Sublease Agreement
Between:
AAA CENTRAL-WEST JERSEY, INC.
And
YARDVILLE NATIONAL BANK
August 23, 2000
REFERENCE PAGE
Landlord/Sublessor: AAA Central-West Jersey, Inc.
0 XXX Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Tenant/Sublessee: Yardville National Bank
Tenant's Address: 0000 Xxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Building: The Point
000 X.X. Xxxxx 000 Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Premises: +/- 1,200 square feet being a portion of the
Building known as Suite 2
Rentable Area: 1,200 square feet
Proportionate Share: 22%
Use: Bank branch office
Commencement Date: Upon issuance of a temporary Certificate of
Occupancy for the Premises, no later than
September 1, 2000
Termination Date: November 30, 2002
Term of Lease: Two (2) years, three (3) months
Base Rent: Year 1 $18.50 per square foot per year
Year 2 $18.50 per square foot per year
Common Area Maintenance Fee: Approximately $3.55 per square foot, subject to
adjustment as provided for herein
Utilities: Tenant shall pay its Proportionate Share of
Utilities to Landlord on a quarterly basis
Leasehold Improvements: N/A
Security Deposit: None
Renewal Option: None
Real Estate Broker Due Commission: None
The Reference Page information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Page information and
the Lease, the Lease shall control.
Landlord: Tenant:
AAA Central-West Jersey Inc. Yardville National Bank
By: /s/ Xxxxxxxxxxxxxxx By: /s/ Xxxxxxxxxxxxxxx
------------------- -------------------
Title: President/CEO Title: President/CEO
Date: 9/6/00 Date: 9/1/00
TABLE OF CONTENTS
Article ...................................................................Page
TITLE PAGE
REFERENCE PAGE
TABLE OF CONTENTS
1 USE AND RESTRICTIONS ON USE ................................................1
2 TERM .......................................................................2
3 RENT .......................................................................2
4 ADDITIONAL RENT ............................................................2
5 SECURITY DEPOSIT ...........................................................3
6 LEASEHOLD IMPROVEMENTS AND ALTERATIONS .....................................3
7 MAINTENANCE AND REPAIRS ....................................................4
8 ACCESS TO THE PREMISES .....................................................4
9 SIGNS ......................................................................4
10 LIENS .....................................................................4
11 ASSIGNMENT AND SUBLETTING .................................................5
12 INDEMNIFICATION ...........................................................5
13 INSURANCE .................................................................6
14 WAIVER OF SUBROGATION .....................................................7
15 SERVICES AND UTILITIES ....................................................7
16 HOLDING OVER ..............................................................7
17 SUBORDINATION .............................................................7
18 RULES AND REGULATIONS .....................................................8
19 REENTRY BY LANDLORD .......................................................8
20 DEFAULT ...................................................................8
21 REMEDIES ..................................................................9
22 QUIET ENJOYMENT ..........................................................10
23 DAMAGE BY FIRE ETC .......................................................11
24 EMINENT DOMAIN ...........................................................12
25 SALE BY LANDLORD .........................................................12
26 ESTOPPEL CERTIFICATE .....................................................12
27 SURRENDER OF PREMISES ....................................................13
28 NOTICES ..................................................................13
29 TAXES PAYABLE BY TENANT ..................................................13
30 DEFINED TERMS AND HEADINGS ...............................................14
31 HAZARDOUS SUBSTANCES .....................................................14
32 ENFORCEABILITY ...........................................................15
33 COMMISSIONS ..............................................................15
34 TIME AND APPLICABLE LAW ..................................................15
35 PARKING ..................................................................15
36 SUCCESSORS AND ASSIGNS ...................................................15
37 ENTIRE AGREEMENT .........................................................15
38 EXAMINATION ..............................................................15
39 RECORDATION ..............................................................16
40 LIMITATION OF LANDLORD'S LIABILITY .......................................16
Exhibit A - Leased Premises
SUBLEASE
Whereas, AAA Central-West Jersey, Inc. (referred to herein as the
"Landlord") is presently the Lessee under a certain Lease Agreement and Rider to
Lease dated September 1, 1994, between ABC Associates as Lessor (hereinafter
designated as Prime Lessor) and said AAA Central-West Jersey, Inc. as Lessee,
which was extended by a Lease Renewal Agreement dated November 30, 1999 and a
Lease Renewal Agreement dated March 24, 2000 (collectively the Lease Agreement,
the Rider to Lease and the Lease Renewal Agreements are the "Prime Lease");
Now therefore, Landlord hereby leases to Yardville National Bank
(referred to herein as the "Tenant") and Tenant hereby subleases from Landlord
the Premises set forth and described on the Reference Page. The Reference Page,
including all terms defined thereon, is hereby incorporated as part of this
Lease.
1. USE AND RESTRICTIONS ON USE
(A) Landlord and Tenant agree that the terms and conditions of the
Prime Lease are incorporated into this Agreement in their entirety by reference
except as hereafter modified or amended, and specifically agree that (a) the
term of this Sublease shall not extend beyond the expiration date of the Prime
Lease; and (b) neither the Tenant nor his heirs, executors, administrators,
legal representatives, trustees or assigns, without prior consent of Landlord in
each instance, which consent shall not be unreasonably withheld or delayed,
shall (1) assign, mortgage or encumber his interest in any sublease, in whole or
in part, (2) sublease, or permit the sublease of, any part of the Premises
affected by such subleasing or any portion thereof, or (3) permit such part of
the Premises affected by such subleasing or any part thereof to be occupied or
used by any person other than such Tenant.
(B) The Premises shall be used and occupied by Tenant for the Use
listed on Reference Page and for no other use except as permitted and approved
by Landlord in writing and not prohibited by applicable zoning regulations.
Tenant shall at its own cost and expense, with Landlord's assistance if
required, obtain any and all licenses and permits necessary for such Use. The
parking of automobiles, trucks or other vehicles in the areas not specifically
designated by Landlord and the outside storage of any property are prohibited
without Landlord's prior written consent. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
premises and its occupancy thereof, and shall promptly comply with all
governmental orders and directives for the correction, prevention and abatement
of any violations or nuisances in or upon, or connected with, the Premises, all
at Tenant's sole expense. If, as a result of any change in the governmental
laws, ordinances and regulations, the Premises must be altered to lawfully
accommodate Tenant's use and occupancy thereof, such alterations shall be made
only with the consent of Landlord, which consent will not be unreasonably
withheld, but the entire cost thereof shall be borne by Tenant; provided, that,
the necessity of Landlord's consent shall in no way create any liability against
Landlord for failure of Tenant to comply, or alter the Premises to comply, with
such laws, ordinances and regulations. Tenant shall not permit any objectionable
or unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the
Premises, nor take any other action which would constitute a nuisance or would
disturb or endanger any other tenants or occupants of the Building, or
unreasonably interfere with such tenants' or occupants' use of their respective
premises. Tenant shall not permit any use which would adversely affect the
reputation of the Building. Without Landlord's prior written consent, Tenant
shall not receive, store or otherwise handle any product, material or
merchandise which is explosive or highly flammable. Tenant will not permit the
Premises to be used for any purpose (including, without limitation, the storage
of merchandise) in any manner which would render the insurance on the Premises
void or increase the insurance rate, thereof, and Tenant shall immediately cease
and desist from such use, paying all cost and expense resulting from such
improper use.
