Contract
Exhibit
10.9
LEASE
XXXXXX
I LIMITED PARTNERSHIP
LANDLORD,
TO
EMBASSY
BANK FOR THE LEHIGH VALLEY
TENANT.
TABLE
OF CONTENTS
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Page
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ARTICLE
I
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BASIC
LEASE PROVISIONS AND ENUMERATION OF EXHIBITS
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1
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1.1
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INTRODUCTION
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1
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1.2
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BASIC
DATA
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1
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1.3
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ENUMERATION
OF EXHIBITS
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3
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1.4
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CERTAIN
DEFINITIONS
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3
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ARTICLE
II
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DESCRIPTION
OF PREMISES AND APPURTENANT RIGHTS
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4
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2.1
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LOCATION
OF PREMISES
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4
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2.2
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APPURTENANT
RIGHTS AND RESERVATIONS
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4
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ARTICLE
III
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TERM
OF LEASE
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4
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3.1
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COMMENCEMENT
DATE
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4
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3.2
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LANDLORD'S
WORK AND ESTIMATED OCCUPANCY DATE .
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5
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3.3
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TENANTS
WORK
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7
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3.4
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INTENTIONALLY
LEFT BLANK
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8
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3.5
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CONTINGENCIES
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8
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ARTICLE
IV
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RENT
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9
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4.1
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MINIMUM
RENT
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9
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4.2
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LEASE
YEAR
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10
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ARTICLE
V
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USE
OF PREMISES
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10
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5.1
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PERMITTED
USE
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10
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5.2
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EXCLUSIVE
USE
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11
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ARTICLE
VI
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ASSIGNMENT
AND SUBLETTING
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11
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6.1
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ASSIGNMENT
LIMITATIONS
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11
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ARTICLE
VII
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MAINTENANCE
OF BUILDING, ETC
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12
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7.1
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LANDLORD'S
REPAIR OBLIGATIONS
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12
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7.2
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TENANT'S
MAINTENANCE AND REPAIR OBLIGATIONS
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12
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7.3
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TENANT'S
ALTERATIONS
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13
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7.4
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UTILITIES
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13
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7.5
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SECURITY
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14
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7.6
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LIGHTING
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14
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i
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Page
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ARTICLE
VIII
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INDEMNITY
AND PUBLIC LIABILITY INSURANCE
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14
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8.1
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TENANT'S
INDEMNITY
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14
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8.2
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INJURY
CAUSED BY THIRD PARTIES
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15
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8.3
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LANDLORD'S
INDEMNITY
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15
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8.4
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SCOPE
OF INDEMNITY
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16
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ARTICLE
IX
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LANDLORD'S
ACCESS TO PREMISES REIMBURSEMENTS AND RIGHTS OF SELF HELP
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16
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9.1
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LANDLORD'S
RIGHT OF ACCESS
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16
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9.2
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EXHIBITION
OF SPACE TO PROSPECTIVE TENANTS
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16
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ARTICLE
X
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INSURANCE
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16
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10.1
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FIRE
AND EXTENDED COVERAGE INSURANCE
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16
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10.2
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SPRINKLER
SYSTEM
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17
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10.3
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FIXTURES
AND EQUIPMENT INSTALLED BY TENANT
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17
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10.4
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INSURANCE
RATES
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17
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10.5
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NON-SUBROGATION
AGAINST TENANT
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17
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10.6
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NON-SUBROGATION
AGAINST LANDLORD
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18
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ARTICLE
XI
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DAMAGE
OR DESTRUCTION
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18
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11.1
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18
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11.2
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18
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11.3
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ABATEMENT
OF RENT AND OTHER CHARGES
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18
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ARTICLE
XII
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TAXES
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18
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12.1
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REAL
PROPERTY TAXES
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18
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12.2
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PERSONAL
PROPERTY TAXES
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19
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12.3
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DEFINITION
OF TENANT'S ALLOCABLE (OR PRO RATA) SHARE OF INSURANCE
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19
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ARTICLE
XIII
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EMINENT
DOMAIN .
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20
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13.1
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EFFECT
OF CONDEMNATION
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20
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13.2
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DIVISION
OF AWARD
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20
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13.3
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ABATEMENT
OF RENT AND OTHER CHARGES
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20
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ARTICLE
XIV
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DEFAULT
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21
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14.1
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EVENTS
OF DEFAULT
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21
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ARTICLE
XV
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TENANT'S
SIGNS
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23
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15.1
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TENANT'S
SIGNING RIGHTS
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23
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ii
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Page
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ARTICLE
XVI
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COMMON
AREA MAINTENANCE
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23
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ARTICLE
XVII
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MISCELLANEOUS
PROVISIONS
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26
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17.1
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MECHANIC'S
LIENS
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26
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17.2
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WAIVER
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26
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17.3
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DISPUTES
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26
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17.4
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INTEREST
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27
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17.5
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INVALIDITY
OF PARTICULAR PROVISIONS
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27
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17.6
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NOTICES
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27
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17.7
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PROMOTIONAL
EVENTS; ACCESS
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27
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17.8
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INTENTIONALLY
OMITTED
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27
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17.9
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GOVERNING
LAW
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27
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17.10
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DEFINITION
OF TERM
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27
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17.11
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PARAGRAPH
HEADINGS
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27
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17.12
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ESTOPPEL
CERTIFICATE OF LANDLORD
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27
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17.13
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ESTOPPEL
CERTIFICATE OF TENANT
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28
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17.14
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RELATIONSHIP
OF THE PARTIES
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28
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17.15
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AUTHORITY
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28
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17.16
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COMPLETE
AGREEMENT
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28
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17.17
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LIMITATION
OF LANDLORD'S LIABILITY
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29
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17.18
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HOLDOVER
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29
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17.19
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BROKER'S
COMMISSION
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29
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17.20
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SURVIVAL
OF OBLIGATIONS
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29
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17.21
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FORCE
MAJEURE
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29
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17.22
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RADIUS
RESTRICTION
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29
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17.23
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TAXES
ON LEASEHOLD
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29
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17.24
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SUBORDINATION,
ATTORNMENT
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29
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17.25
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COVENANT
OF QUIET ENJOYMENT
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30
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17.26
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SHORT
FORM LEASE
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30
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17.27
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LANDLORD'S
DEFAULT
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30
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17.28
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COVENANTS
OF LANDLORD
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30
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17.29
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NOTICE
TO MORTGAGEE
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31
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17.30
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STATUS
REPORTS
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31
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17.31
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ASSIGNMENT
OF THE LEASE TO MORTGAGEE
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31
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17.32
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ENVIRONMENTAL
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31
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17.33
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INTENTIONALLY
OMITTED
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33
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17.34
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LANDLORD'S
TITLE
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33
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17.35
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33
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17.36
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PARKING
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33
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17.37
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EASEMENTS
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33
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ARTICLE
XVIII
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RIGHTS
OF EXTENSION
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33
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ARTICLE
XIX
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RIGHT
OF FIRST REFUSAL
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34
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ARTICLE
XX
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LEASEHOLD
MORTGAGE
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34
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20.1
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LEASEHOLD
MORTGAGE
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34
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20.2
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EFFECT
OF TERMINATION OF LEASE ON LEASEHOLD MORTGAGE .
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36
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iii
SHOPPING
CENTER LEASE
AGREEMENT
made as of the date set forth below between XXXXXX I LIMITED PARTNERSHIP
(hereinafter referred to as "Landlord") and EMBASSY BANK FOR THE LEHIGH VALLEY
(hereinafter referred to as "Tenant") with respect to the Premises, as
hereinafter defined, which is a part of a shopping center (the "Shopping
Center"), located on Corriere Road and Route 248 in Lower Nazareth Township,
Pennsylvania.
In
consideration of one dollar ($1.00) and other good and valuable consideration,
receipt of which is hereby acknowledged, Landlord and Tenant hereby agree as
follows:
ARTICLE
I
BASIC
LEASE PROVISIONS AND ENUMERATION OF EXHIBITS
1.1
INTRODUCTION. The following sets forth basic data and identifies Exhibits
referred to in this Lease, and, certain definitions of terms referred to
herein.
1.2
BASIC DATA.
Execution
Date: March 13, 2009
Landlord:
XXXXXX I LIMITED PARTNERSHIP
Present
Mailing Address of
Landlord: 0000
Xxxxxx Xxxx
Xxxxxx,
XX 00000
Tenant: EMBASSY
BANK FOR THE LEHIGH VALLEY
Present
Mailing Address of
Tenant: 000
Xxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Premises
Leasable Floor Area: Approximately 2,700 square feet
Lease
Term:
180
calendar months (15 years) plus the partial month, if any, immediately following
the Rent Commencement Date, together with two (2) five (5) year options, and one
(1) four (4) year, eleven month option, if exercised by the Tenant, provided
however that in no event shall the term of this Lease extend beyond a period of
twenty-nine (29) years and eleven (11) months.
Tenant's
Construction and Fixturing Period:
Six
(6) months after the delivery of the building pad as evidenced by a Pad Delivery
Notice to be sent by Landlord to Tenant in the form annexed hereto as Exhibit
"D".
Minimum
Rent:
During
the initial term of this Lease (15 years plus the partial month, if any)
immediately following the Rent Commencement Date as hereinafter defined in
Section 3.1 (a) of this Lease, the Tenant shall pay to the Landlord the
following annual minimum rent ("Minimum Rent") payable in the following equal
monthly installments in advance on the first day of each and every
month.
1
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MINIMUM
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MONTHLY
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YEAR
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RENT
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INSTALLMENT
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1-5
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$
80,000.00
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$
6,666.67
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6-10
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$85,000.00
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$7,083.33
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11-15
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$95,000.00
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$7,916.67
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During
the first five year option term, if exercised, the Tenant shall pay to the
Landlord the following Minimum Rent payable in the following equal monthly
installments in advance on the first day of each and every
month:
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MINIMUM
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MONTHLY
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|||
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YEAR
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RENT
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INSTALLMENT
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16-20
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$105,000.00
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$
8,750.00
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During
the second five year option term, if exercised, the Tenant shall pay to the
Landlord the following Minimum Rent payable in the following equal monthly
installments in advance on the first day of each and every
month:
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MINIMUM
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MONTHLY
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YEAR
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RENT
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INSTALLMENT
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21-25
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$115,000.00
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$9,583.33
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During
the four (4) year, 11 month option term, if exercised, the Tenant shall pay to
the Landlord the following Minimum Rent payable in the following equal monthly
installments in advance on the first day of each and every
month:
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MINIMUM
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MONTHLY
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YEAR
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RENT
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INSTALLMENT
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26-29
years
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$125,000.00
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$10,416.67
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11
months
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All
Minimum Rent and Additional Rent shall be paid by the Tenant to the Landlord
without demand, deduction, set-off or counterclaim, except as specifically
provided for in this Lease. If the Minimum Rent or any Additional Rent is not
received by Landlord within ten (10) days of the date it is due, Tenant shall
also pay to Landlord a late fee of $500.00 plus any other interest as provided
in Paragraph 17.4 herein.
Use:
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(a)
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Solely
for the purpose of operating a retail financial institution (including
drive-thru service windows and/or automatic tellers and all services or
products which may be permitted under applicable Federal and State Banking
Laws). It is understood that the Tenant may not use the Premises as
hereinafter defined for any retail purposes which are otherwise prohibited
by any other leases in the Shopping Center or which violate any prohibited
or exclusive uses, as shown on Exhibit "U" attached hereto, or which
violate any exclusive uses which may hereinafter be granted to other
tenants in the Shopping Center, or which compete with any other existing
use in the Shopping Center provided that Tenant shall not be prevented
from operating the Premises for the permitted use set forth
above.
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2
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1.3
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ENUMERATION
OF EXHIBITS. The following Exhibits are a part of this Lease, are
incorporated
herein by reference, attached hereto, and to be treated as apart of this
Lease for all purposes. Undertakings contained in such Exhibits are
agreements on the part of Landlord and Tenant, respectively, to perform
the obligations stated therein to be performed by Landlord and Tenant, as
and where stipulated
therein.
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Exhibit
"S". A plan showing the location of the leased premises (the "Premises"), which
term means both the land demised to Tenant under this Lease constituting such
location and improvements constructed or to be constructed thereon together with
the area constituting the drive-thru lanes, which Premises as shown on Exhibit
"S" as the red hatched area. References to the building mean the building
improvements which are a part of the Premises (the "Building"). The plan also
shows the area surrounding the Building which, except for the drive-thru lanes,
shall not be deemed part of the Premises but upon which Tenant shall have
certain construction and maintenance obligations as set forth herein ("Building
Perimeter"), which Building Perimeter is shown on Exhibit "S" as the red hatched
area. Exhibit "S" also shows the boundaries of the Shopping Center ("Shopping
Center"), and buildings to be constructed thereon, or building area locations in
which other buildings may be constructed. Specifically included in the Premises
are all canopies extending from the walls of the Building. All walks adjacent or
contiguous to such walls, and ramps adjacent or contiguous to such walls, any
emergency exits and handicapped ramps which are constructed by Tenant for its
use shall be part of the Premises. Exhibit "S" pursuant to Section 17.36 hereof
also shows the ten (10) parking spaces over which Tenant has exclusive parking
and the fourteen (14) parking spaces over which Tenant has non-exclusive
parking. Tenant is also granted rights of ingress and egress over the Access
Drive(s) as shown on Exhibit "S" as the blue hatched area, together with the
right to bring utilities, including water and sewer lines, to the Building in
locations selected by Landlord
Exhibit
"C". Commencement Agreement.
Exhibit
"D". Pad Delivery Notice.
Exhibit
"L". Description of Landlord's Work.
Exhibit
"T". Description of Tenant's Work (including prototype plans and specifications
of proposed building).
Exhibit
"T-l". Tenant's Signs.
Exhibit
"T-2". Monument Signs.
Exhibit
"U". List of Prohibited Uses and Exclusive Uses Accorded to Tenants of the
Shopping Center.
Exhibit
"V". Form of Subordination, Non Disturbance and Attornment Agreement. Exhibit
"M". Form of Memorandum of Lease.
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1.4
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CERTAIN
DEFINITIONS. As used herein, the terms set forth below have the following
meanings:
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(a) "Common
Areas" - See Section 16(a).
(b) "Premises"
- See Section 1.3.
(c) "Shopping
Center" - See Section 1.3,
(d) "Building"
- See Section 1.3.
(e) "Building
Perimeter" - See Section 1.3.
3
ARTICLE
II
DESCRIPTION
OF PREMISES AND APPURTENANT RIGHTS
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2.1
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LOCATION
OF PREMISES. Landlord hereby demises and leases Tenant and Tenant hereby
accepts from Landlord, the Premises shown on Exhibit "S" as the red
hatched area as those to be occupied by
Tenant.
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2.2
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APPURTENANT
RIGHTS AND RESERVATIONS. Tenant shall have, as appurtenant to the
Premises, the non-exclusive right to use and permit its customers to use
in common with others lawfully entitled thereto, without any charge
therefor, the Access Drive(s) as shown on Exhibit "S" for ingress and
egress, public or common areas, not including buildings, sidewalks,
parking areas, roadways in the Shopping Center (collectively, the "Common
Areas" as more fully hereinafter defined), but such rights shall always be
subject to reasonable, uniform rules and regulations from time to time
established by Landlord (subject to Tenant's rights under Section 16(b)
hereof) by suitable notice and applicable to all tenants in the
Center. Neither Tenant, nor its customers shall be permitted to
park in the adjoining parcel.
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ARTICLE
III TERM OF LEASE
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3.1
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COMMENCEMENT
DATE.
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(a)
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The
term of this Lease shall be the period specified in Section "1.2" hereof
as the "Lease Term". The "Rent Commencement Date" of this Lease shall
commence on the earlier of (a) the opening for business or (b) six (6)
months after the date when Landlord delivers the Building Pad to Tenant
provided Landlord has substantially completed all other site work as set
forth on Exhibit "L" by the end of such six (6) month period, unless
Landlord is prevented by Tenant's failure to complete Tenant's Work as set
forth on Exhibit "T", in which event Tenant shall commence paying rent at
the end of such six (6) month period notwithstanding that Tenant may not
have completed Tenant's Work or opened for business. Landlord will
complete Landlord's Work when Tenant has completed such work to enable
Landlord to complete its work. If Landlord's Work is not substantially
complete by the end of the six (6) month period, not due to Tenant's
fault, the Rent Commencement Date, shall be extended until Landlord's Work
is substantially complete. If Tenant's building is not complete by the
Rent Commencement Date, Tenant shall commence paying rent and all other
charges subject to the provisions of this Section 3.1 (a) and the failure
to have the building completed shall not be an Event of Default, unless
the Tenant's building is not completed by the date provided in Section
3.3(a) below,
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(b)
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Upon
the Rent Commencement Date, the Tenant shall (i) be obligated to commence
payment of Minimum Rent, Additional Rent and all other charges required to
be paid by the Tenant under this Lease, all of which shall be deemed to be
additional rent and (ii) be required to perform all obligations required
to be performed by the Tenant under the terms of the Lease (in addition to
the obligations required to be performed by the Tenant prior to the Rent
Commencement Date).
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(c)
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As
soon as may be convenient after the Rent Commencement Date has been
determined, Landlord and Tenant agree to join with each other in the
execution of a Commencement Certificate, in the form set forth on Exhibit
"C". The Rent Commencement Date and specified term of this Lease shall be
stated in said Commencement
Certificate.
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4
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(d)
|
It
is understood and agreed that at such time as Tenant or its employees,
agents, contractors or invitees enter the Premises after the Execution
Date and prior to the Rent Commencement Date, for any purpose whatsoever,
including without limitation, the performance of Tenant's Work, all of the
terms, covenants and conditions of this Lease shall apply to the parties
as if the Lease Term had begun at such time excepting those provisions as
to Minimum Rent, Additional Rent and any other charges payable by Tenant,
which shall go into effect as of the Rent Commencement Date, even if
Tenant's Work is not completed. Tenant shall place in its name, any
utilities which Tenant requires during the performance of Tenant's Work,
and Tenant shall be responsible for any and all utility charges
incurred.
