STATE OF VIRGINIA
CITY OF WINCHESTER
TENANT SPACE LEASE
THIS TENANT LEASE, made and entered into this 20th day of March,
2000,by and between WINCHESTER REAL ESTATE MANAGEMENT, INC., (the "Lessor") and
BANK OF CLARKE COUNTY, (the "Lessee").
WITNESSETH:
1. Premises. Lessor hereby leases unto Lessee, and Lessee hereby
leases from Lessor, upon terms and conditions hereinafter set forth 1,263
rentable square feet, subject to adjustment as described herein, of space (the
"Premises") on the First Floor of a medical office building to be known as
Winchester Medical Office Building II (the "Building"), to be constructed by
Lessor on land (the "Land") located at 190 Campus Boulevard, Winchester,
Virginia. The Premises will be Suite Number 130 in Winchester Medical Office
Building II. A sketch of the approximate location of the Premises is shown on
Exhibit "A" attached hereto.
The Building will be a multi-story medical office building of
approximately 120,000 rentable square feet of floor area and will be named
"Winchester Medical Office Building II," (the "Building").
The rentable area of the Premises shall be determined by multiplying
the useable square footage of floor area of the Premises by a common area factor
of 1.05.
Lessee and its agents, employees and invitees shall have the
non-exclusive right with Lessor and other lessees in the Building and others
designated by Lessor to the use of the common areas in the Building and of the
Land on which the Building is situated for their intended and normal purpose.
Common areas include parking (unassigned), elevators, sidewalks, hallways,
stairways, public bathrooms, common entrances, lobby, and other similar public
areas and access ways. Lessor may change the common areas of the Building,
whether prior to or after completion of construction thereof, if the changes do
not materially and unreasonably interfere with Tenant's access to the Premises
or the use thereof.
2. Term. The term ("Term") of this Lease shall commence ("Commencement
Date") upon the execution hereof, and expiring ("Expiration Date") on the last
day of the sixtieth (60th) full calendar month following the Rent Commencement
Date, as hereinafter defined in Exhibit D.
2A. Option to Renew. Landlord grants to Tenant two (2)
options to extend the term of the Lease for an additional term of five (5) years
each, and shall run consecutively with the original term of this Lease. Tenant
must notify Landlord in writing of Tenant's desire to exercise this option at
least ninety (90) days prior to the expiration of the current Lease. All terms
and conditions of this Lease shall be the same except that the base rental rate
shall be increased in accordance with the rental increase formula set forth in
Exhibit F for each year of the renewal term. This option to renew is conditioned
on Tenant not being in default under this Lease at the time of exercise of the
option or at the time of commencement of the option term.
3. Preparation and Acceptance of Premises. Lessor shall prepare the
Premises for Lessee's occupancy in accordance with the provisions of the Work
Letter attached hereto as Exhibit "B" (the "Work Letter") and Exhibit "C"
(Building Standard Work Allowance). The Premises include all Tenant Improvements
constructed and installed in accordance with the provisions of the Work Letter.
Upon delivery of possession of the substantially completed Premises by Lessor in
accordance with the Work Letter, Lessee shall execute and deliver an agreement
confirming the Rent Commencement Date, the Expiration Date, and Lessee's
acceptance of the Premises, which agreement shall be substantially in the form
attached hereto as Exhibit "D" (the "Acceptance Agreement"). The taking of
possession of the Premises by Lessee shall be conclusive evidence that Lessee
accepts the Premises "as is", and the Premises were in good and satisfactory
condition and suitable for the use intended by Lessee at the time such
possession was taken, except for any punchlist items set forth in the Acceptance
Agreement.
4. Surrender of the Premises. Lessee shall keep the Premises in good
order and repair, except the portions thereof to be repaired by Lessor as
provided herein and upon the expiration or other termination of this Lease,
Lessee shall quit and surrender the Premises to Lessor in the same condition as
on the Rent Commencement Date, normal wear and tear only excepted.
5. Rent. Lessee shall pay Lessor, without demand, deduction or
set-off, at Lessor's office or to such other party or at such other place as
Lessor may from time to time designate in writing, base rent, as described
herein, and adjusted rent, as described herein (collectively referred to from
time to time as "Rent"), during the Term as follows:
(A) Base Rent. Beginning on the date on which Lessor
delivers possession of the Premises to Lessee in accordance with the provisions
of the Work Letter (the "Rent Commencement Date") and continuing for the full
Term, Lessee shall pay to Lessor annual base rent ("Base Rent") in the amount of
$16.50 multiplied by the number of rentable square feet of area in the Premises,
one-twelfth (1/12th) of which shall be paid in advance on the first day of each
calendar month. If the Rent Commencement Date begins other than on the first day
of a calendar month, or if the Term ends other than on the last day of a
calendar month, the Base Rent for such month shall be prorated.
(B) Operating Expenses. In addition to the foregoing Base
Rent, Lessee shall pay, as additional rent ("Additional Rent") in such amount as
is necessary to reimburse Lessor for its actual Operating Expenses (as
hereinafter defined). Lessor may give Lessee notice of Lessor's estimate of
amounts payable as Additional Rent under this Section 5(B) for each calendar
year occurring during the Term. By the first day of each month during the
applicable calendar year, Lessee shall pay Lessor one-twelfth (1/12th) of the
estimated amount of Additional Rent. If, however, the estimate is not given
before the applicable calendar year begins, Lessee shall continue to pay an
estimated amount of Additional Rent on the basis of the prior year's estimate,
if any, until the month after the new estimate is given. Lessor estimates that
the amount payable as Additional Rent under this Section for the first lease
year shall be $5.50 per rental square foot.
"Operating Expenses" shall mean and include all expenses
incurred by Lessor in connection with its ownership of the Premises including
any assessments, real property taxes and currently due installments of
assessments, special or otherwise, imposed upon the Premises, and reasonable
legal fees, costs and disbursements incurred for proceedings to contest,
determine, or reduce such taxes. Cost of capital or interest on debt, and ground
rent shall not be considered "Operating Expenses."
(C)(1) Rent Calculation. Tenant shall pay the Landlord as
Rent for the Premises the sum of Twenty-Seven Thousand Seven Hundred Eighty-Six
Dollars ($27,786.00) in respect to the first year of the Term, payable in
advance and without notice in equal monthly installments of Two Thousand Three
Hundred Fifteen Dollars and Fifty Cents ($2,315.50) beginning on the
Commencement Date on the first day of each calendar month thereafter during the
Term. (Rent is composed of Base Rent of $16.50 per square foot and Variable
Operating Expenses of $5.50 per square foot)
(D) Payment of Additional Rent. Within ninety (90) days
after the close of each calendar year or as soon thereafter as reasonably
possible, Lessor shall compute the actual prior year's Operating Expenses and as
soon as practicable after December 31 of each year during the Term, Lessor shall
furnish to Lessee a statement ("Statement") showing in reasonable detail the
actual Operating Expenses for the previous calendar year, the amount, if any,
paid by Lessee during the previous calendar year toward the Operating Expenses,
the amount, if any, Lessee owes Lessor with respect to such Operating Expenses
or the amount Lessor owes Lessee as a refund. Lessee shall pay the amount of the
Additional Rent shown on such Statement within ten (10) days after receipt
thereof. Lessee, within sixty (60) days after receipt of a Statement may audit
Lessor's records concerning such Statement for the previous year to verify, at
Lessee's own expense, those Operating Expenses. Any Statement issued by Lessor
shall be final and binding upon Lessor and Lessee, except to the extent that
Lessee shall take written exception thereto within said sixty (60) day period.
Any amount due to Lessor as shown on any such Statement, whether or not Lessee
has taken written exception thereto, shall be paid by Lessee when due without
prejudice to any such written exception. At the option of Lessor, Lessee may be
billed monthly for one-twelfth (1/12th) of the Additional Rent, as estimated by
Lessor on a calendar year projection basis. In the event that Lessee's actual
Additional Rent exceeds the monthly estimates of adjusted rent collected by
Lessor from Lessee, Lessee shall pay such excess within ten (10) days after
receipt of notice from Lessor. In the event Lessee's actual Additional Rent is
less than the monthly estimates of adjusted rent collected by Lessor from
Lessee, Lessor shall promptly refund (or, if this Lease remains in effect,
credit against payments of Rent thereafter coming due hereunder the amount of
such difference).
(E) Security Deposit. Tenant has deposited with Landlord the
sum of Two Thousand Three Hundred Fifteen Dollars and Fifty Cents ($2,315.50)
which is the equivalent of one (1) month's rent as security for the faithful
performance by Tenant of the terms of this Lease; it is agreed that if Tenant
defaults in Tenant's performance of any of the terms of this Lease, .Landlord
may use, apply or retain the whole or any part of the security so deposited to
the extent required for the payment of any rent or any other sum as to which
Tenant is in default or for any sum which Landlord may expend or may be required
to expend by reason of Tenant's default, or to any damage or deficiency in the
reletting of the Premises, whether such damages or deficiency occurred before or
after summary proceedings or other reentry by Landlord. If Tenant fully and
faithfully complies with all of the terms of this Lease, the security shall be
returned to Tenant within thirty (30) days after the date fixed as the end of
the Lease and after the delivery of entire possession of the Premises to
Landlord. In the event of a sale of the land and building or leasing of the
Building of which the Premises form a part, Landlord shall have the right to
transfer the security of the vendee, and Landlord shall thereupon be released by
Tenant from all liability for the return of such security; and Tenant agrees to
look to the new Landlord solely for the return of said security; and it is
agreed that the provisions hereof shall apply to every transfer or assignment
made of the security to a new Landlord. Tenant further covenants that it will
not assign or encumber or attempt to assign or encumber the monies deposited as
security and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. Landlord agrees to pay interest at the rate of three percent (3%)
interest per year on the Security Deposit, which interest will be added to the
Security Deposit.
