EXHIBIT 10(P)
THIS LEASE AGREEMENT (the "Lease'), made and entered into on this 6
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day of November, 1997 by and between IDI-SUMMIT, LTD. as Lessor, and SUMMIT
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COMMUNITY BANK, N.A., Lessee.
WITNESSETH
1. DEFINITIONS.
a. The "Real Property" shall mean the real property located in Tarrant
County, Texas, described as Exhibit "A" attached hereto and incorporated herein
for all purposes.
b. "Premises" shall mean the suite of offices outlined on the floor plan
attached to this Lease as Exhibit "B", Incorporated herein. The Premises are
stipulated for all purposes to contain approximately 5,000 square feet of "Net
Rentable Area" (as below defined). The Premises are located in the office
building (the "Building") located upon the Real Property.
c. "Base Rental" shall mean the sum of $14,81 0.00 per month and has been
adjusted initially under Paragraph 6 hereof to include $1,980.00 for the
estimated monthly basic costs. The Base Rental due for the first month during
the Lease Term (hereafter defined) has been deposited with Lessor by Lessee
contemporaneously with the execution hereof.
d. "Commencement Date" shall mean the earlier of (i) the date Lessee
actually occupies the Premises or receipt by Lessor of a Certificate of
Occupancy from the City of Fort Worth.
e. "Lease Term" shall mean a term commencing on the Commencement Date and
continuing until 240 months after the first day of the first full month
following Commencement Date.
f. This paragraph removed.
g. "Common Areas" shall mean those areas in the Building devoted to
corridors, elevator foyers, restrooms, mechanical rooms, janitorial closets,
electrical and telephone closets, vending areas and other similar facilities
provided for the common use or benefit of Lessees generally and/or the public.
h. "Service Areas" shall mean those areas within the outside walls used
for elevator mechanical rooms, building stairs. fire towers, elevator shafts,
flues, vents, stacks, pipe shafts and vertical ducts (but shall not Include any
such areas for the exclusive use of the particular Lessee).
i. "Net Rentable Area" of the Premises shall mean the gross area within
the inside surface of the outer glass of the exterior walls, to the mid-point of
any walls separating portions of the Premises from those of adjacent Lessees and
to the Corridor/Service Area surface of walls separating the Premises from
Common Areas or Service Areas plus Lessee's pro-rata share of Service Areas or
Common Areas. Net Rentable Area shall include any columns and/or projection(s)
which protrude Into the Premises. Net Rentable Area In the Building shall be
subject to change from time to time and be In accordance with the certification
of Landlord's architect.
j. "Basic Costs" shall mean all direct and indirect costs and expenses in
each calendar year of operating, maintaining, repairing, managing and owning the
Building and the Real Property including, without limitation, costs of
utilities, taxes (other than income and gift taxes) insurance, maintenance and
management services as defined in the Property Management Agreement. Basic
Costs shall not include the cost of capital improvements, depreciation,
interest, and principal payments on mortgage and other non-operating debts of
Lessor. Basic Costs shall, however, include the amortization of capital
improvements which are primarily for the purpose of reducing Basic Costs, or
which are required by Governmental authorities and which have been approved in
writing by Lessee.
k. "Exterior Common Areas" shall mean those areas which are not located
within the Building and which are provided and maintained for the common use and
benefit of Lessor and Lessees of the Building generally and the employees,
invitees, and licensees of Lessor and such Lessees; including without
limitation, all parking areas, whether such areas are located upon the Real
Property or not.
l. "Building Standard Improvements", when used herein, shall mean those
improvements to the Lessee occupied spaces within the Building which Lessor
shall agree to provide according to the Work
Letter attached hereto as Exhibit "C" and incorporated herein for all purposes.
"Building Grade" shall mean the type, brand and/or quality of materials Lessor
designates from time to time to be the minimum quality to be used In the
Building or the exclusive type, grade or quality of material to be used In the
Building.
Approved by: /s/ GWH /s/ PEN
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Lessor Lessee
Initials Initials
2. LEASE GRANT. Subject to and upon the terms herein set forth, Lessor
leases to Lessee and Lessee leases from Lessor the Premises.
3. LEASE TERM.
a. This Lease shall continue in force from the date hereof during the
period ending upon the expiration of the Lease Term, unless this Lease Is sooner
terminated or extended to a later date under any other term of provision hereof.
