Exhibit 10.21
AGREEMENT OF LEASE - OFFICE MAX PLAZA
1. Basic Provisions and Definitions
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This Paragraph 1 is an integral part of this Lease and all of the terms
hereof are incorporated into this Lease in all respects. In addition to the
other terms which are defined in this Lease, the following capitalized terms,
whenever used in this Lease, shall have the meanings set forth in this
Paragraph, and only such meanings, unless such meanings are expressly
contradicted, limited or expanded elsewhere herein:
(a) Date of Lease: June 7, 2002
(b) Landlord: CIRCLE PLAZA ASSOCIATES
(c) Address of Landlord: X.X. Xxx 000
000 Xxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
(d) Tenant: TWO RIVER COMMUNITY BANK
(e) Address of Tenant: 0000 Xxxxx 00
Xxxxxxxxxx, Xxx Xxxxxx 00000
(f) Permitted Use: Bank offices ("back office operation")
(g) Lease Term: Five (5) years
(h) Possession and Lease
Commencement Date: The date Landlord and Tenant execute
the Lease and Landlord substantially
completes Landlord's Work and delivers
possession of the Premises to Tenant
Rent Commencement Date: July 1, 2002
(i) Expiration Date: June 30, 2007
(j) Initial Annual Basic Rent Rate: $33, 000.00 per annum ($2,750.00 per
month) subject to adjustment as
provided in paragraph 5(a)(i) hereof
and Exhibit D hereto
(k) Tenant's Expense Share: Tenant pays its pro-rata increase in
real estate share of real estate taxes
and building operating costs multiplied
by the Expense Share as set forth
below.
Common Area Maintenance Charges: 3.97%.
Real Estate Tax Charges: 3.97%
(1) Tenant's Initial Estimated
Tax Payment: $493.08 per month.
(m) Tenant's Initial Common Area
Maintenance Payment: $464.50 per month
(n) Intentionally Omitted
(o) Security Deposit: $3,000.00
(p) Broker: Xxxxx Realty Consultants
(q) Shopping Center: The land and improvements located in the Borough of
Eatontown and commonly known as Office Max Plaza, as more particularly shown on
the plan annexed hereto as Exhibit A and made a part hereof.
(r) Common Areas: All areas, improvements, space, equipment and special services
in or at the Shopping Center provided by Landlord for the common or joint use
and benefit of tenants of the Shopping Center, their officers, employees,
agents, servants, customers and other invitees, including without limitation all
parking areas, access roads, driveways, entrances and exits, retaining walls,
landscaped areas, truck serviceways or tunnels, loading docks, pedestrian malls,
courts, stairs, ramps and sidewalks, exterior stairs, comfort and first aid
stations, washrooms and parcel pickup stations, onsite and offsite signs
identifying or advertising the Shopping Center, and maintenance buildings.
(s) Insurance Requirements: All requirements of any insurance policy covering or
applicable to any part of the Shopping Center or the Premises or the use thereof
all requirements of the issuer of any such policy, and all orders, rules,
regulations, recommendations and other requirements of the Association of Fire
Underwriters, Factory Mutual Insurance Companies, the Insurance Services
Organization, and any other body exercising the same or similar functions and
having jurisdiction or cognizance of any part of the Shopping Center or the
Premises.
(t) Legal Requirements: All laws, statutes and ordinances (including building
codes and zoning regulations and ordinances) and the orders, rules, regulations,
directives and requirements of all Federal, State, county and city departments,
bureaus, boards, agencies, offices, commissions and other subdivisions thereof
or of any official thereof, or of any other governmental, public or quasi-public
authority, whether now or hereafter in force, which may be applicable to the
Shopping Center or the Premises, or any part thereof and all requirements,
obligations and conditions of all instruments of record affecting the Shopping
Center.
2. Premises
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(a) Landlord hereby demises and leases to Tenant and Tenant hereby rents
and hires from Landlord, those certain premises known as Store #3a (the
"Premises") consisting of a portion of the Shopping Center, which Premises are
substantially as shown by crosshatching on Exhibit A annexed hereto, together
with a non-exclusive right to use, in common with others, the Common Areas, as
the same may be designated from time to time by Landlord, subject, however, to
the terms and conditions of this Lease and to rules and regulations for the use
thereof as prescribed from time to time by Landlord.
(b) Landlord reserves the right to change the number and location of
buildings, building dimensions, the number of floors in any of the buildings,
store dimensions, Common Areas, and the identity and type of other stores and
tenancies comprising the Shopping Center, provided only that the size of the
Premises, reasonable access to the Premises and the parking facilities as shown
on Exhibit A shall not be materially impaired.
(c) Landlord reserves to itself the use of the roof exterior walls (other
than the store front) and the area above and below the Premises together with,
upon reasonable notice to Tenant except in the case of an emergency, the right
to install, maintain, use, repair, and replace pipes, ducts, conduits, wires and
structural elements leading through the Premises and which serve other parts of
the Shopping Center.
(d) By occupying the Premises or any portion thereof, Tenant shall be
deemed to have accepted the Premises.
3. Completion of the Premises
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(a) Prior to the Lease Commencement Date, Landlord shall complete the work
described in Exhibit "B" annexed hereto and made part hereof (the "Landlord's
Work"), at its sole cost and expense. Tenant shall pay to Landlord any expense
incurred by Landlord as a result of change requested by Tenant which affect
Landlord's Work.
(b) Tenant agrees that subsequent to the Commencement Date it shall, at
its sole cost and expense, provide all work of whatsoever nature that is
necessary to complete the Premises and open the Premises for business to the
public (collectively, the "Tenant's Work"). The Tenant will be responsible to
obtain all building permits and to build-out the space as per its requirements.
This Work shall include but not be limited to the distribution of HVAC; erection
of internal partition; installation of drop ceiling as needed; installation of
lighting fixtures and other electrical needs; installation of flooring;
painting; reconfiguration and extension of sprinkler
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heads as needed. Tenant agrees to furnish Landlord, with a complete and detailed
set of plans and specifications drawn by a registered architect, setting forth
and describing Tenant's Work in such detail as Landlord may reasonably require.
Tenant's architect and any contractor used in performing Tenant's Work shall be
approved in writing by Landlord, which approval shall not be unreasonably
withheld or delayed. Landlord may require Tenant, at Tenant's sole cost and
expense, to furnish a bond or other security satisfactory to Landlord to assure
diligent and faithful performance of Tenant's Work, If said plans and
specifications are not so furnished by Tenant within the required time periods
Landlord may, at its option, terminate this Lease and the tenancy hereby created
at any time thereafter, while such plans and specifications have not been so
furnished, by notice in writing thereof to Tenant. No deviation from the final
set of plans and specifications, once submitted to and approved by Landlord,
shall be made by Tenant without Landlord's prior written consent. Approval of
plans and specifications by Landlord shall not constitute the assumption of any
responsibility by Landlord for their accuracy or sufficiency, and Tenant shall
be solely responsible for such plans and specifications. If Tenant fails to
complete Tenant's Work in accordance with such plans and specifications prior to
July 1, 2002, Landlord may, at Landlord's option, terminate this Lease and the
tenancy hereby created or may, at Landlord's option enter the Premises and
complete Tenant's Work, and Tenant shall pay the cost thereof to Landlord upon
demand. In the event Tenant's Work is not completed by July 1, 2002, Landlord
shall have the right to terminate this Lease on notice to Tenant, and the
tenancy hereby created.
4. The Lease Commencement Date
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The term of this Lease (the "Term") shall commence July 1, 2002 or such
earlier date that Landlord delivers possession of the premises to Tenant and
shall expire on the Expiration Date.
5. Rent
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(a) Tenant shall pay to Landlord during the Term, in lawful money of the
United States, without any prior demand therefor and without any offsets or
deductions whatsoever, the following sums (collectively, "Rent"):
(i) fixed rent ("Basic Rent") at the Initial Annual Basic Rent Rate
for the portion of the Term commencing on the Rent Commencement Date and ending
on June 30, 2003, and thereafter at the rate or rates per annum specified in the
Basic Rent Escalation Rider annexed hereto as Exhibit D and made a part hereof;
(ii) additional rent ("Additional Rent") consisting of all other
sums of money as shall become due from and be payable by Tenant hereunder (for
default in the payment of which Landlord shall have the same remedies as for a
default in the payment of Basic Rent).
(b) Basic Rent shall be payable in advance in equal monthly installments
beginning on the Commencement Date and continuing on the first day of each
calendar month thereafter during the Term, except that Tenant has,
simultaneously with the execution of this Lease, paid to Landlord the first
month's Basic Rent, receipt of which (if by check, subject to collection) is
hereby acknowledged.
(c) In the event that the Commencement Date shall occur on a day other
than the first day of a calendar month, the monthly installment of Basic Rent
for the unexpired portion of the month in which the Commencement Date occurs
shall be prorated on the basis of the actual number of days in such month. In
the event the Expiration Date shall occur on a day other than the last day of a
calendar month, then the amount of the monthly installment of the Basic Rent,
for the last month or portion thereof in which the Expiration Date occurs shall
be prorated on the basis of the actual number of days in such month, and any
excess prepaid Basic Rent and Additional Rent shall be refunded by Landlord to
Tenant on the Expiration Date.
(d) If Tenant shall fail to pay any rents, charges or other sums ten (10)
days after the same become due and payable, such unpaid amounts shall bear
interest at the per annum rate of two percent (2%) in excess of the rate from
time to time announced by Citibank, N.A. as its "prime rate", calculated on the
basis of actual days elapsed, based on a 360 day year, from the due date of such
rents, charges or other sums to the date of payment; provided, however, that
such interest shall never exceed the maximum legal rate from time to time
permitted by applicable law. In addition thereto and to the extent permitted by
applicable law, if Tenant shall
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fail to pay any rents, charges or other sums, within ten (10) days after the
same become due and payable, then Tenant shall also pay to Landlord Additional
Rent to cover Landlord's additional overhead and administrative costs and
expenses arising out of such late payment in the amount of $200.00. The
provisions herein for Additional Rent shall not be construed to extend the date
for payment of any sums required to be paid by Tenant hereunder or to relieve
Tenant of its obligation to pay all such sums at the time or times herein
stipulated. Notwithstanding the imposition of such Additional Rent, Tenant shall
be in default under this Lease if any or all payments required to be made by
Tenant are not made at the time herein stipulated, and neither the demand for,
nor collection by Landlord of, such Additional Rent shall be construed as a
curing of such default on the part of Tenant.
(e) If any of the Rent payable under the terms of this Lease shall be or
become uncollectible, reduced or required to be refunded because of any
applicable law, ordinance, order, rule, requirement or regulation, Tenant shall
enter into such agreement(s) and take such other steps (without additional
expense to Tenant) as Landlord may request and as may be legally permissible to
permit Landlord to collect the maximum rents which from time to time during the
continuance of such legal rent restriction may be legally permissible (and not
in excess of the amounts reserved therefor under this Lease). Upon the
termination of such legal rent restriction, (a) the Rent shall become and
thereafter be payable in accordance with the amounts reserved herein for the
periods following such termination and (b) Tenant shall pay to Landlord, to the
maximum extent legally permissible, an amount equal to (i) the Rent which would
have been paid pursuant to this Lease but for such legal rent restriction less
(ii) the Rent paid by Tenant during the period such legal rent restriction was
in effect.
6. Tax Payments
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(a) For purposes of this Lease, the term "Taxes" shall mean all real
estate taxes, assessments (special or otherwise), ad valorem charges, front foot
benefit charges, water and sewer rents, rates and charges (other than charges
which are based on consumption and are paid directly by tenants or included in
Operating Costs), city and county taxes, minor privilege permits and any other
governmental liens, impositions or charges of a similar or dissimilar nature,
whether general, special, ordinary, extraordinary, foreseen or unforeseen, and
any payments in lieu of such charges, which may be levied, assessed or imposed
on or with respect to all or any part of the Shopping Center by any taxing
authority, whether or not the same constitutes one or more tax lots. If,
however, by law, any assessment may be divided and paid in installments, then,
for the purposes of this Paragraph 6(A) such assessment shall be deemed to have
been so divided, (B) such assessment shall be deemed payable in the maximum
number of installments permitted by law, and (C) there shall be deemed included
in taxes for each calendar year the installment(s) of such assessment becoming
payable during such calendar year, together with interest payable during such
calendar year on such installments(s) and on all installments thereafter
becoming due as provided by law, all as if such assessment had been so divided.
