EXHIBIT 10.13
GROUND LEASE
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Between
J.J.U.D. Inc., a corporation of the State of New Jersey,
Lessor,
And
Monmouth Community Bank, N.A.,
Lessee
TABLE OF CONTENTS
Page
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1. PREMISES...............................................................1
1.1. Premises.....................................................1
1.2. Appurtenant Rights...........................................1
1.3. Reservation of Rights........................................1
1.4. Short Form of Ground Lease...................................2
2. TERM...................................................................2
2.1. Initial Term.................................................2
2.2. Options to Extend Term.......................................2
3. RENT...................................................................2
4. TAXES, ASSESSMENTS AND COMMON AREA EXPENSES............................3
4.1. Real Property Taxes and Assessments..........................3
4.2. Payment of Real Property Taxes and Assessments...............3
4.3. Installment Payments.........................................3
4.4. Utilities Expenses...........................................3
4.5. Proration....................................................4
4.6. "Common Area" Defined........................................4
4.7. Use of Common Area...........................................4
4.8. Payment of Common Area Expenses..............................4
4.9. Statements of Common Area Expenses...........................5
4.10. "Common Area Expenses" Defined...............................5
4.11. Verification of Common Area Expenses; Audit..................5
5. CONSTRUCTION, REPAIR MAINTENANCE, ALTERATIONS AND
OWNERSHIP OF IMPROVEMENTS..............................................6
5.1. Condition of Land............................................6
5.2. Construction of Improvements.................................6
5.3. Repair and Maintenance.......................................6
5.4. Alterations of Improvements..................................6
5.5. Ownership of Improvements....................................7
5.6. Repair and Maintenance of Common Area........................7
6. LIENS..................................................................7
7. USE OF PREMISES; "GOING DARK"..........................................7
7.1. Use of Premises..............................................7
7.2. "Going Dark".................................................8
7.3. Continuous Operation.........................................8
8. INSURANCE..............................................................8
8.1. Lessee's Liability Insurance.................................8
8.2. Lessor's Liability Insurance.................................9
8.3. Lessee's Property Insurance..................................9
8.4. Policy Form..................................................9
8.5. Waiver of Subrogation........................................9
9. BANKRUPTCY............................................................10
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10. ASSIGNMENT AND SUBLETTING; MORTGAGE OF LEASEHOLD......................10
10.1. Assignment..................................................10
10.2. Subletting..................................................10
11. REMEDIES IN THE EVENT OF DEFAULT......................................10
12. DAMAGE AND DESTRUCTION................................................11
12.1. No Abatement of Rent........................................11
12.2. Restoration of Improvements - Mandatory.....................12
12.3. Restoration of Improvements - Non-Mandatory.................12
12.4. Damage and Destruction of Shopping Center...................12
13. QUIET ENJOYMENT AND TITLE.............................................13
13.1. Covenant of Quiet Enjoyment.................................13
13.2. Right to Possession.........................................13
13.3. Superior Encumbrances.......................................13
13.4. Ownership; Authority; Restrictions..........................13
14. TRADE FIXTURES........................................................13
14.1. Ownership; Removal..........................................13
14.2. Landlord's Waiver...........................................13
15. SUBORDINATION.........................................................14
16. SURRENDER OF PREMISES-REMOVAL OF DISTINCTIVE FEATURES.................14
16.1. Surrender of Premises.......................................14
16.2. Removal of Distinctive Features.............................14
17. PROHIBITION AGAINST COMPETITION AND PROTECTION FOR EXPOSURE...........15
17.1. Lessor's Covenant...........................................15
17.2. Lessee's Remedies for Breach................................15
18. TITLE AND DEVELOPMENT CONSIDERATIONS..................................16
19. HAZARDOUS SUBSTANCE OR WASTE..........................................17
20. REAL ESTATE COMMISSIONS...............................................18
21. NOTICES AND DEMANDS...................................................18
21.1. To Lessor...................................................18
21.2. To Lessee...................................................18
22. ATTORNEYS' FEES.......................................................19
23. GENERAL PROVISIONS....................................................19
23.1. Binding on Successors.......................................19
23.2. Severability................................................19
23.3. Entire Agreement............................................19
23.4. Captions....................................................19
23.5. Gender and Number...........................................19
23.6. Approvals...................................................19
23.7. No Waiver...................................................19
23.8. Holdover....................................................19
23.9. Time of Essence.............................................20
23.10. Governing Law...............................................20
23.11. Counterparts................................................20
23.12. No Third Party Rights.......................................20
23.13. Unexecuted Lease............................................20
23.14. Lessor's Right of Entry.....................................20
23.15. Estoppel Certificates.......................................20
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23.16. Due Authorization...........................................20
23.17. Relationship of Parties.....................................20
23.18. Section and Exhibit References..............................20
EXHIBITS
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A - Site Plan
A-1 - Sign Drawings
B - Legal Description of Shopping Center
C - Legal Description of Leasehold
D - Construction of Improvements
E - Short Form of Ground Lease
F - Subordination, Non-Disturbance and Attornment Agreement
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GROUND LEASE
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AGREEMENT OF GROUND LEASE ("Lease"), made this 1st day of March, 2004, by
and between J.J.U.D. Inc., a corporation of the State of New Jersey ("Lessor"),
having its principal place of business at 0000 Xxxx Xxxx, Xxxxx, Xxx Xxxxxx, and
Monmouth Community Bank, N.A. (Lessee"), having its principal place of business
at 000 Xxxxxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx 00000.
WITNESSETH:
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1. PREMISES
1.1. Premises. Lessor is the owner in fee simple of that certain land
situate and located at Xxxxxx Plaza, 444 Ocean Avenue, North, being in the City
of Long Branch, County of Monmouth, State of New Jersey, as generally shown on
Exhibit A, and as more particularly described in Exhibit B (which, together with
the buildings and other improvements constructed or to be constructed thereon,
shall hereinafter be referred to as the "Shopping Center"). For and in
consideration of the rents, taxes, insurance and other charges and expenses to
be paid by Lessee, and in consideration of the performance by Lessee of the
covenants herein set forth, Lessor does hereby demise and lease to Lessee that
certain land ("Land") consisting of the vacant land, including drive-through
teller areas, together with the rights appurtenants thereto, situate and being
in the Shopping Center, shown on Exhibit A, and as more particularly described
in Exhibit C. All improvements now or hereafter located on the Land shall
hereinafter be referred to as the "Improvements"; the Land and Improvements
shall hereafter be referred to collectively as the "Premises."
1.2. Appurtenant Rights. In addition, and for no additional consideration,
Lessor also hereby grants to Lessee (a) the non-exclusive right, license,
easement and privilege to maintain in a prominent placement on the pylon sign
located at the northeast corner of the Shopping Center for the benefit of
Lessee, its successors, assigns and subtenants; any such signs, including
applicable governmental permits and approvals, shall be obtained at Tenant's
sole cost and expense, and (b) the non-exclusive right, license, easement and
privilege to use the Common Area (as defined in Section 4.6), subject to the
rights of other tenants and occupants and their respective employees, agents,
contractors, customers and other invitees of the Shopping Center to use the
Common Area, for (i) pedestrian and vehicular ingress and egress to and from the
Premises, the public rights of way adjoining the Shopping Center, and the
parking areas located in the Shopping Center, (ii) vehicular parking, and (iii)
utility lines and connections serving the Premises, over, under and across the
Common Area, including, without limitation, the use of the parking areas,
roadways and walkways, for the benefit of Lessee, its successors, assigns and
subtenants, and its and their respective employees, agents, contractors,
customers and other invitees.
1.3. Reservation of Rights. Lessor hereby reserves to itself the
non-exclusive right, license, easement and privilege to use the Common Area (as
defined in Section 4.6) located on the Premises ("Premises Common Area") for (a)
pedestrian and vehicular ingress and egress to and from the remainder of the
Shopping Center, the public rights of way adjoining the Shopping Center, and the
parking areas located in the Premises Common Area, (b) vehicular parking, and
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(c) utility lines and connections serving the remainder of the Shopping Center,
over, under and across the Premises Common Area, including, without limitation,
the use of the parking areas, roadways and walkways, for the benefit of Lessor,
its successors, assigns and tenants, and its and their respective employees,
agents, contractors, customers and other invitees.
1.4. Short Form of Ground Lease. On or before the commencement date of the
construction of the Improvements pursuant to Exhibit D, the parties agree to
execute and record a short form of this Lease in substantially the same form as
Exhibit E. In no event shall the parties record a long form lease.
2. TERM
2.1. Initial Term. Subject to the provisions of this Agreement, the
initial term of this Lease shall commence beginning the first day of the month
after all construction approvals and the appropriate governing authority has
issued all of the required permits therefore and continuing for a term of 10
years, 120 months (the "Term"). Notwithstanding the forgoing, the commencement
date shall be no later than May 1, 2004.
2.2. Options to Extend Term. Provided it shall not then be in default
under this Lease (beyond any applicable cure period), Lessee shall have the
option to extend said initial term for two (2) additional, consecutive periods
of five (5) years each by giving notice to Lessor of its intention to exercise
said options, respectively, at least six (6) months prior to the expiration of
the preceding term. All of the terms and conditions of this Lease shall apply
during each of the above extended terms, except the provisions relating to the
initial construction of the Improvements, expired options to extend the lease
term, and the Monthly Rent (as defined in Section 3), the latter of which shall
be governed by Section 3.
3. RENT
Lessee agrees to pay to Lessor, during the full term and extended terms as
set forth in Section 2.2 above, if applicable, a monthly rent ("Monthly Rent")
of $2,500, payable in advance on the first day of each calendar month, adjusted
as follows:
Beginning with the 2nd Lease Year, on the first day of each Lease Year
during the Term, Lessee shall pay in advance on the first day of each month,
without setoff or deduction, the greater of (a) one hundred three percent (103%)
of the monthly payment for the immediately preceding Lease Year, or (b) the
basic rent of $2,500 increased by the percentage increase in the Consumer Price
Index for All Urban Consumers (1982-84 = 100) for New York - Northeastern New
Jersey (or its substitute or successor) published by the Bureau of Labor
Statistics of the United States Department of Labor (the "CPI") between May 2004
and May of the applicable Lease Year. During each year of the extended term as
set forth above, the basic rent shall be the greater of (a) one hundred three
percent (103%) of the monthly payment for the immediately preceding lease year,
or (b) the basic rent of $2,500 increased by the percentage increase in the CPI
between May 2004 and May of the applicable Lease Year. Since the rent payment
for at least the first month of a new Lease Year will be paid prior to the
determination of any applicable rent increase based upon the Consumer Price
Index, any increase for months already
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elapsed after commencement of a new Lease Year shall be added to the next
monthly rent payment then becoming due and payable.
In the event the Consumer Price Index as aforesaid is discontinued or
unavailable, then in that event the parties shall select an equivalent and
substituted Index to be applied in the same manner as in this Lease provided. If
the Term begins or ends on a day other than the first day of a month, rent for
the months of beginning and expiration of this Lease shall be prorated on a per
diem basis.
As used herein, the term "Lease Year" shall mean each consecutive twelve
(12) month period from and after the commencement date of the term hereof, until
the expiration of the term hereof.