In the event Lessee shall be permitted by Lessor to occupy the Premises prior to
Commencement Date, such occupancy shall be subject to all of the terms and
conditions hereof excepting only the requirement of the payment of rent. Lessor
shall have no liability for failure to provide any services during a period of
occupancy prior to Commencement Date.
b. If, however, the Commencement Date is not obtained by July 31, 1998,
and the failure to achieve the Commencement Date is due to default on the part
of Lessor, then, as Lessee's sole remedy for the delay in Lessee's occupancy of
the Premises, Commencement Date shall be delayed until the earlier of actual
occupancy by Lessee or receipt by Lessor of a Certificate of Occupancy from the
City of Fort Worth and Lessee shall be given a pro rate credit toward Base
Rental for the number of days from July 31, 1998 until the Commencement Date.
4. USE. The Premises shall be used for office and banking purposes and for no
other purpose. Lessee agrees not to use or permit the use of the Premises for
any purpose which is illegal, or which, in Lessor's reasonable opinion, creates
a nuisance or which would substantially increase the cost of maintenance,
utilities or Insurance coverage with respect to the Building and parking areas.
5. BASE RENTAL.
a. Lessee agrees to pay during the Lease Term, to Lessor the Base Rental,
and all such other sums of money as shall become due hereunder as additional
rent, all of which are sometimes herein collectively called "rent' for the
nonpayment of which Lessor shall be entitled to exercise all such rights and
remedies as are herein provided in the case of the nonpayment of Base Rental.
The annual Base Rental for each calendar year or portion thereof during the
Lease Term, together with any estimated adjustment thereof pursuant to Paragraph
6 hereof then in effect, shall be due and payable in advance in twelve (12)
equal installments on the first day of each calendar month during the initial
term of this Lease and any extensions or renewals thereof, and Lessee hereby
agrees to pay such Base Rental and any adjustments thereto to Lessor at Lessor's
address provided herein (or such other address in Tarrant County as may be
designated by Lessor in writing from time to time) monthly, in advance, and
without demand. If the term of this Lease commences on a day other than the
first day of a month or terminates on a day other than the last day of a month,
then the installments of Base Rental and any adjustments thereto for such month
or months shall be prorated, based on the number of days In such month.
b. In the event any Installment of rent is not paid within five days
after the date due and payable, Lessee shall not be deemed to have cured default
thereby created hereunder until Lessee has paid to Lessor an administrative fee
of $25.00 plus late charge equal to 1% of the monthly rent, to compensate Lessor
for administrative expense incurred in connection with such default. Additional
late charges of like amount will continue to accrue each month until all rent
and late charges are current and timely paid. The provisions of this paragraph
shall not be deemed a waiver by Lessor of any of its remedies in paragraph 27
hereof, nor shall such provisions be deemed to provide Lessee with any right to
cure not given by paragraph 27, but merely set forth an additional requirement
to any right to cure which Lessor shall agree to grant to Lessee.
c. In the event any check of Lessees is not honored and is returned by bank
to Lessor, then Lessee
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agrees, in addition to basic rent and late charge, to pay to Lessor as
additional rent the sum of $15.00.
6. BASE RENTAL ADJUSTMENT. The Base Rental set forth In paragraph 1(c) shall
be adjusted upward from time to time in accordance with the following
provisions:
a. The Base Rental is intended to be net of all Basic Costs. Therefore,
Lessee shall, during the term of this Lease pay as an adjustment to Base Rental
hereunder an amount (per each square foot of Net Rentable Area within the
Premises) equal to the actual Basic Costs (but not to exceed $5.00 per square
foot of Net Rentable Area within the Premises for first year only , incurred by
Lessor per square foot of Net Rentable Area in the Building. Lessor shall have
the sole discretion of allocating costs to the particular Lessees within the
building based on anticipated usage of the services by the Lessee in relation to
the other Lessees which utilize the same services. Lessee shall pay as an
adjustment to Base Rental all costs incurred regardless of the ratio in
relationship to the building or to other Lessees. Lessor may collect such
additional Base Rental in arrears on a yearly basis. Lessor shall also have the
option to make a good faith estimate of the Basic Costs to be incurred for each
upcoming calendar year and upon thirty (30) days written notice to Lessee,
Lessor may require the monthly payment of Base Rental adjusted In accordance
with any increase in Basic Costs incurred during the calendar year.
b. By April 1 of each calendar year during Lessee's occupancy, or as soon
thereafter practical, Lessor shall make available to Lessee a statement of
Lessor's actual Basic Costs for the previous calendar year. If for any calendar
year additional Base Rental collected for the prior year as a result of Lessor's
estimate of Basic Costs, is an excess of the additional Base Rental actually due
during such prior year, then Lessor shall refund to Lessee any overpayment (or
as Lessors option, apply such amount against rentals due hereunder). Likewise,
Lessee shall pay to Lessor, on demand, any underpayment with respect to the
prior year.