If at any time during the Term the methods of taxation prevailing at the date
hereof shall be altered so that in lieu of or as an addition to or as a
substitute for the whole or any part of the Taxes now levied, assessed or
imposed on all or any part of the Shopping Center, there shall be levied,
assessed or imposed (1) a tax, assessment, levy, imposition or charge based on
the rents received therefrom whether or not wholly or partially as a capital
levy or otherwise, or (2) a tax, assessment, levy, imposition, or charge
measured by or based in whole or in part upon all or any part of the Shopping
Center and imposed on Landlord, or (3) a license fee measured by the rent
payable by Tenant to Landlord, or (4) any other tax, levy, imposition, charge or
license fee however described or imposed, then all such taxes, assessments,
levies, impositions, charges or license fees or the part thereof so measured or
based, shall be deemed to be Taxes. In no event, however, shall Tenant be
required to pay Landlord's income taxes unless such income tax is in lieu of or
partial substitution for Taxes. The benefit of any discount for any early
payment or prepayment of Taxes shall accrue solely to the benefit of Landlord
and such discount shall be subtracted from Taxes.
(b) There shall be excluded from Taxes any real estate taxes, assessments
and other charges attributable to new ground floor leasable area hereafter
constructed as part of the Shopping Center. In the event that such new area is
not separately assessed, the portion of the real estate taxes, assessments and
other charges attributable to such new area shall be determined by Landlord, in
its reasonable judgment, and such portion shall be excluded from Taxes.
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(c) Tenant shall pay to Landlord, as Additional Rent for each calendar
year falling wholly or partially within the Term, an amount ("Tenant's Tax
Payment") equal to the product of Taxes for such calendar year and Tenant's
Expense Share.
(d) For the period, if any, between the Commencement Date and the last day
of the calendar year in which the Commencement Date occurs, Tenant shall pay to
Landlord on account of Tenant's Tax Payment, a monthly amount equal to Tenant's
Initial Estimated Tax Payment, as set forth in Paragraph 1(1) hereof, on the
first day of each month (provided that if the Commencement Date is other than
the first day of a calendar month, the payment for the month in which the
Commencement Date occurs shall be appropriately prorated). With respect to each
calendar year commencing after the calendar year in which the Commencement Date
occurs, Landlord may furnish to Tenant an estimate of amounts that will be
payable by Tenant pursuant to Paragraph 6(c) hereof for such year, and upon
receipt of such estimate Tenant will thereafter pay to Landlord, on the first
day of each month during such year, on account of Tenant's Tax Payment, an
amount equal to 1/12 of such estimate. Landlord may revise such estimate from
time to time. Until such estimate has been furnished to Tenant, Tenant shall pay
to Landlord, on the first day of each month during such year, an amount equal to
the amount payable by Tenant pursuant to Paragraph 6(c) for the previous
calendar year divided by the number of months contained in the Term during such
previous calendar year. At the end of each calendar year, Landlord shall furnish
Tenant with a reconciliation statement setting forth the amounts payable by
Tenant for such year pursuant to Paragraph 6(c) hereof and the amounts paid by
Tenant on account thereof pursuant to this Paragraph 6(d). Any additional
amounts payable by Tenant pursuant to such statement shall be payable within
fifteen (15) days after receipt of such statement, and the amount of any
overpayment by Tenant shall be promptly refunded by Landlord.
(e) Any Additional Rent payable by Tenant pursuant to this Paragraph 6
shall be collectible by Landlord in the same manner as Basic Rent.
(f) if the Commencement Date or Expiration Date shall occur on a date
other than January 1 or December 31, respectively, any Additional Rent under
this Paragraph 6 for the calendar year in which the Commencement Date or
Expiration Date shall occur, as the case may be, shall be appropriately
prorated. In no event shall Basic Rent ever be reduced by operation of this
Paragraph 6. The rights and obligations of Landlord and Tenant under the
provisions of this Paragraph 6 with respect to any Additional Rent shall survive
the Expiration Date or any sooner termination of the Term.
(g) if the lessor under any ground or underlying lease of or the holder of
any mortgage of the Shopping Center, or portion thereof shall require any tax
escrow deposits, in advance of the due date, then Tenant shall deposit with
Landlord, in advance, an amount equal to Tenant's Expense Share of such
deposits.
(h) Tenant agrees to pay prior to delinquency any and all taxes and
assessments levied, assessed or imposed during the Term upon or against (i) all
furniture, fixtures, signs and equipment and any other personal property
installed or located within the Premises, (ii) all alterations, additions,
betterments or improvements of whatsoever kind or nature made by or on behalf of
Tenant to the Premises, including any Tenant's Work or work to be performed by
Tenant, as the same may be separately levied, taxed and assessed against or
imposed directly upon Tenant by the tax authorities and (iii) the rentals
payable hereunder by Tenant to Landlord (other than Landlord's Federal, State
and local income taxes thereon).
(i) Should any governmental authority require that a tax, other than the
Taxes above mentioned, be paid by Tenant, but collected by Landlord, for and on
behalf of said governmental authority, and from time to time forwarded by
Landlord to said governmental authority, the same shall be paid by Tenant to
Landlord payable in advance.
(j) Only Landlord shall have the right to contest the validity or amount
of any Taxes by appropriate proceedings. Landlord, in its sole judgment, may
settle any such proceedings. In the event Landlord receives any refund of such
Taxes, Landlord shall credit such proportion of such refund as shall be
allocable to payments of Tenant's Tax Payment actually made by Tenant (less
costs, expenses and reasonable attorneys' and appraisers' fees) against the next
succeeding payments of Tenant's Tax Payment due from Tenant, or during the last
year of the term, Landlord will refund such net refund to Tenant within thirty
(30) days following the Expiration
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Date provided Tenant is not then in default of any of its obligations under this
Lease. Tenant agrees that it shall be bound by Landlord's judgment as to whether
or not to contest the validity or amount of any Taxes, and Tenant agrees that it
shall not at any time contest the validity or amount of any Taxes.
(k) With respect to any Taxes for which Tenant is responsible hereunder,
the official tax xxxx shall be conclusive evidence of the amount of Taxes
levied, assessed, or imposed, as well as of the items taxed. A copy of such tax
xxxx shall, upon request of Tenant, be submitted by Landlord to Tenant.
7. Common Area Maintenance Payments
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(a) For purposes of this Lease, the term "Operating Costs" shall mean the
total cost and expense incurred in operating, managing, equipping, lighting,
repairing, replacing, insuring and maintaining the Shopping Center, including
without limitation, gardening and landscaping, sidewalks, curbs, storm drainage
systems and other utility systems, sprinkler systems, fire protection and
security alarm systems and equipment, traffic control equipment, the cost of
public liability and property damage insurance, repairs, line painting,
lighting, sanitary control, including the septic system, removal of snow, trash,
rubbish, garbage and other refuse, depreciation on or rentals of machinery and
equipment used in such maintenance, the cost of personnel to implement such
services, to direct parking and to police the Common Areas, and twenty (20%)
percent of all of the foregoing costs to cover Landlord's administrative and
overhead costs.
(b) There shall be excluded from Operating Costs (1) debt service under
any mortgage of the Shopping Center; (2) rental payments under any ground or
underlying lease of the Shopping Center and (3) Taxes.
(c) All costs of operating, managing, equipping, lighting, repairing,
replacing, insuring and maintaining the Shopping Center shall be included in
Operating Costs for the calendar year in which such cost is incurred by
Landlord, except that:
(1) the cost of replacing (but not repairing) any roof shall be
amortized over a seven year period, and 1/7 of said cost shall be included in
Operating Costs for each of seven consecutive calendar years, commencing with
the calendar year in which such cost is incurred by Landlord;
(2) the cost of replacing (but not repairing) the asphalt surface of
the common parking area shall be amortized over a seven year period, and 1/7 of
said cost shall be included in Operating Costs for each of seven consecutive
calendar years, commencing with the calendar year in which such cost is incurred
by Landlord; and
(3) the cost of reconstruction and replacement of the facade of the
Shopping Center shall be amortized over a fifteen year period, and 1/15 of said
cost shall be included in Operating Costs for each of fifteen consecutive
calendar years, commencing with the calendar year in which such cost is incurred
by Landlord.
(4) the cost of replacing the septic system or part thereof shall be
amortized over a seven (7) year period, and 1/7 of said cost shall be included
in Operating Costs for each of seven (7) consecutive calendar years, commencing
with the calendar year in which such cost is incurred by Landlord.
(d) Tenant shall pay to Landlord, as Additional Rent for the period, if
any, between the Commencement Date and December 31 of the calendar year in which
the Commencement Date occurs, a monthly amount equal to Tenant's Initial Common
Area Maintenance Payment, as set forth in Paragraph 1(m) hereof for each
calendar month (provided that if the Commencement Date is other than the first
day of a calendar month, the payment for the month in which the Commencement
Date occurs shall be appropriately prorated) Tenant's Initial Common Area
Maintenance Payment shall be payable in advance in monthly installments
beginning on the Commencement Date and continuing on the first day of each
calendar month thereafter.
(e) Tenant shall pay to Landlord, as Additional Rent for each calendar
year falling wholly or partially within the Term (commencing with the calendar
year next following the calendar year in which the Commencement Date occurs) an
amount ("Tenant's Common Area
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Maintenance Payment") equal to the greater of (i) an amount equal to twelve (12)
times Tenant's Initial Common Area Maintenance Payment or (ii) the product of
Operating Costs for such calendar year and Tenant's Expense Share.
(f) With respect to each calendar year commencing with the calendar year
next following the calendar year in which the Commencement Date occurs, Landlord
may furnish to Tenant an estimate of amounts that will be payable by Tenant
pursuant to Paragraph 7(e) hereof for such year, and upon receipt of such
estimate Tenant will thereafter pay to Landlord, on the first day of each month
during such year on account of Tenant's Common Area Maintenance Payment, an
amount equal to 1/12 of such estimate. Landlord may revise such estimate from
time to time. Until such estimate has been furnished to Tenant, Tenant shall pay
to Landlord, on the first day of each month during such year, an amount equal to
the monthly amount payable by Tenant pursuant to Paragraph 7(d) hereof for the
previous calendar year, or an amount equal to 1/12 of the amount payable by
Tenant pursuant to Paragraph 7(e) hereof for the previous calendar year,
whichever is applicable. At the end of each calendar year, Landlord shall
furnish Tenant with a reconciliation statement setting forth the amounts payable
by Tenant for such year pursuant to Paragraph 7(e) hereof and the amounts paid
by Tenant on account thereof pursuant to this Paragraph 7(f). Any additional
amounts payable by Tenant pursuant to such statement shall be payable within
fifteen (15) days after receipt of such statement, and the amount of any
overpayment by Tenant shall be promptly refunded by Landlord.
(g) Any Additional Rent payable by Tenant pursuant to this Paragraph 7
shall be collectible by Landlord in the same manner as Basic Rent.
(h) If the Expiration Date shall occur on a date other December 31, any
Additional Rent under this Paragraph 7 for the calendar year in which the
Expiration Date shall occur shall be appropriately prorated. In no event shall
Basic Rent ever be reduced by operation of this Paragraph 7. The rights and
obligations of Landlord and Tenant under the provisions of this Paragraph 7 with
respect to any Additional Rent shall survive the Expiration Date or any sooner
termination of the Term.