6. Improvements and Alterations. Lessee's right to make improvements
or alterations to the Premises shall be subject to the following conditions:
(A) Lessee shall not make any improvements or alterations in
or on the Premises without the prior written approval of Lessor, provided,
however, that Lessor shall not unreasonably withhold such approval if such
improvements or alterations do not affect the structural components and
elements, or electrical, plumbing or mechanical systems of the Building.
(B) No improvement or alteration involving an expenditure in
excess of $1,000 shall be made without first obtaining Lessor's written approval
of the plans therefor, but such approval shall not be unreasonably withheld by
Lessor. Lessee shall furthermore first obtain Lessor's written approval before
any modification or changes are made in such plans after Lessor's approval
thereof.
(C) All improvements and alterations shall be consistent
with the operation of a first-class medical office building.
(D) No improvement or alteration shall be undertaken until
Lessee shall have procured and paid for all required municipal and other
governmental permits and authorizations of the various municipal departments and
governmental agencies having jurisdiction.
(E) All work done in connection with any improvements or
alterations shall be done in a good and workmanlike manner and in compliance
with condominium documents (if applicable), all building and zoning laws, and
with all other laws, ordinances, rules, requirements of any federal, state or
municipal agency having jurisdiction and shall be completed free of all
mechanics' or materialmen's liens.
(F) Any improvements or alteration to the Premises, except
movable furniture, trade fixtures, medical equipment and any readily removable
cabinets placed by Lessee in the Premises, shall at once become the absolute
property of Lessor and remain upon and be surrendered with the Premises as a
part thereof at the termination of this Lease without disturbance or injury, but
Lessor reserves the right to require Lessee to remove any improvement or
alteration made by Lessee and to repair and restore the Premises to a condition
substantially equivalent to the condition of the Premises prior to such
improvement or alteration.
7. Building Services. Pursuant to the Rules and Regulations, the
Building will be operated from 7:00 a.m. to 7:00 p.m., Mondays through Fridays,
and from 8:00 a.m. to 1:00 p.m. Saturdays. The Building may not be operated on
Sundays and on the following holidays ("Holidays"): New Year's Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and such
other days as are locally observed by tenants in other medical office buildings
in the Winchester, Virginia, area.
Lessor shall furnish elevator service, a reasonable amount of electric
power, and water 24 hours a day, and (during the hours when the Building is
operated) heat, ventilation, and air conditioning sufficient, in Lessor's
reasonable judgment, to keep the Premises comfortable for use and occupancy.
Lessor shall be responsible for providing housekeeping and cleaning service for
the demised premises, including disposal of biomedical waste generated by
Lessee. Lessor's cost in providing the above-described services shall be
included in Operating Expenses in accordance with the provisions of Section
5(B). Lessor shall not be liable for failure to furnish, or for delay or
interruption in furnishing, elevator service, electric power, heat, ventilation,
air conditioning, or water, when such failure is caused by the need for repairs,
special equipment requirements of Lessee, a strike or labor controversy, a riot,
the inability to secure fuel for the Building, any accident or casualty,
unauthorized act or default by other tenants or employees of Lessor, or any
other cause, other than the gross negligence of Lessor. Notwithstanding the
foregoing, Lessee shall have access to the demised premises 24 hours a day, 365
days of the year during the Term hereof. If Lessee desires heating or air
conditioning for the demised premises during hours the Building is not operated,
Lessor shall provide such heating or air conditioning at the expense of Lessee
provided that Lessor receives .at least 48 hours advance notice. The cost of
such heating or air conditioning shall be billed as Additional Rent on the first
day of the calendar month subsequent to the provision thereof and shall be then
due and payable by Lessee.
8. Excess Utilities and Services. If, in Lessor's reasonable opinion,
Lessee shall consume any utility, including (but not limited to) electricity or
water, in an excessive, extravagant or unreasonable manner, or Lessee's use or
proposed use of the Premises shall require the installation of additional
electrical capacity to the Building in excess of that which is reasonably
necessary for general office use (as may occur where Lessee has installed or
proposes to install X-Ray or computing equipment or other equipment requiring
heavy electrical power consumption), Lessor may either prohibit such consumption
or use by Lessee or may install meters, paneling, wiring and other necessary
appurtenances to accommodate such excess consumption or capacity and Lessee on
demand shall pay Lessor (i) all costs incident to the installation of such
meters, paneling, wiring, and other necessary appurtenances, and (ii) additional
rent equal to the cost of the utility used at rates equal to the rate that the
supplying utility company with its own equipment would charge Lessee for such
service. If at Lessee's request, or if as a result of the manner of Lessee's use
and occupancy of the Premises, Lessor provides any other services in excess of
those required to be provided by Lessor under this Lease, including (but without
limitation) services during periods when the Building is not open, such excess
services shall be furnished, at Lessee's cost and expense, at a charge equal to
Lessor's actual cost of administrative services, labor equipment and utilities
incurred in connection with such excess service. Lessor shall bill Lessee from
time to time for any charges for any excess utilities or services described
above, and Lessee shall pay all such charges, as additional rent, within ten
(10) days after receipt of Lessor's invoice therefor.
9. Repairs.
(A) Lessor shall have no duty to Lessee to make any repairs
or improvements to the Premises except structural repairs necessary for safety
and tenantability. The cost and expense of any repairs to the Premises or the
Building necessary due to acts or omissions of Lessee or its agents, employees,
contractors, invitees or licensees shall be reimbursed by Lessee to Lessor upon
demand as additional rent.
(B) Other than normal wear and tear, Lessee shall not cause
or permit any waste, damage, or injury to the Premises. From and after the Rent
Commencement Date, Lessee, at its sole expense, shall make all repairs,
replacements, and refurbishments necessary to keep and maintain the Premises in
good condition and repair, unless such waste, damage or injury was due to the
negligence of Lessor or its agents. All repairs, replacements and refurbishments
shall be at least equal in quality of material and workmanship to that
originally existing in the Premises on the Rent Commencement Date. If Lessee
fails to make any such repairs, replacements or refurbishments, Lessor may, but
shall not be required to, make such repairs, replacements or refurbishments for
Lessee's account, and the expense thereof shall constitute and be collectible by
Lessor as additional rent, which shall be due and payable within ten (10) days
after demand therefor by Lessor.
(C) Lessee shall indemnify Lessor against all costs,
expenses, liabilities, losses, damages, suits, fines, penalties, claims and
demands, including reasonable attorney's fees, because of Lessee's failure to
comply with the foregoing, and Lessee shall not call upon Lessor for any
disbursement or outlay whatsoever in connection therewith, and Lessee expressly
releases and discharges Lessor of and from any liability therefor.
10. Insurance; Indemnity; Waiver of Claims.
(A) Lessee shall, at all times during the Term and any
renewal thereof, carry with an insurance carrier or carriers licensed to operate
in Virginia and satisfactory to Lessor:
(i) general liability insurance covering the
Premises and naming Lessor (and Condominium Association, if applicable) as
additional named insureds, with a combined single limit of liability in an
amount reasonably satisfactory to Lessor with respect to personal injury or
death to persons or damage to the property of others occurring in or about the
Building or the Premises.
(ii) "all risk" property insurance, covering
Lessee's personal property and trade fixtures, in an amount to cover not less
than ninety percent (90%) of the replacement cost of such personal property and
trade fixtures; and
(iii) such other insurance as Lessor may from time
to time reasonably require.
A duplicate original or agent certified copy of such insurance
policies shall be furnished to Lessor prior to the Rent Commencement Date and
not less than twenty (20) days prior to the expiration of any such policies.
Lessee shall notify Lessor promptly of any accident or loss involving Lessee,
Lessee's staff or employees, agents, or invitees in the Premises or the Building
or of any defects discovered by Lessee in the Premises or in the equipment and
fixtures of the Premises. Lessee shall furnish to Lessor copies of such policies
and/or such evidence of insurance as Lessor may require to establish that such
coverage is in effect and the premiums with respect thereto have been fully
paid. Such policies shall provide for not less than thirty (30) days prior
written notice to Lessor before any cancellation or change in coverage.
(B) Lessor shall keep the Building insured against loss or
damage by fire with extended coverage endorsement in an amount sufficient to
prevent Lessor from becoming co insurers under the terms of the applicable
policies but, in any event, in an amount not less than eighty percent (80%) of
the full insurable value as determined from time to time. The term "full
insurable value" shall mean actual replacement cost (exclusive of the cost of
excavation, foundations, and footings below the basement floor) without
deduction for physical depreciation. Such insurance shall be issued by
financially responsible insurers duly authorized to do business in this State.