7. COMMON AREA MAINTENANCE. Lessor agrees to furnish routine repair and
maintenance for the Building roof, exterior walls, and structural members as
well as routine cleaning, repairs and maintenance for all Common Areas and
Service Areas of the Building in the manner and to the extent deemed by Lessor
to be standard. Lessor shall supply hot and cold water at those points of
supply provided for general use of other Lessees In the Building, central heat
and air conditioning in season, at such temperatures and in such amounts as are
considered by Lessor to be standard or as required by governmental authority;
provided, however, heating and air conditioning service at time other than for
'Normal Business Hours" for the Building (which are 6:30 a.m. to 7:30 p.m. on
Mondays through Fridays and 8:00 a.m. to 2:00 p.m. on Saturdays, exclusive of
normal business holidays),shall be furnished only upon written request of Lessee
delivered to Lessor prior to 3:00 p.m. at least three days in advance of the
date such usage is requested. Lessee shall bear the entire cost of such
additional service as such costs are determined by Lessor from time to time.
Subject to the provisions of Paragraph 13, Lessor shall also provide facilities
to provide all electrical current required by Lessee in its use and occupancy of
the Premises. The failure by Lessor to any extent to furnish or the
interruption or termination of these defined services in whole or in part,
resulting from causes beyond the reasonable control of Lessor shall not render
Lessor liable in any respect nor be construed as an eviction of Lessee, nor work
an abatement of rent, nor relieve Lessee from the obligation to fulfill any
covenant or agreement hereof. Should any of the equipment or machinery used In
the provision of such services for any cause cease to function properly, Lessee
shall have no claim for offset or abatement of rent or damages on account of an
interruption In service occasioned thereby or resulting therefrom unless Lessor
fails to use its best effort to restore such interruption in service.
8. IMPROVEMENTS TO BE MADE BY LESSOR. Except as otherwise provided In the
Work Letter attached hereto as Exhibit "C', all installations and improvements
now or hereafter placed on the Premises other than Building Standard
Improvements shall be for Lessee's account and at Lessee's cost (and Lessee
shall pay ad valorem taxes and increased insurance thereon or attributable
thereto), which cost shall be payable by Lessee to Lessor in advance as
additional rent.
9. MAINTENANCE AND REPAIR OF PREMISES BY LESSOR. Except as otherwise
expressly provided herein, Lessor shall not be required to make any repairs to
the Premises.
10. GRAPHICS. Lessor shall provide and install, at Lessee's cost, all letters
or numerals on doors in the Premises; all such letters and numerals shall be in
the standard graphics for the Building and no others shall be used or permitted
on the Premises without Lessor's prior written consent.
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11. CARE OF THE PREMISES BY LESSEE. Lessee agrees to maintain the lnterior of
the Premises in a clean and hazard free state, and not to commit or allow any
waste to be committed on any portion of the Premises. and at the termination of
this Lease to deliver up the Premises to Lessor in as good condition as at the
date of the commencement of the term of this Lease, ordinary wear and tear
excepted.
12. REPAIRS AND ALTERATIONS BY LESSEE. Lessee covenants and agrees with
Lessor, at Lessee's own cost and expense, to repair or replace any damage done
to the Building, or any part thereof, caused by Lessee or Lessee's agents or
employees and such repairs shall restore the Building to as good a condition as
it was in prior to such damage, and shall be effected in compliance with all
applicable laws; provided, however, if Lessee falls to make such repairs or
replacements promptly, Lessor may, at its option, make repairs or replacements,
and Lessee shall pay the cost thereof to the Lessor on demand as additional
rent. Lessee agrees with Lessor not to make or allow to be made any alterations
to the Premises, install any vending machines on the Premises, or place signs on
the Premises which are visible from outside the Premises, without first
obtaining the written consent of Lessor in each such instance, which consent may
be given on such conditions as Lessor may elect. Any and all alterations to the
Premises shall become the property of Lessor upon termination of this Lease
(except for movable equipment or furniture owned by Lessee). Lessor may,
nonetheless, require Lessee to remove any and all fixtures, equipment and other
Improvements installed on the Premises. In the event that Lessor so elects, and
Lessee falls to remove such Improvements, Lessor may remove such improvements at
Lessee's cost, and Lessee shall pay Lessor on demand the cost of restoring the
Premises to Building Standard.
Lessor covenants and agrees with Lessee, at Lessor's own cost and expense,
to repair or replace any damage done to the Building or the Premises, or any
part thereof other than that caused by Lessee or Lessee's agents or employees
and such repairs shall restore the Building and Premises to as good condition as
It was prior to such damage.