(i) If at any time during the Term, Landlord constructs new improvements
as part of the Shopping Center resulting in an increase in ground floor leasable
area of more than 10% over the ground floor leasable area of the Shopping Center
as of the date of this Lease, then, from and after the date of issuance of a
certificate of occupancy covering such new improvements, Tenant's Expense Share,
for purposes of this Paragraph 7 only, shall be adjusted to a percentage equal
to the product of Tenant's Expense Share (as set forth in Paragraph 1(k) hereof)
and a fraction, the numerator of which is the net rentable area of all ground
floor space in the Shopping Center as of the date of this Lease and the
denominator of which is the net rentable area of all ground floor space in the
Shopping Center including such new improvements. Any Additional Rent under this
Paragraph 7 for the calendar year in which the certificate of occupancy for such
new improvements has been obtained shall, if such new improvements require an
adjustment to Tenant's Expense Share pursuant to this Paragraph 7(i), be
appropriately prorated.
8. Use.
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(a) Tenant shall use the Premises for the Permitted Use, as set forth in
Paragraph 1(g) hereof and shall at all times during the Term shall continuously
conduct and operate Tenant's business at the Premises under Tenant's Trade Name,
as defined in Paragraph 1(f) hereof. Tenant will not use or permit, or suffer
the use of the Premises for any other business or purpose. Tenant shall not
sell, display or solicit sales in the Common Areas. Tenant shall not use or
permit the use of any vending machines or public telephones on, at or about the
Premises without the prior written consent of Landlord. Tenant shall not commit
waste, perform any acts or carry on any practice which may injure the Shopping
Center or be a nuisance or menace to other tenants in the Shopping Center.
(b) Tenant shall provide, install and at all times maintain in the
Premises all suitable furniture, fixtures, equipment and other personal property
necessary for the conduct of Tenant's business therein in a businesslike manner.
Tenant shall conduct its business in the Premises during the regular customary
days and hours for such type of business in the city or trade area in which the
Shopping Center is located, and will keep the Premises open for business from
10:00 AM until at least 6:00 PM each day of the week, provided, however, that
Tenant shall not be required to be open for business on Sunday.
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(c) Intentionally omitted.
(d) Tenant shall not permit any business to be operated in or from the
Premises by any concessionaire or licensee without the prior written consent of
Landlord.
(e) Tenant shall cause all deliveries to be made to the rear of the
Premises.
(f) Tenant will not, without the Landlord's prior written consent, store,
place or maintain any merchandise or rubbish containers or other articles in any
vestibule or entry of the Premises or on the sidewalks adjacent thereto or
elsewhere outside the Premises.
(g) Tenant will not use or permit the use of any apparatus, or sound
reproduction or transmission, or any musical instrument, in such manner that the
sound so reproduced shall be audible beyond the confines of the Premises, and
will not use any other advertising medium, including without limitation flashing
lights or search lights, which may be heard or experienced outside of the
Premises.
(h) Tenant will not cause or permit objectionable odors to emanate or be
dispelled from the Premises.
(i) Tenant will not solicit business, distribute handbills or other
advertising matter or hold demonstrations in the parking areas or other Common
Areas.
(j) Tenant will not permit the parking of delivery vehicles so as to
interfere with the use of any driveway, walk, parking area, or other Common
Areas.
(k) Tenant will not use the plumbing facilities for any other purpose than
that for which they are constructed and will not permit any foreign substance of
any kind to be thrown therein and the expense of repairing any breakage,
stoppage, seepage or damage, whether occurring on or off the Premises, resulting
from a violation of this provision by Tenant or Tenant's employees, agents or
invitees shall be borne by Tenant. All grease traps and other plumbing traps
shall be kept clean and operable by Tenant at Tenant's own cost and expense.
(1) Intentionally deleted.
(m) Tenant will not place or cause or permit to be placed within the
Premises pay telephones, vending machines (except those solely for the use of
Tenant's employees) or amusement devices of any kind without the prior written
consent of Landlord.
(n) Tenant, at its sole cost and expense, shall comply with all Legal
Requirements and all Insurance Requirements relating to or affecting the
Premises, and shall procure all permits necessary for the Permitted Use.
(o) Tenant shall not place a load upon any floor that exceeds either the
floor load per square foot that such floor was designed to carry or exceeds that
which is allowed by any Legal Requirement.
(p) Tenant and its employees, agents, invitees, and licensees shall
faithfully observe and strictly comply with, and shall not permit violation of,
any rules and regulations concerning the Shopping Center as Landlord may from
time to time make and communicate to Tenant ("Rules and Regulations"). In the
case of any conflict or inconsistency between the provisions of this Lease and
any Rules and Regulations, the provisions of this Lease shall control. Landlord
shall have no duty or obligation to enforce any Rule or Regulation, or any term,
covenant or condition of any other lease, against any other tenant, and
Landlord's failure or refusal to enforce any Rule or Regulation or any term,
covenant or condition of any other lease against and other tenant shall be
without liability of Landlord to Tenant.
9. Control of Common Areas
-----------------------
(a) All Common Areas shall at all times be subject to the exclusive
control and management of Landlord, and Landlord shall have the right from time
to time to establish, modify and enforce rules and regulations with respect to
all Common Areas. Tenant agrees to abide by and conform with such rules and
regulations; to cause its concessionaires and suppliers, officers, agents,
employees and independent contractors so to abide and conform. Landlord shall
8
have the right to construct, maintain and operate lighting facilities in and on
all Common Areas; to police the same; from time to time to change the area,
level, location and arrangement of parking areas and other facilities located in
the Common Areas; to restrict parking by tenants, their officers, agents and
employees to employee parking areas; to enforce parking charges (by operation of
meters or otherwise), with appropriate provisions for free parking ticket
validating by Tenants; to close all or any portion of the Common Areas to such
extent as may, in the opinion of Landlord's counsel, be legally sufficient to
prevent a dedication thereof or the accrual of any rights to any person or the
public therein; to close temporarily all or any portion of the parking areas or
parking facilities; to discourage noncustomer parking; and to do and perform
such other acts in and to the Common Areas as, in the use of good business
judgment, Landlord shall determine to be advisable with a view to the
improvement of the convenience and use thereof by tenants, their officers,
agents, employees and customers. Landlord will operate and maintain the Common
Areas in such manner as Landlord, in its sole discretion, shall determine from
time to time. Without limiting the scope of such discretion, Landlord shall have
the full right and authority to employ all personnel and to make all rules and
regulations pertaining to and necessary for the proper operation and maintenance
of the Common Areas.
(b) All Common Areas not within the Premises, which Tenant may be
permitted to use and occupy, are to be used and occupied under a non-exclusive
right, and if the amount of the Common Areas be diminished, Landlord shall not
be subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of Rent, nor shall such diminution of the Common Areas
be deemed a constructive or actual eviction.
10. Alterations
-----------
(a) Tenant shall make no improvements, alterations, changes or additions
to the Premises which involve structural changes to the Premises or the Shopping
Center or which affect the mechanical, plumbing, electrical or other utility
systems of the Shopping Center without the Landlord's prior written approval.
Before proceeding with any such improvement, alterations, changes or additions,
Tenant shall submit to Landlord detailed plans and specifications therefor, for
Landlord's consent. Tenant shall reimburse Landlord for all reasonable expenses
incurred by Landlord in connection with (i) its decision as to whether to
approve the proposed improvements, alterations, changes or additions, and (ii)
inspecting the same to determine whether the same are being or have been
performed in accordance with the approved plans and specifications therefor and
with all Legal Requirements and Insurance Requirements, including, without
limitation, the fees and expenses of any architect or engineer employed for such
purpose.
(b) On the Expiration Date or date of earlier termination of this Lease
all improvements, alterations, changes and additions shall become the property
of Landlord and shall be surrendered with the Premises. All fixtures installed
in Premises during the Term shall be and remain a part of the Premises and shall
be deemed the property of Landlord as of the date such fixtures are completed,
or as of the date such fixtures are attached to or built into the Premises, and
shall not be removed by Tenant. At Landlord's option, any or all of the
foregoing which may be designated by Landlord shall be removed by Tenant, at its
sole cost and expense, on or before the Expiration Date or date of earlier
termination of this Lease, in which event Tenant shall restore the Premises to
their condition prior to the making of such improvements, alterations, changes
or additions, repair any damage or injury to the Shopping Center at its sole
cost and expense. Notwithstanding the foregoing, Tenant shall have the right to
remove its furniture and bank equipment from the Premises so long as it repairs
any damage or injury to the Premises caused by such removal.
(c) Any removal of Tenant's personal property from the Shopping Center
shall be accomplished in a manner which will minimize any damage or injury to
the Premises and the Shopping Center and any such damage or injury shall be
promptly repaired by Tenant at its sole cost and expense. Any personal property
of Tenant not removed by Tenant prior to the Expiration Date or date of sooner
termination of this Lease shall, at Landlord's option, either become the
property of Landlord or shall be disposed of or stored by Landlord at Tenant's
risk and expense.
(d) No approval of plans or specifications by Landlord or consent by
Landlord allowing Tenant to make improvements, alterations, changes or additions
to the Premises shall in any way be deemed to be an agreement by Landlord that
the contemplated work complies with any Legal Requirements or Insurance
Requirements or the certificate of occupancy for the Premises or the
9
Shopping Center, or deemed to be a waiver by Landlord of any of the provisions
of this Lease. Notice is hereby given that neither Landlord, Landlord's agents,
the lessor under any underlying lease of the Shopping Center, or portion thereof
or the holder of any mortgage on the Shopping Center, or portion thereof shall
be liable for any labor or materials furnished or to be furnished to Tenant upon
credit, and that no mechanic's or other liens for such labor or materials shall
attach to or affect any estate or interest of Landlord or any other such party
in and to the Premises or the Shopping Center.
11. Signs, Awnings and Canopies
---------------------------
(a) Tenant shall provide and install and maintain signs on the outside
facade above the show windows, which signs shall not project but shall be placed
flat against said facade, and shall maintain such signs in good condition and
repair at all times. Landlord reserves the right to approve and to specify the
design, type and construction of any such signs, which approval shall not be
unreasonably withheld or delayed.
(b) Except as provided in Paragraph 11(a) hereof, Tenant will not place or
suffer to be placed or maintained on any exterior door, wall or window of the
Premises any sign, awning or canopy, or advertising matter or other thing of any
kind, and will not place or maintain any exterior lighting, plumbing fixture or
protruding object or any decoration, lettering or advertising matter on the
glass of any window or door of the Premises.
12. Repairs and Maintenance
-----------------------
(a) Landlord shall keep and maintain the foundation, exterior walls and
roof of the building in which the Premises are located and the Common Areas in
good repair, except that Landlord shall not be called upon to make any such
repairs occasioned by the act or neglect of Tenant, its agents, employees,
invitees, licensees or contractors. Landlord shall not be called upon to make
any other improvements or repairs of any kind upon the Premises.
(b) Except as provided in Paragraph 12(a) hereof, Tenant shall keep and
maintain in good order, condition and repair (including any such replacement and
restoration as is required for that purpose) the Premises and every part thereof
and any and all appurtenances thereto wherever located, including, without
limitation, the exterior and interior portion of all doors, door checks,
windows, plate glass, storefront, all plumbing and sewage facilities within the
Premises, including free flow up to the main sewer line, fixtures, heating and
air conditioning and electrical systems (whether or not located in the
Premises), sprinkler system, walls, floors and ceilings, and any Tenant's Work
and other work performed by Tenant pursuant to Paragraph 10 hereof.
(c) Tenant shall be responsible, at its sole cost and expenses for
providing its own heat, air conditioning and ventilation with the unit now
servicing the Premises, for keeping same in good order and repair, and replacing
the same as and when necessary. Any replacement shall, upon installation become
the property of Landlord, if said unit has a boiler attached thereto, Tenant
agrees to carry boiler insurance and provide a certificate thereof to Landlord.
(d) Tenant will keep all exterior and interior store front surfaces clean
and will maintain the rest of the Premises and all areas immediately adjoining
the Premises in a clean, orderly and sanitary condition and free of insects,
rodents, vermin and other pests.
(e) Tenant shall, at its sole cost and expense, keep all outside areas
immediately adjoining the Premises, including, without limitation, sidewalks and
loading docks, free from ice and snow.