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3.2
|
LANDLORD'S
WORK AND ESTIMATED OCCUPANCY
DATE.
|
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(a)
|
Subject
to delay by causes beyond the reasonable control of Landlord or those set
forth in Section 17.21 of this Lease, or attributable to Tenant's action
or inaction, Landlord shall use reasonable speed and diligence to perform
the work to be performed by Landlord, as specified in Exhibit "L",
Landlord's Work shall be performed in accordance with all applicable laws
and codes. Landlord's work shall primarily consist of the preparation of
the building pad to specifications provided by Tenant and attached hereto
as Exhibit "L" and preparation of the Site Work as defined in Exhibit
"L".
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(b)(l)
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When
Landlord Substantially Completes the Building Pad (as the term
"Substantial Completion" is defined below), Landlord shall give Tenant
written notice of Landlord's intent to tender possession of the Building
("Pad Delivery Notice") and Tenant shall have ten (10) business days from
receipt of the Pad Delivery Notice to inspect the Building Pad to assure
that it complies with all requirements of Tenant's Plans. Upon acceptance
of the Building Pad by Tenant or the failure of Tenant to object to
Landlord's Work within said ten (10) business day period, Landlord shall
have no further responsibility or liability to Tenant for any matters
arising out of Landlord's preparation of the Building Pad. Tenant shall
give Landlord written notice within the ten (10) business day inspection
period of any deficiencies in the Building Pad and upon completion or
correction of such deficiencies, Landlord shall promptly provide Tenant
with a new Pad Delivery Notice. Landlord agrees to use all reasonable
efforts to complete the Building Pad by July 1,2009 (provided all of
Tenant's contingencies to this Lease are either satisfied or waived by
June 1, 2009), but such date is merely a target date (the "Target Date")
and Tenant agrees to accept Landlord's tender of possession when the
Building Pad has been completed, provided, however, if Landlord has not
delivered the Pad Delivery Notice within ninety (90) days after the Target
Date, subject to the matters provided in Section 17.21 of this Lease,
Tenant may, upon ten (10) business days written notice to Landlord,
complete the balance of Landlord's Work to be completed and xxxx the
actual and reasonable cost thereof to Landlord unless Landlord commences
to complete the Building Pad within said ten (10) day period and proceeds
with due diligence to complete the same. If Landlord fails to pay Tenant's
costs of completing the Building Pad within ten (10) business days after
receipt of Tenant's xxxx, Tenant may deduct such sum plus interest at the
default rate as set forth in Section 17.4 of this Lease, from the Minimum
Rent, Additional Rent due and owing to Landlord until such xxxx is paid in
full. Notwithstanding the foregoing, Landlord and Tenant agree that if the
contingencies to this Lease are either satisfied or waived prior to June
1, 2009, Landlord agrees to use all reasonable efforts to complete the
Building Pad within thirty (30) days after the date that Landlord receives
written notice confirming all of the contingencies have been either
satisfied or waived.
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5
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(b)(2)
|
When
Landlord Substantially Completes Landlord's Work, other than the Building
Pad, Landlord shall give Tenant written notice of Landlord's intent to
tender possession of the Premises ("Notice of Tender") and Tenant shall
have ten (10) business days from receipt of the Notice of Tender to
inspect Landlord's Work to assure that it complies with all requirements
of Tenant's Plans and of this Section "3.2". Upon acceptance of the
Landlord's work by Tenant or the failure of Tenant to object to Landlord's
Work within said ten (10) business day period, such Landlord's Work shall
be deemed substantially complete, Tenant shall give Landlord written
notice within the ten (10) business day inspection period of any
deficiencies in Landlord's Work and upon completion or correction of such
deficiencies, Landlord shall promptly provide Tenant with a new Notice of
Tender. Landlord agrees to use all reasonable efforts to complete
Landlord's Work, other than the Building Pad, by November 1, 2009
(provided all of Tenant's contingencies are either satisfied or waived by
June 1, 2009), and provided that Tenant has completed no later than
October 1, 2009 its building construction and completed the installation
of its drive-thru canopy, but such date is merely a target date, (the
"Remainder Work Target Date") and Tenant agrees to accept Landlord's
tender of possession when the Landlord's Work at the Premises has been
Substantially Completed; provided, however, if Landlord has not give the
Notice of Tender within ninety (90) days after the Remainder Work Target
Date, subject to the matters provided in Section "17,21" of this Lease and
provided that the delay is not the result of Tenant's failure to complete
its building construction and complete the installation of its drive-thru
canopy, Tenant may, either upon ten (10) business days written notice to
Landlord, complete the balance of Landlord's Work to be completed and xxxx
the actual and reasonable cost thereof to Landlord, unless Landlord
commences to complete Landlord's Work within said ten (10) day period and
proceeds with due diligence to complete. If Landlord fails to pay Tenant's
costs of completing Landlord's Work within ten (10) days after receipt of
Tenant's xxxx, Tenant may deduct such sum plus interest at the default
rate as set forth in Section 17.4 of this Lease from the Minimum Rent,
Additional Rent due and owing to Landlord until such xxxx is paid in full.
Notwithstanding the foregoing, Landlord and Tenant agree that if the
contingencies to this Lease are either satisfied or waived prior to June
1, 2009, the Landlord agrees to use all reasonable efforts to complete
Landlord's Work, other than the Building Pad, within thirty (30) days
after the date that Tenant has completed its building construction and
completed the installation of its drive-thru
canopy.
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|
(c)
|
"Substantial
Completion", as used in this Article, shall mean completed subject to
minor punch list items which shall be completed by Landlord within thirty
(30) days of the Notice of Tender, or completed by Tenant pursuant to
Section 3.3 above to such an extent that Tenant may reasonably commence
and thereafter continue to perform the work to be performed by Tenant
under Exhibit "T" without undue interference with the balance of the work
to be performed by Landlord in the Premises, in accordance with Exhibit
"L", or unreasonable interference by Landlord with the work to be
performed by Tenant in the Premises, in accordance with Exhibit
"T".
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|
(d)
|
Tenant
shall reimburse Landlord for any utility, traffic and Township impact fees
in an amount not to exceed $15,000.00. Such amount shall be due and
payable by Tenant on the Rent Commencement
Date,
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(e)
|
This
Lease is contingent on Landlord being able to secure proper zoning, site
plan and land development approvals. If said approvals are not issued by
June 1, 2009, Landlord or Tenant shall be permitted to terminate this
Lease upon ten (10) days written notice to the other party in which event
this Lease will be deemed terminated as of the date set forth in said
notice unless the approvals are received within said ten (10) day period.
Landlord and Tenant acknowledge that in the event this Lease is terminated
pursuant to this Section 3.2(e) that neither party shall be entitled to
reimbursement for any costs they have incurred in connection with this
transaction.
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|
3.3
|
TENANT'S
WORK.
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|
(a)
|
Tenant
shall perform, at its own cost and expense, all of the Tenant's Work set
forth in Exhibit "T" and all other work required by Tenant under this
Section "3.3" and any other provisions of this Lease. It is understood
that Tenant shall be obligated to construct the building shown on Exhibit
"T", and the sidewalks, canopies, roof drains, drive-thru lanes and all
other improvements set forth onExhibit "T". Tenant shall be responsible
for obtaining all necessary permits from all governmental authorities in
connection with Tenant's Work and Landlord agrees to cooperate with Tenant
in obtaining such
permits.
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6
Tenant
shall construct or cause to be constructed all improvements within the perimeter
of the work limit lines designated on Exhibit "S" pursuant to the "Plans" as
hereinafter defined. Construction of such improvements shall proceed with
reasonable diligence and shall be completed, subject to causes beyond the
reasonable control of Tenant or those set forth in Section 17.21 of this Lease,
within twelve (12) months after delivery of the Building Pad. Tenant's
improvements are hereinafter referred to as "Tenant's Work", shall be
constructed pursuant to the final plans and specifications to be provided by
Tenant to Landlord for Landlord's approval within thirty (30) days after the
execution of this Lease, which Plans are to be annexed hereto as part of Exhibit
"T".
Tenant
shall provide original final lien waivers from its contractors and all
subcontractors within thirty (30) days of the earlier of the date Tenant
opens for business or the date Tenant completes its work. Landlord acknowledges
that final lien waivers cannot be obtained in advance of the work being
completed.
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(b)
|
In
addition to the work required to be performed by the Tenant as set forth
in Exhibit "T", the Tenant shall, at its sole cost and expense order,
install and pay for the installation of all other improvements, fixtures,
personal property and equipment (not set forth in Exhibit "L"), necessary,
suitable and appropriate for the operation of Tenant's business in the
Premises (the "Fixtures and
Equipment").
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(c)
|
The
Building and all improvements and all leasehold repairs, alterations,
additions at any time made by the Tenant at and/or to the Premises or
attached to or used in connection with the Premises (all hereinafter
collectively called the "Tenant's Improvements") shall be deemed attached
to the Premises and shall be deemed to be the property of the Landlord
upon the expiration or sooner termination of this Lease. The Tenant may
not remove said Tenant's Improvements but said Tenant's Improvements shall
remain upon the Premises and upon the expiration or sooner termination of
this Lease shall be surrendered with the Premises as a part thereof
without disturbance, molestation or injury. Tenant's Fixtures and
Equipment shall remain the property of the Tenant at all times and may be
removed by the Tenant from the Premises upon the expiration or earlier
termination of this Lease. Tenant shall repair any damages caused by the
removal of its Fixtures and
Equipment.
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(d)
|
Intentionally
Omitted.
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(e)
|
Within
thirty (30) days after the execution of this Lease, Tenant, at its sole
cost and expense, shall prepare final building plans and specifications
(the "Plans") in accordance with the prototype plans and specifications
included within Exhibit "T". Tenant shall provide the plans to Landlord
for its approval which shall not be unreasonably withheld or delayed.
Landlord shall within five (5) business days after receipt of such Plans,
advise Tenant of any objections to the Plans. Landlord's objections, if
any, must be based upon the failure of the Plans to conform to Exhibit
"T". Within ten (10) days after receipt of Landlord's objections, if any,
Tenant shall revise the Plans and resubmit to Landlord for approval. This
process shall continue until the Plans are approved by Landlord. Each
party agrees to use reasonable efforts and good faith in connection with
the approval process for the Plans. If during any period when the Plans
are out for the Landlord's approval, the Plans are not approved or
rejected within the time period provided for herein the same shall be
deemed approved. If the Plans are not approved by Landlord within ninety
(90) days after the execution of this Lease, Landlord shall have the right
to terminate this Lease upon ten (10) days written notice which
termination shall be deemed null and void if Tenant provides acceptable
Plans within said ten (10) day period. The Plans must be prepared and the
building constructed in accordance with all applicable building codes,
rules and regulations, including fire regulations and in accordance with
standards set forth in the Americans with Disabilities
Act.
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7
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(f)
|
All
work performed by the Tenant with respect to the Premises and the Building
Perimeter shall:
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|
(1)
|
be
done as expeditiously as possible, in a good and workmanlike manner and
with first-class new
materials,
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(2)
|
be
done in such manner as will not interfere unreasonably with work being
done by the Landlord upon the Premises or any other portion of the
Shopping Center,
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(3)
|
be
subject to the reasonable inspection of the Landlord or its agents or
contractors so long as they do not interfere with such
construction,
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(4)
|
be
performed only by such contractors or subcontractors as have been duly
licensed by the authority having jurisdiction over the appropriate
profession,
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(5)
|
be
done at the risk of the Tenant,
and
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(6)
|
be
done in accordance with the applicable laws and requirements of all
regulatory authorities having jurisdiction with respect
thereto.
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(g)
|
The
Tenant agrees at its expense to obtain and maintain for so long as the
Tenant's Work continues, builders risk insurance, and public liability
insurance in an amount not less than $2,000,000.00 to protect the Landlord
as well as the Tenant from and against any and all liability for death of
or injury to person or damage to property caused by reason of the conduct
of the Tenant's Work and workers' compensation insurance. The Tenant shall
deliver to the Landlord certificates evidencing such coverage prior to the
commencement of the Tenant's Work which shall name Landlord as an
additional insured using ISO Form 20-26. Tenant's contractor and each
subcontractor shall provide evidence of liability insurance naming
Landlord as additional insured as provided
above.
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(h)
|
Tenant
shall have the right to enter onto the Premises after the execution of
this Lease for purposes of commencing Tenant's Work and conducting any
tests it requires in connection therewith, pursuant to Section
3.1(d).
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|
3.4
|
INTENTIONALLY
LEFT BLANK.
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|
3.5
|
CONTINGENCIES. This
Lease is contingent upon satisfaction of the following conditions by June
1, 2009:
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|
(a)
|
Tenant
and Landlord obtaining permits for the development and operation of a bank
branch on the Premises in a form and manner acceptable to Tenant
(including all desired signs and service windows), including but not
limited to, all required municipal, county and state approvals and
permits, including PennDOT (if
applicable).
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|
(b)
|
Tenant
and Landlord obtaining acceptable title (including recordation of all
necessary ancillary lease documents such as a memorandum of lease and all
required non-disturbance
agreements).
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|
(c)
|
Acceptable
survey provided by Landlord (including confirmation of acceptable and
adequate utilities for the operation of the Premises and acceptable access
to public roads).
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(d)
|
Acceptable
environmental conditions, with a Phase I Environmental Report provided by
Landlord.
|
8
|
(e)
|
Acceptable
soil conditions to be verified by
Tenant.
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|
(f)
|
Banking
regulatory approval(s) to be secured by Tenant, including the approval of
this Lease and the location of the bank branch by the Pennsylvania
Department of Banking and the FDIC. In executing this Lease, Landlord
grants Tenant and its consultants a license (revocable by Landlord on
written notice) to enter the Premises to perform such inspections,
provided Tenant delivers an insurance certificate for liability insurance
in an amount not less than $1,000,000.00 naming Landlord as additional
insured and agrees to indemnify and hold Landlord harmless from any
claims, suits, causes of action, costs or expenses (including reasonable
attorneys fees) arising out of any personal injury or property damage by
Tenant, its agents, employees, consultants or contractors. Tenant shall
apply for such regulatory approval within sixty (60) days after the
execution of this Lease.
|
If
all of the contingencies set forth above are not satisfied by June 1, 2009,
either Landlord or Tenant shall have the right to terminate this Lease on ten
(10) days written notice to the other party. If Landlord and/or Tenant cures
and/or waives any contingency not satisfied within said ten (10) day notice
period then the notice to terminate shall be null and void. Landlord and Tenant
acknowledge that in the event this Lease is terminated pursuant to this Section
3.5 that neither party shall be entitled to reimbursement for any costs they
have incurred in connection with this transaction.
ARTICLE
IV
RENT
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4.1
|
MINIMUM
RENT. Tenant agrees to pay to Landlord, at Landlord's mailing address, or
at such other place as Landlord shall from time to time designate by
notice, monthly, in advance, on the Rent Commencement Date, and on the
first day of each and every calendar month during the term of this Lease,
a sum equal to the monthly installment of Minimum Rent specified in
Section "1.2" hereof ("Minimum Rent"), Minimum Rent for any partial month
shall be paid by Tenant to Landlord at such rate, and if the term of this
Lease commences on a day other than the first day of a calendar month, the
first payment which Tenant shall make to Landlord shall be a payment equal
to a proportionate part of such monthly Minimum Rent for the partial month
from the Rent Commencement Date to the first day of the succeeding
calendar month. Other charges payable by Tenant on a monthly basis, as
hereinafter provided, shall likewise be prorated, and the first payment on
account thereof shall be determined in similar fashion; and any other
provisions of this Lease calling for monthly payments shall be read as
incorporating this undertaking by
Tenant.
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|
4.2
|
LEASE
YEAR. The term "Lease Year" means, as to the first Lease Year, the period
commencing with the Rent Commencement Date and ending on the last day of
the twelfth (12th)
full month next succeeding the Rent Commencement Date; and thereafter the
term Lease Year means each succeeding one (1) year period thereafter. For
purposes of reconciling Common Area Maintenance, Landlord may use a
calendar year.
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ARTICLE
V USE
OF
PREMISES
|
5.1
|
PERMITTED
USE.
|
|
(a)
|
Tenant
agrees that the Premises and the Building Perimeter shall be used and
occupied by Tenant only for the purposes specified as the use thereof in
Section "1.2" of this Lease, and for no other purpose or
purposes.
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9
|
(b)
|
Tenant
further agrees to conform to the following provisions during the entire
term of this Lease:
|
|
(1)
|
No
auction, fire or bankruptcy sales may be conducted within the Premises
without the previous consent of
Landlord;
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|
(2)
|
Except
as provided below, Tenant may not use any portion of the Common Area
adjacent to the Premises, for any retail purpose unless expressly
permitted by Landlord; Tenant may not use any outside loudspeakers; Tenant
may not use any of the Common Area or any area outside the Premises for
the storage of any goods, products or other materials whether in trailers,
storage containers or otherwise. During construction of the Improvements,
Landlord shall designate a staging area for Tenant's construction in which
construction materials may be temporarily stored, provided they are
properly screened and secured. Landlord shall not be responsible for any
of Tenant's materials or those of its
contractors;
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|
(3)
|
It
is expressly understood that the Tenant shall not violate any of the
Prohibited and Exclusive Uses set forth on Exhibit "U" attached hereto.
Any such violation shall be an Event of Default with a twenty (20) day
notice and cure period;
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|
(4)
|
Until
removal is effected, Tenant shall, at its sole cost and expense, keep all
garbage or refuse in the Premises or in Tenant's dumpster suitably covered
so that the same is not visible to the public and the Tenant shall comply
with any and all recycling and other environmental laws in connection
therewith; and
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(5)
|
Tenant
shall use its best efforts not to perform any act or carry out any
practice which may injure the Premises, or any other part of the Shopping
Center, or cause any offensive odors or loud noise in violation of
municipal requirements or constitute a nuisance or a menace to any other
tenant or tenants or other persons in the Shopping Center. Tenant shall
cause all deliveries to the Premises to be made at the rear or side of the
Premises. No delivery vehicles may be parked, or stopped in front of the
Premises to deliver any
goods.