13. USE OF ELECTRICAL SERVICES BY LESSEE. Lessee's use of electrical services
furnished by Lessor shall be subject to the following:
a. The Lessor will either install a sub-meter to meter all electric
utilized by Lessee and invoice the Lessee monthly for the electricity utilized
by Lessee.
The payment for electric service is subject to all of the rules, penalties
and agreements of the rental and will be considered as additional rental for the
purposes of this lease.
If Lessee's electricity is not sub-metered it will be billed to Lessee on a
pro-rata basis in accordance with Lessee's square footage occupancy in relation
to the total occupancy of the floor or of the total building. Lessor does also
have the right to charge extra for any special or extraordinary use beyond that
of the average Lessee usage..
14. PARKING. During the term of this Lease, Lessee may have the use of a
number of identified
allotted automobile parking spaces, as Lessor and Lessee deem reasonably
necessary.
15. LAWS AND REGULATIONS. Lessee agrees to comply with all applicable laws,
ordinances, rules, and regulations of any governmental entity or agency having
jurisdiction of the Premises.
16. BUILDING RULES. Lessee will comply with the rules of the Building attached
hereto as Exhibit "D' and incorporated herein for all purposes, and as altered
by Lessor from time to time and will cause all of its agents, employees,
lnvitees, and visitors to do so; all changes to such rules will be sent by
Lessor to Lessee In writing.
17. ENTRY BY LESSOR. Lessee agrees to permit Lessor or its agents or
representatives to enter into and upon any part of the Premises at all
reasonable hours (and in emergencies at all times) to inspect the same, or to
show the Premises to prospective purchasers, mortgagees, Lessees, or insurers,
to clean to make repairs, alterations or additions thereto. Lessee shall not be
entitled to any abatement or reduction of rent by reason of any such entry and
Lessee hereby holds Lessor harmless as to any claims or damages relating to any
such entry.
18. ASSIGNMENT AND SUBLETTING.
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a. Lessee shall not assign, sublease, transfer, encumber this Lease or
any interest therein without Lessor's prior written approval. Any attempted
assignment or sublease by Lessee in violation of the terms and covenants of this
paragraph shall be void.
b. If Lessee requests Lessor's consent to an assignment of the Lease or
subletting of all or a part of the Premises and if Lessor should fail to notify
Lessee in writing of its decision within a thirty (30) day period after Lessor
is notified in writing of the proposed assignment or sublease, Lessor shall be
deemed to have refused to consent to any assignment or subleasing, and to have
elected to keep this Lease in full force and effect.
c. Any assignee, sublessee or purchaser of Lessee's interest in this
Lease (all such assignees, sublessees and purchasers being hereinafter referred
to as "Successors", by assuming Lessee's obligations hereunder shall assume
liability to Lessor for all amounts paid to persons other than Lessor by such
Successor In consideration of any such safe, assignment or subletting, in
violation of the provisions hereof.
19. MECHANIC'S LIEN. Lessee will not permit any mechanic's lien or liens to be
placed upon the Premises or the Building and nothing in this lease shall be
deemed or construed in any way as constituting the consent or request of Lessor,
express or implied, by inference or otherwise, to any person for the performance
of any labor or the furnishing of any materials to the Premises, or any part
thereof, nor as giving Lessee any right, power, or authority to contract for or
permit the rendering of any services or the furnishing of any materials that
would give rise to any mechanics'or other liens against the Premises. In the
event any such lien is attached to the Premises, then, in addition to any other
right or remedy of Lessor, Lessor may, but shall not be obligated to, discharge
the same. Any amount paid by Lessor for any of the aforesaid purposes shall be
paid by Lessee to Lessor on demand as additional rent.
20. PROPERTY INSURANCE. Lessor shall maintain fire and extended coverage
insurance on the Building, and the Premises in such amounts as Lessor's
mortgagees shall require. Such insurance shall be a part of the Basic Costs,
and payments for losses thereunder shall be made solely to Lessor or the
mortgagees of Lessor as their interests shall appear. Lessee shall maintain at
its expense, in an amount equal to full replacement cost, fire and extended
coverage insurance on all of its personal property, including removable trade
fixtures, located in the Premises and in such additional amounts as are required
to meet Lessee's obligations pursuant to Paragraph 24 hereof. Lessee shall, at
Lessor's request from time to time, provide Lessor with current certificates of
insurance evidencing Lessee's compliance with this Paragraph 20 and Paragraph
21. Lessee shall attempt to obtain the agreement of Lessee's insurers to notify
Lessor that a policy is due to expire or be interrupted or terminated at least
30 days prior to such expiration.