(f) Tenant will not permit accumulations of any debris, refuse and
garbage, but will remove the same and keep the same in odor-proof, rat-proof
containers within the interior of the Premises, shielded from the view of the
general public, until removed, and will not burn any refuse but will cause all
such refuse to be removed by such person or companies, including Landlord, as
may be designated in writing by Landlord, and will pay all charges therefor,
which shall in all events be reasonable; provided, however, that Landlord may
decline to designate any such person or company in which event all such refuse
shall be removed at Tenant's expense by such person or company as Tenant,
subject to Landlord's prior written approval, shall select.
(g) Tenant will, at its sole cost and expense, supply, maintain, repair
and replace any fire extinguishers or other fire prevention equipment and safely
equipment (including installation of approved hoods and ducts if cooking
activity is conducted on the Premises) required by any
10
Legal or Insurance Requirements, or otherwise recommended or required by any
insurance carrier insuring the Shopping Center or any portion thereof.
13. Insurance and Indemnity
-----------------------
(a) Tenant shall at all times during the Term, keep in full force and
effect a policy of public liability and properly damage insurance with respect
to the Premises, and the business conducted by Tenant and any subtenants of
Tenant in the Premises, in limits of not less than $1,000,000 per person,
$3,000,000 per accident and $500,000 for property damage. The policy shall name
Landlord, any person, firms or corporations designated by Landlord, and Tenant
as insured, and shall contain a clause that the insurer will not cancel or
change the insurance without first giving the Landlord twenty (20) days' prior
written notice. Said insurance shall be with an insurance company approved by
Landlord, and a copy of the policy shall be delivered to Landlord, if Tenant
fails to secure and maintain insurance policies complying with the provisions of
this Xxxxxxxxx 00(x), Xxxxxxxx may, but shall not be required to, secure and
maintain such insurance policies and Tenant shall pay the cost thereof to
Landlord, as Additional Rent, upon demand.
(b) Tenant agrees that it will not keep, use, sell or offer for sale in or
upon the Premises any article which may be prohibited by the standard form of
fire insurance policy. Tenant agrees to pay any increase in premiums for fire
and extended coverage insurance that may be charged daring the Term on the
amount of such insurance which may be carried by Landlord on he Premises or the
Shopping Center, resulting from Tenant's use or manner of use of the Premises or
from the type of merchandise sold by Tenant in the Premises, whether or not
Landlord has consented to the same. In determining whether increased premiums
are the result of Tenant's use of the Premises, a schedule, issued by the
organization establishing the insurance rate for the Premises, showing the
various components of such rate, shall be conclusive evidence of the several
items and charges which make up the fire insurance rate on the Premises.
(c) In the event Tenant's occupancy causes any increase of premium for the
fire, boiler and/or casually rates on the Premises or Shopping Center or any
part thereof above the rate of the least hazardous type of occupancy legally
permitted in the Premises, Tenant shall pay the additional premium on the fire,
boiler and/or casualty insurance policies by reason thereof. Tenant also shall
pay, in such event, any additional premium on the rent insurance policy that may
be carried by the Landlord for its protection against rent loss through fire.
Bills for such additional premiums shall be rendered by Landlord to Tenant at
such times as Landlord may elect, and shall be due from, and payable by, Tenant
when rendered, and the amount thereof shall be deemed to be, and be paid as
Additional Rent.
(d) Tenant will indemnify Landlord and save it harmless from and against
any and all claims, actions, damages, liability and expense in connection with
loss of life, personal injury and/or damage to property arising from or out of
any occurrence in, upon or at the Premises, or the occupancy or use by Tenant of
the Premises and Common Areas or any part thereof or occasioned wholly or in
part by any act or omission of Tenant, its agents, contractors, employees,
servants, lessees or concessionaires. If Landlord shall be made a party to any
litigation commenced by or against Tenant, then Tenant shall protect and hold
Landlord harmless and shall pay all costs, expenses and reasonable attorney's
fees incurred or paid by Landlord in connection with such litigation. Tenant
shall also pay all costs, expenses and reasonable attorney's fees that may be
incurred or paid by Landlord in enforcing the covenants and agreements in this
Lease.
(e) Landlord shall, at Tenant's expense, replace any and all plate and
other glass in the Premises damaged or broken from any cause, and the cost
thereof shall be paid by Tenant to Landlord on demand, as Additional Rent.
Landlord may insure, and keep insured, at Tenant's expense, all plate and other
glass in the Premises for and in the name of Landlord. Bills for the premiums
there for shall be rendered by Landlord to Tenant at such times as Landlord may
elect, and shall be payable by Tenant on demand, as Additional Rent.
14. Utilities
---------
(a) Tenant shall be solely responsible for and promptly pay all charges
for heat, water, gas, electricity or any other utility used or consumed in the
Premises. Should Landlord elect to supply the water, gas, heat, electricity or
any other utility used or consumed in the Premises,
11
Tenant agrees to purchase and pay for the same as Additional Rent at the
applicable rates filed by the Landlord with the proper regulatory authority, or,
in the alternative, if Landlord so elects, Landlord and Tenant from time to time
shall enter into a supplementary agreement in writing by which Tenant agrees to
pay as Additional Rent the increase in the fair and reasonable rental value of
the Premises due to the supplying of any such utilities. In no event shall
Landlord be liable for an interruption or failure in the supply of any such
utilities to the Premises.
(b) if any utility is metered, and the meter covers both the Premises and
other occupied premises, Tenant's obligation with respect to utility charges
arising from such meter shall bear the same ratio to the total amount of such
charges as the leasable area of the Premises bears to the aggregate leasable
area of the Premises and such other premises.
15. Intentionally omitted.
16. Assignment, Mortgage and Subletting
-----------------------------------
(a) Tenant shall not (i) assign or otherwise transfer this Lease or the
term and estate hereby granted, (ii) sublet all or part of the Premises or allow
the same to be used or occupied by others or in violation of Paragraph 8 hereof,
or (iii) mortgage, pledge or encumber this Lease or all or any part of the
Premises in any manner by reason of any act or omission on the part of Tenant,
without the prior written consent of Landlord in each instance, which consent
Landlord shall be entitled to withhold in its sole discretion.
(b) If this Lease be assigned, whether or not in violation of the terms of
this Lease, Landlord may collect rent from the assignee. If the Premises or any
part thereof be sublet or be used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after default by Tenant
and expiration of Tenant's time to cure such default, if any, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the rent herein reserved. The consent by Landlord to an assignment,
transfer, encumbering or subletting pursuant to any provision of this Lease
shall not in any way be considered to relieve Tenant from obtaining the express
prior consent of Landlord to any other or further assignment, transfer,
encumbering or subletting. Neither any assignment of this Lease nor any
subletting, occupancy or use of the Premises or any part thereof by any person
other than Tenant nor any collection of rent by Landlord from any person other
than Tenant, nor any application of any such rent as provided in this Paragraph
16 shall, under any circumstances be deemed a waiver of any of the provisions of
Paragraph 16(a) hereof or relieve, impair, release or discharge Tenant of its
obligations fully to perform the terms of this Lease on Tenant's part to be
performed and Tenant shall remain fully and primarily liable there for.
(c) Any assignment or subletting, if consented to, shall be further
subject to and conditioned upon the following: (1) at the time of any proposed
subletting or assignment, Tenant shall not be in default under any of the terms,
provisions or conditions of this Lease; and (ii) the sublessee or assignee shall
occupy only the Premises and conduct its business in accordance with the
Permitted Use; and (iii) that if the rents charges or other sums required to be
paid by such sublessee or assignee exceed the rents, charges or other sums
reserved hereunder, then Tenant shall pay to Landlord monthly the entire amount
of such excess, which shall be deemed Additional Rent, and (iv) prior to
occupancy, Tenant and its assignee or sublessee shall execute, acknowledge and
deliver to Landlord a fully executed counterpart of a written assignment of
lease or sublease, as the case may be (consented to by any guarantor of this
Lease), by the terms of which: (x) in case of an assignment, Tenant will assign
to such assignee Tenant's entire interest in this Lease, together with any
Security Deposit, and all prepaid rents hereunder, and the assignee will accept
said assignment and assume and agree to perform as the obligation of such
assignee directly to and for the benefit of Landlord and enforceable by
Landlord, all of the terms, covenants and conditions of this Lease on Tenant's
part to be performed; or (y) in case of a subletting, the sublease in all
respects will be subject and subordinate to all of the terms, covenants and
conditions of this Lease and the sublessee thereunder will agree to be bound by
and to perform all of the terms, covenants and conditions of this Lease on
Tenant's part to be performed, except the payment of rents, charges and other
sums reserved hereunder, which Tenant shall continue to be obligated to pay and
shall pay to Landlord; and (v) notwithstanding any such assignment or subletting
under the terms of this Paragraph, both Tenant and any guarantor will
acknowledge that, notwithstanding any such assignment or subletting and the
consent of Landlord thereto, neither Tenant nor said guarantor, if any, is
released or discharged from any liability whatsoever under this Lease and both
shall continue liable with the same force
12
and effect as though no assignment or sublease had been made; and (vi) Tenant
shall pay to Landlord the sum of One Thousand Dollars ($1,000.00) to cover
Landlord's administrative costs, overhead and attorneys' fees in connection with
such assignment or subletting.
(d) If Tenant, or any guarantor of this Lease, is a corporation or
partnership, and if at any time during the Term the person or persons who, on
the date of this Lease, owns or own a majority of such corporation's voting
shares or such partnership's partnership interest, as the case may be, ceases or
cease to own a majority of such shares (whether such transfer occurs at one time
or at intervals so that, in the aggregate, such a transfer shall have occurred),
or such partnership interest as the case may be (except as the result of
transfer by gift or inheritance) or if such guarantor, if any, is dissolved,
then (i) Tenant shall give Landlord prior written notice of such event in
accordance with Paragraph 16(f) hereof and (ii) any such event shall be
considered to be an assignment prohibited by the provisions of Paragraph 16(a)
hereof. This Paragraph 16(d) shall not be applicable to any corporation, all the
outstanding voting stock of which is listed on a national securities exchange
(as defined in the Securities Exchange Act of 1934, as amended). For the
purposes of this Paragraph 16(d), stock ownership shall be determined in
accordance with the principles set forth in Section 544 of the Internal Revenue
Code of 1954 as the same existed on August 16, 1936, as amended, and the term
"voting stock" shall refer to shares of stock regularly entitled to vote for the
election of directors of the corporation.
(e) If Tenant receives consent under Paragraph 16(a) hereof to any
subletting, assignment, transfer, mortgaging, pledging or encumbrance of this
Lease, the annual Basic Rent thereafter shall be no less than (1) an amount
equal to the average combined annual Basic Rent during the three (3) full 12
month calendar years immediately preceding any such transfer, or (ii) the
highest annual combined Basic Rent since the Commencement Date if Tenant at the
time of the transfer has been occupying the Premises less than three (3) full 12
month calendar years, or (iii) the Basic Rent payable pursuant to Paragraph 5
hereof increased by the percentage increase in the Index from the Index for the
month in which the Commencement Date occurs to the Index for the last month
immediately preceding any such transfer, whichever of the foregoing is
applicable. Tenant and any transferee shall promptly execute an agreement
prepared by Landlord amending this Lease to provide for the payment of the
revised annual Basic Rent during the remainder of the Term and all legal costs
with respect thereto shall be paid by Tenant to Landlord forthwith on demand as
Additional Rent. All of the other terms, covenants and conditions of this Lease
shall remain as herein specified.
(f) If Tenant intends to assign this Lease, sublet or part with possession
of all or any part of the Premises, or to transfer this Lease in any other
manner, in whole or in part or any estate or interest hereunder, then and so
often as such event shall occur, Tenant shall give prior written notice to
Landlord of such intent, specifying therein the proposed assignee, subtenant or
transferee and Landlord shall, within thirty (30) days thereafter, notify Tenant
in writing either, that (i) it consents or does not consent in accordance with
the provisions and qualifications in this Paragraph 16 or (ii) it elects to
terminate this Lease. If Landlord elects to terminate this Lease as aforesaid,
Tenant shall notify Landlord in writing within fifteen (15) days thereafter of
Tenant's intention either to refrain from such assignment, subletting or
transfer, or to accept the termination of this Lease, if Tenant fails to deliver
such notice within such period of fifteen (15) days, this Lease will thereby be
terminated upon the expiration of the said fifteen (15) day period. If Tenant
advises Landlord it intends to refrain from such assignment, subletting or
transfer, then Landlord's right to terminate this lease as aforesaid is null and
void in such instance.
