THIRD AMENDMENT TO LEASE
Exhibit
10.1
THIRD AMENDMENT TO
LEASE
THIS THIRD AMENDMENT TO LEASE
is made as of this 31st day of July, 2009 between CLINTON UNITY GROUP, LLC,
having its principal mailing address as X.X. Xxx 0000, Xxxxxxx, Xxx
Xxxxxx 00000 (hereinafter “Landlord”), and UNITY BANK, (formerly, First
Community Bank) a banking institution organized under the laws of the State of
New Jersey, having its principal offices at 00 Xxx Xxxxxxx 00, Xxxxxxx, Xxx
Xxxxxx 00000, (hereinafter “Lessee”).
WITNESSETH
WHEREAS, Lessee occupies property
located at 00 Xxx Xxxxxxx 00, Xxxxxxx, Xxx Xxxxxx identified on the Town of
Clinton Tax Map as Xxxxx 00, Xxx 00 inclusive of all improvements thereon
pursuant to a revised lease dated December 15, 1995 between Lessee and Landlord, amended
by First Amendment to Lease dated March 1, 1997 (hereinafter collectively “the
Lease”) and further amended by Second Amendment to Lease dated September 19,
2003 (hereinafter collectively “the Lease”); and
WHEREAS, Landlord and Lessee
are mutually desirous of further amending the Lease in this Third
Amendment upon the terms, covenants and conditions hereinafter set
forth.
NOW, THEREFORE, for and in
consideration of One ($1.00) Dollar and other good and valuable consideration
provided by each party to the other, the receipt and sufficiency of which is
hereby acknowledged, Landlord
and Lessee do herein agree to amend the Lease in the manner
following:
1. LEASE
TERM. The Lease, as herein extended, shall remain in full
force and effect until December 31, 2013; unless otherwise extended by Section 8
(v)(e).
2. BASE
RENT. The Base Rent from and after January 1, 2009 and for the
remaining term of the Lease as established in Paragraph 1 hereinabove shall be
$400,000.00 per annum payable monthly at the rate of $33,333.34
3. ADDITIONAL
RENT. Lessee shall pay Landlord, as Additional Rent
annually, from and after January 1, 2009 through December 31, 2013, a sum in
addition to the Base Rent, as established in Paragraph 2 of this Agreement,
equal to the annual increase in the Consumer Price Index (CPI) for the New York
Metropolitan area. The first said increase (commencing on January 1,
2010) shall be based upon the increase in the CPI, if any, as of January 1, 2010
as compared to the CPI, as it existed as of January 1, 2009. Each
annual increase thereafter, if any, shall be calculated using the prior January
1st
CPI, as the base CPI in comparing same to the CPI, as it exists on January
1st
of the year for which the increase is being calculated; PROVIDED, HOWEVER,
irrespective of the actual CPI increase in any year during term hereof the
actual increase in rent attributable to CPI shall not exceed 3% per
annum. All Additional Rent is to be payable annually in twelve (12)
equal monthly installments, together with monthly Base Rent payments as
established by Paragraph 2.
4. PAYMENT OF ACCRUED
ADDITIONAL RENT.
4.1 Lessee agrees to pay, upon
execution of this Agreement, all Additional Rent, as described in the Lease, due
and owing Landlord, as of the date hereof
.. Such payment shall be in full satisfaction of any claims of
Landlord for payment under the Lease for periods prior to the date hereof, and
Landlord shall have no further claims to any such payments.
4.2 Landlord agrees to expend that
portion of the Additional Rent payment paid by
Lessee pursuant to
Paragraph 4.1 of this Agreement attributable to Landlord’s management fee,
estimated to be approximately $27,600.00, as reasonably required for capital
repairs to the Leased Premises including, but not limited to, the leased
building’s HVAC, elevator, plumbing systems. Landlord shall be responsible for
the cost of any plans, architectural work and permits, if any, needed to
undertaker such work. Landlord shall provide Lessee with invoices or other
documents evidencing the expenditure of the approximate $27,600.00 on the
systems identified in this Paragraph.
5. LANDLORD
IMPROVEMENTS. Landlord agrees to reseal and
restripe the existing driveway/parking areas located on the Leased Premises and
paint the exterior of the building situate thereon within 120 days of the date
of this Agreement. These improvements are to be made at Landlord’s sole cost and
expense and with funds separate and distinct from the capital improvement funds
to be expended by Landlord pursuant to Paragraph
4.2 of this Agreement.