21. LIABILITY INSURANCE. Lessee and Lessor shall each maintain a policy or
policies of comprehensive general liability insurance with regard to the
respective activities of each in the Building and Exterior Common Areas with the
premiums thereon fully paid on or before due date, issued by and binding upon
some insurance company approved by Lessor, such insurance to afford minimum
protection of not less than $1,000,000 combined single limit coverage of bodily
Injury, property damage or combination thereof. Lessor shall not be required to
maintain insurance against thefts within the Premises or the Building generally.
Lessor's expense in maintaining the liability insurance hereby required shall be
included in Basic Costs.
22. INDEMNITY. Neither Lessor nor Lessee shall be liable to the other, or to
the others agents, servants, employees, customers or invitees for any injury to
person or damage to property caused by any act, omission, or neglect of their
respective agents, servants, or employees, invitees, licensees or any other
person entering the Building under the invitation of Lessee or Lessor as the
case may be, or arising out of the use of the Premises by Lessee or Lessor and
the conduct of their business or out of a default by either in the performance
of its obligations hereunder. Lessee and Lessor hereby indemnify and hold the
other harmless from all liability and claims for any such damage or injury.
23. WAIVER OF SUBROGATION RIGHTS. Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee each hereby waives any and all rights of
recovery, claim, action, or cause of action, against the other, its agents,
officers, or employees, for any loss or damage that may occur to the Premises,
or any improvements thereto, or the Building of which the Premises are a part,
or any improvements thereto, or any personal property of such party therein, by
reason of fire, the elements, or
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any other cause(s) which are insured against under the terms of the standard
fire and extended coverage Insurance policies referred to in Paragraph 20
hereof, regardless of cause or origin, including negligence of the other party
hereto, its agents, officers, or employees.
24. CASUALTY DAMAGE. If the Premises or any part thereof shall be damaged by
fire or other casualty, Lessee shall give prompt written notice thereof to
Lessor. In case the Building (including the Premises) shall be so damaged that
substantial alteration or reconstruction of the Building shall, in Lessor's sole
opinion, be required (whether or not the Premises shall have been damaged by
such casualty) or in the event any mortgagee of Lessor's should require that the
insurance proceeds payable as a result of a casualty be applied to the payment
of the mortgage debt or in the event of any material uninsured loss to the
Building, Lessor may, at its option, terminate this Lease by notifying Lessee in
writing of such termination within ninety (90) days after the date of such
damage. If Lessor does not thus elect to terminate this Lease, Lessor shall
upon receipt of the insurance proceeds relating to such casualty, commence and
proceed with reasonable diligence to restore the Building to substantially the
same condition in which it was immediately prior to the happening of the
casualty, except that Lessor's obligation to restore shall not exceed the scope
of the work required to be done by Lessor in originally constructing the
Building and installing Building Standard Improvements (as described in the Work
Letter) in the Premises, nor shall Lessor be required to spend for such work an
amount in excess of the Insurance proceeds actually received by Lessor as a
result of the casualty. When the Premises have been restored to Building
Standard by Lessor, Lessee shall complete the restoration of the Premises,
including the reconstruction of all improvements in excess of Building Standard
and the restoration of Lessee's furniture and equipment. Lessor shall provide
Lessee with an "allowance" (the 'Reconstruction Allowance") to pay for
reconstruction in excess of Building Standard, such Reconstruction Allowance to
be in dollar amount equal to the dollar amount of the "allowance" described in
the Work Letter, but not to exceed insurance proceeds. Except for the
Reconstruction Allowance, all cost and expense of reconstructing the Premises to
a level in excess of Building Standard shall be borne by Lessee. Lessor shall
not be liable for any inconvenience or annoyance to Lessee or injury to the
business of Lessee resulting in any way from such damage or the repair thereof,
except that, subject to the provisions of the next sentence, Lessor shall allow
Lessee a fair diminution of Base Rental (but not of the adjustment thereto
relating to Basic Costs payable pursuant to paragraph 6 hereon) during the time
and to the extent the Premises are unfit for occupancy. If the Premises or any
other portion of the Building be damaged by fire or other casualty resulting
from the fault or negligence of Lessee or any of Lessee's agents, employees, or
invitees, the rent hereunder shall not be diminished during the repair of such
damage and Lessee shall be liable to Lessor for the cost of the repair and
restoration of the Building caused thereby to the extent such cost and expense
Is not covered by Insurance proceeds. If the damage results from the fault or
negligence of Lessor, or its agents, employees or invitees and the damage
materially impacts the operation of Lessee's business or service to Lessee's
customers, then rent but not CAM shall be abated until the damage is repaired.