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(c)
|
Tenant
shall be obligated to operate the Embassy Bank for at least one (1) day as
indicated herein. The failure to open for business within twelve (12)
months after all approvals are received and Building Pad is delivered
shall constitute an Event of Default. It is understood that after the
initial opening of the Embassy Bank, there is no covenant by Tenant of
continuous operation and as long as Tenant is paying its rent and
complying with all other obligations under this Lease, the failure to
continuously operate shall not be deemed an Event of
Default.
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|
5.2
|
EXCLUSIVE
USE.
|
Landlord
agrees not to lease any other space in the Shopping Center for use as a
standalone Bank Branch. This exclusive shall not prohibit other Tenants
from having an ATM on its premises or from offering some banking services within
its premises, provided such banking services are not such tenant's primary use.
If at any time during the term hereof Landlord shall be in violation of this
provision, in addition to any other remedies the Tenant may have at law or in
equity, the Tenant's obligations for Minimum Rent shall be reduced to fifty
percent (50%) of the rate then in effect until such time as such violation is
cured. If Tenant exercises an option to extend this Lease, any such existing
violation of any exclusive shall be waived by Tenant and Tenant shall commence
paying full Minimum Rent. Upon any violation and thirty (30) days written notice
to Landlord, Tenant may seek injunctive relief or any other remedy available at
law.
10
ARTICLE
VI
ASSIGNMENT
AND SUBLETTING
|
6.1
|
ASSIGNMENT
LIMITATIONS.
|
|
(a)
|
Limitations.
Tenant shall be permitted to assign this Lease, in whole or in part, or to
sublet all or any part of the Premises, provided that the following
conditions are
met:
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|
(1)
|
Tenant
remains liable for all obligations under the Lease, as no such assignment
or subletting shall be deemed to release Tenant from performance of the
covenants on the part of Tenant provided herein;
and
|
|
(2)
|
Tenant
shall notify Landlord in writing of such assignment or transfer within
thirty (30) days prior to the occurrence of such assignment or transfer;
and
|
|
(3)
|
no
Event of Default shall then exist and no default shall then exist which
with the giving of notice or passage of time would become an Event of
Default; and
|
|
(4)
|
said
assignment or subletting shall not be for the operation of any business
which would violate any of Prohibited Uses set forth in this Lease nor
violate the terms of any exclusive use now in effect and/or granted by
Landlord after the date of this Lease;
and
|
|
(5)
|
said
assignment or subletting shall be subject to all of the terms and
conditions provided in this
Lease.
|
In
the event that Tenant so assigns this Lease or sublets the Leased Premises as
permitted herein, Tenant shall pay to Landlord all reasonable legal fees
incurred by Landlord in connection with the negotiation, drafting and/or review
by Landlord's attorneys of the terms and provisions of any instrument of
assignment or subletting.
|
(b)
|
Tenant
shall have the right without the consent of the Landlord to assign this
Lease as collateral security to Tenant's lender and to give a Security
Interest in Tenant's Fixtures and Equipment to Tenant's
Lender.
|
|
(c)
|
Notwithstanding
any other terms and conditions of this Lease, no assignment or subletting
shall, shall relieve the Tenant of its obligations under this Lease, and
the Tenant shall at all times remain liable to fulfill all of the terms,
covenants and conditions on the part of the Tenant to be performed under
this Lease including, without limitation, the obligation to pay the
Minimum Rent and Additional Rent and all other amounts which become due
under this Lease.
|
|
(d)
|
In
the event of an assignment of this Lease, Landlord shall give to Tenant,
i.e. Embassy Bank, a copy of each notice of default at the same time as
and whenever any such notice of default shall thereafter be given by
Landlord to any assignee, addressed to Tenant, i.e. Embassy Bank, at its
address last furnished to Landlord. Tenant, i.e. Embassy Bank, shall
thereupon have the same period of time as the assignee does pursuant to
the terms of this Lease in which to cure or correct such default. Landlord
agrees to accept performance by Tenant, i.e. Embassy Bank, of any
covenant, condition, or agreement on the assignee's part to be performed
hereunder with the same force and effect as though performed by said
assignee. The foregoing cure rights are subject to the rights granted to
any leasehold mortgagee.
|
11
ARTICLE
VII
MAINTENANCE
OF BUILDING, ETC.
|
7.1
|
LANDLORD'S
REPAIR OBLIGATIONS.
|
|
(a)
|
Landlord
shall maintain or cause to be maintained, the Shopping Center and all
utility lines servicing the Premises and located five (5) feet outside of
the Premises, in good order and repair at Landlord's expense (which is
reimbursable by Tenant as part of Common Area Maintenance [Article 16] and
keep all Access Drive(s) and parking areas in good repair free of
potholes, snow, ice and debris including repair, striping or maintenance
of the parking lot which shall be part of Common Area Maintenance.
Landlord has no obligation to repair or maintain any part of the building,
drive-thru lanes or any improvement constructed by Tenant on the
Premises.
|
|
(b)
|
If
Landlord fails or refuses to make or perform any of the repairs,
maintenance or replacements required to be performed by Landlord under
this Lease, including Common Area Maintenance and if, Landlord, fails or
refuses, within twenty (20) business days after written notice from Tenant
to commence (and thereafter complete) or such shorter period in the event
of an emergency or if Landlord fails to remove snow and debris after
reasonable notice, or complete such repair, maintenance or replacements
unless such the same are delayed by weather conditions or force majeure
events, then Tenant shall have the right to make such required
maintenance, repairs and replacements in which event Landlord agrees that
it will on demand pay to the Tenant the cost thereof within thirty (30)
days after a receipt of a xxxx together with copies of all invoices and if
Landlord shall fail to make such payment, Tenant shall be entitled to
offset the amount due against Minimum Rent, and other amounts due
hereunder.
|
|
7.2
|
TENANT'S
MAINTENANCE AND REPAIR OBLIGATIONS. Except as otherwise provided in
Section "7.1", Tenant covenants and agrees at its sole cost and expense to
keep and maintain in good order, condition and repair (which obligation
shall include replacements) all interior and exterior portions of the
Premises which shall include but shall not be limited to the repair,
maintenance, replacement and any required inspection of all exterior and
interior structural portions of the building (including the walls,
foundation, roof, gutters, downspouts, etc.) and all interior and exterior
portions of all doors, plate glass and windows, drive-thru lanes, the
Fixtures and Equipment and all other improvements at the Premises and/or
used in connection with the Premises, the repair, maintenance and
replacement of all carpeting and wall coverings, all signs and awnings of
the Tenant, wherever located, permitted by this Lease, the mechanical,
electrical, plumbing, heating, ventilating, air-conditioning systems,
sprinkler and fire protection systems, grease traps (even if located
outside of building). Tenant further agrees to keep the Premises in a
clean, sanitary and safe condition in accordance with the requirements of
all public authorities having jurisdiction thereof. Tenant further agrees
to replace all glass in the Premises. The Tenant has the obligation to
maintain and pay for a service and maintenance contract for the heating,
ventilating and air-conditioning systems, including routine preventative
maintenance, including changing filters, belts and the lubrication of all
moving parts from a service contractor authorized to service such systems
by the manufacturer. Tenant shall be responsible for all janitorial
services at the Premises. Tenant shall be responsible for any and all
damages caused to the Premises and/or to third-parties arising out of
and/or in connection with any work performed by the Tenant. All work and
repairs, maintenance and replacements performed by the Tenant shall be
performed in compliance with all Federal, State, local and municipal
codes, rules and
regulations.
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12
|
7.3
|
TENANT'S
ALTERATIONS.
|
|
(a)
|
Tenant
shall not make any structural or other alterations, improvements and/or
additions to the Premises including exterior color or other exterior
finishes without first obtaining, in each instance, the written consent of
Landlord, upon condition that such alterations, improvements and additions
shall be made in accordance with all applicable laws, codes, rules and
regulations in a good and first-class workmanlike manner. Prior to any
alterations, improvements and additions being performed at the Premises by
the Tenant, the Tenant agrees to supply to the Landlord plans and
specifications in connection with the same. Notwithstanding the foregoing,
the Tenant shall not make any changes, alterations or improvements which
in any way impair the structural safety or stability of the Building or
the Premises or affect the aesthetics of the exterior portion of the
Building or the Premises,
|
|
(b)
|
Tenant
shall have the right to erect and maintain antennae and satellite dishes
on the roof of the Premises, provided (i) Tenant's plans for the
installation and screening of such equipment are previously approved by
Landlord which approval shall not be unreasonably withheld or delayed,
(ii) Tenant repairs any damage to the roof caused by the making of the
roof penetrations, including, but not limited to, the repair of the roof
upon the removal of any equipment installed thereon, and (iii) Tenant
complies with any applicable laws and ordinances. Landlord agrees to
cooperate with Tenant in connection with any application to Lower Nazareth
Township.
|
|
7.4
|
UTILITIES.
|
|
(a)
|
Landlord
shall be responsible for running all utilities to within five (5) feet of
the Building Pad (or to the transformer in the case of electrical service)
at its sole cost and expense and Tenant shall pay for connecting such
utilities to the building from such point and for the use of all
utilities, such as gas, steam, water, sewer and electricity, heating and
air-conditioning and all other utilities used by the Tenant at the
Premises as separately metered to the
Premises.
|
|
(b)
|
Landlord
has advised Tenant that presently Met Ed ("Electric Service Provider") is
the utility company selected by Landlord to provide electricity service
for the Shopping Center. Notwithstanding the foregoing, if permitted by
law, Landlord shall have the right at any time and from time to time
during the Lease Term to either contract for service from a different
company or companies providing electricity service (each such company
shall hereinafter be referred to as an "Alternate Service Provider") or
continue to contract for service from the Electric Service Provider, so
long as the same is at no expense to the Tenant and at a rate competitive
with those of Met Ed and the Tenant shares in any premiums or incentive
paid to the Landlord for switching to the alternate
provider.
|
|
(c)
|
Tenant
shall cooperate with Landlord, the Electric Service Provider, and any
Alternate Service Provider at all times and, as reasonably necessary,
shall allow Landlord, Electric Service Provider, and any Alternate Service
Provider reasonable access to the Premises' electric lines, feeders,
risers, wiring, and any other machinery within the
Premises.
|
|
(d)
|
Unless
caused by the negligent act of Landlord, Landlord shall in no way be
liable or responsible for any loss, damage, or expense that Tenant may
sustain or incur by reason of any change, failure, interference,
disruption, or defect in the supply or character of the electric energy
furnished to the Premises, or if the quantity or character of the electric
energy supplied by the Electric Service Provider or any Alternate Service
Provider is no longer available or suitable for Tenant's requirements, and
no such change, failure, defect, unavailability, or unsuitability shall
constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relive Tenant
from any of its obligations under the
Lease.
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13
|
7.5
|
SECURITY.
Landlord shall have no responsibility or liability for providing any
security for the Tenant or its assets, and Landlord is hereby released
from and not responsible for any claims arising out of any thefts,
break-ins or other losses incurred by Tenant arising out of any criminal
activity, or intentional acts of third parties. Tenant shall be
responsible for any and all security to be provided for its
facility.
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|
7.6
|
LIGHTING.
Landlord agrees that Tenant shall be permitted to install on its building
such lighting and related equipment as is required by all applicable laws
and regulations, including but not limited to, any applicable state and/or
federal ATM Safety Act. Tenant acknowledges that Landlord is to be
provided with a copy of any and all plans and specifications in connection
with said installations by Tenant, which shall be done at Tenant's sole
cost and expense in accordance with all applicable laws and in a good and
first-class workmanlike
manner.
|
ARTICLE
VIII
INDEMNITY
AND PUBLIC LIABILITY INSURANCE
|
8.1
|
TENANTS
INDEMNITY.
|
|
(a)
|
Tenant
agrees to defend, indemnify and save harmless Landlord from and against
all suits, claims or causes of action and any loss, costs and expenses of
whatever nature arising from, or claimed to have arisen from, any action,
omission or negligence of Tenant, its employees, agents, servants,
contractors or invitees or arising from any accident, injury or damage
whatsoever caused to any person, or to the property of any person,
occurring after the date on which Tenant first enters the Premises to
commence its construction work and thereafter which accident, injury or
damage occurred, or is claimed to have occurred, at or in connection with
the Premises and/or in connection with Tenant's use of the Building
Perimeter. In the event Landlord shall be made a party to any litigation
or proceeding commenced by or against Tenant (except with respect to suits
or litigation commenced by Tenant against Landlord as a result of a breach
of this Lease by Landlord), then Tenant shall protect and hold Landlord
harmless and shall pay all costs and expenses and reasonable attorneys'
fees incurred or paid by Landlord in connection with such litigation or
proceeding and shall satisfy any judgment or fines that may be entered
against Landlord in such litigation or
proceeding.
|
|
(b)
|
Tenant
agrees to maintain in full force and effect during the term of this Lease,
a policy of comprehensive commercial general public liability insurance
under which Tenant is a named insured, and under which the insurer agrees
to defend, indemnify and hold Landlord, and those in privity of estate
with Landlord, harmless from and against all loss, cost, expense and/or
liability arising out of or based upon any and all claims, accidents,
injuries and damages mentioned in the first paragraph of this Section
"8.1" and otherwise, in the form of such standard coverage from time to
time available in the Commonwealth of Pennsylvania. Such policy, which may
be a blanket policy covering other premises, shall be non- cancelable with
respect to Landlord and Landlord's said designees without thirty (30)
days' prior written notice to Landlord, and a duplicate original or
certificate thereof and of each renewal or replacement thereof during the
term of this Lease shall be delivered to Landlord. The minimum limits of
liability of such insurance per occurrence shall be Five Million Dollars
($5,000,000) level limits for bodily injury (or death) and property
damage. The Landlord shall be an additional insured on said policy using
ISO Form 20-26. The said policy shall contain a contractual indemnity
clause. Tenant's insurance shall also include contractual liability
coverage products and completed operations liability. Landlord
shall review Tenant's insurance policy and provide written approval,
if acceptable by Landlord, of same within ten (10) days of
receipt.
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14
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8.2
|
INJURY
CAUSED BY THIRD PARTIES. Except as provided in Section 8.3 below, to the
maximum extent this Lease may be made effective according to law, Tenant
agrees that Landlord shall not be responsible or liable to Tenant, or to
those claiming by, through or under Tenant, for any loss or damage that
may be occasioned by or through the acts or omissions of persons occupying
adjoining premises or any part of the premises adjacent to or connecting
with the Premises or any part of the Shopping Center, or by any other
unrelated third parties or for any loss or damage resulting to Tenant or
those claiming by, through or under Tenant or its or their property from
the breaking, bursting, stopping or leaking of electric cables and wires,
and water, gas, sewer or steam pipes or conduits, except that the
foregoing shall not apply to any loss or damage resulting from any
negligence of the Landlord.
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|
8.3
|
LANDLORD'S
INDEMNITY.
|
|
(a)
|
Landlord
agrees to defend, indemnify and save harmless Tenant from and against all
suits, claims or causes of action and any loss, costs and expenses of
whatever nature arising from, or claimed to have arisen from, any action,
omission or negligence of Landlord, its employees, agents, servants,
contractors or invitees or arising from any accident, injury or damage
whatsoever caused to any person, or to the property of any person,
occurring after the date on which Landlord first commences its
construction work and thereafter which accident, injury or damage
occurred, or is claimed to have occurred, at or in connection with the
Premises or the Shopping Center and/or in connection with Landlord's use
of the Premises. In the event Tenant shall be made a party to any
litigation or proceeding commenced by or against Landlord (except with
respect to suits or litigation commenced by Landlord against Tenant as a
result of a breach of this Lease by Tenant), then Landlord shall protect
and hold Tenant harmless and shall pay all costs and expenses and
reasonable attorneys' fees incurred or paid by Tenant in connection with
such litigation or proceeding and shall satisfy any judgment or fines that
may be entered against Tenant in such litigation or proceeding and shall
satisfy any judgment or fines that may be entered against the Tenant in
such litigation or
proceeding,
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|
(b)
|
Landlord
agrees to maintain in full force during the term of this Lease a policy of
public liability and property damage insurance under which Landlord is a
named insured, from and against all costs, expenses and/or liability
arising out of any and all accidents, injuries and damages mentioned in
the first paragraph of this Section "8.3", in the form of such standard
coverage from time to time available in the Commonwealth of Pennsylvania.
The limits of liability of such insurance per occurrence shall be Five
Million Dollars ($5,000,000) level limits for bodily injury (or death) and
property damage. The Tenant shall be an additional insured on said policy
using ISO Form 20-26. Such policy, which may be a blanket
policy covering other premises, shall be noncancelable without thirty (30)
days' written prior notice to Tenant and a duplicate or original or
certificate and each renewal or replacement thereof shall be delivered to
Tenant.
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|
8.4
|
SCOPE
OF INDEMNITY. The indemnity and hold harmless agreements of Landlord and
Tenant contained herein shall include indemnity against all costs, and
expenses incurred in or in connection with any such claim and the defense
thereof, before, during and at trial and any appeal, and each party agrees
to provide the other with prompt written notice of any claim as to which
such party invokes the indemnity agreement in such party's favor, and
shall afford the other party a reasonable opportunity to defend the
same.
