained
shall inure to the benefit of and be binding upon the heirs, representatives,
successors and assigns of each party hereto, and all covenants herein contained
shall run with the land and bind any and all successors in title to Landlord.
ARTICLE XX: QUIET ENJOYMENT
20.01 Landlord's Covenant. Upon payment by Tenant of the rents herein
provided, and upon the observance and performance of all the covenants, terms
and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Leased Premises for the term hereby
demised without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under Landlord; subject,
nevertheless, to all the terms and conditions of this Lease.
ARTICLE XXI: MISCELLANEOUS
21.01 Waiver. The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained. No
covenant, term or condition of this Lease shall be deemed to have been waived by
Landlord unless such waiver shall be in writing.
21.02 Accord and Satisfaction. No payment by Tenant or receipt by Landlord
of a lesser amount than the monthly rent installments herein stipulated shall be
deemed to be other than on account of the most current stipulated rent owed at
that time, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction.
21.03 No Partnership. Landlord does not, in any way or for any purpose,
become a partner of Tenant in the conduct of its business or otherwise, or joint
adventurer or a member of a joint enterprise with Tenant.
21.04 Force Majeure. In the event that 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, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war, or other reason of a like nature not the fault of the party
delayed in performing work or doing acts required under the terms of this Lease,
then the time allowed for performance of such act shall be extended by a period
equivalent to the period of such delay so long as the delayed party provides the
other with a written explanation of reasons for the delay. The provisions of
this Section 21.04 shall not operate to excuse Tenant from the prompt payment of
Minimum Rent, Percentage Rent, Additional Rent or any other payments required by
the terms of this Lease.
21.05 Landlord's Liability. If Landlord shall fail to perform any covenant,
term or condition of this Lease upon Landlord's part to be performed, Tenant may
not terminate the Lease, and Tenant's sole remedies shall be money damages
(except as set forth in Section 21.16) and specific performance. If Tenant shall
recover a money judgment against Landlord, such judgment shall be satisfied only
out of the proceeds of sale received upon execution of such judgment and levy
thereon against the right, title and interest of Landlord in the Shopping Center
as the same may then be encumbered and neither Landlord nor if Landlord be a
partnership, any of the partners comprising such partnership shall be liable for
any deficiency. It is understood that in no event shall Tenant have any right to
levy execution against any property of Landlord other than its interest in the
Shopping Center as hereinbefore expressly provided. In the event of the sale or
other transfer of Landlord's right, title and interest in the Leased Premises or
the Shopping Center, Landlord shall be released from all liability and
obligations hereunder. The only warranties made by Landlord with respect to this
Lease and the Leased Premises are as expressly contained herein. Landlord hereby
expressly and unequivocally disclaims any and all implied warranties with
respect to the Leased Premises and Tenant's use of same, including, but not
limited to, the implied warranty of habitability.
21.06 Notices and Payments. Any notice by Tenant to Landlord must be served
by Federal Express or similar overnight delivery service or by certified mail,
postage prepaid, addressed to Landlord at the place designated for the payment
of rent, or at such other address as Landlord may designate from time to time by
written notice. Any notice by Landlord (which may be given by Landlord or
Landlord's attorney or management company) to Tenant must be served by Federal
Express or similar overnight delivery service or by certified mail, postage
prepaid, addressed to Tenant at the Leased Premises, or at such other address as
Tenant may designate from time to time by written notice to Landlord. All
notices shall be effective upon delivery or attempted delivery in accordance
with this Section 21.06. Until otherwise notified in writing, Tenant shall pay
all rent reserved herein and all other sums required under this Lease by check
payable to the order of Landlord and shall forward the same to Landlord as
herein provided.
21.07 Financial Statements. The persons signing this Lease on behalf of
Tenant hereby personally represent and warrant to Landlord that the financial
statements delivered to Landlord prior to the execution of this Lease properly
reflect the true and correct value of all the assets and liabilities of Tenant
and Guarantors. Tenant acknowledges that in entering into this Lease, Landlord
is relying upon such statements and Tenant shall supply Landlord updated
financial statements of Tenant and Guarantors each Lease Year and from time to
time as requested by Landlord.
21.08 Guarantors. This Lease shall not be effective unless the persons, if
any, listed in Section 1.01(r) hereof shall execute the Guaranty attached as
Exhibit "C" of this Lease.