25. CONDEMNATION. If the whole or substantially the whole of the Building or
the Premises should be taken for any public or quasi-public use, by right of
eminent domain or otherwise or should be sold in lieu of condemnation, then this
Lease shall terminate as of the date when physical possession of the Building or
the Premises is taken by the condemning authority. If less than the whole or
substantially the whole of the Building or the Premises is thus taken or sold,
Lessor (whether or not the Premises are affected thereby) may terminate this
Lease by giving written notice thereof to Lessee; in which event this Lease
shall terminate as of the date when physical possession of such portion of the
Building or Premises is taken by the condemning authority. If this Lease is not
so terminated upon any such taking or sale, the Base Rental payable hereunder
shall be diminished by an equitable amount agreed upon by Lessor and Lessee, and
Lessor shall, to the extent Lessor and Lessee agree is reasonably feasible,
restore the Building and the Premises to substantially their former condition
but such work shall not exceed the scope of the work done by Lessor in
originally constructing the Building and installing Building Standard
Improvements in the Premises, nor shall Lessor in any event be required to spend
for such work an amount in excess of the amount received by Lessor as
compensation for such damage. All amounts awarded upon a taking of any part or
all of the Building shall belong to Lessor and Lessee shall not be entitled to
and expressly waives all claim to any such compensation. All amounts awarded
upon a taking of any part or all of the Bank Premises shall belong to Lessee.
26. DAMAGES FROM CERTAIN CAUSES. Lessor shall not be liable to Lessee for any
loss or damage
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or any property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition, or order
of governmental body or authority or by any other cause beyond the control of
Lessor and not caused by Lessor's fault or negligence. Except as provided In
Section 24, Lessor shall not be liable for any damage or Inconvenience which may
arise through repair or alteration of any part of the Building or Premises.
27. EVENTS OF DEFAULT/REMEDIES.
a. The following events shall be deemed to be events of default by Lessee
under this Lease: (i) Lessee shall fail to comply with any provision of this
Lease or any other agreement between Lessor and Lessee Including the Work Letter
all of which terms, provisions and covenants shall be deemed material; (ii) the
leasehold hereunder demised shall be taken on execution or other process of law
in any action against Lessee; (iii) Lessee shall fail to promptly move into and
take possession of the Premises when the Premises are ready for occupancy or
shall cease to do business in or abandon any substantial portion of the
Premises; (iv) Lessee shall become insolvent or unable to pay its debts as they
become due, or Lessee notifies Lessor that it anticipates either condition, (v)
Lessee takes any action to, or notifies Lessor that Lessee intends to file a
petition under any section or chapter of the National Bankruptcy Act, as
amended, or under any similar law or statute of the United States or any State
thereof; or a petition shall be filed against Lessee under any such statute or
Lessee or any creditor of Lessee's notifies Lessor that it knows such a petition
will be filed or Lessee notifies Lessor that it expects such a petition to be
filed; or (vi) a receiver or trustee shall be appointed for Lessee's leasehold
interest in the Premises or for all or a substantial part of the assets of
Lessee.
b. Upon the occurrence of any event or events of default by Lessee,
whether enumerated in this Paragraph or not, Lessor shall have the option to
pursue any one or more of the following remedies (Lessee hereby specifically
waives notice and demand for payment of rent due): (i) terminate this Lease in
which event Lessee shall immediately surrender the Premises to Lessor; (ii)
terminate Lessee's right to occupy the Premises and re-enter and take possession
of the Premises (without terminating this Lease); (iii) enter upon the Premises
and do whatever Lessee is obligated to do under the terms of this Lease; and
Lessee agrees to reimburse Lessor on demand for any expenses which Lessor may
incur in effecting compliance with Lessee's obligations under this Lease, and
Lessee further agrees that Lessor shall not be liable for any damages resulting
to the Lessee from such action; (iv) require the payment of all Base Rental
during the remainder of the Lease Term in advance (and if Lessor so requires all
of such remaining Base Rentals shall immediately become due and payable); and
(v) exercise all other remedies available to Lessor at law or in equ ity,
including, without limitation, injunctive relief of all varieties.
Other than default in payment of rent, Lessor must give Lessee written
notice of default and a reasonable opportunity to cure said default.