(C) Landlord hereby acknowledges that Tenant is subject to regulation
by the Office of the Comptroller of the Currency ("OCC") and agrees that Tenant
shall be relieved of any obligation provided for under the terms and conditions
of this Lease, which obligation is found objectionable by the OCC; provided that
the remainder of this Lease or the application of such term or provision to
persons, property or circumstances other than those as to which it is
objectionable, shall remain in full force and effect.
(D) During the Term of this Lease, Landlord shall not let any portion
of the Facility (as defined herein) to a lending institution other than Tenant.
2. TERM
The term of this Lease shall be as indicated on the Reference Page
(unless sooner terminated as herein provided). Landlord's failure to complete
construction of Leasehold Improvements and/or Tenant's failure to occupy the
Premises shall in no way effect Tenant's obligations under the Lease, except
when such failure is caused by Landlord and is not remedied within fifteen (15)
days of written notice from Tenant. Tenant agrees that in the event of the
inability of Landlord to deliver possession of the Premises on the Commencement
Date, Landlord shall not be liable for any damage thereby, but Tenant shall be
not liable for any Rent until the time when Landlord can, after notice to
Tenant, deliver possession of the Premises to Tenant. No such failure to give
possession on the Commencement Date shall affect the other obligations of Tenant
hereunder, nor shall such failure be construed in any way to extend the Term. If
Landlord is unable to deliver possession of the Premises within thirty (30) days
of the Commencement Date (other than as a result of matters beyond the
reasonable control of Landlord and Tenant is notified by Landlord in writing as
to such delay), Tenant shall have the option to terminate this Lease.
In the event Landlord shall permit Tenant to occupy the Premises prior
to the Commencement Date, such occupancy shall be subject to all the provisions
of this Lease. Said early possession shall not advance the Termination Date.
3. RENT
Tenant agrees to pay to Landlord the Base Rent and the Common Area
Maintenance Fee (the Common Area Maintenance Fee, together with other charges
provided for herein are referred to as "Additional Rent." Collectively, Base
Rent and Additional Rent are referred to as "Rent") by paying monthly
installments in advance, on or before the first day of each full calendar month
during the Term, except that the first month's Base Rent and Common Area
Maintenance Fee shall be paid upon the execution hereof. Rent for any period
during the Term which is less than one full month shall be a prorated portion of
the monthly installment of Rent based upon a thirty (30) day month. Said Rent
shall be paid to Landlord, without deduction or offset and without notice or
demand at the Landlord's address, as set forth on the Reference Page, or to such
other person or at such other place as Landlord may from time to time designate
in writing. Payment of Rent shall commence on the earlier of the Commencement
Date and the date Tenant first occupies the Premises.
Tenant recognizes that late payment of any Rent or other sum due
hereunder will result in administrative expense to Landlord, the extent of which
additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if Rent or any other sum is due and
payable pursuant to this Lease; and when such amount remains due and unpaid ten
(10) days after said amount is due, such amount shall be increased by a late
charge in an amount equal to the greater of (a) $250.00, or (b) a sum equal to
5% of the unpaid Rent or other payment. The amount of the late charge to be paid
by Tenant shall be reassessed and added to Tenant's obligation for each
successive monthly period until paid. The provisions of this Article in no way
relieve Tenant of the obligation to pay Rent or other payments on or before the
date on which they are due, nor do the terms of this Article in any way affect
Landlord's remedies pursuant to Article 21 of this Lease in the event said rent
or other payment is unpaid after the date due.
No security or guarantee which may now be or hereafter be furnished to
Landlord for the payment of Rent or the performance of Tenant's other
obligations under this Lease shall in any way constitute a bar to the recovery
of the Premises or defense to any action in unlawful detainer or to any other
action which Landlord may bring for a breach or any of the terms, covenants or
conditions of this Lease.
4. ADDITIONAL RENT
In addition to the Base Rent, Tenant shall pay its Proportionate Share,
as indicated on the Reference Page, of the Operating Expenses for the Facility.
"Operating Expenses" include all operating expenses necessary to maintain and
operate the, Building, Premises and the property on which the Building and
Premises are located (the "Facility"), including but not limited to, Real Estate
Taxes, insurance, management, professional and administrative fees, repairs,
maintenance, snow removal, landscaping and lawn maintenance, security, fire
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protection, water and sewer charges, common area electric, garbage removal and
any other expenses or costs associated with the maintenance or operation of the
Facility. In the event the Operating Expenses for the Facility exceed the Common
Area Maintenance Fee indicated on the Reference Page, as calculated at the end
of any year during the Term, Tenant will pay the appropriate increase or
additional amount due for Operating Expenses with the next installment of Rent.
The Common Area Maintenance Fee for the subsequent year will be adjusted in
accordance with prior year's actual Operating Expenses. In no event, however,
will the Common Area Maintenance Fee be reduced below the Common Area
Maintenance Fee indicated on the Reference Page.
"Real Estate Taxes" shall mean the taxes and assessments imposed upon
the Facility or upon the Rent payable to Landlord, including, but not limited
to, real estate, city, county, village, school and transit taxes, or taxes,
assessments or charges levied, imposed or assessed against the Facility by any
other taxing authority, whether general or specific, ordinary or extraordinary,
foreseen or unforeseen. If, due to a future change in the method of taxation,
any franchise, income or profit tax shall be levied against Landlord in
substitution for, or in lieu of, or in addition to, any tax which would
otherwise constitute a Real Estate Tax for the purposes hereof, such franchise,
income or profit tax shall be deemed to be Real Estate Tax for purposes hereof;
conversely, any additional real estate tax hereafter imposed in substitution
for, or in lieu of, any franchise, income or profit tax (which is not in
substitution for, or in lieu of, or in addition to, a Real Estate Tax as
hereinbefore provided) shall not be deemed a Real Estate Tax for the purposes
hereof. Tenant shall also be responsible for paying any excise, sales, use,
gross receipts or other taxes which may be imposed on Landlord or on account of
the letting or which Landlord may be required to pay or collect under any law
now in effect or hereafter enacted. Tenant shall have the right, at Tenant's
sole expense, to initiate or prosecute real estate tax appeals for the Facility.
Landlord shall fully cooperate with Tenant in any such appeal. Any abatements or
refunds of Real Estate Taxes shall be paid to Tenant.
