FIRST LEASE AMENDMENT
WHEREBY, PLYMOUTH EQUITIES, LLC (Landlord) and Commerce
Bank/Pennsylvania, N.A. (Tenant) entered into a lease dated November 26, 1996
for a parcel of land at Xxxxxx and Township Line Roads, Plymouth Township,
Xxxxxxxxxx County, PA.
WHEREAS, Landlord and Tenant as of April 25, 1997 hereby
agree that Landlord and Tenant wish to amend the existing lease as follows:
2.3 Option to Extend: There shall only be two options to
extend. The first option shall be for five years and the second option be for
four years, eleven months.
All other terms and conditions of the lease shall remain in
full force and effect.
Witness PLYMOUTH EQUITIES, LLC
(Landlord)
Witness Commerce Bank/ Pennsylvania,
N.A.
11/26/96
LEASE
from
PLYMOUTH EQUITIES, L.L.C.
A New Jersey Limited Liability Corporation
to
COMMERCE BANK/PENNSYLVANIA, N.A.
ARTICLE 1
Reference Data and Exhibits
1.1 DATE October 11, 1996
LOCATION OF PREMISES Corner of Township Line Road
and Xxxxxx Road
Plymouth Township
Xxxxxxxxxx County, PA
Xxxxx 00, Xxxx 0,0,0
XXXXXXXX Xxxxxxxx Equities, L.L.C.
ORIGINAL ADDRESS OF: 00000 Xxxxxxx Xxx
Xxxxx 000
Xx. Xxxxxx, XX 00000
TENANT Commerce Bank, N.A./
PENNSYLVANIA, N.A.
c/o Commerce Bancorp, Inc.
ORIGINAL ADDRESS OF TENANT 0000 Xxxxx 00 Xxxx
Xxxxxx Xxxx, Xxx Xxxxxx
LEASE TERM Twenty Years
ANNUAL FIXED RENT RATE Yr. 1 - 5: $50,000.00
6-10: $57,500.00
11-15: $66,125.00
16-20: $76,044.00
SECURITY DEPOSIT $0.00
USE: Bank Branch
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1.2 Table of Contents
ARTICLE I - Reference Data and Exhibits Page
1.1 Data ............................................................................................1
1.2 Table of Contents ...............................................................................2
ARTICLE II - Premises and Term
2.1 Premises ........................................................................................4
2.2 Term ............................................................................................4
2.3 Option to Extend ................................................................................4
ARTICLE III - Improvements
3.1 Construction of Improvements ....................................................................4
3.2 Contractor ......................................................................................4
3.3 Signs ...........................................................................................4
ARTICLE IV - Rent
4.1 The Rent, Minimum Fixed and Percentage ..........................................................5
ARTICLE V - Real Estate Taxes
5.1 Real Estate Taxes ...............................................................................5
5.2 Taxes ...........................................................................................5
5.3 Method of Payment ...............................................................................6
ARTICLE VI - Utilities and Services
6.1 Utilities and Charges Therefore .................................................................6
ARTICLE VII - TENANTS Additional Covenants
7.1 Affirmative Covenants .....................................................................6
7.1.1 Use ..........................................................................6
7.1.2 Compliance with Law ..........................................................7
7.1.3 Payment of TENANTS Work ......................................................7
7.1.4 Indemnity and Liability Insurance ............................................7
7.1.5 LANDLORD'S Right to Enter ....................................................8
7.1.6 Personal Property at TENANTS Risk ............................................8
7.1.7 Payment of LANDLORD'S Cost of Enforcement ....................................8
7.1.8 Yield Up .....................................................................8
7.1.9 Maintenance ..................................................................8
7.1.10 Insurance ....................................................................9
7.2 Negative Comments ..........................................................................9
7.2.1 Overloading, Nuisance, etc ........................................................9
7.2.2, Installation, Alteration or Additions ............................................9
ARTICLE VIII - LANDLORD'S Additional Covenants
8.1 Warranty on Use .................................................................................9
8.2 Competing Use ...................................................................................10
ARTICLE IX - Casualty or Taking
9.1 TENANT to Repair or Rebuild in the Event of Casualty ............................................10
9.2 Right to Terminate in Event of Casualty .........................................................10
9.3 Eminent Domain ..................................................................................10
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ARTICLE X - Defaults Page
10.1 Events of Default ...............................................................................11
10.2 Remedies ........................................................................................11
10.3 Remedies Cumulative .............................................................................12
10.4 LANDLORD'S and TENANTS Right to Cure Defaults ...................................................12
10.5 Effect of Waivers of Default ....................................................................12
ARTICLE XI - Miscellaneous Provisions
11.1 Assignment, Subletting, etc .....................................................................12
11.2 Notice from One Party to Other ..................................................................13
11.3 Quiet Enjoyment .................................................................................13
11.4 Recording .......................................................................................13
11.5 Acts of God .....................................................................................13
11.6 Waiver of Subrogation ...........................................................................13
11.7 No Accord and Satisfaction ......................................................................14
11.7.1 ...............................................................................................14
11.7.2 No Accord and Satisfaction ....................................................................14
11.8 Applicable Law and Construction .................................................................14
11.9 Security Deposit ................................................................................15
ARTICLE X11 --Tenant's Contingencies
12.1 Approval Contingencies ..........................................................................15
12.2 Engineering Tests ...............................................................................15
ARTICLE XIII - Net Lease
13.1 Net Lease .......................................................................................16
ARTICLE XIV-
14.1 Limitation of Landlord's Liability ..............................................................16
14.2 Right of First Refusal to Lease .................................................................16
14.3 Right of First Refusal to Purchase ..............................................................16
ARTICLE XV-
15.1 Holdover ........................................................................................17
ARTICLE XVI - Environmental Matters
16.1 Landlord ........................................................................................17
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ARTICLE II
Premises and Term
2.1 Premises - LANDLORD hereby leases to TENANT and TENANT hereby leases
from LANDLORD, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the unimproved land premises shown on
Exhibit A and described in Exhibit B, both annexed hereto and made a part
hereof, together with any and all improvements, appurtenances, rights,
privileges and easements befitting, belonging or pertaining thereto.