21.09 Captions and Section Numbers. The captions, section numbers, article
numbers and headings appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or
intent of such sections or articles of this Lease.
21.10 Definitions. The word "Tenant" shall mean each and every person, firm
or corporation mentioned as a Tenant herein, be the same one or more; and if
there shall be more than one Tenant, any notice required or permitted by the
terms of this Lease may be given by or to any one thereof, and it shall have the
same force and effect as if given by or to all thereof. If there shall be more
than one Tenant, they shall all be bound jointly and severally.
21.11 Partial Invalidity. If any term, covenant or condition of this Lease,
or the application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Lease or the application of such
term, covenant or condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
21.12 Recording. This Lease or a certificate or memorandum thereof prepared
by Landlord may, at the option of Landlord, be recorded. Tenant shall execute
any such certificate, short form lease or memorandum upon demand by Landlord.
21.13 Entire Agreement. The Lease, the exhibits and rider, if any, set
forth all the covenants, promises, agreements, conditions and understandings
between Landlord and Tenant concerning the Leased Premises, and there are no
covenants, promises, agreements, conditions or understandings, either oral or
written, between them other than as herein set forth. All prior communications,
negotiations, arrangements, representations, agreements and understandings,
whether oral, written or both, between the parties hereto and their
representatives are merged herein and extinguished, this Lease superseding and
canceling the same. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and executed by the party against
which such subsequent alteration, amendment, change or modification is to be
enforced. If any provision contained in any rider hereto is inconsistent with
any printed provisions of this Lease, the provision contained in such rider
shall supersede said printed provision. Tenant hereby acknowledges that (a) this
Lease contains no restrictive covenants or exclusives in favor of Tenant except
as stated in Exhibit D (if any); and (b) this Lease shall not be deemed or
interpreted to contain, by implication or otherwise, any warranty,
representation or agreement on the part of Landlord that any department store or
regional or national chain store or any other merchant shall open for business
or occupy or continue to occupy any premises in or adjoining the Shopping Center
during the term of this Lease or any part thereof, and Tenant hereby expressly
waives all claims with respect thereto and acknowledges that Tenant is not
relying on any such warranty, representation or agreement by Landlord either as
a matter of inducement in entering into this Lease or as a condition of this
Lease or as a covenant by Landlord.
21.14 Jury Trial; Claims; Survival. To the extent permitted by applicable
law, and acknowledging that the consequences of said waiver are fully
understood, Tenant hereby expressly waives the right to trial by jury in any
action taken with respect to this Lease and waives the right to interpose any
set-off or counterclaim of any nature or description in any action or proceeding
instituted against Tenant pursuant to this Lease. Notwithstanding anything in
this Lease to the contrary, the representations and undertakings of Tenant under
this Lease shall survive the expiration or termination of this Lease regardless
of the means of such expiration or termination.
21.15 Applicable Law. This Lease and the rights and obligations of the
parties arising hereunder shall be construed in accordance with the laws of the
State.
21.16 Consents and Approvals. Whenever Landlord's consent or approval is
required herein, such consent or approval shall not be deemed given until
Landlord has provided such consent or approval in writing. Tenant shall pay
Landlord's reasonable attorneys' fees incurred in connection with Tenant's
request for Landlord's consent or approval. Where the consent or approval of
Landlord shall be required, such consent or approval shall be granted in
Landlord's sole discretion unless otherwise expressly provided. With respect to
any provision of this Lease which either expressly provides or is held to
provide that Landlord shall not unreasonably withhold or unreasonably delay any
consent or approval, Tenant shall not be entitled to make claim for, and Tenant
expressly waives claim for, damages incurred by Tenant by reason of Landlord's
failure to comply, it being understood and agreed that Tenant's sole remedy
shall be an action for specific performance.
21.17 Authority. In the event Tenant hereunder shall be a corporation, the
persons executing this Lease on behalf of Tenant hereby covenant and warrant
that Tenant is a duly qualified corporation and all steps have been taken prior
to the date hereof to qualify Tenant to do business in the State; all franchise
and corporate taxes have been paid to date; all future forms, reports, fees and
other documents necessary to comply with applicable laws will be filed when due;
and those persons executing this Lease on behalf of Tenant are duly qualified
and authorized to bind, and in fact do bind, the corporation. In the event
Tenant hereunder shall be a partnership, either general or limited, the persons
or entities executing this Lease on behalf of Tenant hereby covenant and warrant
that Tenant is a duly qualified partnership and all steps have been taken prior
to the date hereof to qualify Tenant to do business in the State, if required by
law; all franchise and partnership taxes have been paid to date; all future
forms, reports, fees and other documents necessary to comply with applicable
laws will be filed when due; and those entities executing this Lease on behalf
of partnership are duly qualified to bind, and in fact do bind, the partnership.