4. TAXES, ASSESSMENTS AND COMMON AREA EXPENSES
4.1. Real Property Taxes and Assessments. Lessee shall pay its
proportionate share of all real property taxes and assessments levied and
assessed against the buildings, other improvements and land of the Shopping
Center. Said assessments shall also include any assessments for municipal
improvements provided they do not directly relate to, result from or arise out
of, the development of the Shopping Center. Lessee's proportionate share shall
constitute additional rent and shall be the ratio of the floor area within the
Improvements built or to be built upon the Land to the floor area (including all
floor area used for sales area within any multi-floor structures) within all the
buildings of the Shopping Center intended for the exclusive use of tenants or
other occupants, whether or not so occupied. In the event the actual floor area
of the entire Shopping Center shall increase or diminish, then, and in such
event, the ratio set forth herein shall be adjusted accordingly.
4.2. Payment of Real Property Taxes and Assessments. At the commencement
of the Term hereof and each calendar year thereafter, Lessor shall notify Lessee
of Lessor's calculation of Lessee's proportionate share of the current real
property taxes and assessments, and together with such notice shall furnish
Lessee with a copy of said tax xxxx. Lessee shall pay its proportionate share of
the real property taxes and assessments in installments, as permitted by the
applicable taxing authority(ies), upon receipt by Lessee of a statement from
Lessor and within twenty (20) days prior to the date that payment would be
declared delinquent.
4.3. Installment Payments. If any assessment is payable at the option of
the taxpayer in installments, Lessor may pay it either in a lump sum or in
installments as permitted by applicable taxing authority(ies) as they
respectively become due; provided, however, Lessee's proportionate share thereof
shall be paid or reimbursed to Lessor only as if same were paid by Lessor in the
maximum number of installments as permitted by the applicable taxing
authority(ies) as they respectively become due, and in no event shall Lessee be
required to pay or reimburse Lessor for any installments attributable to any
period before the commencement of the Term or after the expiration of the Term
of this Lease.
4.4. Utilities Expenses. Lessee shall make all arrangements for and pay
for all utilities and services furnished to or to be used exclusively by Lessee
on the Premises, including, without limitation, electricity, water, gas sewer,
telephone service and trash collection. In
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addition thereto, Lessee shall pay its pro rata share of the cost of utilities
and services of the Common Area (as defined in Section 4.6) as provided herein,
subject, however, to any limitations set forth in this Section 4. Said pro rata
share shall constitute additional rent. If Lessee is the user of a utility
service which is prorated by Lessor among other tenants, and in Lessor's
reasonable judgment Lessee uses a significant portion of said utility service,
then Lessor, at Lessor's expenses, may install an individual meter for lessee.
4.5. Proration. All of the above impositions (except utility or other
charges attributable solely to Lessee's use) for the first year of the Term
hereof shall be prorated between the parties as of the commencement date hereof,
and during the last year of the term hereof shall be prorated as of the
termination date.
4.6. "Common Area" Defined. As used herein, the term "Common Area" means
all areas, facilities and improvements outside the buildings of tenants and
other occupants and within the exterior boundaries of the Shopping Center that
are provided and designated by Lessor from time to time for the mutual use and
convenience of Lessee and of other tenants and occupants by the employees,
customers and other invitees, as depicted on Exhibit A, provided Common Area
shall not include any such areas or facilities which are or may be located in or
about any enclosed mall within the Shopping Center. Common Area includes,
without limitation, pedestrian walkways and patios, landscaped areas, sidewalks,
plazas, thoroughfares, loading and delivery areas, parking areas and facilities,
access and interior roadways, truck ways, landscaped areas, package pickup
stations, public restrooms and comfort stations, retaining walls, bus stops and
lighting facilities on or within the Shopping Center.
4.7. Use of Common Area. As provided in Section 1.2, Lessor has granted to
Lessee for the benefit of Lessee, its successors, assigns and subtenants, and
its and their respective employees, agents, contractors, customers and other
invitees, the nonexclusive right, license, easement and privilege to use the
Common Area, subject to Lessor's rights set forth herein, including, without
limitation, the use of the parking areas, roadways and walkways. Lessor, for
itself, its successors and assigns, covenants that it will not significantly
increase the size of any buildings or structures in the Shopping Center or add
new buildings or structures in the Shopping Center beyond those shown or
contemplated on Exhibit A that might significantly reduce the effective use of
the Common Area or the visibility of the Improvements. Lessor and Lessee
acknowledge that the total Shopping Center (including the Premises) intended for
the exclusive use of tenants or other occupants total, in the aggregate,
approximately 33,000 square feet of floor area.
4.8. Payment of Common Area Expenses. Lessee shall pay to Lessor, on the
first day of each month after commencement of the term hereof and continuing
during the term hereof, an amount estimated by Lessor to be Lessee's
proportionate share of the Common Area Expenses (as defined in Section 4.10).
Lessee's proportionate share of the Common Area Expenses shall constitute
additional rent and shall be equal to the total Common Area Expenses for the
Shopping Center multiplied by a fraction, the numerator of which shall be the
total floor area of the Improvements built or to be built upon the Premises, and
the denominator of which shall be the total floor area (including all floor area
used for sales area within any multi-floor structures and mezzanine and basement
areas) of all buildings of the Shopping Center intended for the exclusive use of
tenants or other occupants, whether or not so occupied. Common Area
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Expenses that cover a period not within the Term of this Lease shall be
prorated. In the event the actual floor area of the entire Shopping Center at
the time of completion of the Improvements or any time thereafter during the
Term hereof shall increase or diminish from the proposed total floor area, then
the percentage set forth herein shall be adjusted accordingly, subject to the
aforesaid limitation.
4.9. Statements of Common Area Expenses. Upon the commencement of the term
hereof, and upon the commencement of each succeeding accounting period (as
defined below), Lessor shall deliver to Lessee a statement setting forth the
estimated monthly charge for Common Area Expenses to be paid by Lessee during
the then-current calendar year and the basis upon which the monthly charge was
calculated. Lessor can adjust the monthly Common Area Expenses at the end of
each accounting period on the basis of Lessor's reasonably anticipated costs for
the following accounting period. An "accounting period" is a calendar year.
Fractions of an accounting period shall be prorated. Lessor shall furnish to
Lessee a statement showing the total Common Area Expenses and its calculation of
Lessee's proportionate share of the Common Area Expenses for the accounting
period, within ninety (90) days after the end of each accounting period,
covering the accounting period just ended. Each statement shall be prepared,
signed and certified to be correct by Lessor. If Lessee's proportionate share of
the Common Area Expenses for the accounting period exceeds the payments made by
Lessee, Lessee shall pay to Lessor the deficiency within ten (10) days after its
receipt from Lessor of a statement therefore. If Lessee's payments made during
the accounting period exceed Lessee's share of the Common Area Expenses, Lessor
shall credit to Lessee the excess against future Common Area Expenses.
4.10. "Common Area Expenses" Defined. As used herein, the term "Common
Area Expenses" shall include and be limited to: all sums expended for the
repair, maintenance and operation of (i) the Common Area, including, but not
limited to, costs of resurfacing; painting; re-striping; repainting; cleaning;
policing, drainage; sweeping and snow, ice and debris removal; maintenance of
refuse receptacles; planting, re-landscaping and landscape maintenance;
maintenance and repair of directional signs and other markers, car stops and
lighting (but only to the extent Lessee is not itself responsible for lighting
the Premises Common Area); water and sewer charges and other utility consumption
charges related to the Common Area; maintenance of canopies and replacing canopy
lights; and premiums on property, public liability and workers' compensation
insurance covering the Common Area and Common Area improvements; and (ii) the
Joint Pylon Signs, including, but not limited to, costs of supplying electric
current, property repairing, or replacing any of the individual sign panels, it
being understood that same shall be the sole responsibility of the sign panels.
Common Area Expenses shall not include any costs or expenses attributable to or
arising from (w) the repair, maintenance of Shopping Center, (x) any property
management services (except as provided above), (y) any premium or
administrative fee (except as provided above), or (z) any real property taxes or
assessments levied and assessed against the Shopping Center (except to the
extent same is included in Lessee's payments made pursuant to Section 4.2).
4.11. Verification of Common Area Expenses; Audit. Lessor shall keep full,
complete and proper books, records and accounts of the Common Area Expenses of
the Shopping Center. Lessee and its agents and employees, upon reasonable notice
and within three (3) years after Lessee's receipt of any annual statement
furnished pursuant to Section 4.9, shall
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have the right at any time and at all times, during regular business hours, to
examine and inspect all the books and records of Lessor pertaining to the Common
Area Expenses, which Lessor shall produce upon demand by Lessee or Lessee's
agent for the purpose of investigating and verifying the accuracy of any
statement of Common Area Expenses. Lessee may once with respect to any annual
statement and within said three (3) year period, cause an audit of the Common
Area Expenses of the Shopping Center to be made by an independent certified
accountant of Lessee's selection, and if the statement of Common Area Expenses
previously made to Lessee by Lessor shall be found to be overstated, the amount
of any overpayment previously made by Lessee to Lessor shall be refunded
promptly to Lessee. If the statement of Common Area Expenses previously made to
Lessee by Lessor shall otherwise be found to be incorrect, then the party found
to be owing money shall promptly pay over such sums to the other party.
5. CONSTRUCTION, REPAIR MAINTENANCE, ALTERATIONS AND OWNERSHIP OF
IMPROVEMENTS
5.1. Condition of Land. Subject to the terms of this Lease, the Land and
the Improvements leased hereunder are taken "where is" and "as is" and Tenant
shall be responsible for the Improvements contemplated hereunder including
replacement, repair and necessary approvals. Additionally, Tenant shall be
responsible for (a) architectural, engineering requirements and permits to
construct the Improvements and (b) all required governmental approvals relating
to the Improvements with the exception of the site plan approval previously
obtained by the Landlord.
5.2. Construction of Improvements. The parties contemplate that Lessee is
to construct or cause to be constructed upon the Land the Improvements, which
shall consist of a banking facility of approximately 1,470 square feet of gross
floor area in accordance with the provisions contained in Exhibit D, and in
accordance with plans and specifications, as approved by all governmental
agencies having jurisdiction therefore.
5.3. Repair and Maintenance. Lessee agrees that during the term hereof it
will make, at its own expense, all necessary repairs to the Improvements upon
the Land and to the sign panels of Lessee to be installed on the Joint Pylon
Signs, and that it will keep the Improvements thereon and sign panels in good
condition and repair throughout the entire term of this Lease, subject to
Lessor's obligation to repair and maintain the Premises Common Area pursuant to
Section 5.5.
5.4. Alterations of Improvements. Lessee shall have the right at any time
and from time to time during the term of this Lease, at its own expense, to make
changes or alterations, structural or otherwise, to the Improvements, and to
erect, construct or install upon the Land buildings and improvements in addition
to or in substitution for those now or hereafter located thereon, and to
demolish and remove the Improvements or any other structures hereafter located
on the Land for the purpose of replacing the same; provided, however, that (a)
the fair market value of all Improvements on the Land following each such
change, alteration, construction or improvement shall be at least equal to the
fair market value of all Improvements on the Land prior to such change and (b)
Lessee shall make no structural alterations at any given time of a cost in
excess of Twenty-Five Thousand Dollars ($25,000) or Premises Common Area,
without
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first having secured the consent of Lessor, which consent shall not be
unreasonably withheld or delayed.
5.5. Ownership of Improvements. The Improvements (including all
alterations, improvements, additions and changes thereto) shall be and remain
the sole property of Lessee during the term and, if applicable, extended terms,
of this Lease and, upon the expiration of the term or, if applicable, extended
terms of this Lease, the Improvements shall become the sole property of Lessor.