(C) Lessee shall indemnify and hold harmless Lessor from and
against every demand, claim, cause of action, judgment and expense, and all loss
and damage arising from:
(i) any injury or damage to the person or property
of Lessor, any other lessee in the Building or to any other person rightfully in
the Building, whether the injury or damage is caused by negligence or misconduct
of Lessee, its agents, servants or employees or implied invitees of Lessee, or
results from the violations of laws or ordinances, governmental orders of any
kind or of the provisions of this Lease by any of the foregoing;
(ii) any loss or damage resulting from
interference with or obstruction of deliveries to or from the Building; and
(iii) any injury or damage not specified above to
the person or property of Lessee, its agents, servants or employees, or any
other person entering upon the Premises under express or implied invitation of
Lessee, where the injury or damage is caused by reason other than the negligence
or misconduct of Lessor, its agents, servants or employees.
11 Use of the Premises; Compliance with Laws.
(A) The Premises shall be used and occupied by Lessee for
medical office space and traditional related uses. Lessee is allowed to provide,
if it wishes, any services to its patients which are considered normal
outpatient services now or in the future, provided the services are not intended
for hospital inpatients, and provided the service is not one in which the
hospital has already made a sizable capital investment. However, this Lease will
not prevent Lessee and the Winchester Medical Center (the "Hospital") from
agreeing otherwise with respect to treatment of patients.
Recognizing that Lessor and its affiliates have a legitimate
right to protect their capital investment in their capital projects, the Lessee
agrees that it will not engage in any health care or diagnostic procedure which
requires a capital investment of more than $500,000 for diagnostic or treatment
equipment, and is for a health care or diagnostic procedure in which the
Hospital, or its successor, is either (i) currently engaged, (ii) hereafter
becomes engaged, or (iii) has made such plans known to the medical staff to
engage in either (i), (ii), or (iii) at the time that Lessee is considering the
purchase of its equipment, unless Lessor grants approval. On June 1st of each
year of this Lease, this $500,000 limit will be increased by a fraction whose
numerator is the Consumer Price Index for all Consumers, U.S. City Average. All
Items (1982-84=100) published by the Bureau of Labor Statistics of the United
States Department of Labor ("CPI") for the preceding calendar year rounded to
the nearest whole number and whose denominator is the CPI for the calendar year
1998.
(B) Lessee shall use and occupy the Premises in a safe,
careful and proper manner so as not to contravene any present or future
governmental or quasi-governmental laws in force or regulations or orders.
12. Quiet Enjoyment of Premises. Lessee, on paying the rent and
keeping and performing the agreements and covenants herein contained, shall have
the peaceful and quiet enjoyment of the Premises for the term hereof, subject,
however, to the provisions of this Lease.
13. Assignment and Subletting.
(A) Lessee shall not assign this Lease without at least
thirty (30) days' prior written notice to Lessor and the prior written approval
of Lessor. The transfer of more than fifty percent (50%) of the existing
partnership interests in Lessee or the admission of any additional partner
resulting in the ownership of less than fifty-one percent (51%) of the
partnership interests of the present partners in Lessee (if Lessee is a
partnership) or the issuance or transfer of more than fifty percent (50%) of the
existing stock in Lessee to persons other than those owning stock in Lessee as
of the date of this Lease (if Lessee is a corporation) shall constitute an
assignment for purposes of this Lease; provided, however, that the admission of
any additional partner in Lessee (if Lessee is a partnership) or the issuance or
transfer of any additional stock in Lessee (if Lessee is a corporation) to
persons other than those owning stock in Lessee as of the date of this Lease
shall constitute a permitted assignment hereunder so long as the additional
partner or the additional stockholder (as the case may be) has Medical Staff
Privileges at the Hospital. Lessor shall have no obligation to consider any
request for a proposed assignment unless (i) the assignee shall be a health
practitioner with (or, if a partnership or corporation has a majority of its
interests owned by partners or stockholders who have) Medical Staff Privileges
at the Hospital, (ii) the Premises shall be used and occupied by such assignee
solely for the purpose of office facilities for the practice of his or her
profession, provided that such particular use of the Premises does not violate
the terms of other leases with other tenants of the Building in effect at the
time of such contemplated assignment, (iii) the assignee shall meet and be
capable of meeting all terms and conditions (including financial capability) of
this Lease and shall agree in writing to be bound by all terms and conditions
contained herein; and (iv) any necessary consents by other parties such as
lenders secured by mortgages on the Building shall have been obtained.
(B) Lessee shall notify Lessor in writing of any proposed
assignment at least thirty (30) days prior to the proposed effective date
thereof. During the thirty (30) day period after receipt of such notice, Lessor
may approve or disapprove the proposed assignment or subletting by written
notice to Lessee. In addition, during such thirty (30) day period Lessor shall
also have the option to terminate this Lease by written notice to Lessee, as of
a date set forth in such notice not more than ninety (90) days from the date of
such notice.
(C) If Lessor approves any proposed assignment, Lessor shall
receive all consideration paid by any such assignee directly or indirectly
related to such assignment which exceeds the base rental and adjusted rental
payable under the remaining term of this Lease.
(D) No assignment shall relieve Lessee of, or release Lessee
from, Lessee's obligations under this Lease.
(E) Lessee shall not sublet the Premises or any part thereof
or grant concessions or licenses or other rights to any other person or entity
for the use or occupancy of the Premises or any part thereof.
14. Removal of Personal Property. Lessee may remove all personal
property, trade fixtures, medical equipment and readily removable cabinets which
Lessee has placed in the Premises, provided Lessee repairs all damages to the
Premises caused by such removal. If Lessee shall fail to remove all such
property from the Premises upon the expiration or earlier termination of this
Lease for any cause whatsoever, Lessor may, at its option, remove the same in
any manner that Lessor shall choose and store it without liability to Lessee for
loss thereof. In such event, Lessee shall pay to Lessor on demand any and all
expenses incurred in such removal, including court costs, attorney's fees, and
storage charges for the length of time the same shall be in Lessor's possession.
Alternatively, Lessor may, at its option, without notice, and without legal
process, sell the property or any part thereof at a private sale for such price
Lessor may obtain, and apply the proceeds of the sale to any amount due under
this Lease and the expenses incident to removal and sale of said property.
15. Governmental Requirements. Lessee shall, at its own expense,
promptly comply with all requirements of any legally constituted public
authority applicable to Lessee or Lessee's use and occupancy of the Premises.
16. Condemnation. If the whole or any part of the Premises shall be
taken by any public authority under the power of eminent domain, then the Term
shall cease as to the part so taken on the date possession of that part is
surrendered and any unearned rent paid or credited in advance shall be refunded
to Lessee. Lessee shall not be entitled to receive any part of any award or
awards that may be made or received by Lessor. Lessee may at its own expense
commence independent proceedings against the public authority exercising the
power of eminent domain to prove and establish any other damage Lessee claims to
have incurred; provided, however, that Lessee shall not be entitled to receive
any part of any award that may be made on account of the value of Lessee's
leasehold interest hereunder, and Lessee hereby assigns to Lessor all rights of
Lessee in any such award.
17. Casualty. If all or any part of the Premises is damaged or
destroyed by fire or other casualty insured under the standard fire insurance
policy with approved standard extended coverage endorsement applicable to the
Premises and Building, Lessor shall, except as otherwise provided herein, and
only to the extent the holder of the mortgage now or hereafter on the Building,
if any, permits release of insurance proceeds, repair and rebuild the Premises
with reasonable diligence. If there is a continuous and substantial interference
with the operation of Lessee's business in the Premises requiring Lessee
temporarily to close its business at the Premises, the Rent shall be equitably
apportioned for the duration of such repairs in proportion to the extent to
which there is interference with the operation of Lessee's business at the
Premises. Notwithstanding the foregoing provisions, in the event the Premises
shall be damaged by fire or other insured casualty due to the fault or neglect
of Lessee, or Lessee's servants, employees, contractors agents, visitors, or
licensees, then without prejudice to any other rights and remedies of Lessor,
and provided the damage is repaired by Lessor, there shall be no apportionment
or abatement of any Rent. Except to the extent provided for in this paragraph,
neither the Rent payable by Lessee nor any of Lessee's other obligations under
any provision of this Lease shall be affected by any damage to or destruction of
the Premises by any cause whatsoever, and Lessee hereby expressly waives any and
all additional rights it might otherwise have under law.
18. Inspection. Lessor shall have the right to enter and grant
licenses to others to enter the Premises at any time during reasonable hours to
examine the same or to make such repairs, additions or alterations as may be
deemed necessary for the safety, comfort or preservation thereof, or of the
Building and to exhibit the Premises to prospective tenants or purchasers and
for the purpose of removing placards, signs, fixtures, alterations or additions
which do not conform to the terms of this Lease or to the rules and regulations
of the Building; provided, however that such activities will not interfere with
Lessee's business.
19. Subordination to Mortgages and Ground Lease. This Lease is and
shall remain subject and subordinate to all mortgages, ground leases or other
underlying leases now or hereafter affecting the Building or the Land, or both,
and Lessee shall promptly execute and deliver to Lessor such documents as Lessor
may reasonably request showing the subordination of this Lease to such
mortgages, ground leases, or other underlying leases and incorporating the
agreement of Lessee to attorn to the holder of any such mortgage or the Lessor
under any such ground lease or underlying lease, and in default of Lessee's
doing so, Lessor shall be and hereby is authorized and empowered to execute such
documents in the name and as the act and deed of Lessee. This authority is
coupled with an interest and is irrevocable.