5. SECURITY DEPOSIT
[Intentionally Omitted]
6. LEASEHOLD IMPROVEMENTS AND ALTERATIONS
(A) Tenant shall submit to Landlord for approval, which approval will
not be unreasonably withheld or delayed, full definitive plans and
specifications for all leasehold improvements indicated on the Reference Page
(the "Leasehold Improvements") to be constructed or installed or other work to
be performed by Tenant in the Premises, including but not limited to, duct work,
all architectural, electrical and mechanical plans, room finish schedules,
railwork detail, layout drawings, facades, painting or other improvements.
Tenant shall have the responsibility for completing all Leasehold Improvements
at Tenant's sole cost and expense.
(B) Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the attachment of any
fixtures or equipment in, on, or to the Premises or any part thereof or the
making of any improvements required by Article 7 without the prior written
consent of Landlord. Any alterations, additions, or improvements in, on, or to
the Premises including carpeting, but excepting movable furniture, personal
property and inventory of Tenant removable without material damage to the
property or the Premises, shall be and remain the property of Tenant during the
Term but shall, unless Landlord elects otherwise, in writing, become a part of
the realty and belong to Landlord without compensation to Tenant upon the
expiration or sooner termination of the Lease as herein provided and title shall
pass to Landlord under this Lease as by a xxxx of sale. When applying for such
consent, Tenant shall, if requested by Landlord, furnish complete plans and
specifications for such alterations, additions and improvements. The
responsibility of the parties relative to removal of any alteration, improvement
or addition shall be determined prior to the construction or installation of
same. All alterations, additions or improvements proposed by Tenant shall be
constructed in accordance with all government laws, ordinances, rules and
regulations and Tenant shall, prior to construction, provide such assurances to
Landlord, including but not limited to, waivers of lien, surety company
performance bonds and personal guaranties of individuals of substance, as
Landlord shall require to assure payment of the costs thereof and to protect
Landlord against any loss from any construction, artisans', mechanics',
materialmen's or other liens. Tenant shall provide Landlord with certificates of
insurance
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against general liability and builders' risk prior to construction of Tenant's
improvements, which insurance shall list Landlord as an additional insured under
such policies. Tenant shall indemnify, deliver and hold Landlord harmless
against any losses, damages or claims whatsoever arising out of Tenant's
improvements and alternations to the Premises. Tenant shall pay any increase in
real estate taxes attributable to any such alteration, addition, or improvement.
Upon the expiration or termination of the Lease as herein provided, Tenant shall
upon demand by Landlord, at Tenant's sole cost and expense, forthwith and with
all due diligence remove any such alterations, additions or improvements which
are designated by Landlord to be removed, (and which are not part of Tenant's
initial Leasehold Improvements) and Tenant shall forthwith and with all due
diligence, at its sole cost and expense, repair and restore the Premises to
their original condition, reasonable wear and tear and loss casualty covered by
Article 23 excepted.
7. MAINTENANCE AND REPAIRS
(A) Tenant shall take good care of the Premises and not commit waste.
Tenant at its sole expense, shall promptly make all repairs, ordinary or
extraordinary, in and about the interior of the Premises. Tenant at its sole
expense, shall replace during the Term of the Lease all damaged or broken doors
or other glass in or about the Premises and shall be responsible for all
repairs, maintenance and replacement of wall and floor coverings in or on the
Premises, and for the repair, replacement and maintenance of all lighting
fixtures therein.
(B) Tenant shall keep and maintain the Premises and its fixtures,
appurtenances, systems and facilities serving the Premises, in good working
order, condition and repair and shall make all repairs, as and when needed in or
about the Premises, except for those repairs for which Tenant is responsible
pursuant to any other provisions of this Lease. Under no circumstances shall
Tenant be entitled to an offset against Rent due hereunder.
(C) Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption or injury to Tenant's business arising
from any repairs or changes required or permitted by this Lease, or required by
law, to make in or to any portion of the Premises, or in or to the fixtures,
equipment or appurtenances of the Premises; provided that Landlord shall not be
exculpated from liability if Landlord shall fail to make a required repair
within a commercially reasonable period of time or if the repair of prevents
Tenant from using a material portion of the Premises for more than sixty (60)
days.
(D) Tenant shall, at its own cost and expense, repair any damage to the
Premises resulting from and/or caused in whole or in part by the negligence or
misconduct of Tenant, its agents, servants, employees, patrons, customers, or
any other person entering the Facility as a result of Tenant's business
activities or caused by Tenant's default hereunder.
(E) Tenant acknowledges it has had the opportunity to inspect the
Premises and accepts the Premises "AS IS," "WHERE AS," and with all faults.
8. ACCESS TO THE PREMISES
Tenant shall have access to the Premises twenty-four (24) hours a day
and three hundred sixty-five (365) days each year.
9. SIGNS
Tenant shall not install any signs upon the Premises without Landlord's
prior written consent, which consent shall not be unreasonably withheld or
delayed. If Landlord shall consent to any sign, upon termination of the Lease
Tenant shall remove said sign and restore the Premises to its original
condition.
10. LIENS
Tenant shall keep the Premises and Tenant's leasehold interest in the
Premises free from any liens arising out of any work performed, materials
furnished, or obligations incurred by Tenant. In the event that Tenant shall
not, within ten (10) days following the imposition of any such lien, cause the
same to be released by such means as it shall deem proper, including payment of
the claim giving rise to such lien. All such sums paid by Landlord and
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all expenses incurred by it in connection therewith shall be considered
Additional Rent and shall be payable to Landlord by Tenant on demand with
interest at the rate of eighteen percent (18%) per year or the highest rate
permitted by law, whichever is lower.
11. ASSIGNMENT AND SUBLETTING
(A) Tenant shall not have right to assign or pledge this Lease or to
sublet the whole or any part of the Premises, whether voluntarily or by
operation of law, or permit the use or occupancy of the Premises by anyone other
than Tenant, or assign this Lease for security purposes, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed, and such restrictions shall be binding upon any assignee or subtenant
to which Landlord has consented. Notwithstanding the foregoing, (i) Tenant shall
have the right to assign the Lease to an affiliate or subsidiary, and (ii) the
sale of all of the equity of Tenant shall be considered a permissible
assignment, in each case subject to all of the terms of this Lease, including
without limitation, the continuing obligation of Tenant as provided below. In
the event Tenant desires to sublet the Premises, or any portion thereof, or
assign this Lease, Tenant shall give written notice thereof to Landlord at least
sixty (60) days prior to the proposed commencement date of such subletting,
which notice shall set forth the name of the proposed subtenant. Notwithstanding
any permitted subletting, Tenant shall at all times remain directly and
primarily responsible and liable for the payment of the Rent herein specified
and for compliance with and performance of all of its other obligations under
this Lease. Upon the occurrence of an Event of Default (as hereinafter defined),
if the Premises or any part thereof are then sublet, Landlord, in addition to
any other remedies provided herein or by law, may collect directly from such
subtenant all Rent due and becoming due to Tenant under such sublease and apply
such Rent against and sums due Landlord from Tenant hereunder. No such
collection directly from an assignee or subtenant shall be construed to
constitute a novation or a release of Tenant from the further performance of
Tenant's obligations hereunder.