5.6. Repair and Maintenance of Common Area. Lessor agrees that during the
term hereof it will perform, at its own cost and expense, subject to
reimbursement pursuant to Section 4.8, all maintenance and repairs to the Common
Area (including the Premises Common Area), including, without limitation, all
parking areas, roadways, sidewalks, landscaping, lighting, and janitorial
services, and that it will keep the Common Area in good condition and repair
throughout the entire term of this Lease. Lessor agrees that during the term
hereof it will also perform, at its own cost and expense, subject to
reimbursement pursuant to Section 4.8, all maintenance and repairs to the Joint
Pylon Signs, excluding the individual sign panels to be installed thereon, which
shall be maintained and repaired by the respective tenants and occupants whose
businesses are identified thereon, and that it will keep the Joint Pylon Signs,
excluding the individual sign panels, as aforesaid, in good condition and repair
throughout the entire term of this Lease and, subject to applicable law, shall
keep the Joint Pylon Signs lighted from dusk until xxxx each and every day of
the year.
6. LIENS
Except as hereinafter provided, Lessor reserves the fee in the Land and
specifically does not consent by virtue of this Lease that said fee or the
reversionary interest of Lessor in the Improvements shall be subject to any lien
for labor or materials furnished to Lessee in the repair or improvement of the
Premises. While the parties intend hereby that the interest of Lessor hereunder
cannot be subject to any lien on account of Lessee's use of or actions with
respect to the Premises and that any future modifications of law to the contrary
would constitute an impairment of vested rights hereunder, nevertheless, should
a court of competent jurisdiction hold that, or should a valid statute be
enacted whereby, any interest of Lessor in the Premises at any time hereafter
shall be subjected to any such lien, then lessee shall, within thirty (30) days
after written notice to Lessee of the existence and perfection of said lien,
cause said lien to be bonded or discharged and shall otherwise save Lessor
harmless on account thereof provided, however, that if Lessee desires in good
faith to contest the validity or correctness of any such lien, it may do so and
Lessor shall cooperate to whatever extent shall be necessary, provided only that
Lessee must indemnify Lessor against any loss, liability or damage on account
thereof.
7. USE OF PREMISES; "GOING DARK"
7.1. Use of Premises. The Premises shall be used for the purpose of
conducting thereon the business of a banking institution and for incidental
purposes related thereof, or, except as provided in Section 7.2, for any other
legally permissible business or commercial venture; provided, however, the
Premises shall be used initially for the purpose of conducting thereon the
business of a Banking Institution, and for incidental purposes related thereto;
and
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provided further, however, that such purpose shall not violate any applicable
law, rule, ordinance or regulation of any governmental body.
7.2. "Going Dark". Notwithstanding anything to the contrary contained in
this Lease, if the business to be conducted at the Premises shall fail to open
to the public within two hundred and seventy (270) days after the date of
commencement of construction of the Improvements in accordance with the
provisions contained in Exhibit D, subject to force majeure, or if, at any time
after the date of the opening of the business to be conducted at the Premises,
said business ceases to operate (other than during temporary periods of damage,
destruction, repair, restoration or remodeling of the Improvements, until such
time as same can reasonably be repaired, restored and/or completed) for a period
of ninety (90) consecutive days or more, and thereafter such business does not
open or resume operation, as the case may be, within ninety (90) days after
written notice to so open or exclusive remedy, shall have the right (but not the
obligation) to, upon notice, cancel this Lease (which notice shall specify the
effective date of such cancellation, which shall be no more than thirty (30)
days after the date of the giving of such notice), whereupon this Lease shall
come to an end, as of the effective date and Lessee shall surrender the Premises
to Lessor, and neither party shall have any further liability to the other
party, except that Lessor shall pay to Lessee, within ten (10) days after
written supporting documentation, an amount equal to the unamortized cost of
Lessee's leasehold improvements and its or its affiliate's Trade Fixtures (as
defined in Section 14.1 and to the extent such Trade Fixtures are not removed by
Lessee or its affiliate) (based on the affiliate's books and records), plus any
Monthly Rent and additional rent previously paid to Lessor covering the period
after the effective date of such cancellation. If Lessor fails to pay such sum
within such ten (10) day period, then Lessor's notice of cancellation, as
aforesaid, shall be null and void and this Lease shall continue in full force
and effect. Lessor's payment obligation set forth herein shall survive any
termination of this Lease.
7.3. Continuous Operation. Tenant agrees that subject to the terms of this
lease and notwithstanding any other provision of the Lease, Tenant will conduct
its business in the demised premises for the entire Lease Term and that it will
be open six (6) days per week or such other additional days and hours as a
majority (as measured by total square footage) of the other store(s) located in
the Shopping Center shall be open for business.
Tenant covenants and agrees that the demised premises shall not be
abandoned or left vacant and shall be continuously and uninterruptedly open for
business during the times and in the manner provided for in this lease. Failure
to do so shall result in (a) forfeiting the Lease, and (b) a payment of One
Hundred Thousand Dollars ($100,000) or the balance of the Lease, whichever is
greater.
8. INSURANCE
8.1. Lessee's Liability Insurance. Lessee agrees that on or before the
commencement of the term of this Lease it will obtain, at its sole cost and
expense, for the mutual benefit of Lessor and Lessee, Workers Compensation
General Liability insurance covering the Premises (excluding the Premises Common
Area). Said policy shall be for an amount of at least One Million Dollars
($1,000,000) Combined Single Limit for the death or injury to one (1) or more
persons and property damage, and shall name Lessor as an additional
8
insured thereunder. As often as such policy shall expire or terminate, Lessee
shall obtain a renewal or additional policy like manner and to like extent
Lessee shall furnish Lessor with a copy of such insurance policy, or with a
certificate of the company issuing such insurance, certifying that the same is
in full force and effect.
8.2. Lessor's Liability Insurance. Lessor agrees that on or before the
commencement of the term of this Lease it will obtain, at its sole cost and
expense (subject to reimbursement pursuant to Section 4.8 for the cost of the
premiums therefore, only to the extent of the minimum limits set forth herein),
for the mutual benefit of Lessor and Lessee, Comprehensive General Liability
insurance covering the Common Area (including the Premises Common Area). Said
policy shall be for an amount of at least One Million Dollars ($1,000,000)
Combined Single Limit for the death or injury to one (1) or more persons and
property damage, and shall name Lessee and its sub-lessee (if any) as additional
insureds thereunder. As often as such policy shall expire or terminate, a
renewal or additional policy shall be obtained by Lessor in like manner and to
like extent. Lessor shall furnish Lessee with a certificate of the company
issuing such insurance, certifying that the same is in full force and effect.
8.3. Lessee's Property Insurance. Lessee agrees that on or before the
commencement of the Term of this Lease it will obtain, at its sole cost and
expense, for the mutual benefit of Lessee and Lessor, so-called "All Risk" or
"Special Form" property insurance, with code upgrade endorsement, on the
Improvements, in an amount equal to at least one hundred percent (100%) of the
full replacement cost thereof, excluding foundation and excavating costs. As
often as any such policy shall expire or terminate, a renewal or additional
policy shall be obtained by Lessee in like manner and to like extent. In the
event of fire or other casualty, proceeds of any such policy shall be payable to
Lessor and Lessee, as their respective interests may appear, and in accordance
with the terms of Section 12. Lessee shall furnish Lessor with a copy of such
insurance policy, or with a certificate of the company issuing such insurance,
certifying that the same is in full force and effect.
8.4. Policy Form. All insurance required to be obtained and maintained
under the provisions of Sections 8.1, 8.2 and 8.3 shall be (a) issued by
insurance companies authorized (or admitted) to do business in the state in
which the Premises are located, (b) issued by companies carrying a rating of at
least "A" according to Best's Insurance Reports, and (c) primary, as between
Lessor and Lessee, and not contributing with any other insurance obtained by the
other party. Either party may, at its option, bring its obligations to insure
under a so-called "blanket" policy or policies of insurance; provided, however,
that the interest of the other party shall be as fully protected thereby as if
the insuring party obtained individual policies of insurance.
8.5. Waiver of Subrogation. The parties hereby release each other, and
their respective authorized representatives, from any claims for damage to any
person or to the property of either Lessor or Lessee in or on the Premises or
the remainder of the Shopping Center that are caused by or result from risks
insured against under any insurance policies carried or required to be carried
by the releasing parties and in force at the time of any such damage. Each party
shall cause each insurance policy obtained by it to provide that the insurance
company waives all right of recovery by way of subrogation against either party
in connection with any damage covered by any policy. Neither party shall be
liable to the other for any damage caused by fire or any of the risks insured
against under any insurance policy required
9
under this Section 8. If any insurance policy cannot be obtained with a waiver
or subrogation, or is obtainable only by the payment of an additional premium
charge above that charged by insurance companies issuing policies without waiver
of subrogation, the party undertaking to obtain the insurance shall notify the
other party of this fact. The other party shall have ten (10) days after
receiving such notice to agree to pay the additional premium if such a policy is
obtainable at additional cost. If the party in whose favor a waiver of
subrogation is desired refuses to pay the additional premium charged, the other
party shall be relieved of the obligation to obtain a waiver of subrogation
rights with respect to the particular insurance involved.
9. BANKRUPTCY
If at any time during the term hereof proceedings in bankruptcy,
insolvency or other similar proceedings shall be instituted by or against
Lessee, whether or not such proceedings result in an adjudication against
Lessee, or should a receiver of the business or assets of Lessee be appointed,
such proceedings or adjudications shall not affect the validity of this Lease,
so long as the Monthly Rent and additional rent reserved hereunder as the
Monthly Rent and additional rent reserved hereunder continues to be paid to
Lessor and the other terms, covenants and conditions of this Lease on the part
of Lessee to be performed are performed, and in such event this Lease shall
continue to remain in full force and effect in accordance with the terms herein
contained.
10. ASSIGNMENT AND SUBLETTING; MORTGAGE OF LEASEHOLD
10.1. Assignment. Lessee may not assign this Lease, in whole or in part,
without first obtaining the prior written consent of Lessor, which consent shall
not be unreasonably withheld or delayed, provided, however, that Lessee may
assign this Lease, in whole or in part, without such consent, to any corporation
controlled by, controlling, or under common control with Lessee, or to any
surviving corporation resulting from a merger or consolidation of Lessee with
any other corporation, or to any corporation which purchases or otherwise
acquires all or substantially all of the assets of Lessee. Any consent to any
assignment shall not be deemed to be consent to any subsequent assignment. Any
assignment by Lessee other than in accordance with this Section shall be void.
It is specifically understood and agreed that any assignment which Lessee makes,
as permitted herein, shall in no event relieve Lessee of the obligations of
Lessee hereunder.
10.2. Subletting. Lessee or its assignee shall have and is hereby given
the unqualified right and privilege, at its option, of subletting the Premises,
in whole or in part, subject to the terms and conditions of this Lease. It is
specifically understood and agreed that any subletting which Lessee or its
assignees make, as permitted herein, shall in no event relieve Lessee of the
obligations of Lessee hereunder, and that the right of subletting shall be that
of Lessee or its assignees only, and shall not extend to any subtenant.