(g) Landlord shall have no liability for brokerage commissions arising out
of a sublease or assignment by Tenant and Tenant shall and does hereby indemnify
Landlord and hold it harmless from any and all liability for brokerage
commissions arising out of any such sublease or assignment.
17. Access
------
(a) Landlord or its representatives, or designees, may enter the Premises
at reasonable times under the circumstances, whether or not during business
hours, to inspect the Premises, to enforce any provisions of this Lease, to make
or cause to be made such repairs as Landlord may deem necessary or desirable, to
cure defaults of Tenant pursuant to the rights granted Landlord under Paragraph
23 hereof, to repair any utility lines or system or systems servicing other
parts of the Shopping Center, to rectify any condition in the Premises adversely
affecting other
13
occupants of the Shopping Center or, upon prior reasonable notice to Tenant, to
exhibit the Premises to others. In the case of an emergency, Landlord may enter
the Premises without notice to Tenant but Landlord shall make a good faith
effort to provide telephone notice.
18. Tenant's Property
-----------------
Landlord shall not be liable for any damage to property of Tenant or of
others located in the Premises or in the Shopping Center, nor for the loss of or
damage to any property of Tenant or of others by theft or otherwise. Landlord
shall not be liable for any injury or damage to persons or property resulting
from fire, explosion, falling plaster, falling ceiling tiles, steam, gas,
electricity, water, rain or snow or leaks from any part of the Premises or
Shopping Center or from the pipes, appliances or plumbing works or from the
roof, street or subsurface or from any other place or by dampness or by any
other cause of whatsoever nature. Landlord shall not be liable for any such
damage caused by other tenants or persons in the Premises, occupants of adjacent
property, of the Shopping Center, or the public, or caused by operations in
construction of any private, public or quasi-public work. Landlord shall not be
liable for any latent or patent defect in the Premises or in the building of
which they form a part. All property of Tenant kept or stored on the Premises
shall be so kept or stored at the risk of Tenant only and Tenant shall hold
Landlord harmless from and hereby waives any claims arising out of damage to the
same or damage to Tenant's business, including subrogation claims by Tenant's
insurance carrier, unless such damage shall be caused by the willful act or
gross neglect of Landlord.
19. Casualty Damage
---------------
(a) Tenant shall give immediate notice (by telephone, confirmed in
writing) to Landlord of any damage caused to the Premises by fire or other
casualty, and if Landlord does not elect to terminate this Lease as provided in
Paragraph 19(b) hereof Landlord shall proceed with reasonable diligence and at
its sole cost and expense to repair and restore the Premises (other than any
Tenant's Work, any improvements, alterations, changes and additions to the
Premises, and any personal property of Tenant) to substantially the same
condition as immediately prior to said damage or destruction.
(b) If the Shopping Center or the Premises shall be destroyed or
substantially damaged by a casualty not covered by Landlord's insurance, or if
25% or more of the Premises is damaged or rendered untenantable by a casualty
covered by Landlord's insurance, or if the Premises are not affected but 25% or
more of the Shopping Center, or such portion of the Common Areas as shall render
the Premises or the Shopping Center untenantable, is damaged or rendered
untenantable, then in any such event Landlord may elect either to terminate this
Lease or to proceed to rebuild and repair the Premises or that portion of the
Shopping Center so damaged. Landlord shall give written notice to Tenant of such
election within 90 days after the occurrence of such casualty, or within 30 days
after the adjustment of the insurance settlement, whichever is later. In the
event that such notice of termination shall be given, this Lease shall terminate
as of the date provided in such notice of termination (whether or not the Term
shall have commenced) with the same effect as if that date were the Expiration
Date.
(c) If the Premises are damaged, the Basic Rent and the Additional Rent
payable pursuant to Paragraphs 6 and 7 hereof, shall be abated in proportion to
the degree in which Tenant's use of the Premises is impaired during the period
of any damage, repair or restoration provided for in this Paragraph 19. Except
for such abatement, Tenant shall not be entitled to any compensation or damage
for loss in the use of the whole or any part of the Premises and/or any
inconvenience or annoyance occasioned by damage, destruction, repair or
restoration.
20. Eminent Domain
--------------
(a) if the whole or any portion of the Premises or shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose, this
Lease shall terminate as of the date of the vesting or acquisition of title in
the condemning authority with the same effect as if said date were the
Expiration Date.
(b) If the whole or any portion of the Shopping Center (other than the
Premises) shall be acquired or condemned by eminent domain for any public or
quasi-public use or purpose, this Lease shall, at the option of Landlord,
terminate as of the date of the vesting or acquisition of title in the
condemning authority with the same effect as if said date were the Expiration
Date.
14
(c) Landlord shall give written notice to Tenant of any termination of
this Lease pursuant to Paragraph 20(a) or (b) within 90 days after the date of
such acquisition or condemnation.
(d) The proceeds of any condemnation award shall be the property of
Landlord, whether such award is compensation for damages to Landlord's or
Tenant's interest in the Premises, and Tenant hereby assigns all of its interest
in any such award to Landlord; provided, however, that Landlord shall have no
interest in any award made to Tenant for loss of business, relocation expenses,
or for the taking of Tenant's personal property if a separate award for such
items is made to Tenant.
21. Events of Default
-----------------
(a) The occurrence of any one or more of the following events and the
continuation thereof beyond the applicable grace period herein provided, if any,
shall constitute an "Event of Default":
(i) if Tenant shall default in the payment of (A) Basic Rent if any,
and such default shall continue for a period of 5 business days after written
notice from Landlord of such default or (B) any item of Additional Rent and such
default shall continue for a period of 10 business days after written notice
from Landlord of such default;
(ii) if Tenant shall default in the observance or performance of any
of its covenants for obligations under this Lease (other than the payment of
Basic Rent, and Additional Rent), and shall not have cured such default within
30 days after written notice from Landlord of such default, or, if such default
is of such a nature that it cannot be completely remedied within said 30 days,
Tenant shall not (A) have promptly, upon the giving by Landlord of such notice,
advised Landlord of Tenant's intention to institute all steps necessary to
remedy such situation, (B) promptly institute and thereafter diligently
prosecute to completion all steps necessary to remedy the same, and (C) complete
such remedy within a reasonable time after the date of the giving of said notice
by Landlord and in any event prior to such time as would either subject Landlord
or Landlord's agents to prosecution for a crime or cause a default under any
lease or mortgage referred to in Paragraph 24 hereof; or
(iii) if any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
Term would, by operation of law or otherwise, devolve upon or pass to any person
other than Tenant except as is expressly permitted under Paragraph 16 hereof; or
(iv) if the Premises shall become vacated, deserted or abandoned for
a period of 10 consecutive business days or if Tenant shall fail to take
occupancy of the Premises within 30 days after the Commencement Date; or
(v) if Tenant shall file a voluntary petition in bankruptcy or
insolvency, or commence a case under the Federal Bankruptcy Code, or shall be
adjudicated a bankrupt or insolvent, or shall file any petition or answer
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal bankruptcy
act or any other present or future applicable federal, state or other statute or
law (foreign or domestic), or shall make an assignment for the benefit of
creditors or shall seek or consent or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or any part of Tenant's
personal property; or
(vi) if within 60 days after the commencement of any proceeding
against Tenant, whether by the filing of a petition or otherwise, seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future federal bankruptcy act or any
other present or future applicable federal, state or other statute or law
(foreign or domestic), such proceeding shall not have been dismissed, or if,
within 60 days after the appointment or any trustee, receiver or liquidator of
Tenant or of all or any part of Tenant's personal property, without the consent
or acquiescence of Tenant, such appointment shall not have been vacated or
otherwise discharged, or if any execution or attachment shall be issued against
Tenant or any of Tenant's personal property pursuant to which the Premises, or
any part thereof shall be taken or occupied or attempted to be taken or
occupied; or
15
(vii) if Tenant shall default in the observance or performance of
any of its covenants or obligations under any other lease between Landlord and
Tenant, and shall not have cured such default within the applicable grace
period, if any, set forth therein.
(b) If at any time, (i) Tenant shall be comprised of two or more persons,
or (ii) Tenant's obligations under this Lease shall have been guaranteed by any
person, or (iii) Tenant's interest in this Lease shall have been assigned,
"Tenant", as used in subdivisions (v) and (vi) of Paragraph 21(a), shall mean
any one or more of the persons primarily or secondarily liable for Tenant's
obligations under this Lease. Any monies received by Landlord from or on behalf
of Tenant during the pendency of any proceeding of the types referred to in
subdivisions (v) and (vi) of Paragraph 21(a) shall be deemed paid as
compensation or the use and occupation of the Premises and the acceptance of any
such compensation by Landlord shall not be deemed an acceptance of Rent or a
waiver on the part of Landlord of any rights under this Lease.
22. Landlord's Remedies
-------------------
(a) In the case of any Event of Default as hereinabove provided (not cured
within the applicable cure period, if any, set forth in the Lease), Landlord
shall have the immediate right to reenter the Premises and to dispossess Tenant
and all other occupants therefrom and remove and dispose of all property therein
or, at Landlord's election, to store such property in a public warehouse or
elsewhere at the cost and for the account of Tenant, and without Landlord being
deemed guilty of trespass or becoming liable for any loss or damage which may be
occasioned thereby. Upon the occurrence of any such Event of Default, Landlord
shall also have the right, at its option, in addition to and not in limitation
of any other right or remedy, to terminate this Lease by giving Tenant three (3)
days' notice of termination and upon the expiration of said three (3) days, this
Lease, and the Term shall cease and terminate as fully and completely as if the
date of expiration of such three (3) day period were the Expiration Date and
thereupon, unless Landlord shall have theretofore demanded possession of the
Premises, Landlord shall have the immediate right of possession, in the manner
aforesaid, and Tenant and all other occupants shall quit and surrender the
Premises to Landlord, but Tenant shall remain liable as hereinafter mentioned.
(b) If by reason of the occurrence of any such Event of Default, the Term
shall end before the Expiration Date, or Landlord shall take possession of the
Premises, or Tenant shall be ejected, dispossessed, or removed therefrom by
summary proceedings or in any other manner, whether or not specifically
enumerated in this Lease, or if the Premises become vacant, deserted or
abandoned, Landlord at any time thereafter may relet the Premises, or any part
or parts thereof either in the name of Landlord or as agent for Tenant, for a
term or terms which may, at Landlord's option, be less than or exceed the period
of the remainder of the Term, and at such rent or rentals and upon such other
conditions, which may include concessions and free rent periods, as Landlord, in
its sole discretion, shall determine. Landlord shall receive the rents from such
reletting and shall apply the same first, to the payment of such expenses as
Landlord may have incurred in connection with reentering, ejecting, removing,
dispossessing, reletting, altering, repairing, redecorating, subdividing or
otherwise preparing the Premises for reletting, including brokerage and
attorneys' fees and expenses; second, to the payment of any indebtedness other
than rents, charges and other sums due hereunder from Tenant to Landlord; and
the residue, if any, Landlord shall apply to the fulfillment of the terms,
covenants and conditions of Tenant hereunder and Tenant hereby waives all claims
to the surplus, if any. Tenant shall be and hereby agrees to be liable for and
to pay Landlord any deficiency between the rents, charges and other sums
reserved hereunder (conclusively presuming the Additional Rent, if any, to be
the same as payable for the year immediately preceding such termination or
reentry) and the net rentals, as aforesaid, of reletting, if any, for each month
of the period which otherwise would have constituted the balance of the Term.
Tenant hereby agrees to pay such deficiency in monthly installments on the rent
days specified in this Lease, and any suit or proceeding brought to collect the
deficiency for any month, either during the Term or after any termination
thereof shall not prejudice or preclude in any way the rights of Landlord to
collect the deficiency for any subsequent month by a similar suit or proceeding.