2.2 Term - TO HAVE AND TO HOLD for a term beginning at the earlier of
(a) Ninety (90) days (inclusive of the time for objectors to appeal from any
approval) after TENANT has obtained the approvals for the construction of the
branch bank as set forth in Article 12 (notwithstanding TENANT may not have
commenced construction) or (b) date Tenant commences construction, and
continuing for the Lease term unless sooner terminated as hereinafter provided.
When dates of the beginning and end of the Lease term have been determined, such
dates shall be evidenced by a document in form for recording, executed by
LANDLORD and TENANT and delivered each to the other.
2.3 Option to Extend - So long as TENANT is not in default hereunder,
TENANT shall have the right to extend this Lease for four (4) five (5) year
terms under the same terms, conditions and provisions as in the original term,
at the following rentals:
Option Years 1-5: $ 87,450.00
6-10: $100,568.00
11-15: $115,858.00
16-20: $133,000.00
TENANT shall give written notice of its intention to exercise each
extension option not less than Ninety (90) days prior to the expiration of the
then current term.
ARTICLE III
Improvements
3.1 Construction of Improvements - TENANT agrees to construct, at its
sole cost, a branch banking facility, pursuant to the attached Site Plan,
subject to reasonable approval by LANDLORD of the building plans and
specifications.
3.2 Contractor - TENANT shall have the right to select and approve the
contractor to complete the construction, which shall be subject to the approval
of the LANDLORD.
3.3 Signs - TENANT shall have the right to erect such signs as permitted
by applicable zoning ordinances within the leased area, or as may be approved by
local authority.
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ARTICLE IV
Rent
4.1 The Rent. Minimum Fixed - TENANT covenants and agrees to pay rent to
LANDLORD at the original address of LANDLORD or such other place as LANDLORD may
by notice in writing to TENANT from time to time direct, at the following rates
and times,
(a) TENANT agrees to pay to LANDLORD base annual fixed rent for the
Premises in accordance with and in the amount set forth in Paragraph 1.1
"Data". The base annual fixed rent shall be paid in equal monthly installments
in advance on the first (1st) day of each month beginning on the Commencement
Date. In addition to the base annual fixed rent, TENANT shall pay as and when
the same become due and owing as additional rents, all other Moines provided for
in the Lease. It is the parties intention that all charges and assessments
charged to or assessed against the Premises shall be the responsibility of the
TENANT, such that the Lease shall be "net, net, net" to the LANDLORD, excepting
only interest and principal on any mortgage made by the LANDLORD and effecting
the Premises.
(b) For purposes of this Lease, the scheduled increases in the base
annual fixed rent shall occur on the first day of the sixth (6th), eleventh
(11th) and sixteenth (16th) years of the Initial Term as same is determined
pursuant to paragraph 2.2 and on the first day of the sixth (6th), eleventh
(11th), sixteenth (16th), years of the Option Terms.
(c) If any installment under this lease is not paid within fifteen (15)
days of the time and at the place and in the manner specified, then LANDLORD may
at its option declare TENANT in default.
ARTICLE V
Real Estate Taxes
5.1 Real Estate Taxes - As additional rent, TENANT agrees to pay all
taxes levied upon the Premises improvements located on the Premises, the
leasehold estate, or any subleasehold estate of any nature including special
assessments. The payment by TENANT of all real estate taxes shall commence
simultaneously with the rentals hereunder.
5.2 Taxes - TENANT agrees to pay all taxes levied upon real estate,
rents and personal property, including trade fixtures and inventory, kept on the
Demised Premises, as well as all taxes levied against the land and the building
and improvements situated thereon during the term of the Lease, after
presentation to TENANT by LANDLORD of statements from the taxing jurisdiction
which said property is located. TENANT, however, will pay only the lowest
discounted amount and will not be required to pay any penalty, interest or cost
occurring by reason of LANDLORD'S failure to secure said tax statements in a
timely fashion from the taxing authorities.
LANDLORD may, however, direct the taxing authorities to send the
statements directly to TENANT. In the event LANDLORD directs the taxing
authorities to send a statement directly to TENANT,
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TENANT shall make all such payments directly to the taxing authority at least
ten (10) days before any delinquency and before any fine, interest or penalty
shall become due or be imposed by operation of law for their nonpayment Further,
TENANT shall furnish to LANDLORD within ten (10) days of the date when any tax,
assessment or charge would become delinquent, receipts or other satisfactory
evidence establishing the timely payment of said taxes or charges." LANDLORD
further agrees that TENANT, in the name of LANDLORD, but at TENANTS sole
expense, may protest any assessment before any, taxing authority or board or
maintain any necessary legal action in reference to said assessment or for the
recovery of any taxes paid thereon. Nothing herein contained shall require
TENANT to pay any income or excess profits, taxes assessed against LANDLORD or
any corporation, capital stock, or franchise tax imposed upon LANDLORD.
5.3 Method of Payment - LANDLORD shall give written notice advising
TENANT of the amount of real estate taxes, together with a copy of the tax xxxx,
and TENANT shall pay such amount to LANDLORD within thirty (30) days after
receipt of such notice. If this Lease shall terminate during a tax year, TENANT
shall pay to LANDLORD a prorated portion of the amount that would have been due
for the full tax year based on the number of days of said tax year expired on
the date of termination.
ARTICLE VI
Utilities and Services
6.1 Utilities and Charges Therefore - TENANT agrees to pay directly to
the authority charged with the collection thereof, all charges for water, gas,
electricity, sanitary sewer, telephone and other utilities used or consumed in
the Premises and shall make its own arrangements for such utilities. In the
event any such services cannot be reasonably procured form any public agency,
and LANDLORD provides any such services, TENANT shall reimburse LANDLORD for its
proportionate share of any such services used or consumed in the Demised
Premises as additional rental.