11. REMEDIES IN THE EVENT OF DEFAULT
In the event of any breach of this Lease by Lessee which shall not have
been cured within ten (10) days after Lessee shall have received notice of such
breach in the case of a breach of a monetary obligation to Lessor, or thirty
(30) days after Lessee shall have received notice of such
10
breach in the case of a breach of any other obligation to Lessor (provided,
however, if such non-monetary breach cannot reasonably be cured within such
thirty (30) day period, then such ten (10) day period shall be extended for a
period reasonably sufficient to allow Lessee to cure such breach, if within such
initial thirty (30) day period Lessee shall have commenced to cure such breach
and shall thereafter continue its efforts with due diligence), then, at Lessor's
option and without limiting Lessor in the exercise of any other rights or
remedies which Lessor may have at law or in equity by reason of such breach,
Lessor, with or without notice or demand, may:
(a) Without terminating this Lease, re-enter the Premises and take
possession of the same, and expel or remove Lessee and all other parties
occupying the Premises, and at any time and from time to time re-let the
Premises or any part thereof for the account of lessee, for such term, upon such
conditions and at such rent as Lessor may deem reasonably proper. In such event,
Lessor may receive and collect the rent from such re-letting and apply it
against any amounts due from lessee hereunder (including, without limitation,
such expenses as Lessor may have incurred in recovering possession of the
Premises, placing the same in good order and condition, altering or repairing
the same for re-letting, and all other expenses, commission and charges,
including reasonable attorneys' fees, which Lessor may have paid or incurred in
connection with such repossession and re-letting). Whether or not the Premises
are re-let, Lessee shall pay to Lessor all amounts required to be paid by Lessee
up to the date of Lessor's reentry, and thereafter Lessee shall pay to Lessor,
until the end of the term hereof, the amount of all rent and other charges
required to by paid by Lessee hereunder, less the proceeds of such re-letting as
provided above. Such payments by Lessee shall be due at such times as are
provided elsewhere in this Lease. Lessor shall not be deemed to have terminated
this Lease or the liability of Lessee for the total rent hereunder, by any
re-entry or other act, unless Lessor shall give Lessee written notice of
Lessor's election to terminate this Lease.
(b) Terminate this Lease by giving written notice to Lessee of
Lessor's election to so terminate, re-enter the Premises and take possession of
the same, and expel or remove Lessee and all other parties occupying the
Premises. In such event, Lessor shall thereupon be entitled to recover from
Lessee:
(i) any unpaid rent which had been earned at the time of such
termination; plus
(ii) the amount by which (A) the unpaid rent for the balance
of the term after the time of termination exceeds (B) the amount of such rental
loss that Lessee proves could be reasonably avoided.
12. DAMAGE AND DESTRUCTION
12.1. No Abatement of Rent. In the event of any damage or destruction to
the Improvements, or any part thereof, by fire or other casualty, this Lease
shall continue in full force and effect, unless this Lease shall be terminated
as hereinafter provided in this Section 12, and all rent, additional rent and
other charges payable hereunder by Lessee shall continue without abatement.
11
12.2. Restoration of Improvements - Mandatory. If the damage or
destruction of the Improvements is caused by a peril or perils covered under a
so-called "All Risk" or "Special Form" property insurance policy, or if caused
by any other peril or perils and the cost of restoration of the Improvements
does not exceed One Hundred Thousand Dollars ($100,000), then Lessee shall
proceed, within a reasonable period of time after the date of the occurrence of
such damage or destruction, to repair and restore the Improvements and shall
have available to it any proceeds from the property insurance to be maintained
by Lessee pursuant to Section 8.3.
12.3. Restoration of Improvements - Non-Mandatory. If the damage or
destruction of the Improvements is not caused by a peril or perils covered under
a so-called "All Risk" or "Special Form" property insurance policy, and the cost
of restoration of the Improvements shall exceed One Hundred Thousand Dollars
($100,000), then Lessor, in Lessor's discretion, may elect to repair and restore
the Improvements, in which case it shall notify Lessee in writing, within thirty
(30) days after the occurrence of said damage or destruction, that it will
repair and restore the Improvements; and thereafter Lessor shall proceed with
due diligence to so repair and restore the Improvements. In the event Lessor
shall elect not to so repair and restore the Improvements, Lessor shall give
Lessee written notice thereof within thirty (30) days after the occurrence of
said damage or destruction, and Lessee shall then have thirty (30) days to elect
to so repair and restore the Improvements, and to serve Lessor with written
notice of its said election; and thereafter Lessee shall proceed, within a
reasonable period of time, to repair and restore the Improvements. In the event
Lessee elects to repair, restore and replace the Improvements, then, at its
option, Lessee shall be permitted to extend the term hereof for a period
sufficient, if required, to result in Lessee having a minimum term, including
any available options to extend, of ten (10) years remaining after the date of
completion of the repairs or restoration; said extended term to be under the
same terms and conditions in effect just prior to the expiration of the
preceding term. In the event Lessee elects to extend said term pursuant to this
Section 12, it shall serve Lessor with written notice thereof within the same
thirty (30) day period during which Lessee has the right to elect to repair and
restore the Improvements. In the event neither party shall elect to repair and
restore the Improvements, then, upon the expiration of the fifteen (15) day
period during which Lessee has the right to elect to repair and restore the
Improvements, this Lease shall terminate.
12.4. Damage and Destruction of Shopping Center. Anything in this Section
12 to the contrary notwithstanding, in the event of any damage or destruction to
the Shopping Center or any part thereof, other than solely to the Improvements,
at any time during the term of this Lease, or any extension thereof, and such
damage or destruction prevents or interferes with the operation of the business
conducted on the Premises, this Lease shall continue in full force and effect,
except that until such damage or destruction shall be repaired, all rent,
additional rent and other charges payable hereunder by Lessee shall xxxxx so
that Lessee shall be required to pay only a fraction thereof, the numerator of
which shall be the fair rental value of the Premises after such damage or
destruction of the Shopping Center or part thereof, and the denominator of which
shall be the fair rental value of the Premises immediately prior to such damage
or destruction to the Shopping Center or part thereof.
12
13. QUIET ENJOYMENT AND TITLE
13.1. Covenant of Quiet Enjoyment. Lessee, subject to the terms of this
Lease, upon paying the Monthly Rent and additional rent and performing the other
terms, covenants and conditions of this Lease, shall and may peaceably and
quietly have, hold, occupy, possess and enjoy the Premises during the term of
this Lease.
13.2. Right to Possession. Lessor covenants, warrants and represents that
the Land is now unoccupied and tenant-free, and that tenant-free possession of
the Land will be delivered to Lessee upon execution hereof and will thereafter
remain tenant-free and unoccupied up to and including the date of Lessee's
acceptance of the Premises to the commencement of the term hereof.
13.3. Superior Encumbrances. Lessor further covenants, warrants and
represents that there are no monetary liens, mortgages or encumbrances on the
Land or the remainder of the Shopping Center superior to the rights of Lessee
under this Lease, except for the liens of a first and/or second mortgage on the
Shopping Center, which may have been heretofore or may hereafter be made by
Lessor and have been previously disclosed in writing by Lessor to Lessee.
13.4. Ownership; Authority; Restrictions. Lessor further covenants,
warrants and represents that Lessor is the owner in fee of the Land and the
remainder of the Shopping Center of which the Land is a part, and alone will
have the full right to Lease the Land for the term and/or extended term as
aforesaid; that there are no existing restrictions or encumbrances affecting the
Land which would prohibit the construction of the Improvements or the use and
occupancy thereof as a banking institution; and that the Land is not subject to
any zoning laws or regulations which would prohibit or restrict the
construction, maintenance or operation of a banking institution.
14. TRADE FIXTURES
14.1. Ownership; Removal. Anything contained in this Lease to the contrary
notwithstanding, Lessor acknowledges, consents and agrees that all furniture,
fixtures, and equipment installed in or on or located in or about the
Improvements or other parts of the Premises which are installed in or placed on
the Premises by Lessee or its affiliates, whether affixed to the Premises or
otherwise (excluding the heating, ventilation, air conditioning, and all
electrical and mechanical components and systems that are an integral part of
the Improvements) ("Trade Fixtures"), shall be and at all times remain the
property of Lessee or its affiliates and the same may be removed by Lessee or
its affiliates (or any equipment lessor as herein provided) at any time during
the term thereof or upon the expiration or earlier termination of the term
hereof, whether or not the Trade Fixtures may be regarded as property of Lessor
by operation of law or otherwise. Lessee, at its expense, shall repair any
damage to the building caused by such removal. Lessor and/or its affiliates
waive any rights it/they may have under any statute or rule of law of the state
in which the Premises are located to distrain for rent against the Trade
Fixtures.
14.2. Landlord's Waiver. The Trade Fixtures to be used by Lessee or its
affiliate for the operation of the business may be ordered and custom built for
installation in the Premises.
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Lessee or its affiliate contemplates acquiring the Trade Fixtures from an
equipment lessor under an equipment lease or from an equipment lender under a
security agreement, who will require the execution and delivery by lessor of a
document to protect its position, sometimes referred to as a "landlord's
waiver," which will include provisions (a) waiving any rights Lessor may have to
the Trade Fixtures by reason of (i) the manner or method in which the Trade
Fixtures are attached or affixed to the Land or any Improvements contained
thereon, or (ii) any statute or rule of law of the state in which the Premises
are located which would, but for this provision, permit Lessor to distrain
against the Trade Fixtures for the nonpayment of any rent or other charges
coming due hereunder, and (b) giving the right to said equipment lessor or
lender to remove the Trade Fixtures any time prior to the expiration of the term
hereof or within thirty (30) days after any early termination of the term
hereof, in the event of a default by Lessee or its affiliate under said
equipment lease or security agreement, provided it reasonably repairs any damage
to the Improvements resulting therefrom. Lessor agrees to execute any such
document, in recordable form, and, if required by said equipment lessor or
lender, to obtain the execution of a similar document, in recordable form, by
Lessor's mortgagee or trust deed beneficiary.
15. SUBORDINATION
Provided that Lessor furnishes to Lessee an agreement in writing and in
recordable form from any present or future mortgagee or holder of a deed of
trust or other encumbrance with respect to the Premises, that: (a) such person
shall not for any reason disturb the possession, use or enjoyment of the
Premises by Lessee, its successors and assigns, so long as all of the
obligations of Lessee are fully performed in accordance with the terms of this
Lease, and (b) such person shall permit application of the insurance proceeds in
the event of damage or destruction to the Improvements or condemnation of the
Improvements or any part of the Premises, Lessee agrees to subordinate its
rights in and to the Land hereunder to the lien of such mortgage, deed of trust
or other encumbrance which may now or hereafter affect the Land. Provided such
agreement is obtained in a form reasonably satisfactory to Lessee, Lessee shall
promptly execute and deliver to Lessor upon demand any instrument that may be
necessary to effectuate such subordination.
16. SURRENDER OF PREMISES-REMOVAL OF DISTINCTIVE FEATURES
16.1. Surrender of Premises. Lessee agrees that upon the expiration of the
term of this Lease, or any extension thereof, or upon the earlier termination
thereof as provided for herein, Lessee shall surrender the Premises broom clean
and in good condition and repair subject to normal wear and tear and any
casualty damage which gives Lessee the right to terminate the Lease pursuant to
Section 12.
16.2. Removal of Distinctive Features. Lessor agrees that upon the
expiration of the term of this Lease, or any extension thereof, or upon the
earlier termination thereof as provided for herein, Lessee shall have the
unqualified right to remove from the Premises all signs or other distinctive
features of Lessee's operation. Lessee, at its expense, shall repair any damage
to the building caused by such removal, using such materials as are of equal
quality and usefulness as those so damaged. In addition, Lessee shall have the
right, but not the obligation, at its sole cost and expense, to paint the
Improvements in a neutral color. Lessor agrees that Lessor will not
14
thereafter cause, permit or suffer the Improvements to be painted the colors or
combination of colors associated with the operations of Lessee or its corporate
affiliates.