Landlord shall in no event be liable in any way whatsoever for the failure to
relet the Premises or in the event of such reletting, for failure to collect the
rents reserved thereunder. Landlord is hereby authorized and empowered to make
such repairs, alterations, decorations, subdivision or other preparations for
the reletting of the Premises as Landlord shall deem advisable, without in any
way releasing Tenant from any liability hereunder, as aforesaid.
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(c) No such reentry or taking possession of the Premises by Landlord shall
be construed as an election on its part to terminate this Lease unless Landlord
gives written notice to Tenant of such intention or the termination thereof
shall result as a matter of law or be decreed by a court of competent
jurisdiction. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect to terminate this Lease for such previous
default.
(d) In the event this Lease is terminated pursuant to the foregoing
provisions of this Xxxxxxxxx 00, Xxxxxxxx may recover from Tenant all damages it
may sustain by reason of Tenant's default, including the cost of recovering the
Premises and reasonable attorneys' fees and expenses and, upon so selecting and
in lieu of the damages that may be recoverable under Paragraph 22(b) above
(measured by the monthly deficiency, if any), shall be entitled to recover from
Tenant, as and for liquidated damages, and not as a penalty, an amount equal to
the difference between the rents, charges and other sums reserved hereunder for
the period which otherwise would have constituted the balance of the Term from
the latest of the date of termination of this Lease, the date of reentry or the
date through which monthly deficiencies shall have been paid in full
(conclusively presuming the Additional Rent, if any, to be the same as payable
for the year immediately preceding such termination or reentry) and the rental
value of the Premises at the time of such election, for such period, both
discounted at the rate of four percent (4%) per annum to present worth, all of
which shall immediately be due and payable by Tenant to Landlord. In determining
the rental value of the Premises the rental realized by any reletting, if such
reletting be accomplished by Landlord within a reasonable time after the
termination of this Lease or within a reasonable time after Landlord regains
possession of the Premises, shall be deemed prima facie to be the rental value.
Nothing herein contained, however, shall limit or prejudice the right of
Landlord to prove and obtain as liquidated damages by reason of such termination
an amount equal to the maximum allowed by any statute or rule of law in effect
at the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the
amounts referred to in this Paragraph 22(d).
(e) The parties hereby waive trial by jury in any action, proceeding or
counterclaim brought by either party against the other on any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant created hereby, Tenant's use or occupancy of the Premises or
any claim for injury or damage.
(f) Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event Tenant shall be
evicted or dispossessed from the Premises for any cause, or Landlord reenters
the Premises following the occurrence of any Event of Default hereunder, or this
Lease is terminated before the Expiration Date.
(g) In the event of any breach or threatened breach by Tenant of any of
the terms and provisions of this Lease, Landlord shall have the right to
injunctive relief and declaratory relief as if no other remedies were provided
herein for such breach.
(h) The rights and remedies herein reserved by or granted to Landlord and
Tenant are distinct, separate and cumulative, and the exercise of any one of
them shall not be deemed to preclude, waive or prejudice Landlord's or Tenant's
right to exercise any or all others. Whether or not specifically enumerated in
this Lease, Landlord hereby reserves all rights and remedies at law and in
equity and nothing contained in this Lease shall be construed as a limitation of
any such rights or remedies.
(i) Landlord and Tenant hereby expressly waive any right to assert a
defense based on merger and agree that neither the commencement of any action or
proceeding, nor the settlement thereof nor the entry of judgment therein shall
bar Landlord or Tenant from bringing any subsequent actions or proceeding, nor
the settlement thereof nor the entry of judgment therein shall bar Landlord or
Tenant from bringing any subsequent actions or proceedings from time to time.
(j) Nothing contained in this Paragraph 22 shall be deemed or construed to
require Landlord to give the notices herein provided for prior to the
commencement of a summary proceeding for nonpayment of rent or a plenary action
for the recovery of rent on account of any default in the payment of rent, it
being intended that any such notice or notices are for the sole and only purpose
of creating a conditional limitation or a condition precedent hereunder pursuant
to which this Lease shall terminate and Tenant shall become a holdover tenant.
17
(k) The words "reenter", "reentry" and "reentered" as used in this Lease
shall not be deemed to be restricted to their technical legal meanings.
(l) In the event Landlord commences any summary proceeding or action for
nonpayment of rent, Tenant covenants and agrees that it will not interpose, by
consolidation of actions or otherwise, any non-mandatory counterclaim or other
claim seeking affirmative relief of whatsoever nature or description in any such
proceeding.
(m) Wherever in this Lease it is provided that Landlord is entitled to
receive attorneys' fees, or if any rent owing under this Lease is collected by
or through an attorney at law, Tenant agrees to pay as such attorneys' fees an
amount equal to the greater of (i) fifteen percent (15%) of the amount owed to
Landlord or (ii) the maximum amount allowed by law to be collected as attorneys'
fees.
23. Curing Tenant's Defaults
------------------------
If Tenant shall default in the performance of any term of this Lease on
Tenant's part to be performed, Landlord, without thereby waiving such default,
may, but shall not be obligated to, perform the same for the account and at the
expense of Tenant, without notice in case of emergency and upon 10 days' prior
notice in all other cases. Landlord may enter the Premises at any time to cure
any default without thereby incurring any liability to Tenant or anyone claiming
through or under Tenant. Bills for any expenses incurred by Landlord in
connection with any such performance or involved in collecting or endeavoring to
collect rent or enforcing or endeavoring to enforce any rights against Tenant
under or in connection with this Lease or pursuant to law, including any cost,
expense and disbursement involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material, labor or services
provided, furnished or rendered, including reasonable attorneys fees and
expenses, shall be paid by Tenant as Additional Rent on demand. In the event
that Tenant is in arrears in payment of Rent, Tenant waives Tenant's right, if
any, to designate the items against which any payments made by Tenant are to be
credited and Landlord may apply any payments made by Tenant to any items
Landlord sees fit, irrespective of and notwithstanding any designation or
requests by Tenant as to the items against which any such payments shall be
credited. Landlord reserves the right, without liability to Tenant to suspend
furnishing to Tenant electrical energy and all or any other services (including
heat, ventilating and air conditioning), whenever Landlord is obligated to
furnish the same, in the event that (but only for so long as) Tenant is in
arrears in paying Landlord therefor.
24. Subordination and Attornment
----------------------------
(a) This Lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such leases or the
Shopping Center or portion thereof and to all renewals, modifications,
consolidations, replacements and extensions of any such underlying leases and
mortgages. The provisions of this Paragraph 24(a) shall be self-operative and no
further instruments of subordination shall be required. However, if Landlord
requests confirmation of the subordination provided for in this Paragraph 24(a),
Tenant shall, without charge therefor, promptly execute and deliver to Landlord
any certificate or instrument which Landlord may at any time request in
connection therewith.
(b) The holder of any mortgage referred to in Paragraph 24(a) may elect
that this Lease shall have priority over such mortgage and upon notification by
such mortgagee to Tenant, this Lease shall be deemed to have priority over such
mortgage whether this Lease is dated prior to or subsequent to the date of such
mortgage.
(c) Tenant agrees to give the lessor under any lease or the holder of any
mortgage referred to in Paragraph 24(a) hereof a copy, by registered mail, of
any notice of default served upon Landlord, provided that prior to such notice
Tenant has been notified in writing (by way of notice of assignment of rents and
leases, or otherwise) of the address of such lessor or mortgagee. Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then each such lessor or mortgagee shall have an
additional 30 days within which to cure such default or, if such default cannot
be cured within that time, then such additional time as may be necessary to cure
such default (including but not limited to commencement of lease termination or
mortgage foreclosure proceedings if necessary to effect
18
such cure), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
(d) If at any time prior to the termination of this Lease, the lessor
under any lease or the holder of any mortgage referred to in Paragraph 24(a) (or
any person, or such person's successors or assigns, who acquires the interest of
Landlord under this Lease through foreclosure action or an assignment or deed in
lieu of foreclosure) shall succeed to the rights of Landlord under this Lease
through possession or foreclosure or delivery of a new lease or deed or
otherwise, Tenant agrees at the election and upon request of any such person, to
fully and completely attorn, from time to time, to and recognize such person as
Tenant's landlord under this lease upon the then executory terms of this Lease.
Upon such attornment this Lease shall continue in full force and effect as a
direct lease between Tenant and such successor landlord except that such
successor landlord shall not be:
(i) liable for any previous act or omission of any prior landlord
(including Landlord);
(ii) subject to any offsets or defenses which may have theretofore
accrued to Tenant against any prior landlord (including Landlord);
(iii) bound by any previous prepayment of Basic Rent, or Additional
Rent, if any, for a period greater than one month in advance;
(iv) bound by any modifications of this lease, unless such
modification has been approved in writing by such lessor or holder of any
mortgage; or
(v) liable for any security deposits pursuant to the lease unless
such security has actually been delivered to such lessor or holder of a
mortgage.
25. Surrender
---------
On the Expiration Date or upon the sooner termination of this Lease or
upon reentry by Landlord upon the Premises, Tenant shall surrender, vacate and
deliver to Landlord the Premises, including all improvements, additions,
alterations and replacements thereon, trade fixtures, furnishings, furniture,
equipment, merchandise and other personal property installed or placed in or on
the Premises by Tenant unless removed by Ten ant pursuant to Paragraph 10
hereof, "broom clean" and in good order, condition and repair except for
ordinary wear, tear and damage by fire or other insured casualty. if the
Premises are not surrendered upon the Expiration Date or sooner termination of
this Lease, Tenant hereby indemnifies Landlord against liability resulting from
delay by Tenant in so surrendering the Premises, including any claims made by
any succeeding Tenant or prospective Tenant founded upon such delay. Tenant's
obligations under this Paragraph 25 shall survive the Expiration Date or sooner
termination of this Lease. At the option of Landlord, Tenant shall be required
to remove the vault.
26. Quiet Enjoyment.
----------------
Tenant, if and so long as it pays the Rent and performs and observes the
other terms and covenants to be performed and kept by it as provided in this
Lease, shall have the peaceable and quiet possession of the Premises during the
Term free of the claims of Landlord or anyone claiming by, through or under
Landlord, subject to the terms of this Lease and any lease or mortgage referred
to in Paragraph 24(a) hereof. This covenant shall be construed as a covenant
running with the Land and shall not be construed as a personal covenant or
obligation of Landlord, except to the extent of Landlord's interest in this
Lease and then subject to the terms of Paragraph 28(k) and (1) hereof.
27. Security Deposit
----------------
Tenant has deposited with Landlord a sum equal to the amount of the
Security Deposit, as set forth in Paragraph 1(o) hereof, as security for the
full and punctual performance by Tenant of all of the terms of this Lease, in
the event Tenant defaults in the performance of any of the terms of this Lease,
including the payment of Rent, 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 for any sum which Landlord may expend or may be required to expend
by reason of Tenant's default in respect of any of the terms of this Lease,
including any damages or deficiency in the reletting of
19
the Premises, whether accruing before or after summary proceedings or other
reentry by Landlord. in the case of every such use, application or retention,
Tenant shall, on demand, pay to Landlord the sum so used, applied or retained
which shall be added to the security deposit so that the same shall be
replenished to its former amount. If Tenant shall fully and punctually comply
with all of the terms of this Lease, the security, without interest, shall be
returned to Tenant after the termination of this Lease and delivery of exclusive
possession of the Premises to Landlord. In the event of a sale or lease of the
Shopping Center Landlord shall have the right to transfer the security to the
vendee or lessee and Landlord shall ipso facto be released by Tenant from all
liability for the return of such security; and Tenant agrees to look solely to
the new landlord 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 shall not assign or encumber or attempt to
assign or encumber the monies deposited herein as security and neither Landlord
nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or encumbrance.
28. Miscellaneous
-------------
(a) No agreement to accept a surrender of this Lease shall be valid unless
in writing signed by Landlord. The delivery of keys or possession to Landlord or
any agent or employee of Landlord shall not operate as a termination of this
Lease or surrender of the Premises.