6. PRO-RATION OF CAPITAL
IMPROVEMENTS. In the event Lessee acquires ownership of
the Leased Premises pursuant to its lawful exercise of the Purchase Option
Agreement as set forth in Paragraph 8 hereinafter, Lessee shall, at closing of
title and passage of Deed, reimburse Landlord pro-rata for Landlord’s expenditures for
(i) the improvements made pursuant to Paragraph 5 and (ii) all capital
improvements, other than those made pursuant to Paragraph 4
hereinabove. The amount of the reimbursement shall be the amount of
Landlord’s actual out of
pocket expense, as properly documented, reduced by a fraction, the numerator of
which is the number of months between the date Lessee acquires title and
December 31, 2013 and the denominator of which is sixty (60).
Example:
If
Landlord expends $30,000.00 on Capital Improvements subsequent to the date of
this Amendment, in addition to any sums expanded by Landlord pursuant to
Paragraph 4 of this Amendment,
and
remains in title for fifty percent of the time period calculated from date of
said expenditure to December 31, 2013 then Lessee shall be
obligated to reimburse Landlord in the amount of $15,000.00
at closing of title and passage of Deed.
7. TRIPLE NET
LEASE.
7.1 On
and after the date of this Agreement, other than as set forth in Sections 4 and
5 hereof, Lessee shall
assume all management and maintenance obligations, for the Leased Premises
including the payment at its sole cost and expense of all “Operating
Expenses”. For the purpose of this Lease, “Operating Expenses” are
hereby defined to mean those expenses paid or incurred in maintaining, operating
and repairing the Leased Premises and all improvements including the Building
situate thereon, and shall include, without limitations, the cost of electric
utility service, ventilation and air-conditioning, water, window cleaning,
janitorial service, insurance including, but not limited to, public liability
insurance and worker’s compensation insurance, applicable to the Leased
Premises; taxes, as hereinafter defined; painting and decorating, garbage
disposal service, snow removal, security services, landscaping, customary
management fees paid to bona fide third parties retained by Lessee, the charges of any
independent contractor, employed by Lessee, who does any work of
operating, maintaining or repairing of the Leased Premises, or any other expense
or charge, whether or not hereinbefore mentioned, which in accordance with
generally accepted accounting and management principles would be considered as
an expense of maintaining, operating or repairing the Leased Premises, inclusive
of replacement costs, which replacement costs shall not include those which are
properly capitalized in accordance with sound accounting practice and
principles. In addition to the foregoing, Operating Expenses shall
also include all costs and expenses for improvements required by any future
governmental law or regulation not applicable to the Building, as of the date of
this Agreement, and the cost of any such improvements treated as Operating
Expenses and paid by Lessee shall not be deemed
capital improvements for purposes of Section 6 hereof; PROVIDED, HOWEVER, that
the costs of any improvements which are capitalized pursuant to
Section 7.4 shall be prorated over the useful life of the improvement; and,
PROVIDED FURTHER, that
said proration shall be adjusted to reflect Lessee’s exercises of its
purchase option in the event same occurs in such a manner as to ensure that
Landlord is only
responsible for the pro rata cost attributable to its tenure of ownership after
expiration of Lease term as herein provided. In addition, during the
term hereof, Lessee
shall retain in place, at its cost but under the name of the Landlord, maintenance
contracts covering the elevator and HVAC systems of the Leased Premises (the
Contracts”). The Contracts shall either be those in place as of the date hereof,
or replacement maintenance agreements providing for comparable coverage. The
parties acknowledge that the current cost of the Contracts do not exceed $4,000
for the HVAC system and $3,500 for the elevator system. Nothing contained herein
shall alter or eliminate Landlord’s obligation to undertake structural repairs
or improvements in accordance with the terms of the Lease, and to pay for
repairs and improvements to the elevator and HVAC systems in excess of what is
covered under the Contracts.
Landlord
represents, based upon knowledge, information and belief, that the Leased
Premises, as improved, shall satisfy all requirements of the American
Disabilities Act and the New Jersey Barrier Free Code and that any future costs
incurred by Landlord in
complying with said act, as it existed as of the date of this Lease shall be
excepted from “Operating Expenses.”