ARTICLE VII
TENANT'S Additional Covenants
7.1 Affirmative Covenants - TENANT covenants at its expense at all times
during the Lease term and such further time as TENANT occupies the Premises or
any part thereof.
7.1.1 Use - TENANT shall use and permit the use of the Premises and
the improvements to be constructed thereon primarily for the operation of a
branch bank, provided that (subject to the other terms and conditions of this
Lease), TENANT may at any time use the Premises and the building and other
improvements to be constructed thereon, or permit them to be used, for any other
lawful commercial purposes. Neither TENANT nor it's subtenants, if any, shall
commit any nuisance; nor permit the emission
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of any objectionable noise or odor, nor bring on, deposit or allow to be brought
on or deposited on the Premises any asbestos materials or any other Hazardous
Substance or materials as the same may be defined by Federal, State or local
laws, rules, statutes or regulations or in the Environmental Rider annexed
hereto, nor use the property in such a manner which negatively effects the
reversion.
7.1.2 Compliance with Law - To make all repairs, alterations. additions
or replacements to the Premises required by any law or ordinance or any order or
regulation of any public authority because of TENANT'S use of the Premises; to
keep the Premises equipped with all safety appliances so required because of
such use; to pay all municipal, county or state taxes assessed against the
personal property of any kind owned by or placed in, upon or about the premises
by TENANT; and to comply with the orders and regulations of all governmental
authorities, as well as all Insurance Carriers and Underwriters.
7.1.2 (A) TENANT has the right to contest by appropriate judicial or
administrative proceeding, without cost or expense to the LANDLORD, the validity
or application of any law, ordinance, order, rule, regulation or requirement
("law") which the TENANT legitimately deems invalid and TENANT shall not be in
default for failure to comply with such law until the legally permitted time
following final determination of TENANTS contest expires; provided, however, if
LANDLORD gives notice of request, TENANT shall first furnish LANDLORD a bond,
satisfactory to LANDLORD in form and insurer, guarantying compliance by TENANT
with the contested law and indemnifying LANDLORD against all liability that
LANDLORD may sustain by reason of TENANTS failure or delay in complying with the
law. LANDLORD may, but is not required to, contest any such law independent of
TENANT. On TENANT'S notice of request LANDLORD may join in TENANTS contest.
7.1.3 Payment for TENANTS Work - To pay promptly when due the entire
cost of any work to the Premises undertaken by TENANT and to bond against or
discharge any liens for labor or materials within ten (10) days after written
request by LANDLORD; to procure all necessary permits before undertaking such
work; and to do all of such work in a good and workmanlike manner, employing new
materials of good quality and complying with all governmental requirements.
7.1.4 Indemnity and Liability Insurance - To defend with counsel, save
harmless and indemnify LANDLORD from all claims or damage to or of any person or
property while on the premises unless arising from any omission, fault,
negligence or other misconduct of LANDLORD, and from all claims or damage to or
of any person or property occasioned by any omission, fault, neglect or other
misconduct of TENANT; to maintain in responsible companies qualified to do
business in the state in which the premises is located and if good standing
therein, public liability insurance covering the premises insuring LANDLORD, as
well as TENANT, with limits at least equal to those stated in Section 1.1,
workmen's compensation insurance with statutory limits, covering all of TENANTS
employees working in the premises, and to deposit promptly with LANDLORD
certificates for such insurance and all renewals thereof, bearing the
endorsement that the policies will not be canceled until after ten (10) days
written
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notice to LANDLORD. TENANT'S obligations hereunder may be satisfied through a
blanket insurance policy covering other interests of the TENANT.
7.1.5 LANDLORD'S Right to Enter - To permit LANDLORD and its agents to
examine the premises at reasonable times and to show the premises to prospective
purchasers and lenders, provided such entry shall not unreasonably Interfere
with TENANTS occupancy or conduct of its business in the Demised Premises.
7.1.6 Personal Property at TENANT'S Risk - That all of the furnishings,
fixtures, equipment, effects and property of every kind, nature and description
of TENANT and of all persons claiming under TENANT, that may be on the Premises,
shall be at the sole risk and hazard of TENANT, and if the whole or any part
thereof shall be destroyed or damaged by fire, water, or otherwise, or by the
leakage or bursting of water pipes, steam pipes or other pipes, by theft or from
any other cause, no part of said loss or damage is to be charged to or be borne
by LANDLORD, except that LANDLORD shall in no event be indemnified or held
harmless or exonerated from any liability resulting from its sole negligence,
failure to perform any of its obligations under this Lease or to any extent
prohibited by law.
7.1.7 Payment of LANDLORD'S Cost of Enforcement - To pay on demand
LANDLORD'S expenses, including reasonable attorney's fees, incurred in enforcing
any obligation of TENANT under this Lease or in curing any default by TENANT
under this Lease as provided in Section 10.4, provided LANDLORD shall prevail in
any judicial proceedings in respect to such enforcement.
7.1.8 Yield Up - At the expiration of the Lease term or earlier
termination of this Lease; TENANT shall remove all trade fixtures and personal
property, to repair any damage caused by such removal, to remove all TENANT'S
signs wherever located and to surrender all keys to the Premises and yield up
the Premises, broom clean and in the same good order and repair in which TENANT
is obligated to keep and maintain the Premises by the provisions of this Lease,
reasonable wear and tear and insured damage by fire, casualty, or taking
excepted. Any property not so removed shall be deemed abandoned unless Tenant
shall notify Landlord in writing of reasonable efforts being made by Tenant to
immediately remove such remaining property and assets, and may be removed and
disposed of by LANDLORD in such manner as LANDLORD shall determine, without any
obligation on the part of LANDLORD to account to TENANT for any proceeds there
from, all of which shall become the property of LANDLORD. Any holdover by TENANT
will not be deemed an extension of this Lease, and TENANT shall indemnify
LANDLORD against all losses and damages from a failure to surrender.