(b) No provision of this Lease shall be deemed to have been waived by
Landlord or Tenant unless such waiver be in writing signed by the party making
such waiver. The failure of Landlord or Tenant to seek redress for violation of,
or to insist upon strict performance of, any covenant or condition of this
Lease, shall not be deemed a waiver thereof or prevent a subsequent act, which
would have originally constituted a violation, from having all the force and
effect of an original violation.
(c) The receipt by Landlord of Basic Rent, and/or any items of Additional
Rent with knowledge of the breach of any covenant of this Lease shall not be
deemed a waiver of such breach. No payment by Tenant or receipt by Landlord of a
lesser amount than the Basic Rent, or Additional Rent, if any, herein stipulated
shall be deemed to be other than on account of the earliest Basic Rent, or
Additional Rent, if any, reserved hereby which is due and owing at the time such
payment is received by Landlord. No endorsement or statement on any check or any
letter accompanying any check or payment of any such Rent shall be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right or remedy provided in this Lease.
(d) The captions used in this Lease are for convenience only and do not in
any way limit or amplify the terms and provisions hereof. Whenever herein the
singular number is used, the same shall include the plural, and words of any
gender shall include each other gender.
(e) The Exhibits hereto are hereby incorporated into this Lease.
(f) This Lease and all other agreements and instruments signed
contemporaneously herewith contain the entire agreement between parties, and no
agreement, representation or inducement shall be effective to change, modify or
terminate this Lease in whole or in part unless such agreement, representation
or inducement is in writing and signed by both parties hereto.
(g) Tenant at any time or from time to time at the request of Landlord or
at the request of the lessor under any lease or the holder of any lease or
mortgage referred to in Paragraph 24(a) hereof, will execute, acknowledge and
deliver to the party so requesting, a certificate by Tenant certifying:
(i) that this Lease has not been modified, changed, altered or
amended in any respect and is in full force and effect (or, if there have been
modifications, stating the modifications and that the Lease is in full force and
effect as modified);
(ii) that this Lease is the only Lease between Landlord and Tenant
affecting the Premises;
20
(iii) that Tenant has accepted the Premises (or part thereof), is in
occupancy of the Premises, or part thereof, and is paying Rent hereunder, for
which it is then liable on a current basis;
(iv) that there are then existing no credits, offsets or defenses
against the enforcement of any provisions of this Lease (or, if so, specifying
the same);
(v) the dates, if any, to which the Rent or other charges due
hereunder have been paid in advance and that there has been no prepayment of
Rent other than as provided for in this Lease;
(vi) that there are no existing defaults by Landlord or Tenant under
this Lease (or, if so, specifying such default);
(vii) whether or not Tenant has exercised any renewal options or
other options which may be provided in this Lease;
(viii) that there are no actions, whether voluntary or otherwise,
pending against Tenant under the bankruptcy laws of the United States or any
state thereof; and
(ix) such further information with respect to the Lease or the
Premises as Landlord, or such lessor or mortgagee, may request.
Any such certificate may be relied upon by any prospective purchaser of the
Shopping Center or of the interest of Landlord in any part thereof, by any
mortgagee or prospective mortgagee thereof, by any lessor or prospective lessor
thereof by any lessee or prospective lessee thereof or by any prospective
assignee of any mortgage thereof. The failure of Tenant to execute, acknowledge
and deliver to Landlord a statement in accordance with the provisions of this
Paragraph 28(g) within 10 days after request therefor shall constitute an
acknowledgment by Tenant, which may be relied on by any person who would be
entitled to rely upon any such statement, that such statement as submitted by
Landlord is true and correct.
(h) If any provision of this Lease should be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this Lease shall not be affected thereby.
(i) The terms, provisions and covenants contained in this Lease shall
apply to, inure to the benefit of and be binding upon the parties hereto and
their respective heirs, personal representatives, successors and permitted
assigns and shall be covenants running with the land.
(j) In the event of any default or breach by Landlord with respect to any
of the terms, covenants and conditions of this Lease to be observed and
performed by Landlord, Tenant shall look solely to the estate and property of
Landlord in the Shopping Center for the collection of any sum of money on a
judgment, or for the payment or expenditure of any money under any decree of
specific performance, injunctive relief or other equitable relief (or other
judicial process) requiring performance by Landlord of any obligation under this
Lease. No other property or assets of the Landlord, Landlord's agents,
incorporators, shareholders, officers, directors, partners, principals
(disclosed or undisclosed) or affiliates shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Tenant's remedies.
(k) The term "Landlord" shall mean only the owner at the time in question
of the present Landlord's interest in the Shopping Center and in the event of a
sale or transfer of the Shopping Center (by operation of law or otherwise) the
transferor shall be and hereby is automatically and entirely released and
discharged, from and after the date of such sale or transfer, of all liability
in respect of the performance of any of the terms of this Lease on the part of
Landlord thereafter to be performed.
(1) Tenant hereby expressly waives any and all rights granted by or under
any present or future laws to redeem Landlord's reversionary interest in the
Shopping Center. In addition, in the event of any lawful termination of the Term
or any repossession of the Premises by reason of Tenant's default hereunder,
Tenant waives (i) any notice of reentry or of the institution of legal
proceedings to that end, (ii) any right of redemption, reentry or repossession,
and (iii) the benefit of any laws now or hereafter in force exempting properly
from liability for rent or otherwise. The
21
provisions of this Paragraph shall survive the Expiration Date or sooner
termination of this Lease.
(m) Neither Landlord nor Tenant shall record this Lease, any amendment to
this Lease, or any other memorandum of this Lease without the prior written
consent of the other party and in the event such consent is given the party
requesting such consent shall pay all transfer taxes, recording fees and other
charges in connection with such recording notwithstanding any provision of law
imposing liability therefor upon the other party.
(n) Except as otherwise expressly set forth herein all notices, requests,
demands, approvals or consents required hereunder or by law (collectively,
"Notices") shall be in writing and shall be given by personal delivery by
mailing the same, certified or registered mail, return receipt requested,
postage prepaid, or by recognized overnight courier with receipt acknowledged
addressed to Landlord at the Address of Landlord, as set forth in Paragraph 1(c)
hereof and if to Tenant, at the Address of Tenant, as set forth in Paragraph
1(e) hereof if such Notice is given prior to the Commencement Date and
thereafter at the Premises. Notices shall be deemed given upon such personal
delivery, the next day if by recognized overnight carrier or, if mailed, 2
business days after mailing. The persons designated for the receipt of Notices,
and the addresses to which Notices may be given or made by either party, may be
changed or supplemented by Notice given by such party to the other and
notwithstanding the preceding sentence such Notice shall be effective 10 days
after mailing or delivery.
(o) Tenant expressly acknowledges that neither Landlord nor Landlord's
agents has made or is making, and Tenant, in executing and delivering this
Lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
Lease, and no rights, easements or licenses are or shall be acquired by Tenant
by implication or otherwise unless expressly set forth in this Lease.
(p) Tenant warrants that it has not employed nor had any dealings or
discussions with any broker or agent in connection with the negotiation or
execution of this Lease other than the broker, if any, referred to in Paragraph
7(p) hereof. Landlord agrees to pay said broker a commission in accordance with
a separate agreement. Tenant agrees to indemnify Landlord and hold it harmless
from and against any and all liability for commissions or other compensation or
charges and all costs and expenses incurred in defense of the claim if this
warranty is breached. In the event of a suit on any such claim, Landlord shall
notify and impede Tenant, or Tenant may intervene.
(q) Tenant hereby waives any claim against Landlord which it may have
based upon any assertion that Landlord has unreasonably withheld or unreasonably
delayed any consent, and Tenant agrees that its sole remedy shall be an action
or proceeding to enforce any such provision or for specific performance,
injunction or declaratory judgment. In the event of such a determination, the
requested consent shall be deemed to have been granted. The sole remedy for
Landlord's unreasonably withholding or delaying of consent shall be as provided
in this Paragraph 28(s).
(r) The terms of this Lease shall bind and benefit the successes and
assigns of the parties with the same effect as if mentioned in such instance
where a party is named or referred to, except that no violation of the
provisions of Paragraph 16 hereof shall operate to vest any right in any
successors or assignee of Tenant and that the provisions of this Paragraph shall
not be construed as modifying the conditions of limitation contained in
Paragraph 16 hereof.
(s) This lease may be executed in several counterparts, each of which
shall constitute an original instrument and all of which shall together
constitute one and the same instrument.
(t) Landlord does hereby grant Tenant a right of first refusal to lease
with respect to Store 4 (the laundromat space) and Store 4a, for the Permitted
Use (1)(f). In the event Landlord receives an offer to lease with respect to
either or both spaces, Landlord shall provide written notice thereof to the
Tenant, setting forth the pertinent terms and conditions of the proposed
leasing. Tenant shall have thirty (30) days within which to notify the Landlord
in writing that it accepts or rejects its right of first refusal to lease the
space. Failure of the Tenant to notify the Landlord in writing of its intention,
shall be deemed a waiver of its rights hereunder. In the event Tenant elects not
to exercise its rights of first refusal or otherwise waives its rights
hereunder, then Landlord shall have the right to proceed to lease the space to
the proposed tenant.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease on the day
and year first above written.
ATTEST: CIRCLE PLAZA ASSOCIATES,
NEW JERSEY LIMITED PARTNERSHIP, Landlord
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------- ------------------------------------------
XXXXXX X. XXXXXXXXX, General Partner
ATTEST: TWO RIVER COMMUNITY BANK, Tenant
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------- -----------------------------------------
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EXHIBIT A DEMISED PREMISES
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[MAP OF OFFICEMAX XXXXX]
00
XXXXXXX X LANDLORD'S WORK
The Landlord will erect a one hour demising wall; install windows on the
westerly elevation (the number and location of which shall be determined by
Landlord's architect); bathrooms as per architect's plans shall be built to
code, including utilities stubbed for kitchen; the utilities for the space shall
be separated; the HVAC system shall be in good working order as of the
Commencement Date of the Lease and of sufficient capacity to sufficiently heat
and cool the space; Landlord shall provide barrier-free access on the westerly
elevation.
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EXHIBIT C2 RENEWAL OPTION RIDER
1. The provisions of this Rider shall supersede any inconsistent
provisions contained in the Lease.
2. Provided Tenant shall have fully performed all of the terms,
provisions, covenants, conditions and agreements on its part to be performed
under this Lease, and shall not then be in default under this Lease, Tenant
shall have the right, at its option, to renew this Lease for two (1) renewal
terms of three (3) years each, the first renewal term to commence on the day
following the Expiration Date of the Lease and the Second Renewal Term to
commence on the Expiration Date of the First Renewal Term.
3. Tenant shall exercise the renewal options by giving to Landlord written
notice of such election to renew not later than one (1) year prior to the
Expiration Date, and upon the giving of such notice this Lease thereupon shall
be deemed renewed for the renewal term with the same force and effect as if the
renewal term had been originally included in the Term.
4. Tenant may not exercise its option to renew unless said option has
theretofore been properly exercised in accordance herewith.
5. All the terms, provisions, agreements, covenants and conditions of this
Lease shall continue in full force and effect during the renewal term. Basic
Rent shall continue to be increased during the renewal term in accordance with
the provisions of Exhibit D to this Lease.
6. Any uncured default or termination, cancellation or surrender of this
Lease during the Term shall terminate any right of renewal hereunder.
7. As used herein, "Term" shall include the renewal term of this Lease if
this Lease is renewed pursuant to the provisions of this Rider.
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EXHIBIT C3 LEASE ASSIGNMENT RIDER
1. Notwithstanding anything contained in Paragraph 16(a) of the Lease to
the contrary, Landlord shall not unreasonably withhold its consent to an
assignment of this Lease to any entity to which Tenant is selling its entire
business, provided that the following conditions are satisfied:
(a) All applicable terms and conditions of Paragraph 16 (including,
without limitation, the provisions of Paragraph 16(c) are complied with in full;
(b) The assignee shall pay to Landlord prior to the effective date
of the assignment a Security Deposit (or additional Security Deposit) in an
amount equal to the sum of (i) twice the Basic Rent payable during the calendar
month immediately preceding the month in which the effective date of the
assignment occurs, (ii) 1/6 of the then estimated annual Additional Rent payable
pursuant to Paragraphs 6 and 7 of this Lease. Failure to comply with any of the
foregoing conditions shall cause the assignment to be void.