7.2 Included
within the definition of Operating Expenses hereinabove referred to, are real
estate taxes and assessments, as follows:
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(a)
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There
shall be included in Operating Expenses the amount of any real estate
taxes (or any successor taxes), assessments, sewer rents, rates and
charges, state and local taxes, transit taxes or any other governmental
charge, general, special, ordinary or extraordinary, hereinafter
collectively called “taxes” (but not including income or franchise taxes,
“roll-back” taxes or any other taxes imposed upon or measured by the
Landlord’s income or profits, except if in substitution for real estate
taxes as hereinafter provided) which may now or hereafter be levied or
assessed against the lands and Building. The Landlord shall take the
benefit of the provisions of any statute or ordinance permitting any
assessment to be paid over a period of time, for the purpose of inclusion
in Operating Expenses.
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(b)
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In
the event Landlord
obtains a refund or a rebate of real estate taxes at
any time during the term of this Lease, Landlord shall pay to
Lessee, Lessee’s
percentage of any such refund or rebate after deducting there from Landlord’s costs and
expenses incurred in effectuating any such refund or rebate, provided the
Lessee has paid
the taxes to which said refund or rebate
apply.
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(c)
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Lessee shall have the
right to appeal, at its cost and expense, any increase
in taxes not appealed by Landlord. In addition,
Lessee shall have the right to claim as a deduction any such taxes paid
hereunder on its state and Federal tax
returns.
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7.3
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(a)
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The
public liability insurance that shall be maintained by Lessee pursuant to
Paragraph 7.1 of this Agreement shall be a comprehensive general liability
insurance policy which will insure Landlord and Lessee against liability
for injury to or death of persons or loss or damage to their Leased
Premises occurring in or about the Leased Premises from an insurance
company acceptable to Landlord. Landlord’s
approval of Lessee’s insurance company shall not be unreasonably withheld.
The minimum policy limits shall be Two Million ($2,000,000.00) Dollars
combined single limit coverage for each occurrence with general aggregate
limit of Two Million ($2,000,000.00) Dollars. Landlord shall be named
as an additional insured on all public liability insurance
policies.
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(b)
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The
Lessee shall, at
its own expense, maintain insurance on all of its property of any type
whatsoever located on the premises and shall at its own expense at all
times during the term of this Lease, maintain in full force for its
employees, all employees’ workers’ compensation insurance required under
the laws of the State of New
Jersey.
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(c)
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Lessee shall provide
Landlord with
copies of all insurance policies required to be maintained in accordance
with Paragraph 7.1 of this Agreement and proof of payment for all premiums
within ten (10) business days of said premiums being paid. In
addition thereto, all insurance policies which, pursuant to this Agreement
name Landlord as
an additional insured, shall state that the insurance company cannot
cancel or refuse to renew without at least ten (10) days notice to Landlord.
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7.4 There shall be excluded from Operating Expenses all costs relating to the Leased Premises and improvements situate thereon, which are properly capitalized in accordance with sound accounting practices and principles (ie. capital improvement costs) and fire/casualty and property damage insurance (exclusive of insurance on Lessee’s property).
8. LESSEE PURCHASE
OPTION. Landlord herein grants Lessee an option to purchase
the Leased Premises and all improvements constructed thereon from Landlord pursuant to the
following terms and conditions:
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(a)
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Method of Exercising
Option. Lessee shall exercise
this option by providing Landlord with written
notice by certified mail return receipt requested of its intention to do
so at any time during the period established in subparagraph (b)
hereinafter.
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(b)
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Time Period Within
Which Options May Be Exercised. Lessee must exercise
this
option by written notice to Landlord in the
manner provided in Paragraph 8 (a) between, and only between,
July 1, 2011 and June 30, 2013. If not exercised during this
period, then said option shall be deemed to be null and void and of no
further force in effect.
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(c)
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Purchase
Price. The purchase price to be paid by Lessee to Landlord upon execution
of this said option shall be established in the manner
following:
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(i)
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Within
forty-five (45) days of Landlord’s receipt of
Lessee’s notice to
exercise its option to purchase, Landlord and Lessee shall both obtain
and exchange written appraisals from independent appraisers certified by
the State of New Jersey as a New Jersey State Certified General
Appraiser. All appraisals done pursuant to this Amendment shall
be based on the income approach.
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(ii)
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If
the difference in the value established by the independent appraisals
obtained by Landlord and Lessee is not more than
10 (10%) percent, then, in that event, the purchase price shall be the
average of the two appraisals plus
$500,000.00.