7.1.9 Maintenance- Throughout the term, TENANT shall, at TENANTS sole
cost and expense maintain the Premises and all Improvements thereon in good
condition and repair, ordinary wear and tear excepted, and in accordance with
all applicable laws, rules, ordinances, orders and regulations of (1) Federal,
State, county, municipal, and other governmental agencies and bodies having or
claiming
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jurisdiction and all of their respective departments, bureaus and officials; (2)
the insurance underwriting board or insurance inspection bureau having or
claiming jurisdiction; and (3) all insurance companies insuring all or any part
of the Premises or the Improvements located thereon, or both. except as provided
below and subject only to the provisions of Paragraph 9.2, TENANT shall promptly
and diligently repair, restore and replace as required to maintain the Premises
and the improvements In the condition set forth above, or to remedy all damage
to or destruction of all or any part of the Improvements.
(A) The completed work of maintenance, compliance, repair, restoration
or replacement shall be equal in value, quality, and use to the condition of the
Improvements before the event giving rise to the work, unless otherwise provided
for in this Lease. LANDLORD shall not be required to furnish any services or
facilities or to make any repairs or alterations of any kind in or upon or on
the Premises. LANDLORD'S election to perform any obligations of the TENANT under
this provision on TENANTS failure or refusal to do so shall not constitute a
waiver of any right or remedy for TENANT'S default and TENANT shall promptly
reimburse, defend and indemnify LANDLORD against all liability, loss, cost and
expense arising from it.
7.1.10 Insurance - TENANT shall maintain in full force and effect, at
its own cost, full replacement cost coverage insurance covering the demised
premises (and all improvements for the full insurable value) against loss or
damage by fire or casualty, with the usual extended coverage endorsements,
together with endorsements protecting against loss or damage resulting from
malicious mischief, sprinkler leakage and vandalism all in amounts not less than
replacement value above foundation walls. All insurance policies shall name the
LANDLORD as its interest may appear.
7.2 Negative Covenants - TENANT covenants at all times during the lease
term and such further times as TENANT occupies the Premises or any part thereof.
7.2.1 Overloading. Nuisance. etc, - Not to injure, overload, deface or
otherwise harm the Premises; not commit any nuisance; nor make any use of the
premises which is improper, offensive or contrary to any law or ordinance.
7.2.2 Installation. Alteration or Additions - Not to make any
installations, alterations or additions (except only the installation of
fixtures necessary for the conduct of its business), without on each occasion
obtaining prior written consent of LANDLORD, LANDLORD'S consent not to be
unreasonably withheld. No consent shall be required for nonstructural
alterations not exceeding $100,000.00 in cost.
ARTICLE VIII
LANDLORD'S Additional Covenants
8.1 Warranty on Use - LANDLORD warrants and represents that at the
commencement of construction it will be the Owner in Fee of the Land shown on
Exhibit "A" and described in Exhibit "B";. LANDLORD has no knowledge of and
TENANT requires that there be no zoning regulations, restrictive
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agreements, leases or other instruments which prevent the use of the Premises
for the purpose intended herein, nor otherwise conflict with any of the
provisions of this Lease. TENANTS sole and conclusive remedy for a beach of this
warranty shall be its right, at its election, to terminate the lease prior to
commencement of construction.
8.2 Competing Use,- During the term of this Lease, provided TENANT is
not in default, LANDLORD agrees not to lease or sell any portion of the project,
of which the leased premises is a part, to a commercial bank, savings bank,
savings and loan or credit union.
ARTICLE IX
Casualty or Taking
9.1 TENANT to Repair or Rebuild In the Event of Casualty - In case the
Premises or any part thereof shall be damaged or destroyed by fire or other
casualty, taken (which term or reference to eminent domain action generally, for
the purposes of this article shall include as sale in lieu of the exercise of
the right of eminent domain ) or ordered to be demolished by the action of any
public authority in consequence of a fire or other casualty, this Lease shall,
unless it is terminated as provided below in Section 9.2 or 9.3, remain in full
force and effect, and TENANT shall, at its expense, proceed with all reasonable
dispatch, to repair or rebuild the improvements, or what may remain thereof, so
as to restore them as nearly as practicable to the condition they were in
immediately prior to such damage or destruction.
9.2 Right to Terminate in Event of Casualty - In case of any damage or
destruction occurring in the last five years of the original term of this Lease
or during any extension of the term, to the extent of 50% or more of the
insurable value of the building, TENANT may at its option, to be evidenced by
notice in writing given to the LANDLORD within seven (7) days after the
occurrence of such damage or destruction, in lieu of repairing or replacing the
Building, elect to terminate this Lease as of the date of said damage or
destruction. In the event the TENANT shall so terminate the lease all insurance
proceeds allocated to the premises shall become the property of the LANDLORD.
9.3 Eminent Domain - If the whole, or any part of the demised premises
shall be taken or condemned by any competent authority for any public use or
purpose during the term of this lease, TENANT reserves unto itself the right to
prosecute its claim for an award based upon its leasehold interest for such
taking, without impairing any rights of LANDLORD for the taking of or injury to
the reversion.
In the event that a part of the demised premises shall be taken
or condemned that (a) the part so taken includes the building on the demised
premises or any part thereof or (b) the part so taken shall remove from the
premises 20% or more of the front depth of the parking areas thereof or (c) the
part so taken shall consist of 25% or more of the total parking area or (d) such
partial taking shall result in cutting off direct access from the demised
premises to any adjacent public street or highway, then and in any such event,
the TENANT may at any time either prior to or within a period of sixty (60) days
after the
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date when possession of the premises shall be required by the condemning
authority elect to terminate this Lease or, if any option to purchase the
premises is conferred upon the TENANT by any other provision of this Lease, may
as an alternative to such termination of this Lease elect to purchase the
demised premises in accordance with such purchase option, except that there
shall be deducted from the purchase price to be paid for the premises all of the
LANDLORD'S award from the condemnation proceeding. In the event that TENANT
shall fall to exercise any such option to terminate this Lease or to purchase
the premises or in the event that a part of the demised premises shall be taken
or condemned under circumstances under which the TENANT will have no such
option, then and in either such event the LANDLORD shall, with reasonable
promptness, make necessary repairs to and alterations of the improvements on the
demised premises for the purpose of restoring the same to an economic
architectural unit, susceptible to the same use as that which was in effect
immediately prior to such taking, to the extent that may have been necessary by
such condemnation, subject to a pro-rata reduction in rental. Any dispute
resulting from Section 9.3 of this Lease shall be submitted to the American
Arbitration Society, whose decision shall be binding on the parties hereto.