20. Signs. Lessee shall not paint or place signs upon the corridor
doors of the Premises except only with the consent of Lessor, and in no event
shall Lessee place any signs whatsoever upon the windows, outside walls or roof
of the Premises or the Building. Lessor shall include Lessee's name on the
standard lobby Building directory.
21. Notices. Any notice or other communication required or allowed by
this Lease to be given either to Lessor or to Lessee shall be in writing, and
shall be deemed given if actually delivered by hand delivery (including
recognized overnight courier service) to the address set forth below (or in the
case of Lessee after the Rent Commencement Date, by delivery to the Premises) or
upon receipt if mailed by certified or registered mail, postage prepaid,
properly addressed to the parties as follows:
Lessor: Winchester Real Estate Management, Inc.
1840 Amherst St.
P.O. Box 3340
Winchester, Virginia 22604-2540
Attention: C. Douglas Rosen, Senior Vice President
Real Estate and Construction Services for Valley
Health System
#(540)722-8620
Rent Checks made payable to:
Winchester Real Estate Management, Inc.
1840 Amherst St.
P.O. Box 3340
Winchester, Virginia 22604-2540
Attn: Cashiers Office
Lessee: BANK OF CLARKE COUNTY
22. Rules and Regulations. The rules and regulations attached hereto
as Exhibit "E" are Association's rules and regulations for the Building. Lessor
(or Condominium Association, if applicable) may, from time to time, modify the
rules and regulations or make additional rules and regulations for the Building,
copies of which shall be delivered to Lessee by Lessor. The rules and
regulations attached hereto, as they may be so modified and added to
(collectively, the "Rules and Regulations"), are a part of this Lease, and
Lessee agrees to comply with all Rules and Regulations promulgated by Lessor
and/or Condominium Association, if applicable.
23. Brokers. Lessor and Lessee represent and warrant to each other
that they have not dealt with any real estate broker or agent, who by reason of
such dealing has a claim for a commission or fee. Lessee agrees to indemnify
Lessor and hold it harmless against any claims for commissions that may be
asserted in connection with this Lease based upon acts or agreements of Lessee.
24. Holding Over. If Lessee remains in possession of the Premises
after the expiration or earlier termination of this Lease, Lessee shall be a
tenant-at-sufferance at two times the base rental rate in effect immediately
prior to the date of expiration or termination and subject to all the other
terms and provisions hereof (except as to the term of this Lease), and there
shall be no renewal of this Lease by operation of law.
25. Estoppel Certificates. Lessee agrees to provide Lessor within five
(5) days of a written request therefor a certificate in form and substance
satisfactory to Lessor stating (i) that this Lease is in full force and effect;
(ii) the commencement date and term of this Lease; (iii) the date through which
rent has been paid; (iv) that there are no defaults existing under this Lease,
or, if any default exists, specifying such default and the actions required to
cure such default; and (v) such other matters as Lessor may reasonably require.
Lessee may pledge its tangible property as security for loans.
26. Hazardous Waste. Lessee warrants, represents and covenants to
Lessor that:
(A) The Premises and Lessee's operations at the Premises
will at all times be operated in full compliance with all applicable federal,
state, and local environmental laws and regulations, including (without
limitation) all applicable federal, state, and local laws dealing with the
generation, storage and disposal of medical, biomedical or similar waste
("Environmental Laws");
(B) Lessee will not store, generate or use in the Premises
or the Building any solid wastes, hazardous wastes, hazardous substances, toxic
chemicals, pollutants, contaminants or other environmentally regulated
substances ("Hazardous Substances") without the prior written approval of Lessor
and the Association and then only in strict compliance with applicable
Environmental Laws; provided, however, no such approval shall be required with
respect to substances which are normally used in Lessee's medical practice; and
(C) Lessee will not dispose of any Hazardous Substances in
any manner that would potentially damage the Building or any portion thereof or
that would fail to strictly comply with applicable Environmental Laws; and,
(D) Without limiting the foregoing, Lessee shall, at
Lessee's sole cost and expense, make all necessary arrangements for, and
strictly comply with all applicable Environmental Laws governing the handling
and storage of all medical, biomedical or similar waste generated at or in the
Premises, except for the disposal of Lessee's biomedical waste by Lessor,
pursuant to Paragraph 7.
(E) Lessee shall indemnify and hold Lessor (and the
Condominium Association, if applicable) harmless from and against any and all
damages, penalties, fines, claims, liens, suits, liabilities, costs, judgments
and expenses (including attorney's fees and settlement expenses) of every kind
and nature suffered by or asserted against Lessor and/or Association as a direct
or indirect result of any violation of any covenant of Lessee in this paragraph
27 or of any warranty or representation made by Lessee in this paragraph 27
being false or untrue in any respect. This indemnity provision shall survive any
termination of this Lease.
27. Defaults. In the event (i) Lessee defaults in the payment of rent
for a period of ten (10) days after written notice by Lessor to Lessee of such
default; (ii) the Premises shall be abandoned or vacated; (iii) Lessee shall
fail to comply with any term of this Lease (other than payment of rent) or any
of the rules and regulations now or hereafter established for the governance of
the Building; (iv) any proceeding, whether voluntary or involuntary, is
instituted for the Lessee because of Lessee's insolvency; (v) Lessee becomes
insolvent or makes a transfer in fraud of creditors; or (vi) Lessee makes a
general assignment for the benefit of creditors, Lessor may (either separately,
concurrently or in any combination), (a) terminate this Lease by giving written
notice to Lessee, and declare the entire amount of rent which thereafter become
due, due and payable immediately; (b) with or without terminating this Lease,
take possession of the Premises and enter the Premises as agent of the Lessee
and relet them for such rent as is obtainable by reasonable effort and collect
the deficiency from Lessee plus collect all costs of reletting, including lease
commissions, attorney's fees and upfitting costs which Lessor deems necessary
for a new tenant; (c) do whatever Lessee is obligated to do under this Lease, in
which event Lessee shall reimburse Lessor on demand for any costs and expenses
incurred by Lessor in carrying out Lessee's duties and obligations under this
Lease; or (d) pursue any other remedies which may be provided by law. Provided,
however, that should any event or condition described in item (iii) of this
Paragraph 28 occur, and such event or condition is cured to the satisfaction of
Lessor within thirty (30) days from written notice to Lessee of the occurrence
of such event or condition, or if, within a reasonable period of time in
addition thereto, if the circumstances are such that the default cannot
reasonably be cured within thirty (30) days of such notice, Lessee takes action
to cure such default and pursues such action with due diligence promptly upon
receipt of such notice, such default shall be deemed not to have occurred. In
the event Lessor is required to employ an attorney-at-law on account of any
default by Lessee, Lessee shall be obligated to pay Lessor's reasonable
attorney's fees and any associated court or other costs incurred by Lessor in
connection therewith.
28. Late Payments. If any rent or other amount payable by Lessee under
this Lease is not paid when due, Lessee shall pay to Lessor a late charge equal
to five percent (5%) of the amount not paid when due, and interest on the amount
not paid when due equal to the greater of (i) fourteen percent (14%) per annum,
or (ii) an annual interest rate equal to the prime rate (as reported from time
to time in the Money Rates section of the Wall Street Journal) plus two
percentage points (2%), provided that in no event shall such interest exceed the
maximum rate allowed by applicable law.
29. Rights and Remedies. All rights and remedies of Lessor herein
shall be cumulative, and none shall be exclusive of any other, or of any rights
and remedies allowed by law, and pursuit of any one of said rights or remedies
does not preclude pursuit of any one or more of the other of said rights or
remedies. Lessor's forbearance in pursuing or exercising one or more of its
remedies shall not be deemed or construed to constitute a waiver of any default
or any remedy and no waiver by Lessor of any right or remedy on one occasion
shall be construed as a waiver of that right or remedy on any subsequent
occasion or as a waiver of any right or remedy then or thereafter existing. No
failure of Lessor to pursue or exercise any of its rights or remedies or to
insist upon strict compliance by Lessee with any term or provision of this
Lease, and no custom or practice at variance with the terms of this Lease, shall
constitute a waiver by Lessor of the right to demand strict compliance with the
terms and provisions of this Lease.
30. Lessor's Limited Liability. Neither Lessor, or any officer,
director or shareholder of Lessor's shall have any personal liability for the
obligations of the Lessor under this Lease, and any liability for the
obligations of Lessor under this Lease shall be limited solely to Lessor's
interest in the Building.
31. Severability. If any provision of this Lease is declared to be
illegal or unenforceable, the unaffected provisions shall remain in full force
and effect.
32. Parties. The words "Lessor" and "Lessee" as used herein shall
include the parties to the Lease, whether singular or plural, masculine or
feminine, or corporate, partnership or other entity and their heirs, personal
representatives, successors and assigns. However, the term "Lessor" as used in
this Lease shall mean only the owner of the Building from time to time, and in
the event of the sale or other disposition of the Building, the "Lessor" named
herein shall be released from any further obligations or liabilities under this
Lease, and Lessee shall look solely to the successor lessor for performance of
the obligations of the "Lessor" hereunder.
33. Approval. This Lease is subject to the approval of the Hospital
and the holder of any mortgage secured by the Building. However, if Lessor does
not notify Lessee within thirty (30) days from the date of execution by Lessor
of this Lease that this Lease has not been approved, then for purposes of this
paragraph this Lease shall be deemed approved by the Hospital and such holder.