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15
ARTICLE
IX
LANDLORD'S
ACCESS TO PREMISES
REIMBURSEMENTS
AND RIGHTS OF SELF HELP
|
9.1
|
LANDLORD'S
RIGHT OF ACCESS. Landlord shall have the right with
reasonable prior notice to Tenant and at times reasonably convenient to
Landlord and Tenant, and accompanied by a representative of Tenant to make
access available to prospective or existing mortgagees or purchasers of
any part of the Shopping Center or to inspect the Premises to determine if
repairs are required. If repairs are required to be made by Tenant
pursuant to the terms hereof, Landlord may by notice demand that Tenant
make the same forthwith, and if Tenant refuses or neglects to commence
such repairs and complete the same with reasonable dispatch, after such
demand, Landlord may (but shall not be required to do so) make or cause
such repairs to be made (at such times and in such manner as to minimize
any interference with Tenant's business operations in the Premises), and
the Landlord shall not be responsible for any loss or damage to Tenant's
business by reason thereof except if such loss or damage arises out of the
negligence of Landlord as provided herein. If Landlord makes or causes
such repairs to be made, Tenant agrees that it will forthwith, on demand,
pay to Landlord the reasonable cost thereof, and if it shall default in
such payment, Landlord shall have the remedies provided for the
non-payment of rent or other charges payable hereunder. Likewise, if any
repairs are required to be made by Landlord under the terms of this Lease,
and it fails or refuses to make such repairs, within a reasonable time
after notice from Tenant of the need for such repairs, then Tenant shall
have the right to make such required repairs in which event Landlord
agrees that it will on demand pay to the Tenant the cost thereof. In the
event of an emergency where something is required to be done forthwith in
order to avoid damage, either party shall have the foregoing right of
self-help without the requirement of formal notice; however, this
emergency right as well as the foregoing right of self-help shall be
carefully and judiciously exercised by either party, it being understood
and agreed that wherever possible, the party initially responsible for
taking such action should be given sufficient opportunity so to do in
order to avoid any conflict with respect to whether or not self-help
should have been invoked or with respect to the reasonableness of the
expenses thus incurred.
|
|
9.2
|
EXHIBITION
OF SPACE TO PROSPECTIVE TENANTS. For a period commencing twelve (12)
months prior to the expiration of the term of this Lease, Landlord may, at
reasonable times upon notice to Tenant, have access to the Premises
accompanied by a representative of Tenant for the purpose of exhibiting
the same to prospective
tenants.
|
ARTICLE
X
INSURANCE
|
10.1
|
FIRE
AND EXTENDED COVERAGE
INSURANCE.
|
|
|
(a)
|
Tenant
shall keep the Premises and all leasehold improvements installed in the
Premises by the Tenant (and all of Tenant's Trade Fixtures and Equipment,
Tenant's merchandise, furnishings, equipment, personal property and plate
glass, Tenant's wall covering, floor covering, carpeting and drape, and
fixtures and equipment installed by Tenant) insured against loss or damage
by fire, with the usual extended coverage and all risk endorsements,
including flood and earthquake, in amounts not less than the full
insurable, replacement value thereof above foundations. Tenant shall also
obtain rental interruption insurance for the benefit of the Landlord.
Landlord shall be named as an additional insured on said policy using ISO
Form 20-26.
|
16
|
|
(b)
|
If
Tenant fails to obtain or maintain the policy required by section 10.1 (a)
above, this shall be considered an Event of Default under this Lease which
must be cured upon three (3) days written notice. In the event Tenant
fails to maintain the insurance provided for herein, Landlord may obtain
such policy and in such event, Tenant agrees to pay Landlord, as
Additional Rent, all such insurance premiums separately assessed against
the Premises or Tenant's Allocable Share, if such insurance is contained
in a blanket policy covering the Shopping Center, as computed under
Section "12.3", of any such insurance premiums for the Premises as
computed under Section "12.3", as estimated by Landlord. In addition,
Tenant shall pay to Landlord its Allocable Share of such premiums relating
to the Common Areas, within twenty (20) days after Tenant receives a xxxx
for such premium from the Landlord. For the insurance
years in which this Lease commences and terminates, the provisions of this
paragraph shall apply and Tenant's liability for its Allocable Share of
any insurance for such year shall be subject to a pro-rata adjustment
based on the number of days of said year(s) during which the term of this
Lease was in effect.
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|
10.2
|
SPRINKLER
SYSTEM. The Tenant shall perform and pay for all charges levied or
assessed for services and maintenance related to the sprinkler or to fire
protection of the said systems servicing only the
Premises.
|
|
10.3
|
FIXTURES
AND EQUIPMENT INSTALLED BY TENANT. The Tenant shall also at its sole cost
and expense, be responsible for carrying insurance against fire and such
other risks as are from time to time reasonably required by the Landlord,
including, but not limited to a standard "All Risk" policy of property
insurance protecting against all risk of physical loss or damage in
amounts not less than the replacement cost covering the Fixtures and
Equipment, Tenant's merchandise, wall coverings, floor coverings,
carpeting, drapes and other equipment and items of personal property.
Tenant shall provide to Landlord certificates of insurance (and of each
renewal or replacement thereof) evidencing the above. In the event Tenant
fails to provide a certificate of insurance evidencing compliance with
this Section, Landlord may, but is not obligated to, obtain such insurance
and Tenant shall pay to Landlord the premium therefore upon
demand.
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|
10.4
|
INSURANCE
RATES. Tenant covenants and agrees that it shall not permit anything to be
done in or upon the Premises or bring in anything or keep anything
therein, which shall increase the rate of insurance on the Premises and/or
the Building and/or the Shopping Center above the standard rate on said
Premises and/or Building and/or the Shopping Center for the Permitted
Use(s), but if it shall do so, it will promptly pay to Landlord on demand
any such increase resulting therefrom, which shall be due and payable on
demand as additional rent
hereunder.
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|
10.5
|
NON-SUBROGATION
AGAINST TENANT. Landlord hereby releases Tenant or anyone claiming through
the Tenant from any liability or responsibility (to Landlord or anyone
claiming through or under Landlord by way of subrogation) for any loss or
damage to Landlord's property or loss of rents caused by fire or other
risks covered, or required hereunder to be covered, in Landlord's fire
policies and in Landlord's policies of rental insurance, if any, even if
such loss or damage shall have been caused by the fault or negligence of
Tenant (or its agents or employees) provided, however, that this release
shall apply and be effective if and only so long as the loss or damage in
question shall be covered, or under the Landlord's said insurance required
hereunder would have been covered, by a policy or policies containing a
clause or endorsement substantially to the effect that any such release by
the insured shall not adversely affect, impair, or prejudice the right of
the insured to recover for such loss or damage. Landlord agrees to use its
best efforts to have such policies contain such clause or endorsement
without any extra charge or premium therefor, but if there shall be any
extra charge or premium, Landlord shall be excused from obtaining or
maintaining such clause or endorsement in said policies unless Tenant
shall promptly after notice reimburse Landlord for such extra charge or
premium. Upon request of Tenant, Landlord shall furnish Tenant with
evidence of the inclusion of such clause or endorsement in such policies;
and Landlord shall notify Tenant if such clause or endorsement is
thereafter deleted from such policies or any renewals
thereof.
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|
10.6
|
NON-SUBROGATION
AGAINST LANDLORD. Tenant hereby releases Landlord or anyone claiming
through the Landlord from any liability or responsibility (to Tenant or
anyone claiming through or under Tenant by way of subrogation) for any
loss or damage to Tenant's property or loss of income caused by fire or
other risks covered, or required hereunder to be covered, in Tenant's fire
policies and in Tenant's policy of business interruption insurance, if
any, even if such loss or damage shall have been caused by the fault or
negligence of the Landlord or its agents or employees; provided, however,
that this release shall apply and be effective if and only so long as the
loss or damage in question shall be covered, or under the Tenant's
insurance required hereunder would have been covered, by a policy or
policies containing a clause or endorsement substantially to the effect
that any such release by the insured shall not adversely affect, impair,
or prejudice the right of the insured to recover for such loss or damage.
Tenant agrees to use it best efforts to have such policies contain such
clause or endorsement without any extra charge or premium therefor, but if
there shall be any such extra charge or premium, Tenant shall be excused
from obtaining or maintaining such clause or endorsement in said policies
unless Landlord shall promptly after notice reimburse Tenant for such
extra charge or premium. Upon request of Landlord, Tenant shall furnish
Landlord with evidence of the inclusion of such clause or endorsement in
such policies, and Tenant shall notify Landlord if such clause or
endorsement is thereafter deleted from such policies or any renewals
thereof.
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17
ARTICLE
XI
DAMAGE
OR DESTRUCTION
|
11.1
|
If
the Demised Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give immediate notice thereof to Landlord, and this
Lease shall continue in full force and effect except as hereinafter set
forth.
|
|
11.2
|
Subject
to the foregoing provisions of this Section 11, in the event of damage to,
or destruction of, the Demised Premises by fire or other casualty, with
respect to which Tenant has not terminated this Lease or is not entitled
to terminate this Lease, regardless of whether or not the insurance
proceeds are sufficient Tenant's responsibility shall be to restore or
cause to be restored the affected portion of the Demised Premises, to the
extent necessary to permit the restoration and use and enjoyment of the
Demised Premises. Tenant's restoration shall be commenced within thirty
(30) days of the damage or destruction and receipt of insurance proceeds
(but except in the case of an act of God, not later than sixty (60) days
after the damage or destruction), and shall be performed
diligently.
|
|
11.3
|
ABATEMENT
OF RENT AND OTHER CHARGES. The Minimum Rent and any other charges due to
the Landlord from the Tenant under this Lease shall not be abated or
reduced as a result of damage to the
Premises.
|
ARTICLE
XII
TAXES
|
12.1
|
REAL
PROPERTY TAXES.
|
|
(a)
|
Tenant
shall pay all real property and school taxes separately assessed against
the Tax Parcel located within Lower Nazareth Township as shown on Exhibit
"S". These taxes shall include property tax assessments, water and sewer
rent rates and charges, parking and environmental surcharges, and any
other governmental charges and all other forms of real property taxes and
assessments of every name, nature and description, general and special,
ordinary and extraordinary, which may be levied or assessed by any lawful
authority against the Premises and the Tax Parcel (collectively called
"Real Property Taxes"). The Tax Parcel comprises 23% of the area of the
entire tax parcel located in Lower Nazareth Township. Tenant shall pay 23%
of the Real Property Taxes associated with the land value only for the Tax
Map Parcel and 100% of the Real Property Taxes associated with the
Building and all other Improvements on the Tax Parcel. Notwithstanding the
foregoing, Tenant shall not be responsible to pay all real property and
school taxes separately assessed against the Tax Parcel located
within Xxxxxx Township as shown on Exhibit
"S".
|
18
|
(b)
|
Tenant
agrees that following the Rent Commencement Date, Tenant shall pay to
Landlord, as Additional Rent and within twenty (20) days after receipt of
a xxxx therefor, the amount of Tenant's Allocable Share of all Real
Property Taxes, computed as of the Rent Commencement Date for the then
current tax fiscal year which have been prepaid by the Landlord. Such
amount shall be calculated on the basis of the number of days (from the
Rent Commencement Date) remaining in each such current tax fiscal
year.
|
|
(c)
|
INTENTIONALLY
OMITTED.
|
|
(d)
|
Tenant
may seek a reduction in the assessed valuation (for Real Property Tax
purposes) of the Tax Parcel at its sole cost and
expense.
|
|
(e)
|
Should
any governmental taxing authority acting under any present or future law,
ordinance or regulation, levy, assess or impose a tax, excise, surcharge
or assessment upon or against the rents payable by Tenant to Landlord, or
upon or against the Common Areas, whether by way of substitution for or in
addition to . any existing Real Property Tax or otherwise, Tenant shall be
responsible for and shall pay Tenant's Allocable Share of such tax in the
manner provided in Section
"12.3".
|
|
12.2
|
PERSONAL
PROPERTY TAXES. Tenant shall pay all such taxes which may be lawfully
charged, assessed, or imposed upon the personal property and Fixtures and
Equipment in the Premises, including taxes on any signs of Tenant located
anywhere in the Shopping Center, and Tenant shall pay all license fees
which may be lawfully imposed upon the business of Tenant conducted upon
the Premises or in connection with the maintenance of any such
signs.
|
|
12.3
|
DEFINITION
OF TENANT'S ALLOCABLE (OR PRO RATA) SHARE OF
INSURANCE
|
|
(a)
|
Tenant's
Allocable Share of Insurance Premiums pursuant to Section "10.1" shall be
the product of multiplying the amount of said Insurance Premiums
separately by a fraction, the numerator of which is the number of square
feet in the Tax Parcel as shown on Exhibit "S"and the denominator of which
is the square footage of the area in the Shopping Center (not including
the parcel noted as Future Shopping Center), Tenant's Allocable Share of
Insurance Premiums is 23% currently. In the event that certain tenants in
the Shopping Center pay their own Real Property Taxes or Insurance, such
tenants shall, nevertheless, be required to pay their proportionate share
of Real Property Taxes or insurance assessed covering the Common
Areas.
|
|
(b)
|
Tenant's
said allocable share of such Real Property Taxes and Insurance charges
shall be equitably adjusted for and with respect to the first and last
partial tax years, if any, within the Lease Term. Where the applicable tax
bills and computations are not available prior to the expiration of the
Lease Term, then a tentative computation shall be made on the basis of the
previous year's taxes payable by the Tenant pursuant to the provisions
hereof and a final computation shall be made promptly after all bills and
computations are available for such
period.
|
|
(c)
|
Tenant's
said allocable share of said Insurance and charges shall be due and
payable within twenty (20) days after receipt by Tenant of Landlord's
invoice together with a copy of the bills involved and such other
information reasonably relating
thereto.
|
19
ARTICLE
XIII
EMINENT
DOMAIN
|
13.1
|
EFFECT
OF CONDEMNATION.
|
|
(a)
|
As
used in this Section the word "taking" or "taken" shall be deemed to mean
the acquisition or condemnation by Eminent Domain for any public or quasi
public use or purpose under any law or by a private purchase in lieu
thereof by a public body vested with the power of Eminent
Domain.
|
|
(b)
|
If
the entire Premises shall be taken, then in such event this Lease shall
cease and terminate from the date of title vesting in such public body
(subject to the terms and conditions set forth
herein).
|
|
(c)
|
If
a portion of the building on the Premises or adjacent parking area or
access to same, as in the reasonable opinion of Landlord or Tenant, would
render the balance of the Premises unsuitable for the purposes of Tenant,
shall be taken or if in the reasonable opinion of the Landlord or the
Tenant a taking shall result in such a diminution of the parking area in
the Shopping Center as would make it economically impracticable to
continue to operate the business of the Tenant because of lack of adequate
and available parking facilities, or if in the reasonable opinion of the
Landlord or the Tenant a taking shall deprive the Premises or the Shopping
Center of adequate and convenient motor vehicle access to any of the
principal highways serving the Shopping Center, then Landlord or the
Tenant, upon written notice to Tenant or Landlord, as the case may be,
shall be entitled to terminate this Lease, provided that such notice is
given before the last to expire of the thirty (30) day period after the
taking authority has taken actual physical possession of any portion of
the Premises, said parking area or said highway access and twenty (20)
days after notice from Landlord to Tenant or Tenant to the Landlord of the
fact of such taking. Should any part of the Premises be so taken and
should this Lease not be terminated in accordance with the foregoing
provision, Tenant covenants and agrees promptly upon such taking to expend
so much as may be necessary of the net amount which may be awarded or
granted to it in such proceeding or acquisition and available (subject to
the rights of the holder of any mortgages covering the Premises) in
restoring the Premises to an architectural unit as nearly like their
condition prior to such taking as shall be practicable, subject to zoning
and building laws then in
existence.
|
|
13.2
|
DIVISION
OF AWARD. Out of any award for any taking of Landlord's interest in the
Premises, Landlord shall be entitled to receive and retain the amounts
awarded for the value of the Ground Lease and Tenant shall have the right
to file a claim and/or to obtain an award for the value of the unexpired
term of this Lease and all Leasehold Improvements, the building and for
the depreciated value of the Fixtures and Equipment and the Tenant's
moving expenses and loss of business and the Tenant shall have the right
to be a party to the acquisition or condemnation proceeding to make a
claim for all of such aforesaid
damages.
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|
13.3
|
ABATEMENT
OF RENT AND OTHER CHARGES. In the event of any such taking, a fair and
just proportion thereof, shall be suspended or abated pending restoration
by Tenant, and in the event this Lease is terminated by reason of such
taking any prepaid rent or other charges shall be refunded to Tenant. If
this Lease is not terminated by reason of such taking, Tenant shall be
entitled to and receive a proportionate reduction in Minimum Rent
according to any reduction in the size of the Leased Premises. The base
Minimum Rent and all charges due from the Tenant hereunder which are based
on the ratio of Tenant's Allocable Share shall also be adjusted downward
in the same percentage as Minimum Rent is so
reduced.
|
20
|
13.4
|
In
the event that the Landlord or the Tenant decides not to terminate this
Lease as aforementioned, the Landlord shall use its best efforts to
restore the remaining portion of the Shopping Center (if applicable),
other than the Premises which Tenant is responsible to restore, to an
architectural unit as nearly like its condition before any such taking as
Landlord deems practical (subject to zoning and building laws then in
existence). In the event that the Landlord decides to rebuild the Shopping
Center (if applicable) and the Tenant has not exercised its right to
terminate this Lease as provided for in this Lease, the Tenant shall
restore the Premises and/or repair and/or rebuild or replace the Fixtures
and Equipment together with any other items used at and/or in connection
with the Premises.
|
ARTICLE
XIV
DEFAULT
|
14.1
|
(a)
|
EVENTS
OF DEFAULT: The following shall be Events of Default under this
Lease:
|
|
|
(1)
|
Tenant
shall neglect or fail to pay any installment of Minimum Rent, Additional
Rent or any portion thereof or any other payments due under this Lease
after the same shall become due after ten (10) days notice of the failure
to make such payment and demand
therefor;
|
|
|
(2)
|
Tenant
shall neglect or fail to perform or observe any other covenant, term,
provision or condition contained in the Lease on its part to be performed
or observed within thirty (30) days after notice of such failure or if
more than thirty (30) days shall be required to cure such default because
of the nature of the default, if Tenant shall fail to proceed diligently
to cure such default after the expiration of such thirty (30) day
period;
|
|
|
(3)
|
The
estate hereby created shall be taken on execution or by other process of
law;
|
|
|
(4)
|
Tenant
under this Lease shall be declared bankrupt or insolvent according to law,
or if any assignment shall be made of the property of Tenant for the
benefit of creditors, or if a receiver, guardian, conservator, trustee in
involuntary bankruptcy or other similar officer shall be appointed to take
charge of all or any substantial part of Tenant's property under this
Lease by a court of competent jurisdiction, or a petition shall be filed
for the reorganization of Tenant under any provisions of the Bankruptcy
Act now or hereafter enacted, and such appointment, petition or proceeding
is not dismissed within one hundred twenty (120) days after it is begun,
or if Tenant shall file a petition for such reorganization, or for
arrangement under any provisions of the Bankruptcy Act now or hereafter
enacted and providing a plan for a debtor to settle, satisfy or extend the
time for the payment of debts;
and/or
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(5)
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Tenant
shall fail to open as an Embassy Bank within twelve (12) months after
Substantial Completion of the Building Pad, provided that such failure to
open is not the result of (i) a delay caused solely by Landlord's failure
to complete Landlord's Work or (ii) a force majeure event. Notwithstanding
the foregoing, Tenant shall not be relieved from its obligation to Rent
and all other charges due hereunder upon the Rent Commencement
Date.