ARTICLE X
Defaults
10.1 Events of Default- If (a) TENANT shall default in the performance
of any of its obligations to pay rent or additional rents hereunder and if such
default shall continue for (10) days after written notice from LANDLORD
designating such default or if within thirty (30) days after written notice from
LANDLORD to TENANT specifying any other non-monetary default or defaults, TENANT
has not commenced diligently to correct the default or defaults so specified or
has not thereafter diligently pursued such correction to completion, or (b) any
assignment shall be made by TENANT for the benefit of creditors, or (c) if
TENANT'S leasehold interest shall be taken on execution, attached, levied upon
or (d) if a petition is filed by TENANT for adjudication as a bankrupt, or for
reorganization or an arrangement under any provision of the Bankruptcy Act as
then in force and effect, or (e) if an involuntary petition under any of the
provisions of said Bankruptcy Act is filed against TENANT and such involuntary
petition is not dismissed within sixty (60) days thereafter, then, and in any of
such cases, LANDLORD lawfully may exercise all defaults rights available to it
under law, including repossession of the leased property, termination of the
lease, acceleration of all future rental payments, and such other rights as may
be lawfully permitted.
10.2 Remedies - In the event that this Lease is terminated under any of
the provisions contained in Section 10. 1 or shall be otherwise terminated for
breach of any obligation of TENANT, TENANT covenants to pay punctually to
LANDLORD all the sums and perform all the obligations which TENANT covenants in
this Lease to pay and to perform in the same manner and to the same extent and
at the same time as if this Lease had not been terminated so long as such
obligations shall have not been
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rendered unnecessary or impossible of performance by the subsequent re-letting
or other occupancy permitted by LANDLORD. In calculating the amounts to be paid
by TENANT under the foregoing covenant, TENANT shall be credited with the net
proceeds of any rent or the value of other considerations obtained by LANDLORD
by re-letting the Premises, after deducting all LANDLORD'S expenses in
connection with such re-letting, including, without limitation, all repossession
costs, brokerage commissions, fees for legal services and expenses of preparing
the premises for such re-letting, it being agreed by TENANT that LANDLORD may
(i) re-let the Premises or any part or parts thereof, for a term or terms which
may at LANDLORD'S option be equal to or less than or exceed the period which
would otherwise have constituted the balance of the Lease term, and (ii) make
such alterations, repairs and decorations in the Premises as LANDLORD in its
sold judgment considers advisable or necessary to re-let the same.
Nothing contained in this Lease shall, however, limit or prejudice the
right of LANDLORD to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amounts of the loss or damages
referred to above.
10.3 Remedies Cumulative - Any and all rights and remedies which
LANDLORD may have under this Lease, and at law and equity, shall be cumulative
and shall not be deemed inconsistent with each other, and any two or more of all
such rights and remedies may be exercised at the same time insofar as permitted
by law.
10.4 LANDLORD'S and TENANTS Right to Cure Defaults - LANDLORD may, but
shall not be obligated to, cure at any time, following ten (10) days prior
written notice to TENANT, except in cases of emergency when no notice shall be
required, any default by TENANT under this Lease; and whenever LANDLORD so
elects, all costs and expenses incurred by LANDLORD, including reasonable
attorney's fees, in curing a default shall be paid by TENANT to LANDLORD as
additional rent on demand. TENANT shall have a like right to cure any default of
LANDLORD, and TENANT may reimburse itself for the cost thereof out of succeeding
rental payments.
10.5 Effect of Waivers on Default - No consent or waiver, express or
implied, by either party to or of any breach of any covenants, conditions or
duty of the other shall be construed as a consent or waiver to or of any other
breach of the same of any other covenant, condition or duty.
ARTICLE XI
Miscellaneous Provisions
11.1 Assignment, Subletting, etc. - Consent shall not be required for
any assignment, transfer or subletting. Upon assignment in accordance with the
foregoing, the TENANT shall remain liable for the full and faithful performance
of the lease and all its terms and conditions.
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11.2 Notice from One Party to the Other - Any notice from LANDLORD to
TENANT or from TENANT to LANDLORD shall be deemed duly served if mailed by
registered or certified mail, return receipt requested, postage prepaid,
addressed, if to TENANT, at the original address of TENANT or such other address
as TENANT shall have last designated by notice in writing to LANDLORD, and if to
LANDLORD, at the original address of LANDLORD or such other address as LANDLORD
shall have last designated by notice in writing to TENANT.
11.3 Quiet Enjoyment- LANDLORD agrees that upon TENANTS paying the rent
and performing and observing the agreements, conditions and other provisions on
its part to be performed and observed, TENANT shall and may peaceably and
quietly have, hold and enjoy the Demised Premises during the Lease term without
any manner of hindrance or molestation from LANDLORD or anyone claiming under
LANDLORD, subject to the covenants and conditions of this Lease.