This Lease shall be effective only when it is signed by both Landlord and
Tenant. Tenant's submission of a signed lease for review by Landlord does not
give Tenant any interest, right or option in the Leased Premises.
21.18 Interpretation. Both parties have read this Lease and had the
opportunity to employ legal counsel and negotiate changes to the Lease. The
Lease is the joint product of the parties and, in the event of any ambiguity
herein, no inference shall be drawn against a party by reason of document
preparation.
21.19 Brokers. Tenant represents and warrants to Landlord that no broker or
agent negotiated or was instrumental in negotiating or consummating this Lease
excepting only Broker. Broker is representing Landlord on this Lease, and
Broker's commission shall be paid by Landlord. Tenant knows of no other real
estate broker or agent who is or might be entitled to a commission or
compensation in connection with this Lease. All fees, commissions or other
compensation payable to any broker or agent of Tenant shall be paid by Tenant.
Tenant shall hold Landlord harmless from all damages and shall indemnify
Landlord for all damages paid or incurred by Landlord resulting from any claims
asserted against Landlord by brokers or agents claiming through Tenant. Tenant
acknowledges that Tenant has been informed that person(s) associated with Broker
may have or may acquire an ownership interest in the Shopping Center, and Tenant
acknowledges by signing this Lease that such ownership interest shall not affect
the terms, conditions or validity of this Lease.
ARTICLE XXII: SECURITY AND RENT DEPOSITS
22.01 Amount of Security Deposit. Tenant, contemporaneously with the
execution of this Lease, has deposited with Landlord the sum set forth in
Section 1.01(n), the receipt of which is hereby acknowledged by Landlord. Said
deposit shall be held by Landlord, without liability for interest, as security
for the faithful performance by Tenant of all the terms, covenants and
conditions of this Lease by said Tenant to be kept and performed during the term
hereof. Tenant specifically agrees that any deposit held hereunder by Landlord
may be commingled with any other funds of Landlord.
22.02 Use and Return of Security Deposit. Should Tenant fail to keep and
perform any of the terms, covenants and conditions of this Lease to be kept and
performed by Tenant, as provided in Article XVI, Landlord may appropriate and
apply said entire deposit, or so much thereof as may be necessary, to compensate
Landlord for loss or damage sustained by Landlord due to such breach, without
prejudice to its further rights and remedies. Should the entire security deposit
or any portion thereof be appropriated and applied by Landlord for the payment
of overdue rent or other sums due from Tenant hereunder, then Tenant shall, upon
the written demand of Landlord, forthwith remit to Landlord a sufficient amount
in cash to restore said deposit to the original sum deposited. Should Tenant
comply with all the terms, covenants and conditions of this Lease, the said
deposit shall be returned in full to Tenant at the end of the term of this
Lease. Should Tenant terminate this Lease prior to the Possession Date (except
as provided for in Section 1.06) or prior to the end of term, then Tenant shall
forfeit its security deposit.
22.03 Rent Deposit. Tenant, contemporaneously with the execution of this
Lease has deposited with Landlord the sum set forth in Section 1.01(o) to be
held and applied to the initial Minimum Rent and Additional Rent due under this
Lease.
ARTICLE XXIII: TENANT COVENANTS; EASEMENTS
23.01 Tenant Covenants. Notwithstanding anything to the contrary contained
herein, this Lease is subject to and made on the understanding that Landlord has
granted and/or will grant certain restrictions and exclusive use covenants to
other tenants of the Shopping Center (herein the "Tenant Covenants"). Tenant
acknowledges that Tenant's use and/or occupancy of the Leased Premises in
violation of any current or future Tenant Covenants would subject Landlord to
substantial damages, and as such, Tenant acknowledges and agrees that any such
violation by Tenant of any such Tenant Covenants shall constitute a default
hereunder entitling Landlord to cancel this Lease or enjoin Tenant from
violating such Tenant Covenants, or exercise any of the remedies stated in
Article XVI hereof and any other remedies available under the law of the State.