17. PROHIBITION AGAINST COMPETITION AND PROTECTION FOR EXPOSURE
17.1. Lessor's Covenant. Lessor agrees, for itself and its successors and
assigns, that, commencing upon the date of the mutual execution of this Lease
and ending upon the expiration or earlier termination of this Lease, no portion
of the Shopping Center (other than the Premises), and no other property located
within one (1) mile of the Shopping Center now or hereafter owned or controlled,
directly or indirectly, by Lessor, shall be used for a Banking Facility. The
foregoing restrictions will continue only for so long as the business conducted
upon Premises is a bank operation of the type comprising a Banking Facility,
except that said restrictions shall continue in full force and effect during the
period prior to the initial construction of the Improvements and during
temporary periods of damage, destruction, repair, restoration or remodeling of
the Improvements, until such time as same can reasonably be repaired, restored
and/or completed. Notwithstanding anything contained in this Section 17.1 to the
contrary, the foregoing restrictions shall not apply to any property located
within one (1) mile of the Shopping Center (a) acquired by Lessor, or coming
under the control, directly or indirectly, of Lessor which at the time so
acquired by Lessor or coming under the control, directly or indirectly, of
Lessor, is then being used as a Banking Facility or is subject to a lease which
does not permit Lessor to comply with the foregoing restrictions; or (b) owned
or controlled, directly or indirectly, by any successor to the original named
Lessor hereunder (including any party acquiring Lessor's interest in the
Shopping Center by foreclosure sale or deed in lieu of foreclosure) which at the
time such party succeeds to Lessor's interest hereunder is then being used as a
Banking Facility, or is subject to a lease which does not permit such party to
comply with the foregoing restrictions.
17.2. Lessee's Remedies for Breach. The covenant of Lessor contained in
Section 17.1 is a material inducement for Lessee to enter into this Lease, and
upon any breach by Lessor of said covenant, which breach is not cured within
sixty (60) days after written notice thereof by Lessee to Lessor, Lessee shall
have the right to pursue all of its rights available at law or in equity,
including cancellation of this Lease, a suit for damages, and/or a suit for
injunctive relief (it being understood that the enumeration of the foregoing
rights and remedies shall not preclude the exercise of any other rights or
remedies which might be the exercise of any other rights or remedies which might
be available tax law or in equity); provided, however, if within such sixty (60)
day period Lessor commences to cure such breach and gives written notice thereof
to Lessee and thereafter continues its written notice thereof to Lessee and
thereafter continues its efforts with due diligence to cure such breach
(including the bringing of appropriate legal proceedings), then Lessor shall
have an additional period, not to exceed one (1) year after the expiration of
such sixty (60) day period, to complete the cure of such breach, provided that
during such extended period while such breach is continuing, the Monthly Rent
then in effect shall be subject to reduction as follows: if the breach results
in a diminution of the gross revenues made from the business conducted on the
Premises of more than ten percent (10%) during any calendar month ("Affected
Month") of the period between the date of the commencement of the offending use
giving rise to such breach and the date such use is curtailed ("Violation
Period") from that of the same calendar month of the immediately preceding
calendar year ("Comparison Month"), then
15
the Monthly Rent then in effect (including any adjustments thereto pursuant to
Section 3) for such Affected Month shall be reduced by an amount equal to the
lesser of (a) the amount of the Monthly Rent for such Affected Month, or (b) an
amount equal to the diminution, if any, of the pre-tax net profit derived from
the operation of the business on the Premises during such Affected Month from
that of the Comparison Month. Notwithstanding the foregoing, in the event the
Violation Period shall commence prior to the expiration of the first Lease Year,
then, for the purpose of computing the diminution of the gross sales during the
Affected Month, the gross sales during the Affected Month shall be compared with
the average monthly gross revenues during such partial first Lease Year.
In the event of such diminution of gross revenues, as aforesaid, during
any Affected Month, Lessee shall give written notice of the same to Lessor
within twenty (20) days after the expiration of the Affected Month; said notice
shall be accompanied by Lessee's profit and loss statement, and in the event the
Premises have been sublet, the sublessee's profit and statement (which shall be
prepared in accordance with generally accepted accounting principles), covering
the Affected Month and the Comparison Month, together with Lessee's computation
of the reduced Monthly Rent applicable to the Affected Month. It is agreed and
understood that, in the event the Premises have been sublet, the diminution of
pre-tax net profit shall be based on the aggregate of Lessee's and the
sublessee's pre-tax net profit. Within ten (10) days after Lessor's receipt of
said notice, it shall refund to Lessee an amount equal to the difference between
the unadjusted Monthly Rent and the reduced Monthly Rent for the Affected Month;
provided, however, if Lessor shall fail to so refund said difference within said
ten (10) day period, Lessee shall be entitled to take a credit in such amount
against the unadjusted Monthly Rent next coming due (subject to further
reduction as herein provided).
For the purpose of this Section 17.2, absent extraordinary circumstances,
any diminution of gross revenues made from the Premises during any Affected
Month of the Violation Period shall be conclusively presumed to be a result of
such breach. In the event of any dispute between Lessor and Lessee with respect
to the enforcement, application or interpretation of the provisions of this
Section 17.2, the same shall be submitted to binding arbitration in accordance
with the rules of the American Arbitration Association, and judgment on the
award of the arbitrator(s) may be entered in any court of competent
jurisdiction. Notwithstanding the foregoing, in the event Lessor shall commence
any legal action or proceeding against any third party to enforce compliance
with the restrictions set forth in Section 18.1 and a judgment or order of the
court or other tribunal is rendered therein on the merits thereof holding that
such third party was not in violation of the restrictions, as aforesaid, and
such judgment or order becomes final and non-appealable in accordance with the
applicable rules of civil procedure, then, provided Lessor had given Lessee an
opportunity to participate in such action or proceeding, Lessor shall not be
deemed in default hereunder and shall not have any liability to Lessee on
account thereof, and any Monthly Rent refunded to Lessee or reduced in
accordance with the provisions hereof shall be promptly paid over by Lessee to
Lessor.
18. TITLE AND DEVELOPMENT CONSIDERATIONS
It is a condition precedent to Lessee's obligations hereunder that Lessee
be provided with the documentation described in this Section within the time
specified. If this documentation, in a form approved in writing by Lessee, is
not obtained or provided, through no fault or omission of
16
Lessee, within the time provided, through no fault or omission of Lessee, within
the time specified below, this Lease shall, at the option of Lessee, become null
and void and of no further force or effect, except that if Lessor shall fail to
provide the documentation described in paragraphs (a), (b), or (c) below, and as
a result thereof, this Lease shall be terminated, then any costs and expenses
incurred by Lessee in accordance with Exhibit D shall be promptly reimbursed by
Lessor; such reimbursement obligation shall survive any termination of this
Lease. Lessee shall be given fifteen (15) days after receipt of such
documentation to approve or disapprove same.
(a) Within fifteen (15) days after the date of the mutual execution
of this Lease, Lessor shall cause to be furnished to Lessee an ALTA Leasehold
Title Commitment, along with true and correct copies of all documents referenced
in Schedule B thereof, showing title to the Premises and the remainder of the
Shopping Center to be vested in Lessor, and containing the covenants,
conditions, restrictions, easements and other matters, if any, with the
understanding that Lessee may elect to disapprove the same in accordance with
its own reasonably exercised discretion. Lessor shall cause to be furnished to
Lessee an ALTA Leasehold Owner's Title Insurance Policy insuring the interest of
lessee in the leasehold in accordance with said title commitment, in the sum of
Five Hundred Thousand Dollars ($500,000), prior to the commencement of
construction. The premium for such policy shall be borne by Lessor.
(b) Within thirty (30) days after the date Lessee is to commence
construction of the Improvements in accordance with the provisions of Exhibit D,
Lessor shall furnish to Lessee a Subordination, Nondisturbance and Attornment
Agreement in recordable form, duly executed by its then mortgagee of the Land or
the remainder of the Shopping Center, in substantially the same form as Exhibit
F.
(c) Within thirty (30) days after the date of the mutual execution
of this Lease, Lessor shall furnish to Lessee reasonable evidence of all
necessary governmental approvals and permits for the development of the Shopping
Center, including, without limitation, any necessary subdivision approvals, site
plan approvals, New Jersey Department of Transportation approvals, zoning
changes or variances, conditional use permits, grading permits, and
infrastructure building permits.
Notwithstanding the foregoing, in the event any of the foregoing
conditions have not been satisfied or waived by Lessee within thirty (30) days
after the applicable date specified above, then Lessor shall also have the right
to terminate this Lease if Lessee refuses to waive said conditions in writing
within ten (10) days after Lessor's request in writing to Lessee to do so, in
which case this Lease shall terminate and neither party shall have any further
obligations to the other party.
19. HAZARDOUS SUBSTANCE OR WASTE
Lessor hereby represents and warrants that, to the best of its knowledge,
there does not exist on, in or under the Premises (including the parking areas)
any "hazardous substance" or "hazardous waste" as those terms are used under the
various applicable federal and state
17
environmental laws, including, without limitation, petroleum and petroleum
products and asbestos-containing materials (collectively, "Hazardous
Substance").
In the event any other Hazardous Substance is discovered at any time
during the term of this Lease or extensions thereof under circumstances where it
is determined that the other Hazardous Substance became present on or before the
commencement of construction of the Improvements in accordance with Exhibit D,
Lessor shall indemnify, defend (with counsel reasonably satisfactory to Lessee),
and hold and save Lessee and its subtenants harmless from and against all
claims, liabilities, actions, judgments, responsibilities and damages of every
kind and nature arising from or related to the presence of such Hazardous
Substance.
In the event any Hazardous Substance is discovered at any time during the
term of this Lease or extensions thereof, or any time thereafter, under
circumstances where it is determined that the Hazardous Substance became present
at any time after the commencement of construction of the Improvements in
accordance with Exhibit D until the expiration or earlier termination of this
Lease, and same resulted from an act or omission of Lessee, its subtenants,
agents, employees, customers or other invitees, Lessee shall indemnify, defend
(with counsel reasonably satisfactory to Lessor) and hold and save Lessor
harmless from and against all claims, liabilities, actions, judgments,
responsibilities and damages of every kind and nature arising from or related to
the presence of such Hazardous Substance during said period.
20. REAL ESTATE COMMISSIONS
Each party represents to the other party that it has not dealt with any
real estate broker or other person acting in a similar capacity who might be
entitled to a commission or finder's fee in this transaction; and each party
hereby indemnifies the other party and agrees to hold the other party harmless
from any commission and/or finder's fee claims arising through actions of the
indemnifying party in derogation of the representations contained herein.
21. NOTICES AND DEMANDS
21.1. To Lessor. Any notices or demands required or permitted by law or
any provisions of this Lease shall be in writing, and, if the same is to be
served upon Lessor, shall be deposited in the United States mail, registered or
certified, with return receipt requested, postage prepaid, or sent by recognized
national overnight courier (such as FedEx, Airborne or UPS) providing receipts
for delivery, and addressed to Lessor at the address first above stated or at
such other address as Lessor may designate in writing, or in lieu of mailing any
such notice or demand, the same shall be personally delivered to said party at
such address. At all times, Lessor may designate in writing any person(s),
firm(s) or corporation(s) to receive all notices and demands, and service upon
any one of those persons, firms or corporations as so designated shall
constitute sufficient service upon Lessor.
21.2. To Lessee. Any notice or demand to be served upon Lessee shall be in
writing, and shall be served either personally to the attention of Xxxxx X.