In the event Lessor elects to re-enter or take possession of the Premises
after Lessee's default, Lessee hereby waives notice of such re-entry or
repossession and of Lessor's intent to re-enter or retake possession. Lessor
may, without prejudice to any other remedy which he may have for possession or
arrearages in rent, expel or remove Lessee and any other person who may be
occupying said Premises or any part thereof. In addition. the provisions of
Paragraph 29 hereof shall apply with respect to the period from and after the
giving of notice of such termination to Lessee. All Lessor's remedies shall be
cumulative and not exclusive. Forbearance by Lessor to enforce one or more of
the remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default.
c. This Paragraph 27 shall be enforceable to the maximum extent not
prohibited by applicable law, and the unenforceability of any portion thereof
shall not thereby render unenforceable any other portion. To the extent any
provision of applicable law requires some action by Lessor to evidence or effect
the termination of this Lease or to evidence the termination of Lessee's right
of occupancy, Lessee and Lessor hereby agree that written notice as provided in
Section 36 hereof must be given.
d. Lessor shall be in default hereunder in the event Lessor has not begun
and pursued with reas onable diligence the cure of any failure of Lessor to meet
its obligations hereunder within thirty (30) days of the receipt by Lessor of
written notice from Lessee of the alleged failure to perform. In no event shall
Lessee have the right to terminate or rescind this Lease as a result of Lessor's
default as to any covenant or agreement contained in this Lease or as a result
of the breach of any promise or inducement hereof, whether in this Lease or
elsewhere. Lessee hereby waives such remedies of termination and recession and
hereby agrees that Lessee's remedies for default hereunder and for breach of any
promise
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or inducement shall be limited to a suit for damages and/or injunction except as
set forth In Section 24. In addition, Lessee hereby covenants that, prior to the
exercise or any such remedies, it will give the mortgagees holding mortgages on
the Building notice and a reasonable time to cure any default by Lessor.
28. PEACEFUL ENJOYMENT. Lessee shall, and may peacefully have, hold and enjoy
the Premises, subject to the other terms hereof, provided that Lessee pays the
rent and other sums herein recited to be paid by Lessee and substantially
performs all of Lessee's covenants and agreements herein contained. This
covenant and any and all other covenants of Lessor shall be binding upon Lessor
and its successors only with respect to breaches occurring during Its or their
respective periods of ownership of the Lessee's interest hereunder.
29. HOLDING OVER. In the event of holding over by Lessee after expiration or
other termination of this Lease or in the event Lessee continues to occupy the
Premises after the termination of Lessee's right of possession pursuant to
Paragraph 27 (b) (ii) hereof, Lessee shall, throughout the entire holdover
period, pay rent equal to 150% of the Base Rental and additional Base Rental
pursuant to paragraph 6, which would have been applicable had the term of this
Lease continued through the period of such holding over by Lessee. No holding
over by Lessee after the expiration of the term of this Lease shall be construed
to extend the term of this Lease.
30. SUBORDINATION TO MORTGAGE. Lessee accepts this Lease subject and
subordinate to any mortgage, deed of trust or other lien presently existing or
hereafter arising upon the Premises or upon the Building, and to any renewals,
refinancing and extensions thereof, but Lessee agrees that any such mortgage
shall have the right at any time to subordinate such mortgage, deed of trust or
other lien to this Lease on such term and subject to such conditions as such
mortgagee may deem appropriate in its discretion. Lessor is hereby irrevocably
vested with full power and authority to subordinate this Lease to any mortgage,
deed of trust or other lien now existing or hereafter placed upon the Premises
or the Building, and Lessee agrees upon demand to execute such further
instruments subordinating this Lease or attorning to the holder of any such
liens as Lessor may request. The terms of this Lease are subject to approval by
the Lessor's permanent tender(s), and such approval is a condition precedent to
Lessor's obligations hereunder. In addition, all leases of portions of the
Building will be absolutely and unconditionally subordinate to such permanent
lender(s)' mortgage; such Lender(s) shall have discretion as to whether or not
it shall enter an attornment and nondisturbance agreement with Lessee and as to
(he form of any such agreement. In the event that Lessee should fail to execute
any such instrument promptly as requested, Lessee herdby irrevocably constitutes
Lessor as Its attorney-in-fact to execute such instrument in Lessee's name,
place and stead, it being agreed that such power Is one coupled with an
interest. Lessee agrees that it will from time to time upon request by Lessor
execute and deliver to such persons as Lessor shall request a statement in
recordable form certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and
effect as so modified), stating the dates to which rent and other charges
payable under this Lease have been paid, stating that Lessor is not in default
hereunder (or if Lessee alleges a default stating the nature of such alleged
default) and further stating such other matters as Lessor shall reasonably
require.
31. This paragraph removed.
32. ATTORNEY'S FEES. In the event either party defaults in the performance of
any of the terms of this Lease and the other party employs an attorney In
connection therewith, the defaulting party agrees to pay the prevailing party's
reasonable attorney's fees.