Nothing contained in this Section 23.01 shall be construed to permit Tenant to
expand the use restrictions set forth in Section 4.01 hereof.
23.02 Easements. The Shopping Center is and/or may be encumbered and/or
benefitted from time to time by certain easements, development and operating
covenants, and similar agreements. Tenant agrees that it shall abide by any such
agreement, including as any such agreement may be amended from time to time in
Landlord's sole discretion. Landlord shall have the right to enter into and/or
terminate any such agreement in Landlord's sole discretion.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
LANDLORD: Winchester Development Company
By: /s/ Dempsey Hydrick
--------------------------------
Title: Partner
-------------------------------
TENANT: Bank of Clarke County
By: /s/ Lewis Ewing
--------------------------------
Title: President
-------------------------------
ATTEST:
/s/ John R. Milleson
- ------------------------
Secretary
EXHIBIT "A"
TO LEASE AGREEMENT
SITE PLAN
EXHIBIT "B"
TO LEASE AGREEMENT
DESCRIPTION OF LANDLORD'S WORK AND TENANT'S WORK
Attached to and forming a part of Lease
Landlord: Winchester Development Company
Tenant: Bank of Clarke County
Date: June 3, 1997
LANDLORD'S WORK
AS IS
TENANT'S WORK
Landlord's Work is limited to the work hereinabove described and excludes
work described as Tenant's Work; all work not classified as Landlord's Work is
Tenant's Work.
Tenant's Work shall include all other necessary improvements to operate
Tenant's business and shall include, but not be limited to, the purchase and/or
installation and/or performance of the following, and all the following shall be
at Tenant's expense. The plans and specifications, if any are needed, and the
detail and design shall be subject to the written approval of Landlord.
A. ITEMS TO BE DONE
1. Telephone wiring, devices, and installation and service costs.
2. Inter-com, radio and TV conduit, devices and wiring.
3. Light covers and other ceilings not standard to the project.
4. Fire protection and detection devices, other than Landlord's sprinkler
system, if any.
5. Store fixtures, furnishings, display devices and special column
treatments.
6. Display window platforms, floors, backs and ceilings, interior or
special rooms.
7. Store signs and special structural stiffeners and anchorage therefor.
8. Tenant shall bear the additional cost of a special store front over that
of the standard "straight" front provided by Landlord, including installation of
automatic doors.
9. Complete plans showing all details of interior design, electrical and
mechanical items which affect Landlord's Work, if required by Landlord in order
to prepare preliminary plans, including special venting or air handling
equipment necessary for Tenant's occupancy and use.
10. All interior walls and curtain wall within the Leased Premises except
as provided by Landlord's Work C(3).
11. All signs in or on the Leased Premises including construction,
furnishing and installation. No sign shall be erected without prior written
approval of Landlord.
12. All requirements related to bottled water.
13. Tenant shall bear the cost of moving any sprinkler heads due to the
installation of interior partitions by Tenant.
14. Tenant shall bear the cost of moving any duct work diffusers or returns
due to the installation of any interior partitions.
15. Tenant shall deliver to Landlord a copy of its State Labor and Industry
Certificate of Occupancy Permit and a copy if its Certificate of Occupancy
issued by the Municipality where Tenant's Leased Premises are located within ten
(10) days after Tenant opens for business.
B. CONSTRUCTION
1. All work undertaken by Tenant shall be at Tenant's expense and shall not
damage the building or any part thereof; design and details shall conform with
the standards of the Project and shall be approved by Landlord.
2. Work undertaken by Tenant during general construction shall be handled
in the following manner:
a. Work attached to the structure such as additional plumbing,
electrical work, plastering, terrazzo, etc., may be handled in any of the
following ways:
(1) Awarded by Tenant to his own Contractor, who has been
approved by Landlord.
(2) Awarded to the Project Contractor through the use of unit
prices which have been established for this type of work by previous bidding.
b. Store furniture, fixtures, painting, floor covering, etc., may be
let to any contractor approved by Landlord. Tenants should attempt to allow
Contractors for this category of work who are already on the site to bid on
their work.
The aforesaid is agreed to as of the day and year first above written.
/s/ Dempsey Hydrick
---------------------------------
(Landlord) Winchester Development Company
/s/ Lewis Ewing, President
----------------------------------
(Tenant) Bank of Clarke County
DISCLOSURE FOR CONFESSION OF JUDGMENT
I am executing, this 12th day of June, 1997, a Lease with Winchester Development
Company.