(B) In addition to Landlord's right to approve of any subtenant or
assignee, Landlord shall have the option, in its sole discretion, in the event
of any proposed subletting or assignment, (1) to terminate the Lease, or in the
case of a proposed subletting of less than the entire Premises, (2) to recapture
the portion of the Premises to be sublet, as of the date of subletting or
assignment is to be effective. The option shall be exercised by Landlord's
giving Tenant written notice thereof within fifteen (15) days following
Landlord's receipt of Tenant's written notice as required above. If this Lease
shall be terminated with respect to the entire Premises the Term shall end on
the date stated in Tenant's notice as the effective date of the sublease or
assignment as if that date had been originally fixed in this Lease for the
expiration of the Term. If Landlord recaptures only a portion of the Premises,
the rent during the unexpired Term shall xxxxx, proportionately, based on the
Rent as of the date immediately prior to such recapture. Tenant shall, at
Tenant's own cost and expense, discharge in full any outstanding commission
obligation on the part of Landlord with respect to the Lease, and any
commissions which may be due and owing as a result of any proposed assignment or
subletting, whether or not the Premises are recaptured pursuant hereto and
rented by Landlord to the proposed tenant or any other tenant.
(C) Consent by Landlord to any assignment or subletting shall not
include consent to the assignment or transferring of any renewal option rights
or space option rights of the Premises granted to Tenant by this Lease, or
addendum or amendment thereto or letter of agreement (and such options, right,
privileges or services shall terminate upon such assignment), unless Landlord
specifically grants in writing such options, rights, privileges or services to
assignee or subtenant. Any sale, assignment, mortgage or transfer of this Lease,
subletting of the Property which does not comply with the provisions of this
Article shall be void.
(D) Should Landlord agree to authorize and execute an assignment or
sublease agreement, Tenant will pay to Landlord on demand a sum equal to all of
Landlord's reasonable costs, including attorney's fees, incurred in connection
with such assignment or transfer.
12. INDEMNIFICATION
(A) Landlord shall not be liable and Tenant hereby waives all claims
against Landlord for any damage to any property or any injury to any person in
or about the Premises by or from any cause whatsoever, (including without
limiting the foregoing, rain or water leakage of any
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character from the roof, windows, walls, basement, pipes, plumbing works or
appliances, the Premises not being in good condition or repair, gas, fire, oil,
electricity or theft) unless caused by the gross negligence of Landlord, its
employees or agents.
(B) Tenant shall hold Landlord harmless from and defend Landlord
against any and all claims, liability or costs (including court costs and
attorney's fees) for any damage to any property or any injury to any person
occurring in, on or about the Premises when such injury or damage shall be
caused by or arise from, in part or in whole, (a) the act, neglect, fault or
omission to meet the standards imposed by an duty with respect to the injury or
damage, by Tenant, its agents, servants, employees or invitees; (b) the conduct
or management of any work or thing whatsoever done by the Tenant in the Premises
or from transactions of the Tenant concerning the Premises; or (c) any breach or
default on the part of the Tenant in the performance of any covenant or
agreement in the part of the Tenant to be performed pursuant to this Lease,
unless caused by the gross negligence of Landlord, its employees or agents.
(C) The provisions of the Article shall survive the termination of this
Lease with respect to any claims or liability occurring prior to such
termination.
13. INSURANCE
(A) Tenant covenants and represents, said representation being designed
to induce Landlord to execute this Lease, that during the entire Term hereof,
Tenant, at its sole cost and expense, shall obtain, maintain and keep in full
force and effect the following insurance:
(i) All Risk property insurance against fire, theft,
vandalism, malicious mischief, sprinkler leakage and such additional perils as
are now, or hereafter may be, included in a standard extended coverage
endorsement from time to time in general use in the State of New Jersey, and
flood insurance, as applicable, such insurance to cover all property of every
description and kind whether owned by Landlord or Tenant or under Tenant's care,
custody or control and located on the Premises or for which Tenant is legally
liable or installed by or on behalf of Tenant, including by way of example and
not by way of limitation, furniture, fixtures, fittings, installations and any
other property, in an amount equal to the full replacement cost thereof and
naming Landlord and any holder of a mortgage or trust deed secured by the
Premises, and ground lessors (if any) as loss payee.
(ii) Comprehensive General Liability Insurance coverage to
include personal injury, bodily injury, broad form property damage, operations
hazard, owner's protective coverage, contractual liability and products and
completed operations liability and naming Landlord and any holder of a mortgage
or trust deed secured by the Premises, and ground lessors (if any) as additional
insureds in limits of not less than one million and 00/100 dollars
($1,000,000.00), combined single limit.
(iii) Workers' Compensation insurance in form and amount
required by law.
(iv) Any other form or forms of insurance or any increase in
the limits of any of the aforesaid enumerated coverages or other forms of
insurance as Landlord or the mortgagees holding mortgages secured by the
Premises or the ground lessors (if any) of the Premises may reasonably require
from time to time if in the reasonable opinion of Landlord or said mortgagees or
ground lessors said coverage and/or limits become inadequate.
(B) At least fifteen (15) days prior to Tenant's occupancy of the
Premises, Tenant shall deliver to Landlord a copy of all policy provisions
intended to be included in the coverage to be provided by Tenant, and a valid
certificate of insurance issued to Landlord, effective as of the dates
applicable under the terms of this Lease, which certificate of insurance shall
include, without limitation: (a) provisions requiring notice by the insurer to
Landlord at least thirty (30) days in advance of any contemplated, intended or
effective cancellation, nonrenewal, or material change or modification of
coverage provisions or limits; and (b) a Waiver of Subrogation in favor of
Landlord and agents, employees, servants, officers, directors, contractors, and
subcontractors of Landlord, with respect to the insurance coverage and claims of
Tenant.
(C) All insurance policies required pursuant to this Article 13 shall
be taken out with insurers rated at least A+ XV by A. M. Best Company, Oldwick,
New Jersey, who are licensed
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to do business in the State of New Jersey, and shall be in form satisfactory
from time to time to Landlord. A policy or certificate evidencing such insurance
together with a paid xxxx shall be delivered to Landlord simultaneously with the
execution of this Lease. No such insurance may be materially changed, reduced in
coverage, cancelled or otherwise terminated unless the insurers notify Landlord
and any mortgagees or ground lessors (if any) of same in writing, not less than
thirty (30) days prior to such planned change, reduction or
cancellation/termination. Should a certificate of insurance initially be
provided, a policy shall be furnished by Tenant within thirty (30) days of the
delivery of Landlord's written request for same. The aforesaid insurance shall
be written with such reasonable deductibles as Tenant shall determine in its
reasonable discretion and Tenant shall be deemed self-insured for such
deductible amounts.