11.4 Recording TENANT agrees not to record this Lease, but each party
hereto agrees on request of the other, to execute a Notice or Short Form of this
Lease in recordable form in compliance with applicable statutes, and reasonably
satisfactory to LANDLORD'S and TENANTS attorneys. In no event shall such
document set forth the rental or other charges payable by TENANT under this
Lease; and any such document shall expressly state that it is executed pursuant
to the provisions contained in this Lease, and is not intended to vary the terms
and conditions of this Lease. In the event LANDLORD and/or TENANT believe that
the Lease has been lawfully terminated, abandoned or otherwise of no force and
effect and the other party will not voluntarily execute a Discharge of
Memorandum of Lease, the party seeking the Discharge of Memorandum of Lease may
move summarily before the Superior Court of New Jersey for a determination of
whether or not the Memorandum of Lease should be discharged. The other party
consents to the jurisdiction of the Superior Court of New Jersey and agrees to
proceed in a summary manner. It is expressly understood and agreed that in
addition to the relief provided herein, the parties will have such additional
cumulative remedies as are available to it at law or in equity for damages
suffered by reason of a wrongful refusal to execute and deliver a Discharge of
Memorandum of Lease.
11.5 Acts of God - In any case where either party hereto is required to
do any act, delays caused by or resulting from Acts of God, war, civil
commotion, fire or other casualty, labor difficulties, shortages of labor,
materials or equipment, government regulations, or other causes beyond such
party's reasonable control shall not be counted in determining the time during
which work shall be completed, whether such time be designated by a fixed date,
a fixed time or "a reasonable time".
11.6 Waiver of Subrogation - All insurance which is carried by either
party with respect to the Demised Premises, whether or not required, shall
include provisions which either designates the other party as one of the insured
or deny to the insurer acquisition by subrogation of rights of recovery against
the other party. Each party shall be entitled to have duplicates or certificates
of any policies containing such provisions,. Each party hereby waives all rights
of recovery against the other for loss or injury against which the waiving party
is protected by insurance containing said provisions.
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11.7 Rights of Mortgagee and Subordination
11.7.1 This Lease is subject and is hereby subordinated to all present
and future mortgages, deeds of trust, and other encumbrances affecting the
Premises or the property of which said Premises are a part; provided, however,
that an agreement or Instrument affecting such subordination shall be executed
by the mortgagee or other Lender, be recorded with such mortgage or other
security agreement, and a copy delivered to the TENANT and contain provisions,
to the effect that (1) so long as TENANT observes the terms and provision of the
Lease and notwithstanding the Lease may be foreclosed, TENANT will not be
effected or disturbed by the mortgagee in the exercise of any of its rights
under the mortgage or other security agreement, or the bond, note or debt
secured thereby; (ii) in the event the mortgagee comes into possession or
ownership of the Premises by foreclosing or otherwise, TENANT'S use, occupancy
and quiet enjoyment of the Premises shall not be disturbed by any such
proceedings; (iii) in the event the Premises are sold or otherwise disposed of
pursuant to any right or power contained in the mortgage or other security
agreement, or the bond or note secured thereby, or as a result of proceedings
thereon, the purchaser shall take title subject to this Agreement of Non
Disturbance, and all of the rights of TENANT hereunder, (iv) in the event the
buildings and improvements upon the Premises are damaged by fire and other
casualty, for which loss the proceeds payable under any insurance policy or
policies are payable to the mortgagee, such insurance funds, when paid, shall be
made available for the purpose of repair and restoration as provided in this
Lease; and (v) the agreement shall be binding upon the LANDLORD, mortgagee and
their respective heirs, executors, administrators, successors and assigns. The
TENANT agrees to execute, at no expense to the LANDLORD, any instrument which
may be deemed necessary or desirable by the LANDLORD to further effect the
subordination of this lease to any such mortgage, deed of trust or encumbrance.
11.7.2 No Accord and Satisfaction - No acceptance by LANDLORD of lesser
sum than the rent or any other charges then due shall be deemed to be other than
on account of the earliest installment of such rent or charge due, nor shall any
endorsement or statement on any check or nay letter accompanying any check or
payment as rent or other charge be deemed an accord and satisfaction, and
LANDLORD may accept such check or payment without prejudice to LANDLORD'S right
to recover and balance of such, installments or pursue any other remedy in this
Lease provided.
11.8 Applicable Law and Construction - This Lease shall be governed by
and construed in accordance with the laws of the state in which the premised is
located, and if any provisions of this Lease shall to any extent be invalid, the
remainder of this Lease shall not be affected thereby. There are no oral or
written agreements between LANDLORD and TENANT affecting this Lease. This Lease
maybe amended only by instruments in writing executed by LANDLORD and TENANT.
LANDLORD shall not be deemed in any way or for any purpose, to have become, by
the execution of this Lease or any action taken thereunder, a partner of TENANT
in it business or otherwise a joint venturer or member of any
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enterprises of TENANT. The titles of the several Articles and Sections contained
herein are for convenience only and shall not be considered in construing this
Lease. Unless repugnant to the context, the words'LANDLORD and TENANT'appearing
in this Lease shall be construed to mean those names above in their respective
heirs, executors, administrators, successors and assigns, and those claiming
through or under them respectively.
11.9 Security Deposit - TENANT agrees to pay to LANDLORD security
deposit for the Premises in accordance with and in the amount set forth in
Paragraph 1.1 "Data". TENANT shall make payment upon signing of this lease. Upon
expiration of this lease, provide TENANT is not in default, security deposit
will be returned to TENANT.
ARTICLE XII
Permits and Approvals
12.1 TENANTS Obligations - The obligations of TENANT hereunder are
contingent upon TENANT securing on or before March 31, 1997. All costs for
approvals shall be the responsibility of Tenant:
A. All State and Federal regulatory approvals for the construction and
operation of a branch bank.
B. All municipal and governmental approvals required for the
construction of TENANTS proposed building other than the issuance of a building
permit ("Permit and Approvals")
12.2 Approvals In the event TENANT has not obtained its Permits and
Approvals on or before March 31, 1997, and TENANT has not waived the
contingencies of Permits and Approvals, TENANT will be entitled to One (1)
extension of time of sixty (60) days until May 30, 1997 to obtain the Permits
and Approvals; provided full and complete applications for all necessary permits
and approvals are then pending, all notice requirements have been satisfied and
at least one hearing has been held on each of the permits and applications for
approvals.