Xxxxxxx, Chairman and CEO, or by deposit in the United States mail, registered
or certified, return receipt requested, postage prepaid, or sent by recognized
national overnight courier (such as FedEx, Airborne or UPS) providing receipts
for delivery, addressed to Lessee, or any other address that Lessee may
18
designate in writing. Additionally, a copy of any such notice or demand to be
served upon Lessee prior to the commencement of the term of this Lease shall
also be mailed concurrently therewith to Lessee's counsel as follows: Xxxxx X.
Xxxxxxxx, Esq., 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000.
22. ATTORNEYS' FEES
In the event any action or proceeding is commenced with respect to any
claim or controversy by the parties hereto arising from the breach,
interpretation, or enforcement of this Lease or the exhibits attached hereto,
the prevailing party or parties in such action or proceeding shall receive and
be entitled to, in addition to any and all other relief, all costs and expenses,
including reasonable attorneys' fees, incurred by it in such action or
proceeding.
23. GENERAL PROVISIONS
23.1. Binding on Successors. All of the covenants, agreements, provisions
and conditions of this Lease shall inure to the benefit of and be binding upon
the parties hereto, their successors, legal representatives and assigns.
23.2. Severability. If any term or provision of this Lease or the
application thereof to any persons or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
23.3. Entire Agreement. This Lease and the exhibits attached hereto
contain the entire agreement between the parties and shall not be modified in
any manner except by an instrument in writing executed by the parties hereto or
their respective successors in interest.
23.4. Captions. The captions are inserted only as a matter of convenience
and for reference, and in no way define, limit or describe the scope of this
Lease or the intention of the parties hereto, nor do they in any way affect this
Lease.
23.5. Gender and Number. Words of any gender in this Lease shall be held
to include any other gender, and words in the singular number shall be held to
include the plural when the sense requires.
23.6. Approvals. Wherever Lessor's or Lessee's approval or consent is
required herein, such approval or consent shall not be unreasonably delayed or
withheld.
23.7. No Waiver. No waiver by Lessor or Lessee of any breach of any
provision of this Lease shall be deemed a waiver of any breach of any other
provision hereof or of any subsequent breach by Lessee or Lessor of the same or
any other provision.
23.8. Holdover. In the event Lessee shall hold over after the term of this
Lease with the consent of Lessor, express or implied, such holding over shall be
construed to be a tenancy only from month to month, and Lessee shall pay the
rent, additional rent and other sums as herein required for such further time as
Lessee may continue its occupancy. The foregoing does
19
not affect Lessor's right of reentry or any rights of Lessor hereunder or as
otherwise provided by law.
23.9. Time of Essence. Time is of the essence of this Lease and the
exhibits attached hereto and every provision herein and therein.
23.10. Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the state of New Jersey.
23.11. Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
23.12. No Third Party Rights. The terms and provisions of this Lease shall
not be deemed to confer any rights upon, nor obligate any parties hereto to, any
person or entity other than the parties hereto.
23.13. Unexecuted Lease. The submission of this Lease for review or
execution does not constitute a reservation of or option for the rights
conferred herein. This Lease shall become effective as a lease only upon
execution and delivery thereof by both Lessor and Lessee.
23.14. Lessor's Right of Entry. Lessor reserves the right to enter upon
the Premises at any time during business hours to inspect same or for the
purpose of exhibiting same to prospective purchasers, mortgagees, and, during
the last six (6) months of the term hereof or any extensions thereof, to
prospective lessees, Lessor may post any customary sign stating "for lease" or
"for sale" during the last six (6) months of the term or extended term hereof.
23.15. Estoppel Certificates. Lessor and Lessee agree that within fifteen
(15) days after receipt of a written request from either to the other, the party
receiving the request will execute and deliver to the requesting party a
certificate (a) certifying that this Lease is unmodified and in full force and
effect, or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect, and the date to
which the rent and other charges hereunder are paid, any uncured defaults
hereunder on the part of the requesting party; and (c) certifying and/or
acknowledging any other matters reasonably requested by the requesting party.
23.16. Due Authorization. Each person executing this Lease on behalf of
Lessor and Lessee, respectively, warrants and represents that the partnership,
joint venture or corporation, as the case may be, for whom he or she is acting,
has duly authorized the transactions contemplated herein and the execution of
this Lease by him or her.
23.17. Relationship of Parties. Nothing contained in this Lease shall be
deemed to constitute a partnership or joint venture between Lessor and Lessee,
and Lessor and Lessee's relationship herein shall only be deemed to be one of
landlord and tenant.
23.18. Section and Exhibit References. All references to Section numbers
in this Lease, unless otherwise provided, shall be understood to refer to the
various Sections of this Lease. All references to Exhibits in this Lease, unless
otherwise provided, shall be understood to
20
refer to the Various Exhibits attached to this Lease, which by said references,
are incorporated herein.
In Witness Whereof, the parties have hereunto set their hands the day and
year first above written.
ATTEST: MONMOUTH COUNTY BANK, N.A.
/s/ Xxxxxx X. Xxxxxx BY:/s/ Xxxxx X. Xxxxxxx
------------------------- ---------------------------------------
Xxxxx X. Xxxxxxx
Chairman and CEO
ATTEST: J.J.U.D. Inc., a New Jersey corporation
/s/ Xxxxxx X. Xxxxxx BY:/s/ Xxxx Xxxxxx
------------------------- ---------------------------------------
Xxxx Xxxxxx
President
STATE OF NEW JERSEY :
: ss.:
COUNTY OF MONMOUTH :
On the 1 day of March, 2004, before me, a Notary Public in and
for said County and State, duly commissioned and sworn, personally appeared
Xxxxx X. Xxxxxxx, (name of Officer of Corporation executing Lease as Tenant) to
me known, who, being by me duly sworn, did depose and say that he is the
Chairman and CEO of MONMOUTH COMMUNITY BANK, N.A., the corporation described in,
and which executed the foregoing instrument; that he knows the seal of said
corporation, that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation
and that he signed his name thereto by like order.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
/s/ Xxxxxx X. Xxxxxx
------------------------------------
NOTARY PUBLIC
Date: 0-0-00
-------------------------------
00
XXXXX XX XXX XXXXXX :
: ss.:
COUNTY OF MONMOUTH :
On the 1 day of March, 2004, before me, a Notary Public in and
for said County and State, duly commissioned and sworn, personally appeared Xxxx
Xxxxxx, (name of Officer of Corporation executing Lease as Tenant) to me known,
who, being by me duly sworn, did depose and say that he is the President of
J.J.U.D. Inc., a New Jersey corporation, the corporation described in, and which
executed the foregoing instrument; that he knows the seal of said corporation,
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation and that he
signed his name thereto by like order.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
/s/ Xxxxxx X. Xxxxxx
------------------------------------
NOTARY PUBLIC
Date: 3-1-04
-------------------------------
22
EXHIBIT F
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT
THIS AGREEMENT is dated as of the _________day of_______________ 200__,
between _________________________________, a __________________ corporation with
a principal address of ______________________________ (the "Lender"), J.J.U.D.
Inc., a corporation of the State of New Jersey ("Lessor"), having its principal
place of business at 0000 Xxxx Xxxx, Xxxxx, Xxx Xxxxxx, and Monmouth Community
Bank, N.A. ("Lessee"), having its principal place of business at 000 Xxxxxx
Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx 00000.
WITNESSETH:
WHEREAS, Lessee is the Lessee under a certain ground lease dated as of
____________, 2004 and, a short form of which dated _______________, 2004, that
was recorded at ________________________________, as the same have been or may
be amended (the "Lease"), with Lessor covering all or a portion of premises
known as _________________________________________________, more particularly
described as follows, to wit:
(Insert Legal Description)
WHEREAS, pursuant to Lender's certain loan commitment letter dated
____________, Lender has agreed to make a loan in the principal amount of
______________ to Lessor, which will be secured by, among other things, a
Mortgage on the Premises from Lessor to Lender (the "Mortgage") and an
Assignment of Leases, Rents and Profits (the "Assignment"), from Lessor to
Lender, provided Lessee shall subordinate the Lessee's interest in the Lease and
in the Premises as hereinafter provided.
NOW, THEREFORE, in consideration of the Premises and of the sum of One
Dollar ($1.00) by each party in hand paid to the other, the receipt and
sufficiency of which is hereby acknowledged, it is hereby agreed as follows:
1. The Lease, and all rights, options, liens or charges created thereby,
is hereby made and shall be subject and subordinate to the Mortgage and the
security interest created thereby insofar as it affects the Premises and to all
renewals, modifications, consolidations, replacements and extension thereof.
Notwithstanding the foregoing, Lessee agrees that Lender may at any time, at its
election, execute and record in the Office of the County Clerk of Monmouth
County a notice of subordination reciting that the Lease shall be superior to
the Mortgage. From and after the recordation of such notice of subordination,
the Mortgage shall be subordinate to the Lease and the Lease shall not be
extinguished by any foreclosure of the Mortgage or sale thereunder.
2. Lessee agrees that it will attorn to and recognize Lender upon any
foreclosure sale under the Mortgage, any purchaser at a foreclosure or other
sale under the Mortgage, any
1
transferee who acquires the Premises by deed in lieu of foreclosure, and the
successors and assigns of such purchasers, as its Lessor for the unexpired
balance (and extensions, if exercised) of the term of the Lease, upon the same
terms and conditions set forth in the Lease.
3. If it should become necessary to exercise remedies under the Mortgage
or if Lender shall otherwise take control of the Premises or succeed to the
interest of Lessor under the Lease, Lender shall not terminate the Lease nor
join Lessee in summary proceedings, nor disturb Lessee's possession of the
Premises nor deprive Lessee of any of its rights under the Lease, including,
without limitation, its right to have any insurance proceeds and condemnation
award paid, applied, used and apportioned in accordance with the Lease, so long
as Lessee is not then in default (beyond any applicable cure period) under any
of the terms, covenants or conditions of the Lease.
4. Lessee shall have no right to appear in any foreclosure proceedings
brought under the Mortgage, except as may be necessary to exercise its rights
hereunder.
5. Lessee agrees that it shall give Lender a copy of each notice of
default delivered to Lessor with respect to any default under the Lease, which
notice shall be delivered to Lender in hand, by recognized national overnight
service, or sent by registered or certified mail to the address of Lender set
forth in Section 7 hereof. Lessee further agrees that if Lessor shall have
failed to cure such default within the time provided for in the Lease (including
any applicable grace periods), then Lender shall have an additional thirty (30)
days within which to cure such default, or, if such default cannot be cured
within that period, then such additional time as may be reasonably necessary to
effect such a cure, including, but not limited to, time to foreclose the
Mortgage if necessary to effect such cure; and Lessee agrees that the Lease
shall not be terminated while such remedies are being pursued. Lender shall in
no event be obliged to cure any default.
6. If Lender shall succeed to the interest of Lessor under the Lease,
Lender shall not be:
(a) liable for any act or omission of any prior lessor (including
Lessor);
(b) liable for the return of any security deposits (except such as
have been delivered to it);
(c) bound by any amendment or modification of the Lease made without
its consent, which consent shall not be unreasonably withheld or delayed;
(d) bound by the consent of any prior Lessor (including Lessor) to
any assignment or sublease of Lessee's interest in the Lease made without also
obtaining Lender's prior written consent, to the extent lessor's consent is
required under the Lease; or
(e) personally liable for any default under the Lease or any
covenant on its part to be performed thereunder as lessor, it being acknowledged
that Lessee's sole remedy in the event of such default shall be to proceed
against Lender's interest in the Premises or the Shopping Center of which the
Premises forms a part.
2
7. Lessee hereby acknowledges that the entire interest of Lessor in and to
the Lease is being assigned to Lender pursuant to the terms of the Assignment.