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(b)
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Landlord's
Remedies: Upon the occurrence of any Event of Default (notwithstanding any
waiver of any former breach of covenant or waiver of the benefit hereof or
consent in a former instance), Landlord may, at its
option:
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(1)
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Terminate
this Lease and the term hereof upon giving to the Tenant five (5) days
written notice of the Landlord's intention to terminate this Lease. This
Lease and the term hereof shall expire and come to an end on the
date fixed in such notice as if the said date were the date
originally fixed in this Lease for the expiration
thereof,
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21
If
the Tenant shall remain in the Premises after the expiration date of this Lease,
the Tenant will be deemed a hold-over tenant and the Tenant agrees that the
Landlord shall have the right to immediately commence a summary proceeding for
eviction in the proper local court; or
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(2)
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Immediately,
or at any time after the occurrence of an Event of Default, subject to
proceedings to regain possession or eviction commenced in the appropriate
municipal court, enter into and upon the Premises or any part thereof in
the name of the whole and repossess the same as of its former estate, and
expel Tenant and those claiming through or under it and remove its or
their effects (forcibly if necessary) without being deemed guilty of any
manner of trespass, and without prejudice to any remedies which might
otherwise be used for arrears of rent or preceding breach of covenant, and
upon entry as aforesaid this Lease shall
terminate.
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(3)
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Seek
damages and avail itself of any remedies in a court of proper and
competent jurisdiction as a result of Tenant's default under this
Lease,
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(c)
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Tenant's
Obligations After Termination: Tenant covenants and agrees,
notwithstanding any termination of this Lease or entry or re-entry by
Landlord whether by summary proceedings or otherwise, to pay and be liable
for, in advance, for the entire amount of the Minimum Rent and estimated
Additional Rent due for the balance of the Lease term, but in the event
the Premises be relet by Landlord, Tenant shall be entitled to a credit in
the net amount of rent received by Landlord (which may be less than the
Minimum Rent herein) in reletting (but not in excess of sums due from
Tenant to Landlord under this Lease) for the actual terms of the Lease for
any replacement tenant, excluding options, after deduction of all
reasonable expenses incurred in reletting the Premises and in collecting
the rent in connection therewith, including reasonable attorneys' fees.
Such reasonable expenses of reletting shall include, but not be limited
to, brokerage commissions, expenses of remodeling and incentive rent or
free rent for a period of time. Landlord agrees to use commercially
reasonable efforts to mitigate Tenant's damages by attempting to re-let
the Premises to another compatible
Tenant.
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(d)
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Litigation
Expenses: In the event that Landlord and Tenant are involved in any
litigation regarding the performance of any of their obligations under the
provisions of this Lease, or in connection with Tenant's or Landlord's
default hereunder the unsuccessful party by final order, decree or
judgment in such litigation by a court of competent jurisdiction shall
reimburse the successful party for all reasonable costs and expenses
(including reasonable attorneys' fees and court costs) incurred by such
successful party in connection with obtaining such final order, decree or
judgment.
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(e)
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In
the event of termination of this Lease as a result of default, or
otherwise, the building and all leasehold improvements shall be deemed to
be the property of the Landlord and Tenant shall have no further claim or
interest in said property.
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(f)
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Notwithstanding
anything to the contrary contained in this Lease, Landlord and Tenant
acknowledge that Tenant's liability upon a default is subject to the
limitations provided in 12 U.S.C. Section 182l(e)(4). Therefore, in the
event (a) Tenant, but not its assignees, shall become subject to a
bankruptcy proceeding pursuant to Title 11 of the United States Code or
similar proceeding during the term of this Lease, or (b) the depository
institution operated by Tenant is taken over by any depository institution
supervisory authority (hereinafter referred to as the "Authority") during
the term of this Lease, Lessor may, in either such event, terminate this
Lease only with the concurrence of any receiver or liquidator appointed by
such Authority or pursuant to an order of the Court with jurisdiction over
such case or proceeding, or upon the expiration of the stated term of this
Lease as provided herein, provided that in the event this Lease is
terminated by the Receiver or Liquidator, the maximum claim of Lessor for
rent, damages or indemnity resulting from the termination, rejection, or
abandonment of the unexpired Lease shall by law in no event exceed all
accrued and unpaid rent and additional rent due as of the date of
termination.
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22
ARTICLE
XV
TENANTS
SIGNS
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15.1
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TENANT'S
SIGNAGE RIGHTS.
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(a)
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Subject
to Landlord's approval, Tenant shall have the right to obtain, install,
maintain, at its sole cost and expense, the following signs or such signs
as may be approved by the Municipality (provided that such signs do not
violate any federal, state or municipal codes, rules and regulations and
are approved by Lower Nazareth
Township);
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(1)
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The
signs located on the building more particularly shown on Exhibit "T- 1" in
such location(s) as is shown on Exhibit "T-l" attached
hereto;
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(2)
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Tenant's
4 x 4 monument sign panel shown on Exhibit "T-2" in such location as is
shown on Exhibit "S" attached hereto. All signs and any substitutions or
replacements thereof shall be subject to Landlord's prior written consent,
which shall not be unreasonably withheld and such substitutions or
replacements must comply with all local laws and
regulations.
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(b)
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All
such signs of Tenant set forth in subparagraph (a) above shall comply with
all applicable building codes and zoning laws and regulations, shall
advertise only Tenant's business and, shall be constructed and maintained
in good repair at Tenant's expense, and Tenant shall pay the cost of any
electricity consumed in illuminating such signs. None of the signs
referred to in subparagraph (a) above shall be flashing, blinking or of a
raceway type. All signs must be channel letters (not box
signs).
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(c)
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The
Landlord agrees to procure all necessary permits for the monument sign
described herein. The cost of the signs and installation thereof shall be
paid by the Tenant. Landlord will bring electric service to the base of
the monument sign but shall not supply any
transformers.
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(d)
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Landlord
agrees not to erect any additional signs within the Shopping Center which
would unreasonably obstruct the view of the Embassy Bank branch from
adjacent streets.
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ARTICLE
XVI
COMMON
AREA MAINTENANCE
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16.
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(a)
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Common
Areas shall include all areas of the Shopping Center not covered by
Buildings, including but shall not be limited to, all parking areas and
facilities, roadways, driveways, entrances and exits, truck serviceways,
utilities, retaining and exterior walls, sidewalks, open malls, outside
courts, landscaped and planted areas, service corridors, service areas,
loading docks, public rest rooms, if any, equipment, signs and any special
services provided by Landlord for the common or joint use and benefit of
all tenants in the Shopping Center, their employees, customers and
invitees.
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23
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(b)
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Landlord
shall make available the Common Areas for the common benefit of the
tenants and occupants of the Shopping Center. Landlord shall operate,
manage, equip, insure, repair and maintain such Common Areas for their
intended purposes in a first class manner as Landlord shall reasonably
determine. Landlord shall at all times have the right to reasonably
determine, reasonably change or reasonably alter the nature, extent, size
or location of the Common Areas, provided such alterations do not affect
access to or visibility of the Premises and Landlord shall not be subject
to liability therefor, nor shall Tenant be entitled to any compensation or
diminution or abatement of rent on account of any such determination or
change, nor shall any such action be deemed an actual or a constructive
eviction of Tenant. It is understood and agreed that Landlord may
construct or demolish and reconstruct additional improvements and
buildings on the parcels designated as Out Parcels or "Future" or "Small
Shops" on the Site Plan but not otherwise in the Common Areas and
incorporate such parcels into the Shopping Center which parcels shall be
subject to all conditions imposed on all tenants by virtue of the leases
entered into by Landlord. In addition, Landlord may erect the monument
sign shown on the site plan and other reasonable signs in connection with
the Out Parcels provided they do not block the view of Tenant's signs.
Landlord shall also have the right to operate a kiosk in the Common Areas
but not in front of the Premises in the no-build area, if any, outlined on
Exhibit "S".
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(c)
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Tenant
and its officers, employees, agents, customers and invitees shall have the
nonexclusive right, in common with Landlord and all others to whom
Landlord has or may hereafter grant rights, to use the Common Areas as
designated from time to time by Landlord, subject to such reasonable
regulations as Landlord may from time to time impose uniformly on all
Tenants in the Shopping Center. Employee parking areas, if any, for
Tenant's employees shall be designated on Exhibit "S". Tenant agrees to
abide by such reasonable regulations and to use its best efforts to cause
its officers, employees, customers and invitees to conform thereto.
Landlord may at any time close temporarily the Common Areas or any portion
thereof to make repairs or changes to prevent the acquisition of public
rights therein, or to discourage non-customer parking, and may do such
other acts in and to the Common Areas as in its reasonable judgment may be
desirable to improve the convenience thereof. Tenant shall not at any time
interfere with the rights of Landlord and other tenants, its and their
permitted officers, employees, agents, customers, and invitees, to use any
part of the parking areas and other Common
Areas.
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(d)
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Tenant
shall pay all CAM charges relating to the Common Areas shown on Exhibit
"S". Tenant shall pay Tenant's CAM in monthly installments of one twelfth
(1/12th) of the annual amount of such share as is reasonably estimated by
Landlord. After the end of each Lease Year or partial Lease Year, Landlord
shall give Tenant a statement (prepared in accordance with Shopping Center
Practices, including a detail of all CAM Expenses listed below for which
the Tenant is liable, as provided by this Lease) of CAM for that year. The
statement shall be binding upon Tenant unless objected to by Tenant within
twelve (12) months after it is given. If such statement shows that
Tenant's CAM exceeds the monthly installments previously paid to Landlord,
then Tenant shall pay Landlord the excess. If such statement shows that
Tenant's monthly installments exceeds Tenant's CAM, then the overpayment
to Landlord shall be paid by Landlord to Tenant or, at Landlord's
election, credited to the next amount due from Tenant to Landlord under
this Lease. Provided Tenant is not in monetary or other material default
under the terms of this Lease, Tenant shall have the right not more often
than once per Lease Year, to conduct an audit, following at least fifteen
(15) days written notice and during business hours of Business Days, of
Landlord's books and records pertaining to Common Area Maintenance and
Real Estate Taxes at the offices of the Landlord. Only one audit is
permitted for any Lease Year. Audits must be conducted within six (6)
months of receipt of Landlord's summary of CAM changes for any given year.
Any errors must be claimed within three (3) months of the Audit or such
claim is waived. Tenant's audit shall be at its sole cost and expense
unless such an audit reveals an error in Landlord's statement which
increased CAM by more than three percent (3%) as disclosed by the audit,
in which event Landlord shall pay Tenant within thirty (30) days after
demand the reasonable costs of such audit. Tenant shall not have any right
to audit Landlord's books and records for any period ending more than
twelve (12) months prior to the date the audit notice is given.
Notwithstanding anything to the contrary contained herein, Landlord's
failure to provide such CAM cost statement to Tenant in a timely manner
shall in no way excuse Tenant from its obligation to pay its CAM costs or
constitute a waiver of Landlord's right to xxxx and collect such CAM costs
from Tenant in accordance with this
clause.
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24
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(e)
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CAM
means all costs incurred or paid by Landlord for the operation,
maintenance, replacement and repair of the Common Areas (not the buildings
located in the Shopping Center), including but not limited to,
landscaping, parking lot repaving (not more than once each 10 years),
access road repaving (not more than once each 5 years), repairing and
striping, snow removal, pest control, common area utilities, including
irrigation water, sanitary clean out and control as to lines servicing the
Premises, exterior lighting (including maintenance of fixtures and
replacement of light bulbs), removal of common area trash, supplies,
security, traffic control devices, the amortized cost of the reasonable
purchase or lease of any machinery, equipment or vehicles used in
connection with the operation or maintenance of the Common Areas, repair
and replacement of on-site water, sanitary and storm sewer lines as to
lines servicing the Premises, maintenance of on-site drainage facilities,
any governmental impositions or surcharges, repair to retaining walls,
maintenance and other personnel performing the above activities (including
wages, benefits, unemployment, social security taxes and workers'
compensation insurance), pedestrian traffic control and an administrative
charge equal to fifteen percent (15%) of the CAM costs. The fifteen
percent (15%) CAM administrative charge shall not include CAM costs
related to real estate taxes, utilities and insurance payments. CAM also
includes the premiums for Landlord's Liability insurance for the Common
Areas. Notwithstanding anything to the contrary herein, Tenant shall be
responsible for snow removal for the sidewalks surrounding the Premises
and for landscaping the areas surrounding the Premises. Landlord agrees to
be responsible for snow removal from Tenant's drive-thru area, provided
that, such expense shall be included in CAM
costs.
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Notwithstanding
the foregoing, CAM shall not include costs incurred or paid for: repairs and
replacement of roofs; structural repairs and replacements to the Buildings; all
costs and depreciation and amortization of the initial construction and
installation of the Common Areas of the Shopping Center including without
limitation, the initial construction of all paving areas, driveways, aisles,
sidewalks, traffic and safety equipment signs, landscaping and other
improvements; leasehold improvements, negotiating, amending, extending,
administering or terminating leases with any tenant including, without
limitation, brokerage commissions, architectural or legal services; payments
under mortgages or ground leases encumbering all or any part of the Shopping
Center; cash reserves for replacement of facilities; curing defects in the
construction of the Buildings; capital costs or capital improvements and
repaving the entire parking areas more often than once every ten (10) years
(repaving once every ten (10) years is a permitted CAM cost) (patching the
parking area is a permitted CAM cost); and repaving the entire Access Road more
often than once every five (5) years (repaving once every five (5) years is a
permitted CAM cost) (patching the Access Road is a permitted CAM cost); repairs
and other costs incurred for the sole benefit of any tenant; Landlord's
charitable or political contributions; costs of refinancing, selling or
otherwise transferring ownership of the Shopping Center and/or improvements
thereon; general overhead and administrative expenses not directly related to
the operation and management of the Shopping Center; and further provided that
any costs incurred with respect to the Common Areas which have been charged to
and paid directly by Tenant or another tenant (as part of Tenant's Pro Rata
Share or another tenant's share of CAM) and which have been reimbursed to
Landlord from condemnation or insurance awards shall, after deducting Landlord's
costs in obtaining such awards, be deducted from CAM for the year in which
Landlord receives such payments or awards. Also, upon the development of the
"Developer's Future Area" (as depicted on Exhibit "S"), or in the event any
other tenant shall utiltize the Access Drive (as depicted on Exhibit "S"), such
other tenant shall be responsible for their pro rata share of maintenance,
repair and other applicable CAM costs related to such Access
Drive.
25
ARTICLE
XVII
MISCELLANEOUS
PROVISIONS
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17.1
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MECHANIC'S
LIENS. Tenant agrees to pay, when due, all sums of money that may become
due for, any labor, services, materials, supplies, or equipment alleged to
have been furnished or to be furnished to or for Tenant, in, upon or about
the Premises except that Tenant may in good faith contest bills for such
labor, services, materials, supplies or equipment. Notwithstanding the
foregoing, Tenant will not permit any mechanics or materialmen or other
liens to stand against the Premises or the Shopping Center or Landlord's
interest therein. The Tenant agrees to immediately remove or bond off any
such liens within thirty (30) days after notice of such lien by Landlord
or any other party. Tenant agrees to indemnify and hold harmless Landlord
of and from any liability, damages, expenses, fees, penalties, actions,
causes of action, suits, costs, claims or judgments arising out of or in
connection with any such
liens.
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If
either party has not removed a lien or taken such action with respect thereto
which is acceptable to the other party hereto as required in Section 17.1 within
thirty (30) days after notice, the party giving notice may discharge same by
payment, deposit, bonding against collection against the Premises, order of a
court of competent jurisdiction or otherwise and the notified party shall pay
the notifying party the amount so paid or deposited, with interest thereon at
the Default Rate.
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17.2
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WAIVER,
Failure on the part of either party to complain of any action or
non-action on the part of the other party, no matter how long the same may
continue, shall never be construed as a waiver by either party of any of
its rights hereunder. No waiver at any time of any of the provisions
hereof by either party shall be construed as a waiver of any of the other
provisions hereunder and a waiver at any time of any of the provisions
hereof shall not be construed as a waiver at any subsequent time of the
same provisions.
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17.3
|
DISPUTES.
It is agreed that if at any time a dispute shall arise as to any amount or
sum of money to be paid by one party to the other under the provisions
hereof, the party against whom the obligation to pay the money is asserted
shall have the right to make payment "under protest" and such payment
shall not be regarded as a voluntary payment and there shall survive the
right on the part of said party to institute suit for the recovery of such
sum, and if it shall be adjudged that there was no legal obligation on the
part of said party to pay such sum or any part thereof, said party shall
be entitled to recover such sum or so much thereof as it was not legally
required to pay under the provisions of this Lease; if at any time a
dispute shall arise between the parties hereto as to any work to be
performed by either of them under the provisions hereof, the party against
whom the obligation to perform the work is asserted may perform such work
and pay the cost thereof "under protest" and the performance of such work
shall in no event be regarded as a voluntary performance and there shall
survive the right on the part of said party to institute suit for the
recovery of the cost of such work, and if it shall be adjudged that there
was no legal obligation on the part of said party to perform the same or
any part thereof, said party shall be entitled to recover the cost of such
work or the cost of so much thereof as said party was not legally required
to perform under the provisions of this
Lease.
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17.4
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INTEREST.
Any payment to be made pursuant to the provisions of this Lease (other
than any amount paid under protest as provided in this Lease) which is not
paid within ten (10) days after the date when due shall bear interest from
the due date thereof until paid at an annual rate of interest equal to the
lesser of (i) the per annum interest rate from time to time publicly
announced by The
Wall Street Journal (or similar successor print or electronic
publication) as the prime rate, plus four percent (4%) or (ii) the highest
rate of interest that may lawfully be charged to the party then required
to pay interest under this Lease at the Default Rate, not exceeding
18% per annum.