(D) In the event of damage to or destruction of the Premises, entitling
Landlord or Tenant to terminate this Lease pursuant to Article 23, and if this
Lease be so terminated, Tenant will immediately pay Landlord all of its
insurance proceeds, relating to the building and leasehold improvements and
alterations (but not Tenant's trade fixtures, equipment, furniture or other
personal property of Tenant in the Premises) which have become Landlord's
property on installation or would have become Landlord's property at the
expiration or sooner termination of this Lease.
(E) Tenant agrees that it will not keep or use or offer for sale in or
upon the Premises, any article which may be prohibited by any insurance policy
in force from time to time covering the Premises. Tenant shall promptly comply
with all reasonable requirements of the insurance authority or of any insurer
now or hereafter in effect relating to the Premises.
(F) If any insurance policy carried by Tenant shall be cancelled or
cancellation shall be threatened or the coverage thereunder reduced or
threatened to be reduced in any way by reason of the use or occupation of the
Premises, or any part thereof by Tenant or any sublessee of Tenant, or anyone
permitted by Tenant to be upon the Premises, and if Tenant fails to remedy the
conditions giving rise to said cancellation or threatened cancellation or
reduction in coverage or threatened reduction in coverage prior to said
cancellation or reduction becoming effective, such shall constitute an Event of
Default and Landlord shall have all of the remedies available to Landlord
pursuant to this Lease.
14. WAIVER OF SUBROGATION
So long as their respective insurers so permit, Tenant and Landlord
hereby mutually waive their respective rights of recovery against each other for
any loss insured by fire, extended coverage or all risk insurance now or
hereafter existing for the benefit of the respective party. Each party shall
obtain any special endorsements required by their insurer to evidence compliance
with the aforementioned waiver.
15. SERVICES AND UTILITIES
Tenant shall pay for its Proportionate Share of all gas, heat, light,
power, telephone, sprinkler system charges, meters and other utilities and
services used on or from the Building. Tenant shall furnish all electric light
bulbs, tubes and ballasts. Landlord shall in no event be liable for any
interruption or failure of utility services on or to the Premises.
16. HOLDING OVER
Tenant shall pay Landlord for each day Tenant retains possession of the
Premises or part thereof after termination hereof by lapse of time or otherwise
one hundred fifty percent (150%) of the amount of the Rent for the last period
prior to the date of such termination prorated on a daily basis, and also pay
all damages sustained by Landlord by reason of such retention, and shall
indemnify and hold Landlord harmless from any loss or liability resulting from
such holding over and delay in surrender.
17. SUBORDINATION
Without the necessity of any additional document being executed by
Tenant for the purpose of affecting a subordination, this Lease shall be subject
and subordinate at all times to the lien of any mortgages or deeds of trust now
or hereafter placed on, against or affecting
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the Premises, Landlord's interest or estate therein, provided, however, that if
the lessor, mortgage, trustee, or holder of any such mortgage or deed of trustee
elects to have Tenant's interest in this Lease be superior to any such
instrument, then by notice to Tenant this Lease shall be deemed superior,
whether this Lease was executed before or after said instrument. Notwithstanding
the foregoing, Tenant covenants and agrees to execute and deliver upon demand
such further instruments evidencing such subordination or superiority of this
Lease as may be required by Landlord.
18. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with all the reasonable
rules and regulations and all reasonable modifications additions thereto from
time to time put into effect by Landlord as well as all covenants, conditions
and restrictions of record. Landlord shall not be responsible to Tenant for the
nonperformance by any other tenant or occupant of the Building or any such rules
and regulations.
19. REENTRY BY LANDLORD
Landlord reserves and shall at all times have the right to reenter the
Premises upon prior reasonable notice to inspect the same, to supply any service
to be provided by Landlord to Tenant hereunder, to show said Premises to
prospective purchasers, mortgagees (or tenants, within nine (9) months prior to
the Termination Date) and to alter, improve, or repair the Premises and any
portion of the Facility, without abatement of Rent, and may for that purpose
erect, use, and maintain scaffolding, pipes conduits, and other necessary
structures in and through the Facility and Premises where reasonably required by
the character of the work to be performed, provided entrance to the Premises
shall not be blocked thereby, and further provide that the business of Tenant
shall not be interfered with unreasonably. In the event that Landlord requires
access to any under-floor areas, Landlord's liability for carpet (or other floor
covering) replacement shall be limited to replacement of the piece removed.
Tenant hereby waives any claim for damages for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss occasioned thereby; provided that Tenant does
not waive claims which may arise against Landlord for any problem with the
Premises for which Tenant has provided Landlord with written notice and Landlord
has failed to commence corrective action within a commercially reasonably period
of time. For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in the Premises,
excluding Tenant's vaults and safes, or special security areas (designated in
advance), and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency to obtain entry to
any portion of the Premises
20. DEFAULT
The following events shall be deemed to be "Events of Default" under
this Lease:
(A) Tenant shall fail to pay when due any sum of money becoming due to
be paid to Landlord hereunder, whether such sum be any installment of the Rent
herein reserved, any other amount treated as Additional Rent hereunder, or any
other payment or reimbursement to Landlord required herein, whether or not
treated as Additional Rent hereunder, and such failure shall continue for a
period of ten (10) days from the date such payment was due; or
(B) The Events of Default specified in Article 5, Paragraph 13(F) and
Article 31; or
(C) Tenant shall fail to comply with any term, provision or covenant of
this Lease other than provided for in Paragraphs 20(A) and (B) above, and shall
not cure such failure within twenty (20) days (forthwith, if the defaults
involve a hazardous condition) after written notice thereof to Tenant; or
(D) Tenant shall abandon any substantial portion of the Premises; or
(E) Tenant shall fail to vacate the Premises immediately upon
termination of the Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only without termination of the Lease; or
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(F) The leasehold interest of Tenant shall be levied upon under
execution or be attached by process of law or Tenant shall fail to contest
diligently the validity of any lien or claimed lien and give sufficient security
to Landlord to insure payment thereof or shall fail to satisfy any judgment
rendered thereon and have same released, and such default shall continue,
without Tenant diligently proceeding to cure such default for ten (10) days
after written notice thereof to Tenant; or
(G) Tenant shall become insolvent, admit in writing its inability to
pay its debts generally as they become due, file a petition in bankruptcy or a
petition to take advantage of any insolvency statute, make an assignment for the
benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof; or
(H) A court of competent jurisdiction shall enter an order judgment or
decree adjudicating Tenant a bankrupt, or appointing a receiver of Tenant, or of
the whole of any substantial part of its property, without the consent of
Tenant, or approving a petition filed against Tenant seeking reorganization of
arrangement of Tenant under the bankruptcy laws of the United States, as now in
effect or hereafter amended, or any state thereof, and such order, judgment or
decree shall not be vacated or set aside or stayed within thirty (30) days from
the date of entry thereof.