Lessee further acknowledges and agrees:
(a) That the Lease cannot be terminated by Lessor (either directly
or by the exercise of any option which could lead to termination) or modified in
any of its terms, or consent be given to the release of any party having
liability thereon by Lessor, without the prior written consent of Lender, and
without such consent, no rent may be collected or accepted by Lessor more than
one month in advance;
(b) That whether or not Lender shall have taken possession of the
Premises, and upon written demand by Lender to Lessee to the address specified
in the introductory paragraph hereof, sent to the attention: Legal Department,
or such other address as Lessee shall designate in writing, Lessee shall pay all
rent due under the Lease to Lender at its address set forth in Section 7(c)
hereof or to such other address as Lender shall specify in writing; and
(c) That any notices to be sent by Lessee to Lender shall be
delivered in hand by recognized national overnight express service, or by
registered or certified U.S. mail addressed to Lender at
__________________________________, Attention: Loan _____________________. Any
notices to be sent by Lender to Lessee shall be delivered in hand by recognized
national overnight express courier service, or by registered or certified mail
to the address specified in the introductory paragraph hereof, or such other
address as Lessee shall specify in writing.
8. Lender acknowledges, consents and agrees that certain furniture,
fixtures, equipment, machinery and other tangible personal property (excluding
the heating, ventilation, air conditioning and all electrical and mechanical
components and systems that are an integral part of the improvements)
(collectively, "Trade Fixtures") to be installed in, on or at the Premises by or
on behalf of Lessee, shall be and at all times shall remain the personal
property of Lessee (or any equipment lessor as herein provided) and the same may
be removed by Lessee (or any equipment lessor or lender as herein provided) at
any time during the term of the Lease, whether or not the Trade Fixtures may be
regarded as property of Lessor by operation of law or otherwise. The financing
for the Trade Fixtures will be arranged by Lessee under a certain equipment
lease, conditional sale agreement, security agreement and/or other similar
security device from a certain equipment lessor or lender. Lender hereby waives,
disclaims, and releases unto said equipment lessor or lender any rights lender
may have to the Trade Fixtures by reason of (a) the manner or method in which
the Trade Fixtures are attached or affixed to the Premises, or (b) any statute
or rule of law of the State in which the Premises are located which would, but
for this Agreement, permit Lender to distrain against the Trade Fixtures for the
nonpayment of any rent or other charges coming due under the Lease. Lender
hereby grants permission to said equipment lessor or lender to remove the Trade
Fixtures in the event of a default by Lessee under said equipment lease,
conditional sale agreement, security agreement and/or similar security device,
provided it repairs any damage to the Premises resulting therefrom. Said
equipment lessor or lender shall be deemed an intended direct beneficiary of the
provisions of Section 8 of the Lease to the same extent and with the same force
as if said equipment lessor or lender was specifically and expressly named
herein. In the event said equipment lessor or lender requires the execution by
Lender or a form of waiver that is not inconsistent with the foregoing
3
provisions, Lender shall execute same, subject to its reasonable approval as to
the form of same, within a reasonable period of time after receiving a written
request to do so from Lessee. Lender hereby releases its security interest, if
any, in the Trade Fixtures arising under any security agreement and perfected by
any financing statement; such release, at the request of Lessee, to be released
of record by Lender's execution and delivery of an appropriate UCC form and
Lessee's filing and/or recordation of same.
9. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereof and their respective successors and assigns.
10. This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey.
11. By execution hereof, Lessor consents to the execution hereby by Lessee
and agrees that such execution and the performance of Lessee's rights and
obligations hereunder are not and shall not be or cause a default under the
Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a
sealed instrument as of the date and year first above written.
ATTEST: LESSEE
MONMOUTH COUNTY BANK, N.A.
/s/ Xxxxxx X. Xxxxxx BY:/s/ Xxxxx X. Xxxxxxx
------------------------- -----------------------------------------
Xxxxx X. Xxxxxxx
Chairman and CEO
ATTEST: LESSOR
J.J.U.D. Inc., a New Jersey corporation
/s/ Xxxxxx X. Xxxxxx BY:/s/ Xxxx Xxxxxx
------------------------- -----------------------------------------
Xxxx Xxxxxx
President
4
ATTEST: LENDER
BY:
------------------------- -----------------------------------------
Name
Title
STATE OF NEW JERSEY :
: ss.:
COUNTY OF MONMOUTH :
On the 1 day of March, 2004, before me, a Notary Public in and
for said County and State, duly commissioned and sworn, personally appeared
Xxxxx X. Xxxxxxx, (name of Officer of Corporation executing Lease as Tenant) to
me known, who, being by me duly sworn, did depose and say that he is the
Chairman and CEO of MONMOUTH COMMUNITY BANK, N.A., the corporation described in,
and which executed the foregoing instrument; that he knows the seal of said
corporation, that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation
and that he signed his name thereto by like order.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
/s/ Xxxxxx X. Xxxxxx
-------------------------------
NOTARY PUBLIC
Date: 0-0-00
--------------------------
0
XXXXX XX XXX XXXXXX :
: ss.:
COUNTY OF MONMOUTH :
On the ____day of ____________, 2004, before me, a Notary Public in and
for said County and State, duly commissioned and sworn, personally appeared Xxxx
Xxxxxx, (name of Officer of Corporation executing Lease as Tenant) to me known,
who, being by me duly sworn, did depose and say that he is the President of
J.J.U.D. Inc., a New Jersey corporation, the corporation described in, and which
executed the foregoing instrument; that he knows the seal of said corporation,
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation and that he
signed his name thereto by like order.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
-------------------------------
NOTARY PUBLIC
Date:
--------------------------
STATE OF NEW JERSEY :
: ss.:
COUNTY OF MONMOUTH :
On the ____day of ____________, 2004, before me, a Notary Public in and
for said County and State, duly commissioned and sworn, personally appeared
___________________ (name of Officer of Corporation executing Agreement as
Lender) to me known, who, being by me duly sworn, did depose and say that he is
the ________________ of ________________, the corporation described in, and
which executed the foregoing instrument; that he knows the seal of said
corporation, that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation
and that he signed his name thereto by like order.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
-------------------------------
NOTARY PUBLIC
Date:
--------------------------
6
ADDENDUM TO GROUND LEASE
BETWEEN
J.J.U.D., INC., A CORPORATION OF
THE STATE OF NEW JERSEY, LESSOR,
AND
MONMOUTH COMMUNITY BANK, N.A., LESSEE
THIS ADDENDUM IS INTENDED TO SUPERCEDE ANY PROVISION IN THE ORIGINAL LEASE AND
TO THE EXTENT OF ANY CONFLICT, THIS ADDENDUM SHALL GOVERN.
PARAGRAPH 4.11 - THERE SHALL BE ADDED THERETO THAT IN THE EVENT AN AUDIT IS
ORDERED BY THE TENANT AND LESSEE, IT SHALL BE DONE AT THE SOLE EXPENSE OF THE
TENANT.
PARAGRAPH 7.1 - THE USE OF THE PREMISES SHALL BE LIMITED TO THE FINANCIAL AND
BANKING ACTIVITIES ONLY. ANY OTHER USE PROPOSED SHALL BE ONLY UPON THE CONSENT
OF THE LANDLORD IN WRITING.
PARAGRAPH 12.4 - THE TERM "INTERFERE WITH THE USE OF THE PREMISES" MEANS
SUBSTANTIAL IMPACT PROHIBITING MORE THAN 75 PERCENT OF THE OPERATIONS FOR MORE
THAN 30 DAYS.
PARAGRAPH 5.1 - TENANT SHALL BE RESPONSIBLE FOR THE ARCHITECTURAL PLANS THAT
HAVE HERETOFORE BEEN ORDERED BY THE LANDLORD AND SHALL PAY THE EXPENSES FOR
SAME.
ATTEST: MONMOUTH COMMUNITY BANK
/s/ Xxxxxx X. Xxxxxx BY:/s/ Xxxxx X. Xxxxxxx
--------------------- ---------------------------------------
XXXXX X. XXXXXXX
CHAIRMAN AND CEO
ATTEST: J.J.U.D., INC., A New Jersey Corporation
/s/ Xxxxxx X. Xxxxxx BY:/s/ Xxxx Xxxxxx
--------------------- ---------------------------------------
XXXX XXXXXX, PRESIDENT
EXHIBIT E
---------
SHORT FORM GROUND LEASE
-----------------------
GROUND LEASE
------------
THIS SHORT FORM GROUND LEASE ("Lease"), is executed this ____ day of
__________, 2004, by and between J.J.U.D. Inc., a corporation of the State of
New Jersey ("Lessor"), having its principal place of business at 0000 Xxxx Xxxx,
Xxxxx, Xxx Xxxxxx, and Monmouth Community Bank, N.A. ("Lessee"), having its
principal place of business at 000 Xxxxxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx 00000.
WITNESSETH:
-----------
Lessor is the owner in fee simple of that certain land situate and located
at Xxxxxx Plaza, 444 Ocean Avenue, North, being in the City of Long Branch,
County of Monmouth, State of New Jersey, as generally shown on Exhibit A, and as
more particularly described in Exhibit B (which, together with the buildings and
other improvements constructed or to be constructed thereon, shall hereinafter
be referred to as the "Shopping Center"). For and in consideration of the
covenants and agreements contained in that certain Ground Lease of even date
herewith (the "Lease") Lessor does hereby demise and lease to Lessee that
certain land ("Land") consisting of the vacant land, including drive-through
teller areas, together with the rights appurtenants thereto, situate and being
in the Shopping Center, shown on Exhibit A, and as more particularly described
in Exhibit C. All improvements now or hereafter located on the Land shall
hereinafter be referred to as the "Improvements"; the Land and Improvements
shall hereafter be referred to collectively as the "Premises."
In addition, and for no additional consideration, Lessor also hereby
grants to Lessee (a) the non-exclusive right, license, easement and privilege to
maintain in a prominent placement on the pylon sign located at the northeast
corner of the Shopping Center for the benefit of Lessee, its successors, assigns
and subtenants; any such signs, including applicable governmental permits and
approvals, shall be obtained at Tenant's sole cost and expense, and (b) the
non-exclusive right, license, easement and privilege to use the Common Area (as
defined in Section 4.6), subject to the rights of other tenants and occupants
and their respective employees, agents, contractors, customers and other
invitees of the Shopping Center to use the Common Area, for (i) pedestrian and
vehicular ingress and egress to and from the Premises, the public rights of way
adjoining the Shopping Center, and the parking areas located in the Shopping
Center, (ii) vehicular parking, and (iii) utility lines and connections serving
the Premises, over, under and across the Common Area, including, without
limitation, the use of the parking areas, roadways and walkways, for the benefit
of Lessee, its successors, assigns and subtenants, and its and their respective
employees, agents, contractors, customers and other invitees. Lessor hereby
reserves to itself the non-exclusive right, license, easement and privilege to
use the Common Area (as defined in Section 4.6) located on the Premises
("Premises Common Area") for (a) pedestrian and vehicular ingress and egress to
and from the remainder of the Shopping Center, the public rights of way
adjoining the Shopping Center, and the parking areas located in the Premises
Common Area, (b) vehicular parking, and (c) utility lines and connections
serving the remainder
1
of the Shopping Center, over, under and across the Premises Common Area,
including, without limitation, the use of the parking areas, roadways and
walkways, for the benefit of Lessor, its successors, assigns and tenants, and
its and their respective employees, agents, contractors, customers and other
invitees.