A. I understand that the Lease contains a confession of judgment provision that
would permit Landlord to enter judgment against me in court, after a default on
the Lease, without advance notice to me and without offering me an opportunity
to defend against the entry of judgment. In executing the Lease, being fully
aware of my rights to advance notice and to a hearing to contest the validity of
any judgment or other claims that Landlord may assert against me under the
Lease, I am knowingly, intelligently, and voluntarily waiving these rights,
including any right to advance notice of the entity of judgment, and I expressly
agree and consent to Landlord's entering judgment against me by confession as
provided for in the confession of judgment provision. Initials: /s/LME.
B. After having read and determined which of the following statements are
applicable, and by placing my initials next to each statement which applies, I
represent that:
Initials
/s/ LME 1. I was represented by my own independent legal counsel in
connection with the Lease.
/s/ LME 2. A representative of Landlord specifically called the confession
of judgment in the Lease to my attention.
C. I certify that my annual income exceeds $10,000.00; that the blanks in this
Disclosure were filled in when I initialed and signed it; and that I received a
copy at the time of signing.
TENANT: Bank of Clarke County
/s/ Lewis Ewing (seal)
President
EXHIBIT "C"
TO LEASE AGREEMENT
GUARANTY
THIS GUARANTY is given by Bank of Clarke County, a Virginia corporation,
whose address is P.O. Box 391, Berryville, VA 22611 (the "Guarantor"), to
Winchester Development Company, a Missouri general partnership, located at 402
Bayard Road, Suite 200, Kennett Square, PA 19348, (the "Landlord) on this 3rd
day of June, 1997.
RECITALS
At the request of the Guarantor, the Landlord has entered into a lease with
Bank of Clarke County (the "Tenant"), for premises located in Apple Blossom
Convenience Center, Winchester, VA, which is dated the date of this Guaranty
(the "Lease"); and The Landlord would not have entered into the Lease except for
the request of the Guarantor and the execution and delivery of this Guaranty;
and In consideration of the Landlord entering into the Lease with the Tenant,
the Guarantor, intending to be legally bound hereby, agrees as follows:
1. Guaranty The Guarantor for themselves and their heirs, executors, personal
representatives, successors and assigns, guarantees the prompt payment when due,
or whenever payment may become due under the terms of the Lease, all payments of
Minimum Rent, Additional Rent Percentage Rent (if any), and all other charges,
expenses and costs of every kind and nature, which are or may be due now or in
the future under the terns of the Lease, any agreements or documents related to
the Lease, or any other transaction between the Landlord and the Tenant directly
or indirectly related to the Lease; and the complete and timely performance,
satisfaction and observation of the terms and conditions of the Lease, rules and
regulations and related obligations arising by reason of the Lease, required to
be performed, satisfied or observed by the Tenant ("Guaranteed Obligations").
2. Coverage of guaranty This Guaranty extends to any an all liability which the
Tenant has or may have to the Landlord by reason of matters occurring before the
signing of the Lease by the parties or commencement of the term of the Lease by
reason of removal of Tenant's property, surrender of possession or other
matters. This Guaranty extends to any successor of the Tenant, an assignee or
subsequent lessee of the Tenant, to any extensions or renewals of the Lease, and
to any tern established by reason of the holdover of the Tenant, an assignee or
subsequent lessee.
3. Performance Guaranty In the event that the Tenant fails to perform, satisfy
or observe the terms and conditions of the Lease, rules and regulations, and
related Lease obligations required to be performed, satisfied or observed by the
Tenant, the Guarantor will promptly and fully perform, satisfy and observe the
obligation or obligations in the place of the Tenant. The Guarantor shall pay,
reimburse and indemnify the Landlord for any and all damages, costs, expenses,
losses and other liabilities arising or resulting from the failure of the Tenant
to perform, satisfy or observe any of the terms and conditions of the Lease,
rules and regulations and related obligations.
4. Waiver of Notices Without notice to or further assent from the Guarantor, the
Landlord may waive or modify any of the terms or conditions of the Lease, any
rules and regulations or related Tenant obligations; or compromise, settle or
extend the time of payment of any amount due from the Tenant or the time of
performance of any obligation of the Tenant. These actions may be taken by the
Landlord without discharging or otherwise affecting the obligation of the
Guarantor.