34. Recordation. This Lease and any memorandum of this Lease shall not
be recorded.
35. Controlling Law. This Lease is entered into in Virginia and shall
be enforced and construed in accordance with the laws thereof.
36. Time of Essence. Time is of the essence of this Lease.
37. Notice to Lessor. Anything in this Lease to the contrary
notwithstanding Lessee agrees that it will not terminate the Lease or withhold
any rentals due hereunder (where such withholding is permitted) because of
Lessor's default in the performance hereof until Lessee has first given written
notice to Lessor, to the holder of the Mortgage and to the Hospital specifying
the nature of such default by Lessor and allowing the Lessor, the holder of the
Mortgage and the Hospital, or any of them, thirty (30) days after the date of
delivery of such notice to cure such default or a reasonable period of time in
addition thereto if circumstances are such that said default cannot reasonably
be cured within said thirty (30) day period. If Lessor, the holder of the
Mortgage or the Hospital takes action to cure such default and pursues such
action with due diligence promptly upon receipt of such notice, Lessor shall not
be deemed in default during such curative period.
38. Lessee's Loss of Medical Staff Privileges. If any member of
Lessee's group (if engaged in group practice) loses his or her Medical Staff
Privileges at the Hospital because of medical malpractice or misconduct, and
such practitioner member, who lost Medical Staff Privileges, does not vacate the
Premises within (30) days, Lessor may elect to terminate this Lease by written
notice to Lessee within ninety (90) days following such loss of Medical Staff
Privileges. In the event that Lessor exercises such option, this Lease shall
terminate as of the date specified in Lessor's notice of exercise of such
option. Anything herein to the contrary notwithstanding, any such space as to
which Lessor exercises such option shall be subject to a right of first refusal
on the part of other tenants leasing space in the Building adjacent to or
adjoining the space in question to be exercised within fifteen (15) days
following Lessor's delivery to such tenants of notice that Lessor has elected to
terminate this Lease to lease such space from Lessor at such rent and for such
term as Lessor and such other tenant shall agree, and to a right of second
refusal on the part of Lessor to lease such space to another qualified tenant of
Lessor's choice at such rent and for such term as Lessor and such other
qualified tenant shall agree.
39. Death or Disability. In the event that Lessee or the sole
shareholder of Lessee (if engaged in a single practice) or more than one-half of
the practitioner members of Lessee's group (if engaged in a group practice)
should die or become permanently disabled and thereby be unable to practice
medicine, then Lessee (or Lessee's heirs or legal representatives, as the case
may be) shall have the option to terminate this Lease by written notice to
Lessor within thirty (30) days after the death or disability. To be effective,
however, such notice of termination must be accompanied by (i) payment of any
past due rent and other charges payable under this Lease and (ii) a termination
fee in an amount equal to six (6) months Rent plus the unamortized Tenant
Improvement Allowance paid by Lessor under this Lease. Such unamortized Tenant
Improvement Allowance shall be determined by multiplying the total Tenant
Improvement Allowance paid by Lessor under this Lease by a fraction, the
numerator of which shall be the number of months remaining in the Term after the
effective date of such termination and the denominator of which shall be the
total number of months in the Term.
40. This paragraph intentionally deleted.
41. Financial Statements. Lessee and all parties signing as Surety
hereunder agree to provide current financial statements to Lessor or any party
designated by Lessor (including any mortgagee) within ten (10) days of request
by Lessor therefor.
42. Amendment. This Lease may not be amended in any respect except by
written greement of Lessor and Lessee.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed under seal, all as of the day and year first-above written.
WITNESS: LESSOR:
WINCHESTER REAL ESTATE
MANAGEMENT, INC.
By: /s/ C. Douglas Rosen
Title: Senior Vice President
WITNESS(ES): LESSEE:
BANK OF CLARKE COUNTY
/s/ Carol S. Jennings By: /s/ John R. Milleson
Title: President and CEO
EXHIBIT "B"
WORK LETTER
DEFINITIONS
1.01. Defined Terms. Capitalized terms used in the Lease and this Work
Letter shall have the same meanings ascribed to them in the Lease. Otherwise,
the capitalized terms used in this Work Letter shall have the meaning ascribed
to them at the point where defined.
(a) "Base Building Improvements" shall mean the improvements to the
Premises provided by Lessor as described and defined in this Work Letter.
(b) "Drawings and Specifications" shall mean the final working
drawings and specifications for the construction and installation of the
improvements in the Premises prepared by the Architect and approved by Lessor
and Lessee.
(c) "Tenant Improvements" shall mean the improvements constructed and
installed in the Premises in accordance with the Drawings and Specifications.
(d) "Tenant Improvement Allowance" shall mean the sum of $40.00 per
usable square foot multiplied by the usable square footage of floor area of the
Premises, which shall be applied to the costs of constructing the Tenant
Improvements.
(e) "Tenant Improvement Costs" shall mean the total cost of the
design, engineering, construction and installation of the Tenant Improvements.
(f) "Lessee's Costs" shall mean the total of all Tenant Improvement
Costs in excess of the Tenant Improvement Allowance.
(g) "Architect" shall mean the architect, space planner or designer
designated by Lessor to prepare the Drawings and Specifications.
(h) "Lessor's Contractor" shall mean the contractor designated by
Lessor to construct and install the Tenant Improvements.
DRAWINGS AND SPECIFICATIONS
2.01. Exact Determination of Premises. As soon as the design and
construction of the Base Building Improvements have sufficiently progressed,
Lessor shall contact Lessee to review and consult with Lessee concerning
Lessee's exact space needs for the Premises and shall promptly thereafter
provide Lessee with schematic plans for the layout of the Premises. Upon or
shortly after providing Lessee with schematic plans for the Premises, Lessor
shall designate to Lessee the exact number of rentable square feet to be
contained in the Premises determined in accordance with the Measurement Method,
which shall not be less than 90%, nor more than 110%, of the number of rentable
square feet designated in Paragraph 1 of the Lease. After the exact number of
rentable square feet of the Premises and its exact location on the floor of the
Building has been so determined, Lessee shall, at the request of Lessor,execute
an amendment to this Lease specifying such number and location.
2.02. Approval of Drawings and Specifications. On or before ___________
(unless the construction of the Building has been delayed by Excusable Delays),
Lessor shall cause the rchitect to prepare and shall deliver to Lessee, for
Lessee's approval, the proposed final working drawings and specifications for
the Tenant Improvements. Lessee shall promptly review such drawings and
specifications and shall notify Lessor of any comments thereon or proposed
revisions thereto. After receiving any comments or proposed revisions, Lessor
shall resubmit to Lessee any such drawings and specifications which are not
approved by Lessee with such requested changes as are acceptable to Lessor.
Lessee shall have 15 days after receipt of any drawings and specifications or
revisions thereto to approve or disapprove the same, and if Lessee fails to
notify Lessor of any comments or revisions within such 15 day period, Lessee
shall be deemed to have given Lessee's approval to the drawings and
specifications or revisions thereto submitted to Lessee by Lessor. Lessor and
Lessee agree to cooperate and use their good faith efforts to approve drawings
and specifications for the Premises as promptly as possible after the initial
submission of the drawings and specifications by Lessor to Lessee. Upon approval
of the drawings and specifications, such drawings and specifications shall
constitute the Drawings and Specifications for purposes of this Lease.
2.03. Revisions to Drawings and Specifications. If at any time thereafter,
Lessee desires to make revisions to the Drawings and Specifications, the
procedure for approving any such revisions shall be the same as the procedure
for approving the Drawings and Specifications. Upon approval by Lessor and
Lessee of any such revisions, Lessee shall be deemed to have given full
authorization to Lessor to proceed with the work of constructing and installing
the Tenant Improvements in accordance with the Drawings and Specifications, as
revised. Lessor, at its option, can require Lessee to pay in lump sum to Lessor
any and all increases in Lessee's Costs which result from approved revisions to
the Drawings and Specifications.
BASE BUILDING AND TENANT IMPROVEMENT WORK
3.01. Base Building Improvements. Lessor shall construct or cause to be
constructed, at the Lessor's sole expense, the following improvements (the "Base
Building Improvements"):
(a) Base Building and Shell Areas. Lessor shall construct all base
building core and shell areas, including, but not limited to, base building
mechanical, electrical, plumbing, heating, ventilation, air conditioning and
fire safety systems, as installed, including those required to obtain a
certificate of occupancy for the shell of the Building.
(b) Heating, Ventilation and Air Conditioning. Lessor shall equip each
floor with primary heating, ventilation and air conditioning system designed to
service the entire floor. Lessor shall furnish and install in the Premises
Lessee's pro rata share of the primary air distribution ductwork and main
controls. VAV boxes and 2' x 2' diffusers, grills, secondary ducts and controls
requirements in excess of the Base Building Improvements shall be provided and
installed at Lessee's expense.
(c) Electrical. Lessor shall provide a pro rata share of base building
electrical bus connectors, transformers, panels, circuit breakers and building
standard recessed fluorescent light fixtures at a rate of 1 per 80 usable square
feet. Building standard light fixtures shall be 2' x 4' three lamp fixtures with
acrylic lens. The cost of installation shall not be included as part of Base
Building Improvements. Requirements in excess of the Base Building Improvements
shall be provided and installed at Lessee's expense.