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26
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17.5
|
INVALIDITY
OF PARTICULAR PROVISIONS. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application
of such term or provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected
thereby and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by
law.
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17.6
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NOTICES.
Whenever by the terms of this Lease notice shall or may be given either to
Landlord or to Tenant, such notice shall be in writing and shall be sent
by registered or certified mail, postage prepaid, return receipt requested
or by recognized overnight delivery service or by personal
service.
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If
intended for Landlord, addressed to it at the present mailing address of
Landlord set forth in Section "1.2" above with a copy to Xxxxxx X. Xxxxxxxx,
Esq., Xxxxxx, Xxxxxxx & Xxxxxxxx, LLP, 000 Xxxxx Xxxxx, Xxxxxx, Xxx Xxxx
00000 (or to such other address or addresses as may from time to time hereafter
be designated by Landlord by like notice);
If
intended for Tenant, addressed to it at the present mailing address of the
Tenant as set forth in Section "1.2" with a copy to Xxxxxx X. Xxxxxx, Esq., 0
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000 (or to such other address or addresses
as may from time to time hereafter be designated by Tenant by like
notice).
All
such notices shall be effective when received by the party to whom addressed (or
when delivery is refused) after being sent by United States mail within the
Continental United States or with such recognized overnight delivery service,
provided that the same are received in the ordinary course at the address to
which the same were sent. Notice from an attorney acting or purporting to act on
behalf of a party shall be deemed to be notice from such party provided that
such attorney is authorized to act on behalf of such party. If a party fails to
pick up or sign for such notice any notice may then be served personally by a
process server who must thereafter sign an affidavit with respect to such
service.
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17.7
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PROMOTIONAL
EVENTS; ACCESS. Landlord agrees that Landlord and the Shopping Center
manager will advise Tenant and will use reasonable efforts to minimize any
adverse effect upon Tenant's business in the Premises resulting from any
promotional event intended or likely to draw a large crowd to the Shopping
Center.
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17.8
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INTENTIONALLY
OMITTED.
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17.9
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GOVERNING
LAW. This Lease shall be governed exclusively by the provisions hereof and
by the laws of the Commonwealth of
Pennsylvania.
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17.10
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DEFINITION
OF TERM. As used in this Lease the words "term" "Term" or "Term of this
Lease" shall include any extension of the term, unless otherwise
specifically stated.
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17.11
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PARAGRAPH
HEADINGS. The paragraph headings throughout this instrument are for
convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this
Lease.
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17.12
|
ESTOPPEL
CERTIFICATE OF LANDLORD. Within ten (10) days after request by Tenant or
Tenant's Lender, Landlord, from time to time and without charge, shall
deliver to Tenant or Tenant's Lender or to a person, firm or corporation
specified by Tenant, a duly executed and acknowledged instrument,
certifying: (i) that the rents are paid to date, and that this Lease is
unmodified and in full force and effect, or if there has been any
modification, that the same is in full force and effect as modified, and
identifying the date of any such modification; and (ii) whether Landlord
knows or does not know, as the case may be, of any default by Tenant in
the performance by Tenant of the terms, covenants and conditions of
this Lease, and specifying the nature of such defaults, if
any.
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27
Such
certification shall not prevent Landlord from thereafter asserting any existing
default of which Landlord did not have actual knowledge on the date of execution
thereof.
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17.13
|
ESTOPPEL
CERTIFICATE OF TENANT, Within ten (10) days after request by Landlord or
Landlord's ground lessor or mortgagee, Tenant, from time to time and
without charge, shall deliver to Landlord or the requesting party, or to a
person, firm or corporation, specified by Landlord, a duly executed and
acknowledged instrument, certifying: (i) that this Lease is unmodified and
in full force and effect, or if there has been any modification, that the
same is in full force and effect as modified, and identifying the date of
any such modification; and (ii) whether Tenant knows or does not know, as
the case may be, of any default by Landlord in the performance by Landlord
of the terms, covenants and conditions of this Lease, and specifying the
nature of such defaults, if any; and (iii) whether or not there are any
then existing permitted set-offs or defenses by Tenant, and if so,
specifying them; and (iv) the dates to which the Minimum Rent and
Additional Rent have been
paid.
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Such
certification shall not prevent Tenant from thereafter asserting any existing
default of which Tenant did not have actual knowledge on the date of execution
thereof.
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17.14
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RELATIONSHIP
OF THE PARTIES. Landlord shall not be responsible for any debts incurred
by the Tenant in the conduct of Tenant's business. Nothing contained
herein shall be deemed or construed by the parties hereto nor by any third
party as creating the relationship of principal and agent or of
partnership or of joint venture between the parties hereto, it being
understood and agreed that neither the method of computation of rent nor
any other provision herein contained, nor any acts of the parties hereto,
shall be deemed to create any relationship between the parties hereto
other than Landlord and
Tenant.
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17.15
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AUTHORITY.
Each party hereto hereby warrants and represents that it has the necessary
power and authority to enter into this Lease and that it has taken all
necessary action in order to enter into this Lease. The Tenant and the
persons on behalf of the Tenant executing this Lease warrant that the
Tenant is authorized to do business in the Commonwealth of
Pennsylvania.
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17.16
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COMPLETE
AGREEMENT. This Lease contains and embraces the entire agreement between
the parties hereto with respect to the matters contained herein, and it or
any part of it may not be changed, altered, modified, limited, terminated,
or extended orally or by any agreement between the parties unless such
agreement is in writing and signed by the parties hereto, their legal
representatives, successors or assigns. Tenant acknowledges and agrees
that neither Landlord nor any representative of Landlord nor any broker
has made any representation to or agreement with Tenant relating to the
Premises, this Lease or the Shopping Center which is not contained in the
express terms of this Lease. Tenant acknowledges and agrees that Tenant's
execution and delivery of this Lease is based upon Tenant's independent
investigation and analysis of the business potential and expenses
represented by this Lease, and Tenant hereby expressly waives any and all
claims or defenses by Tenant against the enforcement of this Lease which
are based upon allegations of representations, projections, estimates,
understandings or agreements by Landlord or Landlord's representative that
are not contained in the express terms of this
Lease.
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17.17
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LIMITATION
OF LANDLORD'S LIABILITY. It is understood and agreed that Tenant shall
look solely to the estate and property of the Landlord in the Shopping
Center for the satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by the
Landlord in the event of any default or breach by the Landlord with
respect to any of the terms, covenants and conditions of this Lease to be
observed or performed by the Landlord and any other obligation of
Landlord created by or under this Lease, and no other property or assets
of the Landlord shall be subject to levy, execution or other enforcement
procedures for the satisfaction of Tenant's
remedies.
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28
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17.18
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HOLDOVER.
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(a)
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It
is expressly understood by Tenant that Tenant's right to possession of the
Premises under this Lease shall terminate at the expiration or earlier
termination of the term, and should Tenant continue thereafter to remain
in possession, Landlord, should it so elect, shall be entitled to the
benefits of all provisions of law with respect to summary recovery of
possession from a holdover tenant. Tenant shall be responsible for any
damage, expense, cost or loss which Landlord may incur by reason of such
holding over.
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(b)
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Should
Tenant continue to occupy the Premises after the expiration or earlier
termination of the term with consent of Landlord, such tenancy shall be
from month-to-month, and such month-to-month tenancy shall be under the
same terms, covenants and conditions as set forth in this Lease except
that the annual Minimum Rent shall be 110% of the rent required to be paid
by Tenant during the proceeding Lease
Year.
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17.19
|
BROKER'S
COMMISSION. It is agreed that no broker brought about or was involved in
this transaction except Metro Commercial and Sperry Xxx Xxxx. Landlord and
Tenant each covenant and agree to indemnify, defend and save the other
harmless against any and all claims for brokerage commissions and fees in
connection with this transaction alleged to arise from the dealing of any
claimant with the respective indemnitor. Landlord will pay the commission
due to the Brokers.
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17.20
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SURVIVAL
OF OBLIGATIONS. All obligations of the Tenant for Minimum Rent, Additional
Rent and all other obligations of the Tenant and the Landlord of any name,
nature and description under and pursuant to the terms and conditions of
this Lease shall survive the termination of this Lease provided that said
obligation accrued prior to the date of termination and/or said obligation
accrues pursuant to the default provisions provided in Article XIV of this
Lease.
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17.21
|
FORCE
MAJEURE. Neither Landlord nor Tenant shall be held to be in default under
the provisions of this Lease in the performance of its obligations
hereunder for such period of time as it is prevented from performing the
same by reason of acts of God, including adverse weather conditions,
strikes, and other causes beyond its reasonable control; provided,
however, that financial inability shall never be deemed to be a cause
beyond a party's reasonable
control.
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17.22
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Intentionally
left blank.
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17.23
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TAXES
ON LEASEHOLD. Tenant shall be responsible for and shall pay before
delinquent all municipal, county, federal or state taxes whether enacted
now or in the future coming due during or after the Lease Term against
Tenant's interest in this Lease or against the Fixtures and Equipment and
personal property of any kind owned or placed in, upon or about the
Premises by the Tenant.
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17.24
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SUBORDINATION,
ATTORNMENT.
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(a)
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This
Lease shall be subject and subordinate at all times to the lien of any
mortgage, deed of trust or other security interest now or hereafter placed
upon the Premises and/or on any portion of the Shopping Center, and to all
renewals, modifications, amendments, consolidations, replacements, and
extensions thereof, provided Landlord obtains from the holder of any and
all mortgages, deeds of trust or security agreements now in effect or
hereafter placed upon the Premises an agreement that if, by dispossess,
foreclosure, or otherwise such holder or any successor in interest or
purchaser, shall come into possession of the Premises and/or the Shopping
Center, or take over the rights of the Landlord in the Premises
and/or the Shopping Center, it will not disturb the possession, use or
enjoyment of the Premises by the Tenant, its successors or assigns, nor
disaffirm this Lease or the Tenant's rights or estate hereunder, so long
as all of the covenants and obligations hereunder of the Tenant are fully
performed in accordance with the terms of this Lease and Tenant is not in
default under the terms of this Lease. The Tenant shall execute and
deliver any instrument which may be reasonably required by Landlord in
confirmation of such subordination, promptly upon Landlord's
request.
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29
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(b)
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Tenant
shall, in the event of a sale or assignment of Landlord's interest in the
Premises or the Building or the Shopping Center, or if the Premises or
such Building or Shopping Center comes into the hands of a mortgagee,
ground lessor or any other person whether because of a mortgage
foreclosure, exercise of a power of sale under a mortgage, termination of
the ground lease, or otherwise, attorn to the purchaser or such mortgagee
or other person and recognize the same as Landlord hereunder. Tenant shall
execute, at Landlord's request, any attornment agreement required by any
mortgagee, ground lessor or other such person to be executed, containing
such reasonable provisions as such mortgagee, ground lessor or other
person requires. No such attornment shall relieve the Landlord from
liability for matters arising prior to the date of such
attornment.
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17.25
|
COVENANT
OF QUIET ENJOYMENT. Landlord covenants and agrees that Tenant, subject to
the terms and provisions of this Lease, on payment of the rent and
observing, keeping and performing all of the terms and provisions of this
Lease on its part to be observed, kept and performed, shall lawfully,
peaceably and quietly have, hold, occupy and enjoy the Premises and any
appurtenant rights granted to Tenant under this Lease during the term
hereof without hindrance or ejection by any persons and Tenant agrees to
permit other tenants at the Shopping Center to quietly and peaceably hold,
occupy and enjoy their premises and any appurtenant rights at the Shopping
Center.
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17.26
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SHORT
FORM LEASE. Landlord and Tenant agree not to place this Lease on public
record. However, Landlord and Tenant agree to execute, deliver and record
(the cost of recording to be shared equally) as soon as may be possible
after the execution of this Lease a short form or a memorandum of lease in
form attached as Exhibit "M" and suitable for recording in accordance with
local law or custom, which will not set forth any of the Minimum Rent
payable by Tenant hereunder, but which may set forth all or any other
parts of this Lease as requested by the Landlord or Tenant. Landlord and
Tenant further agree to execute, deliver and record a memorandum of
amended lease in accordance with the foregoing which will reflect the
terms of any amendment of this Lease, whenever reasonably required by
either party,
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17.27
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LANDLORD'S
DEFAULT. Landlord shall in no event be in default in the performance of
any of its obligations hereunder unless and until Landlord shall have
failed to perform such obligations within thirty (30) days (or, provided
that Landlord has promptly commenced and thereafter diligently pursued the
correction of such default, such additional time as is reasonably required
to correct any such default) after written notice by Tenant to Landlord
specifying wherein Landlord has failed to perform any such
obligation.
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17.28
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COVENANTS
OF LANDLORD. Anything contained in this Lease to the contrary
notwithstanding, after the commencement of the Term of this Lease, it is
agreed that all covenants of the Landlord contained in this Lease shall be
binding upon the Landlord, its successors and assigns, only with respect
to breaches occurring during its and their respective ownership of the
Landlord's interest in this Lease, any subsequent owner or owners by
accepting conveyance automatically being obligated to fulfill all
provisions of this Lease required to be performed by the Landlord during
its or their respective ownership of the Landlord's interest in this
Lease.
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30
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17.29
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NOTICE
TO MORTGAGEE. If the Tenant is notified by the Landlord or the Landlord's
mortgagee that there is a mortgage on the Premises, and is given the name
and address of the Landlord's mortgagee, the Tenant will give written
notice to the Landlord's mortgagee in same manner as provided in Section
17.6 herein of any default at the time that the Tenant gives notice of
such default to the Landlord, and the Landlord's mortgagee shall have the
same time period as provided to the Landlord under this Lease or such
additional time as such mortgagee may reasonably request, not to exceed an
additional thirty (30) days to cure such default of the Landlord. The
Tenant shall not have the right to terminate this Lease nor the right to
cure such default and deduct the cost of the same from rent, if the
Landlord's mortgagee commences or causes to be commenced promptly after
such notice the curing of such default, and if the default is cured within
such time period after such
notice.
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17.30
|
STATUS
REPORTS. Recognizing that both parties may find it necessary to establish
to third parties, such as accountants, banks, mortgagees, or the like, the
then current status of performance hereunder, either party, on the
reasonable written request of the other made from time to time, will
promptly furnish a written statement on the status of any matter
pertaining to this Lease.
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17.31
|
ASSIGNMENT
OF THE LEASE TO MORTGAGEE. With reference to any assignment by the
Landlord of its interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made to or held by
a bank, trust company or insurance company holding a mortgage on the
Premises, the Tenant agrees:
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(a)
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That
the execution thereof by the Landlord and the acceptance thereof by such
mortgagee, shall never be treated as an assumption by such mortgagee of
any of the obligations of the Landlord thereunder, unless such mortgagee
shall, by written notice sent to the Tenant, specifically otherwise elect;
and
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(b)
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That,
except as aforesaid, such mortgagee shall be treated as having assumed the
Landlord's obligations thereunder only upon foreclosure of such
mortgagee's mortgage or conveyance in lieu thereof and the taking of
possession of the Premises and a request from such Mortgagee that Tenant
attorn to Mortgagee or its
assigns.
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17.32
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ENVIRONMENTAL.
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(a)
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Tenant
shall, at all times, comply with all local, state and federal laws, rules
and regulations governing the use, handling and disposal of Hazardous
Material in and at the Premises including, but not limited to Section 1004
of the Federal Resource Conservation and Recovery Act, 42 X.X.X, §0000 et.
seq. (42 U.S.C. §6903) and any additions, amendments, or modifications
thereto and the laws of the Commonwealth of Pennsylvania. As used herein,
the term "Hazardous Material" shall mean any hazardous or toxic substance,
material or waste which is, or becomes, regulated by any local or state
government authority in which the Premises is located or the United States
Government, Landlord and its agents shall have the right, but not the
duty, to inspect the Premises at any time to determine whether Tenant is
complying with the terms of this Section. If Tenant is not in compliance
with this Section, Landlord shall have the right to immediately enter upon
the Premises and take whatever actions reasonably necessary to comply
including, but not limited to, the removal from the Premises of any
Hazardous Material and the restoration of the Premises to a clean, neat,
attractive, healthy and sanitary condition. Tenant shall pay all such
costs incurred by Landlord ten (10) days after receipt of a xxxx therefor
plus fifteen percent (15%) for
administration.
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(b)
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The
Tenant shall be responsible for all damages and clean-up costs caused by
Tenant resulting from the leaking, discharging or spilling of any gas, oil
or petroleum products or other contaminants or Hazardous Material on or
into the Premises and/or on and/or into any adjoining premises and/or into
the surrounding
environment,
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31
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(c)
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The
Tenant shall defend, indemnify and hold harmless the Landlord of, from and
against any and all suits, claims and causes of action and any loss,
costs, expenses, fines or penalties (including reasonable attorney's
fees), and clean up costs which the Landlord may incur or become
liable to pay arising out of the breach by the Tenant of any of its
obligations contained in Sections "17.32(a)" and "17.32(b)"
above.
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(d)
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Landlord
shall, at all times, comply with all local, state and federal laws, rules
and regulations governing the use, handling and disposal of Hazardous
Material in and at the Premises including, but not limited to Section 1004
of the Federal Resource Conservation and Xxxxxxxx Xxx, 00 X.X.X. §0000 et.
seq. (42 U.S.C. §6903) and any additions, amendments, or modifications
thereto and the laws of the Commonwealth of Pennsylvania. As used herein,
the term "Hazardous Material" shall mean any hazardous or toxic substance,
material or waste which is, or becomes, regulated by any local or state
government authority in which the Premises is located or the United States
Government. Tenant and its agents shall have the right, but not the duty,
to inspect the Premises at any time to determine whether Landlord is
complying with the terms of this Section, If Landlord is not in compliance
with this Section, Tenant shall have the right to immediately enter upon
the Shopping Center and take whatever actions reasonably necessary to
comply including, but not limited to, the removal from the Premises of any
Hazardous Material and the restoration of the Premises to a clean, neat,
attractive, healthy and sanitary condition. Landlord shall pay all such
costs incurred by Tenant ten (10) days after receipt of a xxxx therefor
plus ten percent (10%) for
administration.