5. Lease Security This Guaranty shall remain in full force and effect, and the
Guarantor shall be fully responsible, without regard to any security deposit or
other collateral for the performance of the terms and conditions of the Lease,
or otherwise affecting the obligation of the Guarantor.
6. Unconditional Obligations The liability of the Guarantor is joint and several
and is direct, immediate, absolute, continuing, unconditional and limited. The
Landlord shall not be required to pursue any remedies it may have against the
Tenant or against any security deposit or other collateral as a condition to
enforcement of this Guaranty. Nor shall the Guarantor be discharged or released
by reason of the discharge or release of the Tenant for any reason, including a
discharge in Bankruptcy, receivership or other proceedings, a disaffirmation or
rejection of the Lease by a trustee, custodian or other representative in
Bankruptcy, a stay or other enforcement restriction, or any other reduction,
modification, impairment or limitations of the liability of the Tenant or any
remedy of the Landlord. The Guarantor assumes all responsibility for being and
keeping themselves informed of Tenant's financial condition and assets, and of
all other circumstances bearing upon the risk of non-performance by Tenant under
the Lease. The Guarantor agrees that Landlord shall have no duty to advise the
Guarantor of information known to it regarding such circumstances or risks.
7. Confession of Judgement IF GUARANTOR FAILS TO PERFORM THE
GUARANTEEDOBLIGATIONS WITH FIVE(5) DAYS AFTER DEMAND BY LANDLORD, GUARANTOR
HEREBY EMPOWERS ANY PROTHONOTARY, CLERK OF COURTORATTORNEY OF ANY COURT OF
RECORD TO APPEAR FOR GUARANTOR IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR
MINIMUM RENT, ADDITIONAL RENT, PERCENTAGE RENT (IF ANY) AND/OR THE CHARGES,
PAYMENTS, COSTS AND EXPENSES RESERVED AS RENT, OR AGREED TO BE PAID BY THE
GUARANTOR, AND FOR INTEREST AND COSTS TOGETHER WITH A REASONABLE ATTORNEY'S
COMMISSION. SUCH ATHORITY SHALL BE EXERCISABLE WITHOUT NOTICE AND NOT BE
EXHAUSTED BY ONE EXERCISE THEREOF BY JUDGEMENT MAY BE CONFESSED AS AFORESAID
FROM TIME TO TIME AS OFTEN AS ANY OF SAID MINIMUM RENT, ADDITIONAL RENT,
PERCENTAGE RENT (IF ANY) AND/OR OTHER CHARGES, PAYMENTS, COSTS AN EXPENSES
RESERVED AS RENT SHALL FALL DUE OR BE IN ARREARS, AN SUCH POWERS MAY BE
EXERCISED AS WELL AFTER THE EXPIRATION OF THE LEASE TERM AND/OR DURING ANY
RENEWAL OF THE LEASE.
8. Subordination of Subrogation Rights The Guarantor unconditionally
subordinates any and all claims which the Guarantor has or may have against the
Tenant by reason of subrogation for payments or performance under this Guaranty
or claims for any other reason or cause.
9. Binding Effect The words "Guarantor" and "Landlord" include singular or
plural, individual or corporation, and their respective heirs, executors,
administrators, successors and assigns of Guarantor and Landlord. This Guaranty
is binding upon the Guarantor, their heirs, administrators, successors and
assigns and shall inure to the benefit of the Landlord, its successors and
assigns. No assignment of delegation by the Guarantor shall release the
Guarantor of its obligations under this Guaranty. The term "Tenant" used in this
Guaranty includes also the first and any successive assignee or sublessee of the
Tenant or any successive assignee or subsequent Tenant.
10. Modifications This Guaranty may not be modified orally, but only by writing
signed by both the Guarantor and the Landlord. Modifications include any waiver,
change, discharge, modification, or termination.
11. Governing Law This Guaranty is given pursuant to and shall be governed and
construed in accordance with the laws of t Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the Guarantor has duly signed this Guaranty on the date
above stated.
WITNESS: CORPORATE GUARANTOR
/s/John R. Milleson Bank of Clarke County
- ---------------------- By: /s/ Lewis Ewing
----------------------
President
EXHIBIT E
SIGN CRITERIA
GENERAL: The following sign criteria has been established for the purpose
of developing uniform, highly visible aesthetically pleasing store signage and
fascia to harmonize with an compliment your shopping center's building material
and in creating a proper retail atmosphere.