12.3 Easements- TENANT shall have absolutely no right to grant any
easements with regard to the Premises other than such easements to public
entities or public service corporations for the purpose of serving only the
Premises, rights-of-way or easements on or over the Premises for poles or
conduits, or both, for telephone, electricity, water, sanitary or storm sewers
or both and for other utilities and municipal or special district services.
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ARTICLE XIII
Net Lease
13.1 Net Lease- It is the intention of LANDLORD and TENANT that the
rental herein specified shall be net to LANDLORD in each lease year, that all
costs, expenses, and obligations of every kind relating to the premises which
may arise during the term of this lease shall be paid by TENANT, and that
LANDLORD shall be indemnified by TENANT against any such costs, expenses, and
abligations.
ARTICLE XIV
14.1 Limitation of Landlord's Liability- TENANT shall look solely to
the estate and property of LANDLORD in the Premises, in all events subject to
the prior rights of any and all mortgagees, for the collection of any judgment,
claim or demand (or any other judicial process) requiring the payment or
expenditure of money by LANDLORD in the event of any uncurled default or breach
by LANDLORD with respect to any of the terms, covenants and conditions of this
Lease to be observed or performed by TENANT, and no other assets of LANDLORD or
any one or more of the principals of LANDLORD shall be subject to execution or
other process or procedure for the satisfaction of TENANTS remedies.
14.2 Right of First Refusal to Lease - If during the term of this
Lease or within one hundred eighty (180) days before its conclusion, LANDLORD
shall desire to accept a bona fide offer received by it to lease any part of the
Premises effective at the conclusion of this Lease and all options, LANDLORD
shall notify TENANT of such a desire in the manner provided in this Lease for
the giving of notice, and TENANT shall have the right of first refusal to lease
said Premises within ten (10) days upon the terms contained in the notice. This
provision shall only be effective after the termination, expiration or
conclusion of the original lease term and all options, and shall not affect the
Premises during the term of this Lease.
14.3 Right of First Refusal to Purchase - TENANT shall have the right
of first refusal to purchase the Demised Premises as hereinafter set forth. If
at any time during the term as extended, LANDLORD shall receive a bona fide
offer from a third person for the purchase of the Demised Premises, which offer
LANDLORD shall promptly deliver to TENANT a copy of such offer, and TENANT may,
within fifteen (15) days thereafter, elect to purchase the Demised Premises on
the same terms as those set forth I such offer, excepting that TENANT shall be
credited against the purchase price to be paid by TENANT, with a sum equal to
the amount of any brokerage commission, if any, which LANDLORD shall save by a
sale to TENANT. If LANDLORD shall receive an offer for the purchase of the
Demised Premises, which is not consummated by delivering a deed to the offerer,
the TENANTS right of first refusal to purchase shall remain applicable to
subsequent offers. If LANDLORD shall sell the Demised Premises, after a failure
of TENANT to exercise its right of first refusal, such shall be subject to the
Lease and shall continue to be applicable to subsequent sales of the Demised
Premises. Not withstanding the foregoing, TENANTS right of first refusal shall
not apply or extend to any sales or transfers between LANDLORD and any
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affiliates in which the principals of the LANDLORD are the majority shareholders
to any family trusts or to the heirs of the principals of LANDLORD. LANDLORD
shall be entitled to net the same amount under any right of first refusal
exercise.
ARTICLE XV
15.1 Holdover- In the event that TENANT continues in use and occupancy
and holds over in possession of the Premises after the expiration of the Initial
Term or, properly exercised, the Option Term, in addition to all other damages
to which LANDLORD may be entitled, the monthly rent during the period of
holdover shall be in a sum equal to double the amount of the monthly installment
of base annual fixed rent during the last month of the term which has just
expired. Said holdover rent shall be in addition to all additional rents for
which the TENANT shall be responsible during the holdover period.
ARTICLE XVI
Environmental Indemnification
16.1 A. LANDLORD represents, warrants and covenants as follows:
(i) LANDLORD represents and warrants that any handling,
transpiration, storage, treatment or usage of hazardous or toxic substances (as
defined by any applicant government authority hereinafter being referred to as
"Hazardous Materials") that has occurred or will occur on the Demised Premises
shall be in compliance with all applicable federal, state and local laws,
regulations and ordinances. TENANT represents and warrants that any handling,
transportation, storage, treatment or usage of Hazardous Materials by TENANT at
the Demised Premises shall be in compliance with all applicable federal, state
and local laws. LANDLORD further represents and warrants that no leak, spill,
discharge, emission or disposal of Hazardous Materials has occurred or will
occur on the Demised Premises and that the soil, groundwater, soil vapor on or
under the Demised Premises is or will be free of Hazardous Materials as of the
date hereof,
(ii) LANDLORD has disclosed or will disclose to TENANT, and
provide to tenant, all accounts and complete copies of all information, data,
documents, reports, notices, and other materials whether in draft form or final
form, exclusive of duplication, regarding Substances, at, on, in or under the
Premises or any property adjacent to or in the vicinity of the Premises which
may impact the Premises (the "Reports"), including all Reports in LANDLORD'S al
or constructive possession or control, whether prepared for LANDLORD or for
others, and all other Reports of which LANDLORD has or should have knowledge
after due inquiry;
(iii) Except as set forth in writing in the Reports which
have been disclosed to TENANT, if any, LANDLORD has no actual knowledge of any
Release or threatened Release of
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Substances, at, on, in or under the Premises, or any property adjacent to or in
the vicinity of the Premises which may impact the Premises. LANDLORD shall
promptly notify TENANT in writing if LANDLORD obtains any such knowledge after
the date hereof and shall promptly deliver to TENANT copies of all Reports which
LANDLORD obtains, or of which LANDLORD obtains knowledge, after the date hereof,
(iv) Except as previously disclosed to TENANT in writing by
LANDLORD, LANDLORD has no actual knowledge that there are not now, and have
never been, any underground storage tanks (including but not limited to
underground storage tanks for the storage or petroleum or petroleum products)
(A) at the Premises or, (B) to the best of LANDLORD'S knowledge, information and
belief after due inquiry, on any property adjacent to the Premises; and
(v) LANDLORD has no actual knowledge that there are xxxxx or
septic tanks on the Premises which serve or have at any time served the
Premises; no xxxxx or septic tanks on the Premises which serve or have at any
time served any other property; and no xxxxx or septic tanks on any other
property which serve or have at any time served the Premises except as provided
above.