(d) Plumbing. Lessor shall provide all common area restrooms and all
base building plumbing systems complete and operating within the Building core.
Lessee shall tap into the base building hot water loop system. Related systems,
and other plumbing and connections, shall be the responsibility of Lessee, at
Lessee's cost and expense.
(e) Fire Protection. Lessor shall furnish, and install, a sprinkler
distribution grid and sprinkler heads to meet building standard requirements.
The relocation of sprinkler heads or piping, and any additional sprinkler heads
and/or piping required, shall be at Lessee's expense.
(f) Life Safety System. Lessor shall provide the following for the
common areas of each floor the Building: exit signs at stairways, emergency
lights, smoke detectors, fire extinguishers and fire horn as required by
applicable codes. Lessee shall bear the cost of any of the above required within
the Premises or in such areas as a corridor extended for Lessee's use.
(g) Telephone. Lessor shall provide Lessee with access from the
Lessee's telephone equipment room to the locations of incoming telephone service
entering the Building. Lessee shall bear the cost of cable and conduit or teflon
coated telephone cable and associated connections and the cost of all
telephones, telephone equipment and communications systems for the Premises.
(h) Ceilings. Lessor shall provide a ceiling suspension grid and 2' x
2' tegular acoustical ceiling tile in sufficient quantities to be installed
throughout the Premises, on the Lessee's floor. The cost of installing same
shall be borne by Lessee.
(i) Window Treatment. Lessor shall furnish and install, in all
exterior windows ""Building Standard Window Treatment," which shall consist of
one-inch deep tapeless horizontal window blinds on exterior windows which shall
have a manually operated mechanism. Lessee shall not install any other window
treatment which is visible from the exterior of the Building.
(j) Finishes. Lessor shall furnish and install the following finish
items:
1. Public portions of core wall surfaces, elevator lobby
walls and public corridor wall surfaces shall be framed and covered with gypsum
board, taped, bedded, sanded and finished with vinyl wall covering.
2. Base building toilet rooms shall be fully finished,
including the installation of all ceramic tile and all painting and wall
covering.
3. Base building mechanical rooms, telephone and electrical
closets shall be covered with gypsum board, taped, bedded and sanded.
(k) Miscellaneous. Lessor shall also provide (i) public stairs and
fire escapes to meet all applicable codes; (ii) three (3) base building
elevators; and (iii) the Building lobby, elevator lobbies and public corridors
finished building standard decor.
3.02 Tenant Improvement Work. When the Base Building Improvements have been
completed or have progressed sufficiently and Lessor has received final approval
of the Drawings and Specifications and any deposit required hereunder for
Lessee's Costs, Lessor shall cause Lessor's Contractor to proceed with the
construction and installation of the Tenant Improvements.
PAYMENT OF COSTS
4.01 Lessor's Costs. Lessor shall pay all Tenant Improvement Costs up to,
but not exceeding, the Tenant Improvement Allowance, and up to $3.00 per usable
square foot for Tenant's Design Costs. Lessor shall disburse the Tenant
Improvement Allowance and any amounts deposited by Lessee with Lessor for
payment of Lessee's Costs to pay the Tenant Improvement Costs and any excess
Tenant Design Cost, as and when the same become due and payable. Lessor shall be
entitled to rely on the accuracy of all invoices and fee statements for labor
performed or material furnished in connection with the Tenant Improvements and
to rely on any certification as to the Tenant Improvement Costs submitted by
Lessor's Contractor or the Architect.
4.02 Lessee's Costs. Lessee shall pay Lessee's Costs as follows:
(a) 50% of the amount of Lessee's Costs reasonably estimated by Lessor
shall be paid to Lessor prior to the commencement of construction and
installation of the Tenant Improvements; and
(b) The balance of Lessee's Costs shall be paid within ten (10) days
after Lessee's receipt of Lessor's invoice upon substantial completion of the
Tenant Improvements and Lessor's delivery of possession of the Premises to
Lessee.
4.03 Failure to Pay Lessee's Costs. Failure by Lessee to pay Lessee's Costs
in accordance with this Work Letter will constitute a failure by Lessee to pay
Rent when due under the Lease and shall therefore constitute an event of default
by Lessee under the Lease, and Lessor shall have all of the remedies available
to it under this Lease for nonpayment of rent.
4.04. Unused Tenant Improvement Allowance. If the Tenant Improvement costs
are less than the Tenant Improvement Allowance, the portion of the unused Tenant
Improvement Allowance shall be applied in twelve (12) equal credits toward the
reduction of Lessee's rent payable during the twelve (12) month period beginning
the Rent Commencement Date. Should any of the allowance for Lessee's Design
Costs not be used, none of the unused portion shall be credited to Lessee.
4.05. Other Costs Incurred by Lessee. If Lessee directly employs or
contracts with any space planner, architect, design consultant or other
professional with respect to the design, engineering, construction or
installation of the Tenant Improvements, Lessee shall pay the entire cost and
expense thereof from Lessees own funds, and no portion of the TenantImprovement
Allowance shall be disbursed by Lessor for payment of such costs and
expenses,but Lessor shall be entitled to reimbursement from the Tenant
Improvement Allowance for the costs and expenses of any space planner,
architect, engineer, design consultant or other professional employed by Lessor
to review, advise and consult with Lessor concerning the work prepared,
constructed or installed by Lessee's professionals. Lessee shall also pay to
Lessor, and Lessor shall be entitled to reimbursement from the Tenant
Improvement Allowance for, all costs and expenses associated with any
modification or alteration of the Base Building Improvements necessary due to
requests by Lessee or Lessee's space planner, architect, engineer, design
consultant or other professional in connection with the design, engineering or
construction of the Tenant Improvements. In the event that insufficient funds
remain in the Tenant Improvement Allowance to fully cover any amounts owed by
Lessee pursuant to this paragraph, then such amounts shall be paid directly by
Lessee.
WORK BY LESSEE
5.01. Lessee's Work. All work in or about the Premises which is not within
the scope of the work necessary to construct and install the Tenant
Improvements, and all work necessary to install Lessee's medical equipment and
other personal property, shall be furnished and installed by Lessee at Lessee's
cost and expense. Lessee shall adopt a schedule for performing such additional
work consistent with the schedule of Lessor's Contractor and shall see that such
work is conducted in such a manner as to maintain harmonious labor relations and
as not to interfere unreasonably with or to delay the work of constructing or
installing the Tenant Improvements. Lessor shall give reasonable access and
entry to the Premises to Lessee and its contractors performing such additional
work and shall give reasonable opportunity and time to enable Lessee and such
contractors to perform and complete such work. All such additional .work and
Lessee's use of the Premises for such purposes shall be performed in accordance
with the Lease.
POSSESSION OF THE PREMISES
6.01. Possession. Lessor shall be deemed to have delivered possession of
the Premises to Lessee on the date on which the Tenant Improvements have been
substantially completed. The Tenant Improvements shall be deemed to have been
substantially completed on the date when (i) the Building (including common
areas, paved areas and drives as are reasonably necessary to access to and
normal use of the Building and Premises) and the Tenant Improvements have been
completed except for "punchlist" items (i.e., details of construction,
mechanical adjustment and decoration which are minor in nature and do not, in
the aggregate, materially interfere with the use and enjoyment of the Premises
by Lessee), and (ii) Lessor has obtained a certificate of occupancy (permanent
or temporary) for the Premises and the portion of the Building containing the
Premises permitting use of the Premises for the purposes specified in the Lease;
provided, however, if and to the extent substantial completion would have
occurred earlier but for a Lessee Delay (as hereinafter defined), then
substantial completion shall be deemed to have occurred on the date it would
have occurred but for the delay by Lessee, and the Rent Commencement Date and
the Term and all obligations of Lessee under this Lease shall commence on what
would have been the Rent Commencement Date but for the delay by Lessee. In no
event shall the Rent Commencement Date be, or possession of the Premises be
delivered to Lessee, prior to_________________.
DELAY IN DELIVERY OF POSSESSION
7.01. Excusable Delays. The term "Excusable Delays" shall mean any delay in
construction of the Base Building Improvements or Tenant Improvements due to a
Lessee Delay, war, natural catastrophe, strikes, lockouts or other labor of
industrial disturbance, future order of any government, court or regulatory body
claiming jurisdiction, blockage, embargo, failure or inability to secure
materials, supplies or labor through ordinary sources by reason of shortages or
priority or regulation or order of any government or regulatory body, storm,
flood, washout, or any cause whatsoever beyond the reasonable control of Lessor,
whether or not similar to any of the causes hereinabove stated.
7.02. Lessee Delays. The term "Lessee Delay" shall mean any delay in
construction and installation of the Tenant Improvements due to (i) Lessee's
failure to consult with and inform Lessor in a prompt and timely manner (and in
any event within thirty (30) days after request by Lessor) of the general
desired space needs and desired layout of the Premises so as to enable Lessor to
prepare the initial schematic plans for the Premises; (ii) Lessee's failure to
approve or provide comments on the Drawings and Specifications within the time
periods required by this Work Letter or to submit or revise in a prompt and
timely manner any portions of the Drawings and Specifications to be prepared by
Lessee's space planner, architect, engineer, design consultant or other
professional; (iii) changes or additions by Lessee to the Drawings and
Specifications after they have been approved by Lessor and Lessee; (iv) Lessee's
request for materials, finishes, or installation that require long lead time for
delivery; or (v) any other delays caused by Lessee or Lessee's space planner,
architect, engineer, design consultant or other professional.