33. NO IMPLIED WAIVER. The failure of Lessor or Lessee to insist at anytime
upon the strict performance of any covenant or agreement or to exercise any
option, right, power or remedy contained in this Lease shall not be construed as
a waiver or a relinquishment thereof for the future. No payment by Lessee or
receipt by Lessor of a lesser amount than the monthly installment of rent due
under this Lease shall be deemed to be other than on account of the earliest
rent due hereunder, 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, and Lessor may accept such check or payment without prejudice to
Lessor's right to recover the balance of such rent or pursue any other remedy in
this Lease provided. Lessor reserves the right to charge Lessee a fee of $15 in
the event any check of Lessee's is returned without payment.
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34. PERSONAL LIABILITY. The liability of Lessor to Lessee for any default by
Lessor under the terms of this Lease shall be limited to the interest of Lessor
in the Building and the land on which the Building Is situated and Lessee agrees
to look solely to Lessor's interest in the Building and the land on which the
Building is situated for the recovery of any judgment from the Lessor, it being
intended that Lessor shall not be personally liable for any judgment or
deficiency.
35. This paragraph removed.
36. NOTICE. Any notice in this Lease provided for must, unless otherwise
expressly provided herein, be in writing, and may, unless otherwise in this
Lease expressly provided, be given or be served by depositing the same in the
United States mail, postpaid and certified and addressed to the party to be
notified, with return receipt requested or by delivering the same In person to
an officer of such party, or by prepaid telegram, when appropriate, addressed to
the party to be notified at the address stated in this Lease or such other
address notice of which has been given to the other party. Notice deposited in
the mail in the manner hereinabove described shall be effective from and after
the expiration of three (3) days after it is so deposited.
37. SEVERABILITY. If any term or provision 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 or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
38. RECORDATION. Lessee agrees not to record this Lease.
39. GOVERNING LAW. This Lease and the rights and obligations of the parties
hereto shall be interpreted, construed, and enforced in accordance with the laws
of the State of Texas.
40. FORCE MAJEURE. Whenever a period of time is herein prescribed for the
taking of any action by Lessor, Lessor shall not be liable or responsible for,
and there shall be excluded from the computation of such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions. or any other cause whatsoever
beyond the control of Lessor.
41. TIME OF PERFORMANCE. Except as expressly otherwise herein provided, with
respect to all required acts of Lessee and Lessor, time is of the essence of
this Lease.
42. TRANSFERS BY LESSOR. Lessor shall have the right to transfer and assign,
in whole or in part, all its rights and obligations hereunder and In the
Building and property referred to herein, and in such event and upon such
transfer Lessor shall be released from any further obligations hereunder, and
Lessee agrees to look solely to such successor in interest of Lessor for the
performance of such obligations.
43. COMMISSIONS. Lessor and Lessee hereby indemnify and hold each other
harmless against any loss, claim, expense or liability with respect to any
commissions or brokerage fees claimed on account of the execution and/or renewal
of this Lease due to any action of the indemnifying party.
44. EFFECT OF DELIVERY OF THIS LEASE. Lessor has delivered a copy of this
Lease to Lessee for Lessee's review only, and the delivery hereof does not
constitute an offer to Lessee or option. This Lease shall not be effective
until a copy executed by both Lessor and Lessee is delivered to and accepted by
Lessor.
45. EXHIBITS. In addition to Exhibits "A", "B", "C", and "D", the following
numbered exhibits are attached hereto and incorporated herein and made a part of
this Lease for all purposes:
46. CONTINGENCY. None.
47. BANK RENT DETERMINATION. For expansion space beyond the initial 5,000
-------------------
rentable square feet, the Bank Rent for the expansion space for the remainder of
the calendar year following the Commencement
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Date will be $10.00 per rentable square foot net plus electrical plus the
current Common Area Expense charge. For expansion space in any subsequent
calendar years, the Bank lease rate will be $10.00 per rentable square foot net
plus two percent (2%) per year for each calendar year beyond the initial or base
year, plus electric and plus Common Area Charges then applicable. For renewal at
the end of the lease term, the Bank Rent will be at the then greater of current
Market Rate or the base rate of $10.00 per rentable square foot net plus thirty-
five percent (35%) plus electric plus Common Area Charges then in effect.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease in multiple
original counterparts as of the day and year first above written.
LESSOR: IDI-SUMMIT, LTD. LESSEE: SUMMIT COMMUNITY BANK, N.A.
BY: IDI General Partner/
Property Manager
BY: /s/ Glen W. Hahn BY: /s/ Philip E. Norwood
--------------------------- ----------------------
TITLE: President TITLE: President
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