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Example
1:
If the
appraised value by the Lessee’s appraiser’s value equals $4,300,000.00 and
Landlord’s appraiser’s value equals $4,500,000.00 then the purchase price shall
be $4,900,000.00 calculated in the manner following:
$4,300,000.00
+ $4,500,000.00 ÷ 2 = $4,400,000.00 + $500,000.00 = $4,900,000.00
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(iii)
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In
the event that the independent appraisals obtained by Landlord and Lessee vary by more than ten (10%) percent,
then the appraisers selected by Landlord and Lessee shall jointly select a third appraiser who
shall prepare, at Landlord and Lessee’s joint expense, a third
appraisal. The purchase price shall be the average of the three
appraisals plus
$500,000
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Example
2:
If the
appraised value by the Lessee’s appraiser’s value equals $4,000,000.00 and
Landlord’s appraiser’s value equals $4,500,000.00 and the jointly selected
appraiser’s value is $4,400,000.00 then the purchase price shall be
$4,800,000.00.
$4,000,000.00
+ $4,500,000.00 + $4,400,000.00= $12,900,000.00 ÷ 3 = $4,300,000.00 +
$500,000.00= $4,800,000.00
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(iv)
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Closing of
Title. Landlord shall convey by
Bargain and Sale Deed CVG at closing of title, which shall take place at
the offices of Benbrook & Benbrook, LLC, 0000 Xxxxx 00 Xxxxx, Xxxxx 0,
Xxxxxxx, Xxx Xxxxxx xx or before the 90th
day subsequent to the purchase price having been
established. At closing, Lessee shall pay the purchase price by
way of certified check or wire transfer to an account designated by Landlord. Closing
of title, pursuant to Lessee’s exercise of its
option, shall be contingent upon the parties entering into a written
Contract of Sale, incorporating the express terms of said option as set
forth in this Lease Amendment and such other terms as the parties may
agree to within 60 days of Lessee’s exercise of the
option. TIME
BEING OF THE ESSENCE.
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(v)
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Quality of
Title. Title to be conveyed to Lessee by Landlord shall be as set
forth in First American Title Company Title Insurance Policy #101358288
with the exception of any mortgages or other monetary liens incurred by
Landlord during
its tenure of ownership, all of which shall be satisfied at or prior to
closing.
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(d) Right to Assign.
Lessee shall have the right to assign the purchase option contained
herein to its parent corporation or any subsidiary or affiliate with Landlord’s
consent.
(e) Continuation of Lease Term
Pending Closing. In the event Lessee provides the notice
required under paragraph (b) of its intention to exercise the purchase option
granted under paragraph (a) and closing of title has not occurred by December
31, 2013, then the term of the Lease shall not terminate on December 31, 2013,
but shall remain in full force and effect, under its terms as revised herein,
until closing of title occurs.
9. CONFLICT BETWEEN LEASE AND
THIS AMENDMENT. Wherever there is a conflict between the
language as set forth in this Agreement and the language as set forth in the
Lease, the language as set forth in this Amendment shall take precedence and
control. Except as set forth in this Amendment, the Lease shall
remain in full force and effect.
10. RATIFICATION. Except,
as altered by this Third Amendment the Lease is ratified and confirmed in its
entirety.
11. RIGHT OF OFFSET.
Notwithstanding any provision of the Lease, in the event the Landlord is
late in any payment due under that certain mortgage loan originally closed on
December 23, 2003 in the original principal amount of $3,750,000 or the note
evidencing such loan payable to Lessee ( as such loan has been or may be
modified in the future, the “Loan”), Lessee shall have the right to offset the
amount of any such late payment against any rental payment due Landlord
hereunder, and such offset shall not constitute a default by Lessee
hereunder.
IN WITNESS WHEREOF, the
parties hereunto set their hands and seals, or caused these presents to be
signed by their proper corporate officers and caused their proper corporate seal
to be affixed hereto.
LANDLORD:
CLINTON
UNITY GROUP, L.L.C.
A New Jersey Limited Liability
Company
Witness:
/s/
/s/ By: Xxxxxx Van
Volkenburgh, Sr., Managing Member
/s/
Xxxxx Xxxxxx, Managing
Member
LESSEE:
UNITY BANK
Witness:
/s/ /s/
By:
Xxxxx X. Xxxxxx, President/CEO