A. Each tenant will be required to identify its store front sign
band an under-canopy with approved signs.
B. Tenant shall choose a sign contractor from Landlord's preapproved
list of sign contractors. If Tenant wishes to use a sign
contractor not specified on Landlord's list, Tenant must submit a
qualifications letter for Landlord to review and approve at its
sole discretion.
C. Tenant will provide at his expense two copies of drawings of its
proposed sign. Sign drawings shall include a scale section of
sign with layout of proposed sign showing individual lettering
height and total copy length. Sign construction, installation
diagram, material information and color scheme shall also be
indicated. Upon review, Landlord will notify Tenant or sign
manufacturer of approval or disapproval.
D. All Tenant fascia signs shall be designed and installed at the
Tenant's expense. All signs shall meet requirements and
specifications set forth in Exhibit E. Please note it is the
Tenant's responsibility to be informed of sign ordinances in your
local area. Where governmental sign requirements are more
restrictive than Landlord's criteria, their restrictions will
prevail. Necessary sign permits shall be obtained at the Tenant's
expense. In some cases, your sign company will provide ordinance
information as well as obtaining necessary sign permits. Tenants
will be held liable and bear all costs for removal and/or not
conform with the following specifications. If Tenant leaves the
Shopping Center, it will be required to remove its sign and
repair the fascia to its original condition.
E. Tenant shall have sign installed and operating prior to the
opening of the store for business.
TENANT FASCIA SIGNS:
A. Signs will be made up of individually illuminated channel
letters, separately installed on the fascia front. Any connecting
of letters and/or logo will be considered.
B. Letters will be fabricated of aluminum with your choice of color.
Letter sidewalls must be at least .032 pr .040 gauge aluminum,
fully welded or riveted for fabrication and duronodic in color.
The depth of all letters shall by 4". When required, all letters
will be caulked to prevent light form filtering out the back of
letters, and a 1/4" deep (drain) hole drilled on all letters to
allow for water drainage. The letter face will be at least 1/8"
(thickness) Plexiglas surrounded by 1" plastic duronodic color
trim.
C. Letters shall be illuminated by at least one row of neon tubing.
All transformers are to be mounted in vented boxes. No fascia
raceways for wiring of letters shall be permitted, All wiring of
letters shall be permitted in access area behind fascia and shall
meet all building and electrical codes.
D. Reverse type channel letters are not permitted.
E. No flashing action nor other mechanical animation will be
permitted.
F. Tenant's sign must be kept clean and in good operating condition
at all times.
G. All signs must be installed in compliance with the National
Electrical Code (Article 600).
H. Each metal cabinet and all conductive components must be grounded
to the building ground.
I. Disconnect switches must be installed within sight of the sign.
J. Transformers must be properly supported, fastened, and supported
away from flammable materials. Covers must be replaced after
installation.
K. Splices must be properly made, insulated and supported away form
flammable materials.
L. Connections must be made and properly enclosed as required.
M. All electrical components must be protected against water
intrusion.
SIZE REQUIREMENTS:
Store Front
Maximum Length 15 feet
Maximum Height 2 feet
Balance Vertical
Capital letters will be spaced so they have an equal border on top
and bottom of each letter. Smaller case letters will be placed even
with the bottom of the capital letter.
Horizontal
Letters will be spaced equally on both the left half of the sign
area and on the right half of the sign area.
Miscellaneous
All letters are to be mounted flush to fascia. Projected mounting
of letters is not permitted.
Letters are to be mounted with stainless steel fasteners to
prevent staining of fascia.
SIGN INSPECTION: Tenant's sign contractor shall be required to have its
installation approved by a certified electrical inspector who shall inspect all
wiring and connections so that the sign construction and installation meet all
codes and requirements. A copy of the certification shall be sent to Landlord
for its review.
UNDER CANOPY SIGNS: Landlord requires that all Tenants pay for the construction
and installation of a canopy type sign to be installed under the canopy and in
front of their appropriate store. The Landlord will take the responsibility to
bid the job to the most qualified company.
Landlord will provide Tenant with a sketch of its under canopy sign for his
review and approval. Tenant upon acceptance of sketch will pay to Landlord
one-half of the total amount of the sign, with the balance due within fifteen
(15) days of the completion of work and receipt of invoice.
<TABLE> <S> <C>
<ARTICLE> 9
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> JUN-30-1997
<CASH> 5,454
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0
0
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</TABLE>