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(e)
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The
Landlord shall be responsible for all damages and clean-up costs caused by
the Landlord resulting from the leaking, discharging or spilling of any
gas, oil or petroleum products or other contaminants or Hazardous Material
on or into the Premises and/or on and/or into any adjoining premises
and/or into the surrounding environment. The Landlord represents that, to
its knowledge, there are no gas, oil, or petroleum products or other
contaminants or Hazardous Materials located on the property in violation
of applicable law. To Landlord's knowledge, (i) there are no underground
storage tanks under the Premises, (ii) there is no notice of intent to
xxx, notice of violation, citation, warning or similar notification under
any Environmental Law regarding the Premises, and (iii) there is no
investigation or inquiry by any "Governmental Authority" (as hereinafter
defined) concerning the Property. "Governmental Authority" shall mean all
federal, state, county, municipal and local departments, commissions,
boards, bureaus, agencies and offices thereof, having or claiming
jurisdiction over all or any part of the Demised Premises or Shopping
Center or the use thereof. The Landlord will provide the Tenant with the
most recent environmental audit reports in its
possession.
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(f)
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The
Landlord shall defend, indemnify and hold harmless the Tenant of, from and
against any and all suits, claims and causes of action and any loss,
costs, expenses, fines or penalties (including reasonable attorney's
fees), and clean up costs which the Tenant may incur or become liable
to pay arising out of the breach by the Landlord of any of its obligations
contained in Sections "17.32(d)" and "17.32(e)"
above.
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17.33
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INTENTIONALLY
OMITTED.
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17.34
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LANDLORD'S
TITLE. Landlord represents that it is well seized of and has good title to
the Demised Premises and all improvements located on it on the date of
this Lease, free and clear of all liens, encumbrances, easements,
tenancies and restrictions except easements and restrictions and liens of
record.
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32
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17.35
|
Landlord
hereby represents and warrants to Tenant that it has full right, power
and authority to enter into this Lease for the term herein granted
and Landlord covenants and agrees with Tenant that upon Tenant paying the
rent, additional rents and other charges due hereunder, and observing and
performing all the terms, covenants and conditions on Tenant's part to be
observed and performed, Tenant may peaceably and quietly enjoy the
Premises, free from any interference, molestation or acts of Landlord or
of anyone claiming by, through or under Landlord, subject, nevertheless,
to the terms and conditions of this
Lease.
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17.36
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PARKING.
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(a)
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Landlord
shall provide for the Shopping Center a number of parking spaces equal to
or greater than the minimum number of spaces required under applicable
law.
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(b)
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Landlord
shall provide Tenant with ten (10) exclusive parking spaces and fourteen
(14) non-exclusive parking spaces (which shall be identified as all
parking spaces within the Tax Parcel as shown on Exhibit "S"), provided,
however, that Landlord shall not be responsible in any way for preventing
customers of other tenants within the Shopping Center or other third
parties from parking in such exclusive parking
spaces.
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17.37
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EASEMENTS.
In the event that Landlord subdivides the property compromising the
Shopping Center, Landlord agrees to execute any required easements as may
be necessary to insure Tenant has utility services, access to the parking
areas and ingress and egress to and from the
Premises.
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ARTICLE
XVIII
RIGHTS
OF EXTENSION
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18.
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RIGHTS
OF EXTENSION. Landlord hereby agrees that Tenant shall have the right to
extend the term of this Lease for two (2) periods of five (5) years each
and one (1) period of four (4) years, eleven (11) months. The first five
(5) year period shall immediately follow the expiration of the initial
Lease Term (specified in Section "1.2" above) and the second five (5) year
period shall follow the expiration of the first extension term and the
four (4) year, eleven (11) month period shall immediately follow such
second extension term and shall be at the Minimum Rent and Additional Rent
for said respective extension term as set forth in Section "1.2" and upon
all of the other terms, conditions and provisions of this Lease; provided,
however, the foregoing rights of extension shall be deemed exercised
unless Tenant gives Landlord written notice of its election not to extend
the term of this Lease no later than six (6) months prior to the
expiration of the then current Lease Term. Notwithstanding any of the
other terms and conditions set forth in this Article XVIII, the term of
this Lease shall not be extended for any option period in the event that
the Tenant is in default of any of the terms and conditions of this Lease
on the part of the Tenant to be kept, observed and performed beyond any
applicable time period in which Tenant may cure the
default.
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Notwithstanding
the aforesaid, the parties understand and agree that, in no event shall the term
of this Lease extend beyond a period of twenty-nine (29) years and eleven (11)
months.
33
ARTICLE
XIX
RIGHT
OF FIRST REFUSAL
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19.
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If
a separate subdivision is obtained for the Tax Parcel by the Landlord and
the Landlord offers the Tax Parcel only for sale, then Tenant shall have
the Right of First Refusal to purchase the Tax Parcel, including the
Premises, upon the same terms and conditions as a bonafide offer (the
"Offer") presented by Landlord to Tenant as set forth below. Landlord
shall give Tenant notice in writing of the terms and conditions of the
Offer and Tenant shall have twenty (20) days to agree to purchase the Tax
Parcel upon the same terms and conditions as contained in the Offer. If
Tenant fails to respond or declines to purchase the Premises, Tenant shall
be deemed to have waived its Right to Purchase the Tax Parcel. If the Tax
Parcel is actually sold, this right shall be terminated and of no further
force or effect. If Tenant accepts the Offer, it shall close such
transaction within thirty (30) days of the date of such acceptance and
such acceptance shall be without condition or
contingency. If Tenant fails to close on the terms of the
Offer which was accepted, Tenant's Right of First Offer shall be deemed
waived and Landlord may enforce any rights against the Tenant, including a
claim for any losses or damages and the right of specific performance.
This Right of First Refusal shall at all times be subject and subordinate
to any and all lender financing and shall be subject and subordinate to
the sale by any lender of the Tax Parcel to a third party or a purchaser
at a foreclosure sale or a deed in lieu of foreclosure. This right shall
not apply to the sale of the entire Shopping Center or to a portion of the
Shopping Center which includes the Tax Parcel together with other property
within, but not all of, the Shopping
Center.
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ARTICLE
XX
LEASEHOLD
MORTGAGE
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20.1
|
LEASEHOLD
MORTGAGE. Tenant and every successor and assignee of Tenant is hereby
given the right by Landlord, in addition to any other rights herein
granted, without Landlord's prior written consent, to mortgage its
interest in this Lease under a leasehold mortgage one or more times and to
assign Tenant's interest under this Lease as collateral security for such
mortgage upon the condition that all rights acquired under such mortgage
shall be subject to each and all of the covenants, conditions and
restrictions set forth in this Lease, and to all rights, interest and
estate of Landlord herein, none of which covenants, conditions or
restrictions are or shall be waived by Landlord by reason of the right so
given to mortgage such interest, except as expressly provided herein. If
Tenant and/or Tenant's successors and assigns shall mortgage their
leasehold interest (a "Leasehold Mortgage") and if the holder(s) of such
mortgage (a "Leasehold Mortgagee") shall send to Landlord written notice
specifying the name and address of the mortgagee (any such lender that
shall have given such notice only if such lender is not an affiliate of
Tenant shall be deemed a "Recognized Mortgagee" and any mortgage held by
such Recognized Mortgagee, a "Recognized Mortgagee"), Landlord agrees that
so long as any such Recognized Mortgage shall remain unsatisfied of record
or until written notice of satisfaction is given by the holder to
Landlord, the following provisions shall
apply;
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(a) In
the event Recognized Mortgage exercises its right to execute on its security
interest in the Lease, Recognized Mortgagee shall acquire all Tenant's rights
under this Lease, including options to renew, and shall agree to comply with and
otherwise by bound by the terms and conditions of this Lease from and after the
effective date of such assignment while (or with respect to any period of time
that) Recognized Mortgagee or its designee is in possession of the Demised
Premises, Recognized Mortgagee shall cure any monetary and non-monetary defaults
of Tenant which arise prior to the date of any assignment of this Lease to
Recognized Mortgagee or its designee. In such case, if requested by Recognized
Mortgagee, Landlord and Recognized Mortgagee shall cooperate in executing a new
lease for the Premises in accordance with this Lease. On request by Recognized
Mortgagee, Landlord shall deliver a Landlord's estoppel to Recognized Mortgagee
confirming that the Lease is in full force and effect, and whether there are any
outstanding defaults.
(b) Except
following an event of default, as set forth in Paragraph (d) below, there shall
be no cancellation, surrender or modification of this Lease by joint action of
Landlord and Tenant without the prior consent in writing of the
Recognized Mortgagee;
34
(c) On
request by Tenant, Landlord shall deliver a Landlord's estoppel to Tenant's
proposed leasehold mortgagee and to Tenant's Recognized Mortgagee, confirming
that the Lease is in full force and effect, and whether there are any
outstanding defaults;
(d) Landlord
shall, upon serving Tenant with any notice of default, simultaneously serve a
copy of such notice upon the Recognized Mortgagee who has given Landlord written
notice as aforesaid, which default notice shall be served upon such Recognized
Mortgagee in the manner specified in 17.6 of this Lease, Landlord shall only be
required to provide written notice of default to Recognized Mortgagee if
Landlord is required to provide written notice of default to Tenant. Upon
written request by Recognized Mortgagee at any time after Landlord has provided
a default notice to Tenant, Landlord will provide written confirmation of
Tenant's cure or failure to cure the default. If Tenant shall not cure any such
defaults within such time period, the Recognized Mortgagee shall have a period
of twenty (20) days more, in the case of a monetary default, and thirty (30)
days more, in the case of all other defaults, than is given to Tenant to cure
such default (or to commence and diligently pursue such cure), to remedy the
default in question and the Landlord shall accept such performance on the part
of the Recognized Mortgagee as though the same had been done or performed by the
Tenant.
(e) Anything
herein contained notwithstanding, while such Recognized Mortgage remains
unsatisfied of record or until written notice of satisfaction is given by the
Recognized Mortgagee to Landlord, if any default in the payment of rent or other
monetary sum shall occur which, pursuant to any provision of this Lease entitles
Landlord to terminate this Lease and if before the expiration of thirty (30)
days following the date of service of termination upon such Recognized
Mortgagee, any such Recognized Mortgagee shall have notified Landlord, in
writing, of its desire to nullify such notice and shall have paid to Landlord
all Rent and other payments herein provided for and then in default, then in
such event, Landlord shall not be entitled to terminate this Lease due to such
monetary default and any notice of termination theretofore given due to such
monetary default shall be void and of no effect.
(f) If
this Lease shall be terminated because of Tenant's bankruptcy or other default
which cannot by its nature be cured by the Recognized Mortgagee, the Recognized
Mortgagee, if any, or its assignee or nominee, shall have the right by written
notice to Landlord given within thirty (30) days after notice to the Recognized
Mortgagee of such termination to enter into a new lease of the Premises with
Landlord for the balance of the term remaining as of the date of any such
default, on the same terms and conditions as those contained herein and at the
rental prevailing under this Lease and with such rental increases thereafter in
accordance with the terms of this Lease. Such new lease, by virtue of the
recording of this Lease (or a short form or memorandum thereof), shall have
priority equal to this Lease, provided that Landlord shall not be deemed to have
made any representation regarding such priority.
(g) A
Recognized Mortgagee (or its designee or nominee) may become the legal owner and
holder of the interest of Tenant under the Lease, including, without limitation,
the interest of Tenant in all improvements erected by Tenant on the Premises, by
foreclosure or other enforcement proceedings, or by obtaining an assignment of
the Lease in lieu of foreclosure or through settlement of or arising out of any
pending or threatened foreclosure proceeding, without Landlord's consent and
without any obligation to assume the Lease, but subject to the applicable terms
and provisions of the Lease. In the event the Recognized Mortgagee becomes the
holder of the interest of Tenant under the Lease, the obligations of the
Recognized Mortgagee under the Lease shall be nonrecourse, and Landlord shall
look solely to the interest of the Recognized Mortgagee in the Premises for the
recovery of any judgment against the Recognized Mortgagee, and Landlord hereby
covenants and agrees not to bring any action or suit seeking to impose liability
on the Recognized Mortgagee beyond its interest in the Premises. Such right
of non-recourse shall be personal to the Recognized Mortgagee or other mortgagee
and shall not apply to any other assignee, transferee or other holder of the
Lease. Further, the Recognized Mortgagee (or its designee or nominee) shall have
the right thereafter to assign the Lease to a "Permitted Assignee" (as hereafter
defined), without any requirement for prior notice to or consent by Landlord,
but subject to the other terms and provisions of the Lease, provided, that,
promptly following such assignment, the Recognized Mortgagee or such assignee
shall notify the Landlord of such assignment, including the name and address of
the assignee. As used herein, "Permitted Assignee" shall mean an assignee who
shall operate a business at the Premises which will not violate any of the
Prohibited Uses set forth in this Lease nor violate the terms of any exclusive
use now in effect and/or granted by Landlord after the date of this
Lease.
35
(h) Upon
the delivery to Landlord of a duplicate original of an instrument of assignment
containing the assignee's assumption of the Lease (subject to the provisions of
the Lease), such assignee of the Recognized Mortgagee shall become Tenant, and
shall be substituted for the Recognized Mortgagee as the owner and holder of the
Lease for all purposes, as of the effective date of such assignment (and from
and after the effective date of such assignment), the Recognized Mortgagee (or
its designee or nominee) shall be relieved from all liability under the
Lease.
(i) If
more than one Recognized Mortgagee has exercised any of the rights afforded by
this section, only that Recognized Mortgagee, to the exclusion of all other
Recognized Mortgagees, whose Recognized Mortgage is most senior in lien shall be
recognized by Landlord as having exercised such right, for so long as such
Recognized Mortgagee shall be diligently exercising its rights under this Lease
with respect thereto, and thereafter only the Recognized Mortgagee whose
Recognized Mortgage is next most senior in lien shall be recognized by Landlord,
unless such Recognized Mortgagee has designated a Recognized Mortgagee whose
mortgage is junior in lien to exercise such right. If the parties shall not
agree on which Recognized Mortgage is prior in lien, such dispute shall be
determined by a title insurance company chosen by Landlord, and such
determination shall bind the parties Landlord shall enter into a Landlord-Lender
Agreement if so requested by the Recognized Mortgagee, confirming Landlord's
agreements hereunder and otherwise in commercially reasonable form, including
provisions that may make commercially reasonable modifications to this Lease. If
requested by Tenant or Recognized Mortgagee, Landlord shall also cause its fee
mortgagee to execute and deliver a lender non-disturbance agreement in
substantially the form attached hereto.
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20.2
|
EFFECT
OF TERMINATION OF LEASE ON LEASEHOLD MORTGAGE. In the event of termination
of this Lease, or of any succeeding lease made pursuant to the provisions
of this Section, prior to the stated expiration date thereof, at the
request of Leasehold Mortgagee, Landlord will enter into a New Lease of
the Premises with the Leasehold Mortgagee, or, at the request of such
Leasehold Mortgagee, to a corporation or partnership formed by or on
behalf of such Leasehold Mortgagee, or by and on behalf of the holders of
notes secured by the Leasehold Mortgage held by such Leasehold Mortgagee,
or, at the request of such Leasehold Mortgagee, to such other persons as
such Leasehold Mortgagee shall designate (provided that it meets the
requirements of an assignee under this Lease), for the remainder of the
Term, effective as of the date of such termination of this Lease or any
succeeding lease, at the Rent and upon the terms, covenants, and
conditions herein contained, subject to the additional conditions listed
below;
|
(a) Such
Leasehold Mortgagee makes written request upon Landlord for such New Lease
within thirty (30) days from the date of such termination and such written
request is accompanied by payment to Landlord of all amounts then due to
Landlord.
(b) Such
Leasehold Mortgagee pays, or causes to be paid, to Landlord at the time of
execution and delivery of the New Lease, any and all sums that would at the time
of execution and delivery thereof be due under this Lease, but for such
termination and pays or causes to be paid any and all expenses, including
reasonable attorneys' fees, court costs, and disbursements incurred by Landlord
in connection with any such default and termination, as well as in
connection with the execution and delivery of such New Lease, less the net
income, if any, collected by Landlord from the use of the Premises subsequent to
the date of termination of this Lease and prior to the execution and delivery of
the New Lease.
36
(c) Such
New Lease executed and delivered in accordance with the provisions of this
Section shall provide that, with respect to each and every sublease that
immediately prior to the termination of the Term was superior to the legal
operation and effect of the Leasehold Mortgage held by the Leasehold Mortgagee
that obtained such New Lease by entering into such New Lease, the tenant
thereunder shall be deemed to have recognized the subtenant under the sublease,
pursuant to the terms of the sublease, as though the sublease had never
terminated but had continued in full force and effect after the termination of
the Term of this Lease, and such tenant shall be deemed to have assumed all of
the obligations of the sublandlord under the sublease accruing from and after
the termination of the Term; provided that the obligation of the tenant under
such New Lease on any covenant of quiet enjoyment, express or implied, contained
in the sublease shall be limited to the acts of such tenant and those claiming
by, under, or through such tenant. Upon execution and delivery of a New Lease,
all subleases that may previously have been assigned and transferred to Landlord
shall thereupon be assigned and transferred without recourse by Landlord to the
new tenant.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
37
WITNESS
the execution hereof, under seal, as of the date first set forth in Section
"1.2" above as the date of this Lease, in any number of counterpart copies, each
of which shall be an original for all purposes.
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XXXXXX
I LIMITED PARTNERSHIP
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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Partner
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EMBASSY
BANK FOR THE LEHIGH VALLEY
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By:
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/s/
Xxxxx X. Xxxxxx Xx.
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Name:
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Xxxxx X. Xxxxxx Xx.