21. REMEDIES
Upon the occurrence of any such events of default described in Article
20 or elsewhere in this Lease, Landlord shall have the option to pursue any one
or more of the following remedies without any notice or demand whatsoever.
(A) Landlord may, at its election, terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease;
(B) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free right to enter into and upon the
Premises in such event with or without process of law to repossess Landlord of
the Premises as of Landlord's former estate and to expel or remove Tenant and
any others who may be occupying or within the Premises and to remove any and all
property therefrom, without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer, and without incurring any liability for
any damage resulting therefrom, Tenant hereby waiving any right to claim damage
for such reentry and expulsion, and without relinquishing Landlord's right to
Rent or any other right given to Landlord hereunder or by operation of law;
(C) Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all Rent, including
any amounts treated as Additional Rent hereunder, and other sums due and payable
by Tenant on the date of termination, plus the sum of (i) an amount equal to the
then present value of the Rent, including any amounts treated as Additional Rent
hereunder, and other sums provided herein to be paid by Tenant for the residue
of the Term hereof, less the fair rental value of the Premises for such residue
(taking into account the time and expense necessary to obtain a replacement
tenant or tenants, including expenses hereinafter described in Paragraph 21 (D)
relating to recovery of the Premises, preparation for reletting and for
reletting itself) and (ii) the cost of performing any other covenants which
would have otherwise been performed by Tenant;
(D) (i) Upon any termination of Tenant's right to possession only,
without termination of the Lease, Landlord may, at Landlord's option, enter into
the Premises, remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof as provided in Paragraph 21 (B) above, without such
entry and possession terminating the Lease or releasing Tenant, in whole or in
part, from any obligation, including Tenant's obligation to pay the Rent,
including any amounts treated as Additional Rent, hereunder for the full Term.
In any such case Tenant shall pay forthwith to Landlord, if Landlord so elects,
a sum equal to
9
the entire amount of the Rent, including any amounts treated as Additional Rent
hereunder, for the residue of the Term plus any other sums provided herein to be
paid by Tenant for the remainder of the Term;
(ii) Landlord must attempt to relet the Premises or any part
thereof for such Rent and upon such terms as Landlord in its sole discretion
shall determine (including the right to relet the Premises for a greater or
lesser term than that remaining under this Lease, the right to relet the
Premises as a part of a larger area, and the right to change the character or
use made of the Premises) and Landlord shall not be required to accept any
tenant offered by Tenant or to observe any instructions given by Tenant about
such reletting. In any such case, Landlord may make repairs, alterations and
additions in or to the Premises, and redecorate the same to the extend Landlord
deems necessary or desirable, and Tenant shall, upon demand, pay the cost
thereof, together with Landlord's expenses of reletting including, without
limitation, any broker's commission incurred by Landlord. If the consideration
collected by Landlord upon any such reletting plus any sums previously collected
from Tenant are not sufficient to pay the full amount of all Rent, including any
amounts treated as Additional Rent hereunder and other sums reserved in this
Lease for the remaining Term hereof, together with the costs of repairs,
alterations, additions, redecorating, and Lessor's expense of reletting and the
collection of the Rent accruing therefrom (including attorney's fees and brokers
commissions), Tenant shall pay to Landlord the amount of such deficiency upon
demand and Tenant agrees that Landlord may file suit to recover any sums falling
due under this Subparagraph 21 (D)(ii) from time to time;
(E) Landlord may, at Landlord's option, enter into and upon the
Premises, with or without process of law, if Landlord determines in its sole
discretion that Tenant is not acting within a commercially reasonable time to
maintain, repair or replace anything for which Tenant is responsible hereunder
and correct the same, without being deemed in any manner guilty of trespass,
eviction or forcible entry and detainer and without incurring any liability for
any damage resulting therefrom and Tenant agrees to reimburse Landlord, on
demand, as Additional Rent, for any expenses which Landlord may incur, in thus
effecting compliance with Tenant's obligations under this Lease;
(F) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of the Lease, to which Tenant is or may be
entitled, may be handled, removed and stored, as the case may be, by or at the
direction of Landlord at the risk, cost and expense of Tenant. Tenant shall pay
to Landlord, upon demand, any and all expenses incurred in such removal and all
storage charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not retaken
by Tenant from storage within thirty (30) days after removal from the Premises
shall, at Landlord's option, be deemed conveyed by Tenant to Landlord under this
Lease as by a xxxx of sale without further payment or credit by Landlord or
Tenant. Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by law
or at equity (all such remedies being cumulative), nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any Rent due to
Landlord hereunder or of any damages accruing to Landlord be reason of the
violation of any terms, provisions and covenants herein contained. No act or
thing done by Landlord or its agents during the Term shall be deemed a
termination of this Lease or an acceptance of the surrender of the Premises, and
no agreement to terminate this Lease or accept a surrender of said Premises
shall be valid unless in writing signed by Landlord. Landlord's acceptance of
the payment of Rent or other payments hereunder after the occurrence of an Event
of Default shall not be construed as an accorded satisfaction, compromise or
waiver of such Event of Default, unless Landlord so notifies Tenant in writing.
Forbearance by Landlord in enforcing one or more of the remedies herein provided
upon an Event of Default shall not be deemed or construed to or of Landlord's
right to enforce any such remedies with respect to such default or any
subsequent default. If, on account of any breach or default by Tenant under the
Lease, it shall become necessary or appropriate for Landlord to employ or
consult with an attorney concerning or to enforce or defend any of Landlord's
rights or remedies, Tenant agrees to pay all reasonable attorney's fees incurred
by Landlord.
22. QUIET ENJOYMENT
Landlord represents and warrants that is has full right and authority
to enter into this Lease and that Tenant, while paying the Rent and performing
its other covenants and
10
agreements herein set forth, shall peaceably and quietly have, hold and enjoy
the Premises for the Term without hindrance from Landlord subject to the terms
and provisions of this Lease. In the event this Lease is a sublease, then Tenant
agrees to take the Premises subject to the provisions of the prior leases.
Landlord shall not be liable for any interference or disturbance by other
tenants or third persons, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance.