7.03. Delay in Delivery of Possession. Lessor expects to substantially
complete the Tenant Improvements and deliver possession of the Premises to
Lessee on or about _______________. However, if the Tenant Improvements have not
been substantially completed by the expected date set forth in the preceding
sentence (as extended for Excusable Delays for a period not exceeding 180 days)
Lessor shall not be liable for any loss or damages suffered by Lessee but Lessee
shall have the right to then terminate this Lease by promptly giving Lessor
written notice of such termination. If there is a delay in substantial
completion of the Tenant Improvements because of Lessee Delays, the Rent
Commencement Date under this Lease shall be, and all obligations of Lessee under
this Lease shall commence on, the date the Tenant Improvements would have been
completed but for such Lessee Delays.
EXHIBIT "C"
BUILDING STANDARD WORK ALLOWANCES
Standard work provided by Lessor included in the "Tenant Improvement Allowance"
of $40.00 per square foot (s.f.) of usable square footage (area) leased
installed in accordance with the General Specifications for Tenant Improvements
and Lease Exhibit "B" - "Work Letter". (Where the BUILDING STANDARD WORK
ALLOWANCES set forth herein differ from the General Specifications for Tenant
Improvements and/or from Exhibit "B" - "Work Letter", the BUILDING STANDARD WORK
ALLOWANCES shall govern)
A. Cabinetry and Casework w/ sinks and trim including associated plumbing
work:
Allowance: $4.60 per s.f., installed.
B. Doors:
Suite entrance doors: standard allowance is one entrance door,
frame and hardware for up to the first 5,000 s.f. of usable area leased and one
additional door, frame and hardware for each additional full 5,000 s.f. of
usable area leased.
Interior doors: standard allowance is one interior door, frame
and hardware for each 250 s.f. of usable area leased.
C. Partitions:
Standard allowance is one linear foot of partition for each 10
s.f. of usable area leased; bulkheads are provided only above reception counter.
D. Floor Covering:
Resilient tile, vinyl base, sheet vinyl and carpet per scope set
forth in General Specifications.
E. Ceiling:
Suspended 2X2 acoustical tile in lay-in grid.
F. Painting:
Per scope set forth in General Specifications
G. HVAC:
Standard allowance is one VAV box per 600 s.f. with associated
controls.
H. Plumbing:
Standard allowance is one toilet room with one lavatory and one
toilet per 5,000 s.f. of usable area leased; no other interior plumbing work is
included, except as provided for in Item A. above.
I. Sprinkler:
Standard allowance is one sprinkler head per 100 s.f. of usable
area leased.
J. Lighting:
Standard allowance is one 2X4 lay-in building standard fixture
per 80 s.f. of usable area leased.
K. Light Switches:
Standard allowance is one single pole light switch per room,
located in partition.
L. Electrical Outlets:
Standard allowance is one duplex electrical wall receptacle per
100 s.f. of usable area leased.
M. Telephone/Data Outlets:
Standard allowance is one telephone or data wall outlet per 200
s.f. of usable area leased.
N. Fire Alarm and Fire Extinguishers:
Fire alarm shall be installed in accordance with the General
Specifications; the standard allowance for fire extinguishers is two per suite.
O. Window treatment:
Horizontal window blinds on exterior windows.
P. Floor Load:
Floors are designed for 60 lbs. per s.f. live load.
Q. Design Services:
A reasonable amount of consultation with Lessor's architect for
building standard items of work will be at no additional cost to Tenant. The
cost of design for items of work other than the building standard items of work
shall be borne by Tenant.
EXHIBIT "D"
ACCEPTANCE AGREEMENT
THIS AGREEMENT is made as of the date set forth below between WINCHESTER
REAL ESTATE MANAGEMENT (the "Lessor") and BANK OF CLARKE COUNTY (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into a Tenant Lease dated
_______________, (the "Lease") for certain premises in the building known as
Winchester Medical Office Building in Winchester, Virginia (the "Premises"); and
WHEREAS, Lessor and Lessee desire to execute this Agreement pursuant to and as
required by the Lease.
NOW THEREFORE, for good and valuable consideration, Lessor and Lessee agree
as follows:
1. The Rent Commencement Date and the date of commencement of the term
of the Lease is __________________.
2. The expiration date of the term of the Lease is _______________.
3. Lessee is in possession of, and has accepted, the Premises and
agrees that all the work to be performed by Lessor in the Premises as required
by the terms of the Lease has been satisfactorily completed except for any
punchlist items described in Schedule "A" attached hereto.
4. Lessee certifies that all conditions of the Lease required of
Lessor as of this date have been fulfilled and there are no defenses or setoffs
against the enforcement of the Lease by Lessor.
WHEREFORE, the parties hereto have signed and sealed this Agreement,
as of the 20th day of March.
LESSEE: LESSOR:
BANK OF CLARKE COUNTY WINCHESTER REAL ESTATE
MANAGEMENT
By: /s/ John R. Milleson By: /s/ C. Douglas Rosen
Name: John R. Milleson Name: C. Douglas Rosen
Title: President & CEO Title: Senior Vice President
By:
Attest: /s/ Carol S. Jennings
EXHIBIT "E"
RULES AND REGULATIONS
1. The sidewalks and public portions of the Building, such as entrances,
passages, courts, elevators, vestibules, stairways, corridors or halls, and the
streets, alleys or ways surrounding or in the vicinity of the Building shall not
be obstructed, even temporarily, or encumbered by Lessee or used for any purpose
other than ingress and egress to and from the Premises. No rubbish, litter,
trash or other material of any kind shall be placed, emptied or thrown into the
public portions of the Building.
2. No curtains, blinds, shades, louvered openings, tinted coating, film or
screens shall be attached to or hung in, or used in connection with, any window,
glass surface or door of the Premises, without the prior written consent of
Lessor, unless installed by Lessor.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Lessee on any part of the outside of the
Premises or Building or on corridor walls or window or other glass surfaces.
Signs on any entrance door or doors shall conform to the Building's standard
signage requirements. Signs on doors shall, at Lessee's expense, be inscribed,
painted or affixed by sign makers approved by Lessor. In the event of the
violation of the foregoing by Lessee, Lessor may remove same without any
liability and may charge the expense incurred by such removal to Lessee.
4. The windows, heating, ventilating and air conditioning vents and doors
that reflect or admit light and air into the halls, passageways or other public
places in the Building shall not be covered or obstructed by Lessee.
5. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in public halls, corridors,
or vestibules, without the prior written consent of Lessor.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by Lessee.
7. Lessee shall not in any way deface any part of the Premises or the
Building. If Lessee desires to use linoleum or other similar floor covering, an
interlining of building's deadening felt shall first be affixed to the floor, by
a paste or other material, soluble in water; the use of cement or other similar
adhesive materials, which are not water soluble, are expressly prohibited.
8. No bicycles, vehicles, or animals of any kind shall be brought into or
kept in or about the Premises. No cooking shall be done or permitted by Lessee
on the Premises except in conformity to law and then only in the utility
kitchen, if any, as set forth in Lessee's layout, which is to be primarily used
by Lessee's employees for heating beverages and light snacks. Lessee shall not
cause or permit any odors to be produced upon or permeate from the Premises.
9. No space in the Building shall be used for the manufacturing,
distribution or storage of merchandise or for the sale of merchandise, goods, or
property of any kind at auction. Notwithstanding the foregoing, Lessee shall be
permitted to sell or otherwise dispense, as reasonably necessary, medical
products in connection with Lessee's providing of medical or clinical services.
10. Lessee shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of the Building or neighboring
buildings or premises or those having business with them, whether by the use of
any musical instrument, radio, talking machine, unmusical noise, whistling,
singing, or in any other way. Lessee shall not throw anything out of the doors
or windows or down the passageways of the Building.
11. Neither Lessee, nor any of Lessee's employees, agents, visitors, or
licensees, shall at any time bring or keep upon the Premises any inflammable,
combustible or explosive fluid or chemical substance or other hazardous
material, other than reasonable amounts of customary medical supplies or
cleaning fluids or solvents required in the normal operation of Lessee's medical
offices.
12. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Lessee, nor shall any changes be made in existing locks
or the mechanism thereof, without the prior written approval of Lessor and
unless and until a duplicate key is delivered to Lessor. Lessee shall, upon the
termination of its tenancy, restore to Lessor all keys of storage, offices and
to toilet rooms, either furnished to, or otherwise procured by, Lessee, and in
the event of the loss of any keys so furnished, Lessee shall pay to Lessor the
cost thereof. This regulation shall not prohibit Lessee from locking and
securing storage cabinets or other areas where prescription drugs are stored.
13. Lessee shall not overload any floor. Lessee shall obtain Lessor's
consent before bringing any safes, freight, furniture, large items of medical
equipment or bulky articles into the Building and Lessor can specify to Lessee
the location for the placement of such articles. All removals, or the carrying
in or out of any safes, freight, furniture, large items of medical equipment or
bulky matter of any description must take place during the hours which Lessor or
the Building Manager may determine from time to time. Lessor reserves the right
to inspect all freight to be brought into the Building and to exclude from the
Building all freight which violates any of these Rules and Regulations or the
Lease of which these Rules and Regulations are a part. Lessee assumes, and shall
indemnify and hold Lessor harmless against any and all claims of injury or
damage to person or property arising in connection with Lessee's movement of the
aforesaid items.