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EXHIBIT C4 HAZARDOUS SUBSTANCE RIDER
1. If Tenant receives any notice of the happening of any event involving
the use, release, threatened release, spill, discharge or cleanup of any
Hazardous substance on or about the demised premises or into the environment
(any such event is hereinafter referred to as a "Hazardous Discharge") or of any
complaint, order, citation, or notice with regard to any Hazardous Substance or
any Environmental Law affecting Tenant (an "Environmental Complaint') from any
person or entity, including the Department of Environmental Protection of New
Jersey ("DEP") and the United States Environmental Protection Agency ("EPA'),
then Tenant shall give immediate oral and written notice of same to Landlord and
to any mortgagee of all or a portion of the Shopping Center of which Tenant has
received notice (collectively, "Landlord's Mortgagee") detailing all relevant
facts and circumstances.
"Hazardous Substance" shall mean any substance, gas, material,
chemical or pollutant which is or may be regulated by or defined as
or included in the definition of "Hazardous Substances", "Toxic
Substances", "Hazardous Waste", "Hazardous Materials", or words of
similar impart under any Environmental Law, including, without
limitation, petroleum, radon gas, lead paint, asbestos, and
polychlorinated biphenyls.
"Environmental Law" shall mean all legal requirements relating to the
protection of human health or the Environment, including, without
limitation: (i) all legal requirements relating to the reporting
licensing, permitting, investigation or remediation of emissions,
discharges, releases, or threatened releases of Hazardous Substances
into the Environment or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Substances and (ii) all legal requirements
pertaining to the protection of the health and safety of employees or
the public.
"Environment" shall mean soil, surface waters, ground waters, land,
stream, sediments, surface or subsurface strata and ambient air.
2.(a) Without limitation of the foregoing, Landlord shall have the right,
but not the obligation, to exercise any of its rights as provided in Paragraph
23 of this Lease or to enter onto the Premises or to take such actions as it
deems necessary or advisable to cleanup, remove, resolve or minimize the impact
of or otherwise deal with any Hazardous Substance, Hazardous Discharge or
Environmental Complaint. All costs and expenses incurred by Landlord in the
exercise of any such rights shall be deemed to be Additional Rent hereunder and
shall be payable by Tenant to Landlord upon demand.
(b) Tenant shall at all times during the term of this Lease maintain
in full force and effect environmental impairment insurance satisfactory to
Landlord and Landlord's mortgagee as to carrier, amount, coverage and all other
aspects, taking into account all reasonable factors including, without
limitation, the Standard Industrial Classification number of Tenant.
3. The occurrence of any of the following events shall constitute an Event
of Default under this Lease:
(a) If Landlord receives its first notice of a Hazardous Discharge
or an Environmental Complaint on or pertaining to the Premises other than from
Tenant, and Landlord does not receive a notice (which may be given in any oral
or written form, provided same is followed with all due dispatch by written
notice given by certified mail, return receipt requested) of such Hazardous
Discharge or Environmental Complaint from the Tenant within three (3) business
days of the time Landlord first receives said notice other than from Tenant; or
(b) if the DEP, EPA or any other local, state or federal agency
asserts or creates a first lien upon any or all of the Premises by reason of the
occurrence of a Hazardous Discharge or an Environmental Complaint or otherwise;
or
(c) if the DEP, EPA or any other local, state or federal agency
asserts a claim against the Tenant, the demised premises or Landlord for damages
or cleanup costs related to a Hazardous Discharge or an Environmental Complaint
on or pertaining to the Premises; provided
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however, such claim shall not constitute a default if within fifteen (15) days
of the occurrence giving rise to the claim:
(d) Tenant can prove to Landlord's satisfaction that Tenant has commenced
and is diligently pursuing either: (x) cure or correction of the event which
constitutes the basis for the claim, and continues diligently to pursue such
cure or correction to completion, or (y) proceedings for an injunction,
restraining order or other appropriate emergent relief preventing such agency or
agencies from asserting such claim, which relief is granted within ten (10) days
of the occurrence giving rise to the claim and the emergent relief is not
thereafter dissolved or reversed on appeal; and
(e) In either of the foregoing events, Tenant has posted a bond, letter of
credit or other security satisfactory in form, substance and amount to Landlord
and the agency or entity asserting the claim to secure the proper and complete
cure or correction of the event which constitutes the basis for the claim.
4. Tenant hereby agrees to defend, indemnify, and hold Landlord harmless
from and against any and all claims, losses, liabilities, damages and expenses
(including without limitation, cleanup costs and reasonable attorney's fees
arising by reason of any of the aforesaid or any action against Tenant under
this indemnity) arising directly or indirectly from, out of or by reason of any
Hazardous Discharge or Environmental Complaint occurring either (i) during or
attributable to the Term and any other period of possession of the Premises by
Tenant or (ii) by reason of or attributable to Tenant's operations. This
indemnity shall apply notwithstanding any negligent or other contributory
conduct by or on the part of Landlord, its mortgagee or any one or more other
parties or third parties.
5.(a) if Tenant's operations on the Premises now or hereafter constitute
an "Industrial Establishment" subject to the requirements of the New Jersey
Industrial Site Recovery Act, N.J.S.A. 13:1K6 et seq., and the regulations
pertaining thereto, N.J.A.C. 7:26B-1 et seq. ("ISRA"), then prior to the
expiration or sooner termination of this Lease and upon any and every
condemnation, casualty, assignment or sublease (if permitted), change in
ownership or control of Tenant or any other closure, transfer or event by
Landlord or Tenant which is subject to the requirements of ISRA, Tenant shall
comply with all requirements of ISRA pertaining to an Industrial Establishment
closing or transferring operations, at its sole cost and expense, to the
satisfaction of the DEP and Landlord. Without limitation of the foregoing,
Tenant's obligations shall include (A) the proper filing of the initial notice
to the DEP required by N.J.A.C. 7:26B-3.2, (B) the performance to DEP's and
Landlord's satisfaction of all air, soil, ground water and surface water
sampling and tests required by N.J.A.C. 7:26B-4.1-4.3 and (C) either (x) the
filing of a "negative declaration" with DEP under N.J.A.C. 7:26B-5.2 which has
been approved by DEP or (y) the performance of a proper and approved cleanup
plan to the full satisfaction of DEP and Landlord in accordance with N.J.A.C.
7:26B-5.3. Tenant shall immediately provide Landlord with copies of all
correspondence, reports, notices, orders, findings, declarations and other
materials pertinent to Tenant's compliance and DEP's requirements under ISRA, as
any of same are issued or received by Tenant from time to time.
(b) Tenant shall be responsible for any environmental cleanup costs,
penalties or damages arising from its use of the Premises. The provisions of
this Paragraph shall survive the Expiration Date or sooner termination of this
Lease.
6. In the event of Tenant's failure to comply in full with this Article,
Landlord may, at its option, perform any or all of Tenant's obligations as
aforesaid and all costs and expenses incurred by Landlord in exercise of this
right shall be deemed to be Additional Rent payable on demand.
7. This Paragraph shall survive the Expiration Date or sooner termination
of the Lease.
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EXHIBIT D BASIC RENT ESCALATION RIDER
The Basic Rent payable for the portion of the Term commencing on July 1,
2002 shall be as follows:
(a) For the portion of the Term commencing on the Commencement Date
and ending twelve (12) months after the Commencement Date, at the rate of
$33,000.00 per annum ($2,750.00 per month);
(b) For the portion of the Term commencing on the second anniversary
of the Commencement Date and terminating twelve (12) months thereafter, at the
rate of $33,990.00 per annum ($2,832.50 per month);
(c) For the portion of the Term commencing at the third anniversary
of the Commencement Date and terminating twelve (12) months thereafter; at the
rate of $35,009.70 per annum ($2,917.48 per month);
(d) For the portion of the Term commencing at the fourth anniversary
of the Commencement Date and terminating twelve (12) months thereafter; at the
rate of $36,059.99 per annum ($3,005.00 per month);
(e) For the portion of the Term commencing at the fourth anniversary
of the Commencement Date and terminating twelve (12) months thereafter; at the
rate of $37,141.79 per annum ($3,095.15 per month);
The Basic Rent during the first renewal period commencing on the sixth
anniversary of the Commencement Date shall be determined as follows:
"Market Rent" shall mean the fair market rent for the demised premises for
the Renewal Term, determined as of the date of 180 days prior to the expiration
of the First Renewal Term (the "Determination Date"), based upon the rents
generally in effect for comparable office space in Monmouth County, New Jersey.
Market rent (for the purpose of determining the fixed rent only during the
Renewal Term) shall be determined on what is commonly known as the "gross"
basis; this is, in computing Market Rent it shall be assumed that all real
estate taxes and customary services are included in the market rent.
Notwithstanding the foregoing, the base rent for the Second Renewal Term shall
be thereafter increased from time to time as provided in this Lease, and the
base year for tax and operating expenses increases, tax base and base operating
expenses for the Renewal Term shall all be deemed redefined as and recomputed on
the basis of the last calendar year of the Initial Term of this Lease.
Landlord shall notify Tenant ("Landlord's Determination Notice") of
Landlord's determination of the Market Rent not later than 60 days after the
Determination Date. If Tenant disagrees with Landlord's determination, Tenant
shall notify Landlord (`Tenant's Notice of Disagreement') within 15 days of
receipt of Landlord's Determination Notice. Time shall be of the essence with
respect to Tenant's Notice of Disagreement, and the failure of Tenant to give
notice within the time period set forth above shall conclusively be deemed an
acceptance by Tenant of the Market Rent as determined by Landlord and a waiver
by Tenant of any right to dispute such Market Rent, if Tenant timely gives its
Tenant's Notice of Disagreement, then the Market Rent shall be determined as
follows: Landlord and Tenant shall, within 30 days of the date on which Tenant's
Notice of Disagreement was given, each appoint an Appraiser for the purpose of
determining the Market Rent. An "Appraiser" shall mean a duly qualified
impartial real estate appraiser who is a member of the American Institute of
Real Estate Appraisers and who has at least 10 years' experience in appraising
properties in Central New Jersey. In the event that the two Appraisers so
appointed fall to agree as to the Market Rent within a period of 30 days after
the appointment of the second Appraiser, such two Appraisers shall forthwith
appoint a third Appraiser who shall make a determination within 30 days
thereafter, if such two Appraisers fail to agree upon such third Appraiser
within 10 days following the last 30 day period, such third Appraiser shall be
appointed by the Monmouth County Assignment Judge of the New Jersey Superior
Court. Such two Appraisers or three Appraisers, as the case may be, shall
proceed with all reasonable dispatch to determine the Market Rent. The decision
of such Appraisers shall be final; such decision shall be in writing and a copy
shall be delivered simultaneously to Landlord and Tenant. if such Appraisers
fail to deliver their decision as set forth above prior to the commencement of
the Renewal Term, Tenant shall pay Landlord the
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base rent and tax expense increases at the rate as of the last day of the
Initial Term, until such decision is so delivered, if the Market Rent as
determined above is in excess of the actual rent paid, then Tenant, upon demand,
shall pay to Landlord the difference between the actual rent paid and the Market
Rent from the commencement of the Renewal Term. Landlord and Tenant shall each
be responsible for and shall pay the fee of the Appraiser appointed by them
respectively, and Landlord and Tenant shall share equally the fee of the third
Appraiser.
In no event will the rent for the first year of the First Renewal Term be
less than the rent for the last year of the Initial Term.
Once the Market Rent is determined for the first year of the Renewal Term,
the Rent shall increase by three percent (3%) for each year during the first
Renewal Term.
Rent for the first year of the Second Renewal Term shall be determined on
the basis of the Market Rent formula set forth hereinabove. In no event will
Rent for the first year of the second Renewal Term be less than the Rent for the
last year of the first Renewal Term. Once the Market Rent is determined for the
first year of the second Renewal Term, the Rent shall increase annually
thereafter at the rate of three percent (3%).
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