23. DAMAGE BY FIRE, ETC
(A) Landlord agrees to maintain sufficient insurance on the Building and
loss of rents against such causes of loss and in such amounts as Landlord shall
deem commercially reasonable, amount all such coverages and endorsements to be
defined, provided and limited in the standard bureau forms prescribed by the
insurance regulatory authority for the state in which the property is situated
for use by insurance companies admitted in such state for the writing of such
insurance on risks located within such state. Subject to the provisions of
Paragraphs 23(C), 23(D) and 23(F), such insurance shall be for the sole benefit
of Landlord and under its sole control. Tenant agrees to pay Landlord, as
Additional Rental, Tenant's Proportionate Share of Landlord's cost of
maintaining such insurance. Any payment to be made pursuant to this Paragraph
with respect to the year in which the Lease commences or terminates shall be
prorated. Tenant shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained by
Landlord hereunder unless Landlord is included as an additional insured thereon.
Tenant shall immediately notify Landlord whenever any such separate insurance is
taken out and shall promptly deliver to Landlord the policy or policies of such
insurance.
(B) If the Premises should be damaged or destroyed by fire, tornado or
other casualty, Tenant shall give immediate written notice thereof to Landlord.
(C) If the Premises should be damaged by any peril covered by the
insurance to be provided by Landlord under Paragraph 23(A), but only to such
extent that the Premises can in Landlord's estimation be materially restored
within one hundred twenty (120) days after the date upon which Landlord is
notified by Tenant of such damage (except that Landlord may elect not to rebuild
if such damage occurs during the last year of the Term), this Lease shall not
terminate, and Landlord shall at its sole cost thereupon proceed with reasonable
diligence to rebuild and repair such Premises and substantially restore the
condition in which it existed prior to such damage, except Landlord shall not be
required to rebuild, repair or replace any part of the partitions, fixtures,
additions and other improvements which may have been placed in, on or about the
Premises by Tenant. If the Premises are untenantable in whole or in part
following such damage, the Rent payable hereunder during the period in which the
Premises are untenantable shall be reduced to such extent as may be fair and
reasonable under all of the circumstances.
In the event that Landlord shall fail to materially restore the
Premises within one hundred twenty (120) days after the date upon which Landlord
is notified by Tenant of such damage, Tenant may (if it has given Landlord at
least thirty (30) days notice of its need and intent to do so) at its option
terminate this Lease by delivering written notice of termination to Landlord as
Tenant's exclusive remedy, whereupon all rights and obligations hereunder shall
cease and terminate; provided, however, that if construction is delayed because
of changes, deletions, or additions in construction requested by Tenant,
strikes, lockouts, casualties, acts of God, war, material or labor shortages,
Governmental regulation or control or other causes beyond the reasonable control
of Landlord, the period for restoration, repair or rebuilding shall be extended
for the amount of time Landlord is so delayed, but in no event for more than
sixty (60) days. For purposes hereof, the Premises shall be deemed "materially
restored" upon the issuance of a temporary certificate of occupancy. If the
Premises are untenantable in whole following such damage, no Rent shall be
payable by Tenant during this period, provided that Tenant has maintained its
rental interruption insurance and such insurance proceeds are being paid to
Landlord.
(D) If the Premises should be damaged or destroyed by fire, tornado or
other casualty and Landlord is not required to rebuild pursuant to the
provisions of Paragraph 23(C), this Lease shall at the option of Landlord or
Tenant, upon notice to Tenant or Landlord, given within thirty (30) days after
Landlord is notified by Tenant of such damage, terminate and the
11
Rent shall be abated during the unexpired portion of the Lease, effective upon
the date of the occurrence of such damage.
(E) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied so such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon this Lease shall end on the date of such
notice to Tenant as if the date of such notice were the date originally fixed in
the Lease for the expiration of the Term.
(F) In the event of any damage or destruction to the Premises by any
peril covered by the provisions of this Article, Tenant shall, upon notice from
Landlord, forthwith remove, at its sole cost and expense, such portion or all of
Tenant's shelves, bins, machinery and other trade fixtures and all other
property belonging to Tenant or his licensees from such portion or all of the
Premises as Landlord shall request and Tenant hereby indemnifies and holds
Landlord (including without limitation the trustee and beneficiaries if Landlord
is a trust), Landlord's agents and employees harmless from any loss, liability,
claims, suits, costs, expenses, including attorney's fees and damages, both real
and alleged, arising out of any damage or injury as a result of the failure to
properly secure the Premises prior to such removal and/or as a result of such
removal.
24. EMINENT DOMAIN
(A) If the whole or any substantial part of the Premises should be
taken for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent the use of the Premises for the use
provided for herein, this Lease shall terminate and the Rent shall be abated
during the unexpired portion of this Lease, effective when the physical taking
of said Premises shall occur.
(B) If part of the Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this Lease
is not terminated as provided in Paragraph 23(A), this Lease shall not terminate
but the Rent payable hereunder during the unexpired portion of this Lease shall
be reduced to such extent, if at all, as may be fair and reasonable under all of
the circumstances and Landlord shall undertake to restore the Premises to a
condition suitable for Tenant's Use, as near to the condition thereof
immediately prior to such taking as is reasonably feasible under all the
circumstances.
(C) In the event of any such taking or private purchase in lieu
thereof, Landlord and Tenant shall each be entitled to receive and retain such
separate awards and/or portion of lump sum awards as may be allocated to their
respective interests in the Premises in any condemnation proceedings.
25. SALE BY LANDLORD
In the event of a sale or conveyance by Landlord of the Premises, the
same shall operate to release Landlord from any future liability upon any of the
covenants or conditions, expressed or implied, herein contained in favor of
Tenant, and in such event Tenant agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease. Except as set forth
in the Article, this Lease shall not be affected by any such sale, and Tenant
agrees to attorn to the purchaser or assignee. If any security has been given by
Tenant to secure the faithful performance of any of the covenants of this Lease,
Landlord may transfer or deliver said security, as such, to Landlord's successor
in interest and thereupon and upon notice to Tenant of the transfer, Landlord
shall be discharged from any further liability with regard to said security,
provided that any successor shall not be liable for such security unless such
successor receives the same.
26. ESTOPPEL CERTIFICATES
Within ten (10) days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord or any
prospective Landlord or mortgagee
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or prospective mortgagee a sworn statement certifying: (a) the date of
commencement of this Lease, (b) the fact that this Lease is unmodified and in
full force and effect, (or, if there have been modifications hereto, that this
Lease is in full force and effect, as modified, and stating the date and nature
of such modifications), (c) the date to which the Rent and other sums payable
under this Lease have been paid, (d) the fact that there are no current defaults
under this Lease by either Landlord or Tenant except as specified in Tenant's
statement, and (e) such other matters requested by Landlord. Landlord and Tenant
intend that any statement delivered pursuant to this Article may be relied upon
by any mortgagee, beneficiary or purchaser and Tenant shall be liable for all
loss, cost or expense resulting from the failure of any sale or funding of any
loan caused by any material misstatement contained in such estoppel certificate.