Subject to the provisions of the Lease, the initial term of this Lease
shall commence beginning the first day of the month after all construction
approvals and the appropriate governing authority has issued all of the required
permits therefore and continuing for a term of 10 years, 120 months (the
"Term"). Notwithstanding the forgoing, the commencement date shall be no later
than May 1, 2004. Provided it shall not then be in default under this Lease
(beyond any applicable cure period), Lessee shall have the option to extend said
initial term for two (2) additional, consecutive periods of five (5) years each
by giving notice to Lessor of its intention to exercise said options,
respectively, at least six (6) months prior to the expiration of the preceding
term. All of the terms and conditions of this Lease shall apply during each of
the above extended terms, except the provisions relating to the initial
construction of the Improvements, expired options to extend the lease term, and
the Monthly Rent (as defined in Section 3 of the Lease), the latter of which
shall be governed by Section 3 of the Lease.
Subject to the following provisions of the Lease:
"Common Area" Defined. As used herein, the term "Common Area" means all
areas, facilities and improvements outside the buildings of tenants and
other occupants and within the exterior boundaries of the Shopping Center
that are provided and designated by Lessor from time to time for the
mutual use and convenience of Lessee and of other tenants and occupants by
the employees, customers and other invitees, as depicted on Exhibit A,
provided Common Area shall not include any such areas or facilities which
are or may be located in or about any enclosed mall within the Shopping
Center. Common Area includes, without limitation, pedestrian walkways and
patios, landscaped areas, sidewalks, plazas, thoroughfares, loading and
delivery areas, parking areas and facilities, access and interior
roadways, truck ways, landscaped areas, package pickup stations, public
restrooms and comfort stations, retaining walls, bus stops and lighting
facilities on or within the Shopping Center.
Use of Common Area. As provided in Section 1.2 of the Lease, Lessor has
granted to Lessee for the benefit of Lessee, its successors, assigns and
subtenants, and its and their respective employees, agents, contractors,
customers and other invitees, the nonexclusive right, license, easement
and privilege to use the Common Area, subject to Lessor's rights set forth
herein, including, without limitation, the use of the parking areas,
roadways and walkways. Lessor, for itself, its successors and assigns,
covenants that it will not significantly increase the size of any
buildings or structures in the Shopping Center or add new buildings or
structures in the Shopping Center beyond those shown or contemplated on
Exhibit A that might significantly reduce the effective use of the Common
Area or the visibility of the Improvements. Lessor and Lessee acknowledge
that the total Shopping Center (including the Premises) intended for
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the exclusive use of tenants or other occupants total, in the aggregate,
approximately 33,000 square feet of floor area.
Ownership of Improvements. The Improvements (including all alterations,
improvements, additions and changes thereto) shall be and remain the sole
property of Lessee during the term and, if applicable, extended terms, of
the Lease and, upon the expiration of the term or, if applicable, extended
terms of this Lease, the Improvements shall become the sole property of
Lessor.
Use of Premises. The Premises shall be used for the purpose of conducting
thereon the business of a banking institution and for incidental purposes
related thereof, or, except as provided in Section 7.2 of the Lease, for
any other legally permissible business or commercial venture; provided,
however, the Premises shall be used initially for the purpose of
conducting thereon the business of a Banking Institution, and for
incidental purposes related thereto; and provided further, however, that
such purpose shall not violate any applicable law, rule, ordinance or
regulation of any governmental body.
Lessor's Covenant. Lessor agrees, for itself and its successors and
assigns, that, commencing upon the date of the mutual execution of this
Lease and ending upon the expiration or earlier termination of this Lease,
no portion of the Shopping Center (other than the Premises), and no other
property located within one (1) mile of the Shopping Center now or
hereafter owned or controlled, directly or indirectly, by Lessor, shall be
used for a Banking Facility. The foregoing restrictions will continue only
for so long as the business conducted upon Premises is a bank operation of
the type comprising a Banking Facility, except that said restrictions
shall continue in full force and effect during the period prior to the
initial construction of the Improvements and during temporary periods of
damage, destruction, repair, restoration or remodeling of the
Improvements, until such time as same can reasonably be repaired, restored
and/or completed. Notwithstanding anything contained in this Section 17.1
to the contrary, the foregoing restrictions shall not apply to any
property located within one (1) mile of the Shopping Center (a) acquired
by Lessor, or coming under the control, directly or indirectly, of Lessor
which at the time so acquired by Lessor or coming under the control,
directly or indirectly, of Lessor, is then being used as a Banking
Facility or is subject to a lease which does not permit Lessor to comply
with the foregoing restrictions; or (b) owned or controlled, directly or
indirectly, by any successor to the original named Lessor hereunder
(including any party acquiring Lessor's interest in the Shopping Center by
foreclosure sale or deed in lieu of foreclosure) which at the time such
party succeeds to Lessor's interest hereunder is then being used as a
Banking Facility, or is subject to a lease which does not permit such
party to comply with the foregoing restrictions.
Lessee's Remedies for Breach. The covenant of Lessor contained in Section
17.1 of the Lease is a material inducement for Lessee to enter into this
Lease, and upon any breach by Lessor of said covenant, which breach is not
cured within sixty (60) days after written notice thereof by Lessee to
Lessor, Lessee shall have
3
the right to pursue all of its rights available at law or in equity,
including cancellation of this Lease, a suit for damages, and/or a suit
for injunctive relief (it being understood that the enumeration of the
foregoing rights and remedies shall not preclude the exercise of any other
rights or remedies which might be the exercise of any other rights or
remedies which might be available tax law or in equity); provided,
however, if within such sixty (60) day period Lessor commences to cure
such breach and gives written notice thereof to Lessee and thereafter
continues its written notice thereof to Lessee and thereafter continues
its efforts with due diligence to cure such breach (including the bringing
of appropriate legal proceedings), then Lessor shall have an additional
period, not to exceed one (1) year after the expiration of such sixty (60)
day period, to complete the cure of such breach, provided that during such
extended period while such breach is continuing, the Monthly Rent then in
effect shall be subject to reduction as follows: if the breach results in
a diminution of the gross revenues made from the business conducted on the
Premises of more than ten percent (10%) during any calendar month
("Affected Month") of the period between the date of the commencement of
the offending use giving rise to such breach and the date such use is
curtailed ("Violation Period") from that of the same calendar month of the
immediately preceding calendar year ("Comparison Month"), then the Monthly
Rent then in effect (including any adjustments thereto pursuant to Section
3) for such Affected Month shall be reduced by an amount equal to the
lesser of (a) the amount of the Monthly Rent for such Affected Month, or
(b) an amount equal to the diminution, if any, of the pre-tax net profit
derived from the operation of the business on the Premises during such
Affected Month from that of the Comparison Month. Notwithstanding the
foregoing, in the event the Violation Period shall commence prior to the
expiration of the first Lease Year, then, for the purpose of computing the
diminution of the gross sales during the Affected Month, the gross sales
during the Affected Month shall be compared with the average monthly gross
revenues during such partial first Lease Year.
In the event of such diminution of gross revenues, as aforesaid, during
any Affected Month, Lessee shall give written notice of the same to Lessor
within twenty (20) days after the expiration of the Affected Month, said
notice shall be accompanied by Lessee's profit and loss statement, and in
the event the Premises have been sublet, the sublessee's profit and loss
statement (which shall be prepared in accordance with generally accepted
accounting principles), covering the Affected Month and the Comparison
Month, together with Lessee's computation of the reduced Monthly Rent
applicable to the Affected Month. It is agreed and understood that, in the
event the Premises have been sublet, the diminution of pre-tax net profit
shall be based on the aggregate of Lessee's and the sublessee's pre-tax
net profit. Within ten (10) days after Lessor's receipt of said notice, it
shall refund to Lessee an amount equal to the difference between the
unadjusted Monthly Rent and the reduced Monthly Rent for the Affected
Month; provided, however, if Lessor shall fail to so refund said
difference within said ten (10) day period, Lessee shall be entitled to
take a credit in such amount against the unadjusted Monthly Rent next
coming due (subject to further reduction as herein provided).
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For the purpose of this Section 17.2 of the Lease, absent extraordinary
circumstances, any diminution of gross revenues made from the Premises
during any Affected Month of the Violation Period shall be conclusively
presumed to be a result of such breach. In the event of any dispute
between Lessor and Lessee with respect to the enforcement, application or
interpretation of the provisions of this Section 17.2 of the Lease, the
same shall be submitted to binding arbitration in accordance with the
rules of the American Arbitration Association, and judgment on the award
of the arbitrator(s) may be entered in any court of competent
jurisdiction. Notwithstanding the foregoing, in the event Lessor shall
commence any legal action or proceeding against any third party to enforce
compliance with the restrictions set forth in Section 18.1 of the Lease
and a judgment or order of the court or other tribunal is rendered therein
on the merits thereof holding that such third party was not in violation
of the restrictions, as aforesaid, and such judgment or order becomes
final and non-appealable in accordance with the applicable rules of civil
procedure, then, provided Lessor had given Lessee an opportunity to
participate in such action or proceeding, Lessor shall not be deemed in
default hereunder and shall not have any liability to Lessee on account
thereof, and any Monthly Rent refunded to Lessee or reduced in accordance
with the provisions hereof shall be promptly paid over by Lessee to
Lessor.
It is understood and agreed that this Short Form of Ground Lease is
executed solely for the purposes of giving notice to the public of the existence
of the Lease of the Premises, the terms and conditions of which are expressly
incorporated herein by reference for all purposes as though fully set forth
herein. Should there be any inconsistency between the terms of this instrument
and the Lease incorporated herein, the terms of the Lease shall control.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and
year first above written.
ATTEST: MONMOUTH COMMUNITY BANK
/s/ Xxxxxx X. Xxxxxx BY:/s/ Xxxxx X. Xxxxxxx
------------------------ -----------------------------------------
Xxxxx X. Xxxxxxx
Chairman and CEO
ATTEST: J.J.U.D., INC., A New Jersey Corporation
/s/ Xxxxxx X. Xxxxxx BY:/s/ Xxxx Xxxxxx
------------------------ -----------------------------------------
Xxxx Xxxxxx, President
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STATE OF NEW JERSEY :
: ss.:
COUNTY OF MONMOUTH :
On the 1 day of March, 2004, before me, a Notary Public in and
for said County and State, duly commissioned and sworn, personally appeared
Xxxxx X Xxxxxxx, (name of Officer of Corporation executing Lease as Tenant) to
me known, who, being by me duly sworn, did depose and say that he is the
Chairman and CEO of MONMOUTH COMMUNITY BANK, N.A., the corporation described in,
and which executed the foregoing instrument; that he knows the seal of said
corporation, that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation
and that he signed his name thereto by like order.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
/s/ Xxxxxx X. Xxxxxx
---------------------------------
NOTARY PUBLIC
Date: 0-0-00
----------------------------
XXXXX XX XXX XXXXXX :
: ss.:
COUNTY OF MONMOUTH :
On the 1 day of March, 2004, before me, a Notary Public in and
for said County and State, duly commissioned and sworn, personally appeared Xxxx
Xxxxxx, (name of Officer of Corporation executing Lease as Tenant) to me known,
who, being by me duly sworn, did depose and say that he is the President of
J.J.U.D. Inc., a New Jersey corporation, the corporation described in, and which
executed the foregoing instrument; that he knows the seal of said corporation,
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation and that he
signed his name thereto by like order.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this Certificate first above written.
/s/ Xxxxxx X. Xxxxxx
---------------------------------
NOTARY PUBLIC
Date: 3-1-04
----------------------------
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