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Title:
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CEO
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COMMONWEALTH
OF PENNSYLVANIA )
)ss.:
COUNTY
OF NORTHAMPTON )
On
the 25th day of March in the year 2009, before me, the undersigned,
personally appeared Xxxxxx Xxxxxx, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument, and that
such individual made such appearance before the undersigned in the City/Town
of Easton, State of Pennsylvania
| /s/ Xxxx X. Xxxxxx | |
|
Notary
Public
|
COMMONWEALTH
OF PENNSYLVANIA )
)ss.:
COUNTY
OF NORTHAMPTON
)
On
the 25th day of March in the year 2009, before me, the undersigned,
personally appeared Xxxxx X. Xxxxxx Xx., personally known to me or
proved
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument, and that
such individual made such appearance before the undersigned in the City/Town of
Easton, State of Pennsylvania.
| /s/ Xxxxxxxx X. Xxxxxxxxxx | |
|
Notary
Public
|
EXHIBIT
"S"
SITE
PLAN
EXHIBIT
"C"
This Commencement
Agreement, made this day
of 2009, by and
between
(hereinafter called "Landlord") and
(hereinafter
called "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant have
entered into a Lease, covering
premises containing approximately
square feet located
at the .
WHEREAS, Landlord and Tenant have a
desire to mutually enter into a Commencement Agreement establishing the actual
date of the commencement of the term of said
Lease,
NOW THEREFORE, Parties hereto agree as
follows:
The
date of execution of the Lease for the Premises was
2009.
The
"Commencement
Date" (commencement of lease term) was
2009.
The
term of the Lease by and between Landlord and Tenant dated shall
actually commence on . The
initial term of said Lease shall terminate on, subject to Tenant's option to
renew the term of the Lease for up to additional
terms of
years each.
IN WITNESS WHEREOF, the parties hereto
have executed this Commencement Agreement as of the day and year above
written.
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Witness:
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Landlord:
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By:
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By:
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Name:
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Title:
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Date:
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Witness:
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Tenant:
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By:
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By:
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Name:
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Title:
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Date:
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EXHIBIT
"D"
PAD
DELIVERY NOTICE
BUILDING
PAD/CERTIFICATION FORM
|
Date
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Engineer
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Surveyor
|
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Grading
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Const.
Mgr.
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CERTIFICATION
I
certify that the building pad for the above referenced project, has been
constructed in accordance with the Plans and Specifications, dated
, prepared by
All
earth cuts and fills have been installed competently, properly and have been
compacted under the supervision of the below certifying Engineer. The building
pad has been acceptably prepared to support the proposed
construction.
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Engineer
(signature)
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Date
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Registration
No.
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Expiration
Date
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EXHIBIT
"L"
LANDLORD'S
WORK
A. Landlord's
Work. Landlord, at its expense, will be responsible for performing all
site work within the Tax Parcel excluding the work to be done by Tenant as shown
on Exhibit "T", and not including any work upon or within the Pad except as
specifically provided in subsection (B) below. Landlord's work will include all
grading, drainage and storm water management facilities, driveway and parking
area paving, curbing, site lighting and landscaping, other than work to be
performed upon and within the Pad, which shall be performed by Tenant except for
Landlord's responsibilities set forth in subsection (B).
B. Preliminary
Site Work. Landlord will deliver the Pad to Tenant with the "Preliminary
Site Work" described in this subsection (B) having been performed and completed,
as promptly as possible, but in no case later than sixty (60) days after
Landlord received Site Plan approval for the Development Parcel, subject to the
terms of this Lease, including, but not limited to, Section 3.2. Landlord will
clear the area within the Pad and grade and compact disturbed soil within the
Pad to within 2" of its finished subgrade as shown on the Drawings. Such
compaction shall be performed to within approximately ninety-five percent (95%)
of maximum density, verified by a compaction report delivered to Tenant by
Landlord's engineer. Landlord will bring sanitary sewer, electricity, natural
gas, telephone and cable conduits, one inch (1") water line, and, if required by
the applicable governmental authorities, within five (5) feet of the proposed
footprint for the Building, with Tenant's cooperation, arrange for the
appropriate utility companies to install conduit for telephone and cable
television to the Pad. Any costs of such installation that the utility companies
are not required go bear and have not agreed to bear shall be paid by Landlord,
based on standard charges for standard installation (which, as to electric
service, shall be 120/208 volt 400 amp service, as to water shall be 110 gallons
per day, and as to gas shall be 300,000 BTU). Landlord will also complete such
other portions of the Landlord's Work (except work to be performed by Tenant) as
may be required by the township as a condition precedent for issuance of a
building permit for the Building, and/or as may be necessary to provide Tenant
with access to the Pad for construction period drainage, and installation of
stone base underlying the parking areas around the Pad and connecting the Pad
with access to and from Route 248. Landlord's Work shall include installing the
curbs abutting the Pad.
C. Final
Paving. Tenant shall give Landlord at least sixty (60) days advance
written notice of the date when Tenant expects to open for business. Prior to
Tenant opening for business, but not necessarily earlier than the opening date
of which Tenant has given Landlord at least sixty (60) days prior written
notice, subject to force majeure, Landlord shall have installed the finish coat
of paving for and completed the striping of, all parking spaces (including the
ten (10) exclusive parking areas and the fourteen (14) non-exclusive parking
areas).
D. Intentionally
left blank.
E. Coordination
of Construction. The parties shall cooperate to expedite completion of
both Tenant's and Landlord's construction work. To expedite such construction,
Landlord and Tenant acknowledge that their respective construction obligations
shall be coordinated by performing work simultaneously and jointly in stages, as
appropriate.
EXHIBIT
"M"
MEMORANDUM
OF LEASE
THIS
MEMORANDUM OF LEASE dated ,
2009 is made by and between
("Landlord"),
and
("Tenant").
Recitals:
A. Landlord
entered into a certain lease dated
(the "Lease") with Tenant covering
a portion of those premises commonly known as
("Premises").
B. Landlord
and Tenant desire to give notice of the Lease and of the terms, conditions and
provisions thereof, including the options to extend the term and the use
restriction as set forth therein.
NOW, THEREFORE, in consideration of the
sum of Ten Dollars ($10.00) and other good and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree as follows:
1.
Lease Agreement. Landlord
has leased to Tenant and Tenant has leased from Landlord the Premises, together
with certain rights and appurtenances thereto, upon and subject to the terms and
provisions set forth in the Lease, which includes the permitted use of a bank
and related uses.
2. Term. The
Term of the Lease shall commence on the Rent Commencement Date as defined in the
Lease, and unless sooner terminated or extended pursuant to the provisions
thereof, expires on the Expiration Date as defined in the
Lease.
3.
Extension Options. The
Lease grants to Tenant the right and option, subject to certain conditions, to
extend the Initial Term for
.
4. Notice. The
purpose of this Memorandum is to give notice of the Lease of all the provisions
thereof, including extension options, to the same extent as if fully set forth
herein. If and to the extent of any conflict between the provisions of the Lease
and those set forth in this Memorandum, the provisions of the Lease shall
control.
IN WITNESS WHEREOF, Landlord and Tenant have
executed and delivered this instrument as of the day and year first above
written.
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LANDLORD:
|
|
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TENANT:
|
|
COMMONWEALTH
OF )
COUNTY
OF
) ss:
On
this day
of ,
in the year 2009, before me, the undersigned, personally
appeared personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose xxxxx(s) are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
|
Notary
Public
|
COMMONWEALTH
OF
)
COUNTY
OF ) ss:
On
this day
of ,
in the year 2009, before me, the undersigned, personally
appeared personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
|
Notary
Public
|
EXHIBIT
"T"
Tenant's
Work
Tenant
is responsible for all work in connection with the construction of its building,
including, but not limited to:
|
(a)
|
The
building, drive-thru canopy and concrete approach slabs per the plans and
specifications to be provided by Tenant and approved by Landlord per the
terms of this Lease.
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(b)
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Sidewalks
around the Building or in the Building
Perimeter.
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(c)
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Landscaping
around Building Perimeter.
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(d)
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Backflow
preventer, RPZ valves, electrical meters and/or meter
cabinets.
|
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(e)
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Building
signage and monument sign including all electrical connections and
required services.
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(f)
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Sub-base
under all concrete.
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Tenant
shall also cause its contractor to complete and file the "Tranferee/Co-Permittee
Application for a General or Individual NPDES Permit for Stormwater Discharges
Associated with Construction Activities".
EXHIBIT
"T-l"
TENANT'S
SIGNS
To
be approved by Landlord per the terms of this Lease.
EXHIBIT
"T-2"
MONUMENT
SIGNS
To
be approved by Landlord per the terms of this Lease.
EXHIBIT
"U"
Prohibited
and Exclusive Uses
The
parties hereto agree, however, that no part of the Premises or the Shopping
Center shall be used or occupied for the operation of the
following:
(a) Stand
alone independent bar or cocktail lounge (unless associated with a restaurant or
other establishment permitted hereunder or other permitted
use).
(b) Adult
book store, massage parlor, or other adult entertainment facility or any
facility for the sale or display of adjudicated pornographic
materials;
(c) Nightclub,
music hall, discotheque, dance hall, billiard or pool hall or bingo
parlor;
(d) Off
track betting parlor;
(e) Any
"second hand" store whose principal business is selling used merchandise, unless
similar to a franchised store such as "Play It Again Sports", thrift shops,
salvation army and "goodwill" type stores, and similar
businesses;
(f) Mobile
home park, trailer court, labor camp, junkyard or stockyard (except that this
provisions shall not prohibit the temporary use of construction trailers during
periods of construction);
(g) Dumping,
disposing, incineration or reduction of garbage (exclusive of dumpsters for the
temporary storage of garbage and any garbage compactors, in each case which are
regularly emptied so as to minimize offensive odors located in the rear of any
building);
(h) any
facility for the sale of paraphernalia for use with illicit
drugs;
(i) Intentionally
left blank;
(j) flea
market;
(k) central
laundry, dry cleaning plant or Laundromat; provided, however, this prohibition
shall not be applicable to on-site service oriented to pickup and delivery by
the ultimate consumer, including, nominal supporting facilities, as the same may
be found in retail shopping districts in the metropolitan area where the
Shopping Center is located;
(1) automobile,
truck, trailer, mobile home, or R. V. sales, leasing, display or repair (except
that the sale of tires, batteries and products incidental thereto shall be
permitted in the outparcel shown on the Site Plan);
(m) living
quarters, sleeping apartments, or lodging rooms;
(n) veterinary
hospital or animal raising facilities (except that this prohibition shall not
prohibit pet shops or any services provided in conjunction therewith or
incidental thereto);
(o) funeral
home or mortuary;
(p) separate
stand-alone newsstand:
(q) any
facility using an outside loudspeaker;
(r) any
operation primarily used as a warehouse (except mini-warehouses), or for any
assembling, manufacturing, distilling, refining, smelting, agricultural, or
mining operation;
(s) any
carnival, amusement park, or circus or adult, teenage or children entertainment
facility or amusement center;
(t) any
gas station, car wash or auto repair or body shop;
(u) any
arcade, pinball or computer gameroom, unless such area is incidental to the
Tenant's or occupant's primary use and has no separate
entrance.
Exclusive
Uses
Tenant
agrees that the Premises shall not violate any of the exclusive uses granted to
other tenants in the Shopping Center, as follows:
Applebees
Landlord
agrees not to lease any other space in the Center or sell or lease any outparcel
to another casual sit-down restaurant, including, but not limited to, TGI
Fridays, Ruby Tuesday, Chili's, Bennigan's, Hooter's, Xxxxxxxx'x, Xxx and
Erma's, O'Charlies Ground Round or other similar
restaurants.
EXHIBIT
"V"
SUBORDINATION.
NONDISTURBANCE AND ATTORNMENT AGREEMENT
Prepared
By:
Xxxxxx X.
Xxxxxx, Esq.
0 Xxxxxx Xxxxxx
Xxxxxx, XX,
00000
(000)000-0000
Return
To:
Xxxxxx
X. Xxxxxx, Esq.
0
Xxxxxx Xxxxxx
Xxxxxx,
XX, 00000
(000)000-0000
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This
Agreement is made as of ,
2009, by and between Merchants
Bank, with an office at 0000 Xxxxxx Xxxx. Xxxxx 000, Xxxxxx, XX 00000 ("Bank"),
Xxxxxx I Limited Partnership, with an office at 0000 Xxxxxx Xxxx, Xxxxxx, XX
00000 ("Landlord"), and Embassy Bank for the Lehigh Valley, with an office at
000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 ("Tenant").
BACKGROUND
A. Landlord
and Tenant have executed that certain Lease ("Lease"), dated
, in connection with that certain premises known as a part of the
shopping
center located on Corriere Road and Xxxxx 000 xx Xxxxx Xxxxxxxx Xxxxxxxx, XX
(the "Leased Premises").
B. Landlord
has executed and delivered to Bank that certain mortgage ("Mortgage"),
dated and
duly recorded in the County
Recorder of Deeds Office, Instrument # ,
covering the Leased
Premises.
C. Tenant
desires to be assured of the continued use and occupancy of the Leased Premises
under the terms of said Lease in the event of any foreclosure sale, transfer in
lieu of foreclosure, or Landlord bankruptcy, relating to the Mortgage or
otherwise affecting the Leased Premises.
D. Bank
desires to accommodate Tenant subject to the terms set forth
herein.
E. Bank
desires that Landlord and Tenant confirm that the said Lease is subordinate to
the lien of the said Mortgage.
NOW,
THEREFORE, for and in consideration of the terms and conditions contained
herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Subordination
of Lease. The lien of the Lease is, and shall at all times during the
term of the Mortgage be, subject and subordinate to the provisions and lien of
the Mortgage to the extent of the secured indebtedness under the
Mortgage.
2. Attainment
by Tenant. Tenant agrees that if the interests of Landlord in the Leased
Premises shall be transferred to Bank or to any purchaser pursuant to a
foreclosure sale, transfer in lieu of foreclosure, or sale or other transfer
pursuant to a Landlord bankruptcy (hereafter, collectively "Purchaser"), Tenant
shall be bound to Bank or to such Purchaser under all of the terms, covenants
and conditions of the Lease for the balance of the term thereof and any
extensions or renewals thereof with the same force and effect as if Bank or such
Purchaser were the Landlord under the Lease. Tenant does hereby attorn to Bank
or such Purchaser as its substitute landlord, said attornment to be effective
and self-operative without the execution of any further instrument by any of the
parties hereto, immediately upon Bank's or such Purchaser's succeeding to the
interest of Landlord in the Leased Premises. Bank or such Purchaser shall be
similarly bound by all the terms and conditions set forth in the Lease as
substitute Landlord, and subject to any claims, offsets or other remedies
afforded to Tenant as provided in the Lease, except that Bank or such Purchaser
shall not be liable or responsible in any manner for any act or omission of a
previous landlord (including Landlord).
A. Bank
agrees that it shall not name or join Tenant as a defendant in any exercise of
Bank's rights and remedies arising under the Mortgage, unless applicable law
requires Tenant to be made a party thereto as a condition to proceeding against
Landlord. In such case, Bank may join Tenant as a defendant only for such
purpose and not to terminate the Lease or otherwise adversely affect Tenant's
rights under the same.
B. Bank
or such Purchaser shall not be bound by any amendments or modification to the
Lease, unless made with Bank's written consent.
C. Bank
or such Purchaser shall not be liable or responsible for any payment of rent
that Tenant may have made to a prior landlord more than thirty (30) days before
the date such payment was due under the Lease.
3. Non-Disturbance.
The parties agree that the Lease shall not be terminated and Tenant's use,
possession and enjoyment of the Leased Premises shall not be interfered with in
the event that Bank or any such Purchaser takes possession of the Leased
Premises pursuant to any provisions of the Mortgage or in any foreclosure or
other proceeding instituted in connection with the Mortgage or pursuant to a
Landlord bankruptcy, so long as Tenant is not in default under the terms and
conditions of said Lease.
4. Lease
Approval. Bank hereby consents and approves the Lease, including any
amendments thereto existing as of the date hereof, and agrees that the exercise
by Tenant of the rights, remedies and options provided for therein do not and
shall not constitute a default under the Mortgage.
5. Assignment
of Rents. In the event Bank, pursuant to an assignment of rents or
similar document, gives notice to Tenant that Bank has elected to exercise its
rights under such assignment and collect the rents or other charges otherwise
payable by Tenant to Landlord under the Lease, Tenant shall thereafter pay to
Bank such rents and other charges payable under the Lease, subject to any
offsets or counterclaims that Tenant may have as provided in the Lease. Landlord
hereby consents to Tenant's payment of the rent and other sums directly to Bank
upon Tenant's receipt of any such notice, and releases Tenant from any claim or
liability related thereto.
6. Miscellaneous.
This Agreement shall bind and benefit the parties, their successors and assigns.
This Agreement constitutes the entire agreement among the parties as to the
subject matter hereof, and may only be amended by a written instrument executed
by all the parties hereto.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first written above.
|
MERCHANTS
BANK ("Bank")
|
||
|
By:
|
||
|
Its:
|
||
|
XXXXXX
I LIMITED PARTNERSHIP ("Landlord")
|
||
|
By:
|
||
|
Its:
|
||
|
EMBASSY BANK FOR THE
LEHIGH VALLEY ("Tenant")
|
||
|
By:
|
||
|
Its:
|
||
COMMONWEALTH
OF
PENNSYLVANIA
:
:SS:
COUNTY
OF
:
On
this, the day
of ,
2009, before me, a Notary Public, the undersigned
officer, personally appeared , who
acknowledged
himself to be the of
Merchants Bank ("Bank") and
that as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the limited
liability company by himself as such officer,
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
|
Notary
Public
|
COMMONWEALTH
OF
PENNSYLVANIA
:
:SS:
COUNTY
OF
:
On
this, the day
of ,
2009, before me, a Notary Public, the undersigned
officer, personally appeared , who
acknowledged
himself to be the of
Xxxxxx I Limited Partnership
("Landlord"), and that as such officer, being authorized to do so, executed the
foregoing instrument for the purposes therein contained by signing the name of
the corporation by himself as such officer.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
|
Notary
Public
|
COMMONWEALTH
OF
PENNSYLVANIA
:
:SS:
COUNTY
OF NORTH
HAMPTON
:
On
this, the day
of ,
2009, before me, a Notary Public, the undersigned officer,
personally appeared , who
acknowledged
himself to be the of
Embassy Bank for the Lehigh
Valley ("Tenant") and that as such officer, being authorized to do so, executed
the foregoing instrument for the purposes therein contained by signing the name
of the limited liability company by himself as such officer.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
|
Notary
Public
|