(B) LANDLORD Indemnification:
The representations, warranties and covenants of the Section are
continuing. If at any time of the representations, warranties or covenants made
by LANDLORD in this Section shall become untrue or are breached to the knowledge
of LANDLORD, then LANDLORD shall immediately notify TENANT of the facts that
render such representations, warranties or covenants untrue or breached.
LANDLORD shall immediately notify TENANT of any audit, inquiry, test,
investigation, claim or enforcement proceeding relating to the Premises or by or
against LANDLORD involving any Release or threatened Release. Within five (5)
business days after receipt by LANDLORD, LANDLORD shall provide TENANT the
results of any audit, inquiry or investigation regarding Substances at, on, in
or under the Premises or any property adjacent to or in the vicinity of the
Premises that may impact the Premises. LANDLORD shall indemnify, defend, and
hold harmless TENANT (and its employees, agents, officers, directors,
successors, assigns) from all claims, actions, suits, proceedings, judgments,
losses, costs, damages, penalties, fines, liabilities, it being understood that
LANDLORD shall defend any such claims set forth at LANDLORD'S sole cost and
direction (including, without limitation, reasonable attorney's fees and
consultants' fees, investigation, engineering, and laboratory fees, court costs
and litigation expenses, including experts' fees) ("Claims") directly or
indirectly resulting from, arising out of, or based upon a Release or threatened
Release of Substances at on, in or under Premises (including, without
limitation, Releases originating or emanating from any property adjacent to or
in the vicinity of the Premises that may impact the Premises or from
groundwater) or the violation of any Environmental Laws, or under or on account
of the Environmental Laws. This indemnity shall include without limitation, (A)
any damage, liability, fine penalty or punitive damage arising from or out of
any claim, action, suit or proceeding for personal injury (including, without
limitation, sickness, disease, or death or fear of same), tangible property
damage, nuisance, pollution, contamination, leak, spill, release, or other
effect on the environment, and (B) at LANDLORD'S direction,
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the cost of any required, necessary or appropriate response, investigation,
repair, clean-up, treatment, removal, redemption, or detoxification or the
Promises or other properties affected by such Release or threatened Release, and
the preparation and implementation of any other required, necessary or
appropriate actions in connection with the Premises or other properties affected
by such Release or threatened Release. Notwithstanding anything to the contrary
contained herein, LANDLORD shall not be liable to TENANT for indemnification
with regard to any claims relating to a Release or threatened Release at the
Premises that is caused by TENANT. Upon the occurrence of a Release of
threatened Release (other than Releases caused by TENANT), whether or not the
same, originates or emanates form the Premises or any adjacent property for form
groundwater, LANDLORD shall at LANDLORD'S sole cost and expense promptly, and in
any event within thirty (30) days after the occurrence of the Release, commence
and diligently pursue any and all lawful actions as are necessary or advisable
(including any necessary of advisable investigation, repair, clean-up,
treatment, or appropriate response, redemption, or detoxification) in order to
xxxxx the Release or threatened Release, remove the Substances, and minimize,
mitigate and remedy nay resulting environmental harm, regardless or whether such
abatement, removal, minimization, mitigation or redemption is required by the
Environmental Laws and regardless or whether such actions are required by any
governmental authority. If LANDLORD shall fail to comply with any of the
requirements of the preceding sentence, or any of the requirements of the
Environmental Laws, within any applicable time period, TENANT may, in addition
to TENANTS other rights under this Lease, terminate this Lease by written notice
to LANDLORD.
C. Phase I Environmental Survey:
A condition precedent to this Lease shall be TENANT'S
satisfactory review of the report (the "Phase I Environmental Survey") on the
environmental condition of the land on which the Demised Premises is located.
LANDLORD agrees to provide TENANT with a Phase I Environmental Survey of the
land on which the Demised Premises is located. In the event that TENANT shall
discover in its review of the Phase I Environmental Survey that any Hazardous
Materials may be present in the soil, groundwater or soil vapor on or under the
Demised Premises, TENANT may, upon written notice to LANDLORD within ten (10)
days after the date TENANT received the Phase I Environmental Survey, terminate
this Lease.
D. Rent Abatement
If during the term of this Lease any governmental authority
requires the redemption of hazardous Materials from the Demised Premises or the
Shopping Center and such redemption substantially affects TENANTS business
operations, then TENANT shall be entitled to an equitable abatement of rent form
the date such interference or safety hazard occurs to the date such interference
and safety hazard are not longer present.
16.2 TENANT agrees to indemnify LANDLORD and its officers, employees
and agents harmless from any claims, judgments, damages, fines, penalties,
costs, liabilities (including sums paid in settlement of claims) or loss
including attomey's fees, consultants' fees and experts fees which arise during
or after
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the Primary Term of any Renewal Term in connection with the presence of toxic or
Hazardous Substances In the soil, groundwater, or soil vapor on or under the
Demised Premises to the extent which presence is caused by the acts of TENANT,
its officers, employees and agents.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
this day and year first written above
LANDLORD:
PLYMOUTH EQUITIES, L.L.C.
BY: /s/ Xxxx X. Xxxxxxxxx
Attest: Plymouth Equities, L.L.C.
Xxxx X. Xxxxxxxxx,
Managing Partner
TENANT:
Commerce Bank/Pennsylvania N.A.
BY: /s/ Xxxxxx X. Xxxxx
Attest: Xxxxxx X. Xxxxx
Assistant Secretary Senior Vice President/
Real Estate Officer
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