14. Lessee shall refer to Lessor all contractors, contractors'
representatives, installation technicians or other persons engaged to render
services on or to the Premises, for Lessor's approval, prior to the commencement
of any contracted services. This provision shall apply to any and all work
performed in the Building on behalf of Lessee, including, but not limited to,
installations of communication, medical or other electrical equipment or
devices, or such other installations or attachments of any nature affecting the
floors, walls, woodwork, trim, windows, ceilings or equipment of any portion of
the Building.
15. Lessee shall not occupy or permit any portion of the Premises to be
occupied as an office for a public stenographer or typist, or for the
possession, storage, manufacture or sale of liquor, narcotics, tobacco in any
forms or as a barber or manicure shop, or as a public employment bureau or
agency, or for a public finance (personal loan) business. Lessee shall not
engage or pay any employees on the Premises, except those actually working for
Lessee on said premises, nor advertise for laborers giving an address at the
Building.
16. Lessor desires for the Building to be a "smoke-free" building, and
Lessor intends to prohibit smoking in the common areas and other untenanted
areas of the Building. No smoking shall be allowed in the Building, and Lessee
shall prohibit all its employees, agents, contractors, invitees and patients
from smoking in or around the Premises.
17. Lessee agrees that it shall not employ any cleaning or maintenance
contractor, nor any individual, firm or organization for such purpose, without
Lessor's prior written consent.
18. Lessor shall have the right to prohibit advertising by Lessee which, in
Lessor's opinion, tends to impair the reputation of the Building or its
desirability as a building for medical offices, and upon written notice from
Lessor, Lessee shall refrain from or discontinue such advertising.
19. Lessor reserves the right to exclude from the Building when the
Building is closed all persons who do not sign in and out on a register in the
lobby of the Building, showing the name of the person, the place visited and the
time of arrival and departure, though Lessor is not obligated to maintain such a
system. Lessor shall in no case be liable for damages for any error with regard
to the admission to or exclusion from the Building of any person. In the case of
invasion, mob, riot, public excitement or other circumstances rendering such
action advisable in the Lessor's opinion, Lessor reserves the right to prevent
access to the Building during the continuance of the same by such action as
Lessor may deem appropriate, including closing doors.
20. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
21. Requests by Lessee for special or additional services shall be made at
the Building management office. Building employees will not perform any work or
do anything outside of their regular duties, unless adequate prior arrangements
are made through the Building management office.
22. Canvassing, soliciting, and peddling in the Building are prohibited and
Lessee shall cooperate to prevent the same.
23. There shall not be used in any space, or in the public halls of the
Building, either by Lessee or by its jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
24. Lessee shall require all vendors, couriers, contractors and delivery
persons to park in parking areas designated by Lessor for such purposes.
25. Lessee, in order to obtain maximum effectiveness of the cooling system,
shall lower and close the blinds or drapes when the sun's rays fall directly on
windows of Premises. Lessee shall not remove the standard blinds installed in
the Premises.
26. All paneling, rounds or other wood products not considered furniture
shall be of fire retardant materials. Before installation of any such materials,
certification of the materials' fire retardant characteristics shall be
submitted to Lessor or its agents, in a manner satisfactory to Lessor.
27. Lessee shall not install any vending machines in the Building or
Premises without Lessor's consent.
28. All articles and the arrangement, style, color and general appearance
thereof, in the interior of the Premises that will be visible from the exterior
thereof, including, without limitation, window displays, advertising matter,
signs, merchandise, furniture, and store fixtures, shall be subject to Lessor's
approval.
29. Lessor may waive any one or more of these Rules and Regulations for the
benefit of any particular Lessee or Lessees, but no such waiver by Lessor shall
be construed as a waiver of such Rules and Regulations in favor of any other
Lessee or Lessees, nor prevent Lessor from thereafter enforcing any such Rules
and Regulations against any or all of the Lessees of the Building.
30. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the main text of the Lease, which text
shall control in the instance of conflict.
31. Lessor reserves the right to make such other reasonable rules and
regulations as in its judgment may from time to time be needed for safety, care
and cleanliness of the Building,. Such other rules and regulations shall be
effective upon written notification by Lessor to Lessee, and all other tenants
in the Building, for whom such new rules and regulations shall be uniformly
applied.
EXHIBIT "F"
BASE RENT INCREASE FORMULA
At the conclusion of the initial five year term, the monthly rental amount
shall be adjusted for the first renewal term (years 6-10) and for the second
renewal term (years 11-15) upon the following formula:
The initial term monthly rental of $ _____________, shall be adjusted
based upon the "Consumer Price Index for All Urban Consumers," U.S.
City average - all items (1984=100) as published by the Bureau of
Labor Statistics of the U.S. Department of Labor, Washington, D.C. -
(herein referred to as CPI-U) existing as of the lease commencement
date as set forth in "Exhibit D" of this lease (hereafter referred to
as the "base"). The calculation shall be made as follows:
a. Divide the CPI-U existing as of the date of the renewal term
(either the first or second renewal term as the case may be ) by
the CPI-U for the "base."
b. Determine the difference between that result and 1.000.
Multiply such result obtained in "b" above by the basic monthly
rental of $----------------.
c. Round up that result to the nearest whole dollar.
d. If such CPI-U increased, add the amount as determined in "d"
above to the base monthly rental of $_________________.
e. Such amount determined in "e" above shall be the new adjusted
monthly rental for the first renewal term or the second renewal
term, as the case may be.
f. It is the intention of the parties that the monthly rental amount
shall be adjusted twice based on the above stated formula at the
beginning of the first renewal term, and at the beginning of the
second renewal term, and thereafter shall remain the same for
each respective renewal term.
In the event the CPI-U is discontinued, ceases to incorporate a significant
number of the items previously incorporated therein, or if a substantial change
is made in the manner in which such CPI-U is calculated, the parties hereto
shall attempt to agree on an alternative form and if agreement cannot be
reached, the matter shall be submitted to arbitration under the Rules of the
American Arbitration Association then in effect. In no event shall the rent be
less than the base rent set forth above.
EXHIBIT "G"
SPECIAL STIPULATIONS
The Special Stipulations, if any, set forth below are also made a part of this
Lease:
1. Following the expiration of the term, Lessee shall pay Lessor (or shall
be paid by Lessor) for any amounts (or credits) due as Additional Rent pursuant
to Paragraph 5 of the Lease. This obligation shall survive the expiration of the
Term and "Operating Expenses" for the calendar year in which the term expires
shall be pro rated on a monthly basis.
2. Lessee may have executed this Lease based upon preliminary design
layouts and specifications, and pricing of same by Lessor's contractor. It is
possible that the design of the Premises and the cost of the Tenant Improvements
may change as the Drawings and Specifications (i.e., final working drawings) are
prepared. In the event such change in cost is due to an error by Lessor or its
contractor, the cost thereof shall be borne by Lessor. In the event such change
in cost is caused by error or omission or failure to act by Lessee or by a
design or specification change requested by Lessee, then Lessee shall be
responsible for any additional cost caused by such change.
In the event the final cost of the Design and Specification has
changed through no error of either party (e.g., due to general inflation,
reasonably unforeseen details or requirements, etc.), then the additional cost
shall be borne by Lessee. If Lessee is unwilling to pay such additional cost, it
may elect to cancel this Lease by giving Lessor written notice of such intent
within five (5) business days of receiving Lessor's statement of such additional
cost. Upon receiving Lessee's written notice of intent to cancel this Lease,
Lessor may elect to waive the additional rent within five (5) business days of
receiving Lessee's notice of cancellation, in which case this Lease will not be
canceled and the additional costs will be borne by Lessor.
3. If not in default hereunder and upon 120 days prior written notice to
Landlord, Tenant may renew this Lease for an additional period of five (5)
years, at the then current market rental.
4. Upon commencement of this Lease, Tenant's lease in MOB I shall terminate
except for any amounts owed by one party to the other as of the termination
date.
5. Lessee will be identified (in standard size and manner) on a building
directory provided by Lessor in the main lobby, and on any floor directories
provided by Lessor.
6. Lessee shall have access to Premises 24 hours per day, 365 days per
year, to include use of elevators, lighting and electricity (but use of heat,
ventilation and air conditioning only as specified in Paragraph 7 of the Lease.)
7. With respect to Paragraph 9 (A) of the Lease, the Lessor, at its
expense, shall maintain the structural elements of the Premises, the structural
elements and common areas of the Building of which the Premises are a part, and
the common areas of the Land in good condition and shall repair and/or replace
the same with reasonable diligence when necessary. The structural elements
should be defined as including the roof, exterior walls, structural supports,
windows and major systems such as plumbing, electrical, heating, ventilating and
air .conditioning. The Lessor should be obligated to operate the Building and
the Land in a manner consistent with its character as a first-class office
building and related common areas. Further, all repairs and replacements
performed by the Lessor shall be at a time and in a manner so as not to
unreasonably interfere with Lessee's normal business operations.
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