Tenant's failure to execute an estoppel certificate in accordance with this
Article shall constitute an Event of Default under this Lease.
27. SURRENDER OF PREMISES
Tenant shall, upon the written request of Landlord, at least ninety
(90) days before the last day of the Term arrange to meet Landlord for a joint
inspection of the Premises. In the event of Tenant's failure to arrange such
joint inspection, Landlord's inspection at or after Tenant's vacating the
Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
At the end of the Term or any renewal thereof or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises, together with all improvements or additions upon or
belonging to the same, by whomsoever made, in the same condition as received or
first installed, broom clean and free of all debris, ordinary wear and tear and
damage by fire, earthquake, Act of God, or the elements alone excepted. Tenant
shall, upon termination of this Lease, remove all non-fixture items, including
without limitation, movable partitions of less than full height previously
installed by Tenant, at Tenant's sole cost and expense. Tenant is responsible
for any damage caused by such removal. Property not removed shall be deemed
abandoned by the Tenant and title to the same shall thereupon pass to Landlord
under this Lease as by a xxxx of sale.
Upon request by Landlord, Tenant shall remove any or all permanent
improvements or additions to the Premises installed by Tenant which were not
approved by Landlord. Tenant shall indemnify Landlord against any loss or
liability resulting from delay by Tenant in so surrendering the Premises,
including without termination any claims made by any succeeding tenant founded
on such delay.
All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of this Lease shall survive the expiration or
earlier termination of the Lease. Upon the expiration or earlier termination of
the Lease, Tenant shall pay to Landlord the amount, as estimated by Landlord,
necessary: (i) to repair and restore the Premises as provided herein; and (ii)
to discharge Tenant's obligation for unpaid amounts due Landlord. All such
amounts shall be used and held by Landlord for payment of such obligations of
Tenant, with Tenant being liable for any additional incurred costs upon demand
by Landlord, and any excess shall be returned to Tenant after all such
obligations have been determined and satisfied. Any Security Deposit shall be
credited against Tenant's obligations hereunder.
28. NOTICES
Any notice or document required or permitted to be delivered hereunder
(a) shall be in writing; (b) shall be personally delivered, sent by overnight
delivery company or sent by United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective addresses set
forth opposite their respective signatures on the Reference Page, or at such
other address as they have therefore specified by written notice delivered in
accordance herewith and (c) shall be effective upon delivery, if personally
delivered or sent by commercial overnight delivery company, or two (2) days
after mailing, if mailed.
29. TAXES PAYABLE BY TENANT
In addition to Rent and other charges to be paid by Tenant hereunder,
Tenant shall reimburse to Landlord, upon demand, any and all taxes payable by
Landlord (other than net income taxes) whether or not now customary or within
the contemplation of the parties
13
hereto: (a) upon, allocable to, or measured by or on the gross or net rent
payable hereunder, including without limitation any sales tax or excise tax
levied by the state, political subdivision thereof, or the federal government
with respect to the receipt of such rent; or (b) upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy of the Premises or any portion thereof, including any sales, use or
service tax imposed as a result thereof; or (c) upon or measured by the Tenant's
gross receipt or payroll or the value of Tenant's equipment, furniture,
fixtures, and other personal property of Tenant or leasehold improvements,
alterations, additions, located in the Premises; or (d) upon this transaction or
any document to which Tenant is a party creating or transferring an interest or
an estate in the Premises.
In addition to the foregoing, Tenant agrees to pay, before delinquency,
any and all taxes levied or assessed against Tenant and which become payable
during the term hereof upon Tenant's equipment, furniture, fixtures, and other
personal property of Tenant located in the Premises.
30. DEFINED TERMS AND HEADINGS
The Article headings herein are for convenience of reference and shall
in no way define, increase, limit, or describe the scope or intent of any
provision of this Lease. Any indemnification of, insurance of, or option granted
to Landlord shall also include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. In any case, where this
Lease is signed by more than one person, the obligations hereunder shall be
joint and several. The terms "Tenant" and "Landlord" or any pronoun used in
place thereof shall indicate and include the masculine or feminine, the singular
or plural number, individuals, marital communities, firms, or corporations, and
each of their respective successors, executors, administrators, and permitted
assigns, according to the context hereof. Tenant agrees to furnish promptly upon
demand appropriate documentation evidencing the due authorization of Tenant to
enter into this Lease. The term "rentable area" shall mean the rentable area of
the Premises as calculated by the Landlord on the basis of the plans and
specifications (which were available for inspection by Tenant at the time the
Lease was executed) of the Premises and not including any proportion of any
common areas. Tenant hereby consents and agrees that the calculation of rentable
area on the Reference Page shall be controlling.
31. HAZARDOUS SUBSTANCES
Tenant acknowledges and agrees that it shall not introduce, place, use,
store or dispose of hazardous, poisonous or toxic substance, material or waste
of any kind at the Premises as such substances are identified from time to time
by any Environmental Law, as hereinafter defined. In the event there is a breach
of the requirements of this Article at any time during the Term of this Lease,
or as extended, such breach shall be an Event of Default hereunder, and, in
addition to all rights and remedies granted to Landlord, Tenant shall be liable
for and shall indemnify, defend, protect and hold Landlord harmless from and
against all costs incurred by Landlord or its authorized agents, managers,
employees or contractors to the extent resulting from such introduction,
placement, use, storage or disposition; (1) in cleaning, decontaminating or
otherwise correcting the effects of any such introduction, placement, use,
storage or disposition of a hazardous, poisonous or toxic substance, material or
waste in or about the Premises; (2) in complying with all applicable laws and
environmental rules, regulations and requirements applicable thereto, including
the payment of any fines and penalties levied to the extent such fines or
penalties are on account or arise from Tenant's introduction, placement, use,
storage or disposition; and (3) in discharging any lien on the Premises securing
the foregoing costs of correction. As used herein, "Environmental Law" shall
mean all federal, state or local law, statute, ordinance or regulation
pertaining to health, industrial hygiene, or the environmental conditions on,
under or about the Premises, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") as
amended, 42 U.S.C. ss.9601 et. seq. and the Resource Conservation and Recovery
Act of 1976 ("RCRA") as amended, 42 U.S.C. ss.6901 et. seq. As used herein
"Hazardous Substance" shall include, without limitation: (i) those substances
included within the definitions of any more or one or the term "hazardous
substances", "hazardous materials", or "toxic substances", and "solid waste" in
CERCLA, RCRA, and the Hazardous Materials Corporation Act, as amended, 49 U.S.C.
ss.1801 et. seq., and in the regulations promulgated pursuant to said laws under
applicable state law; (ii) those substances listed in the United
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State Department of Transportation Table (49 CFR ss.172.101 and amendments
thereto) or by the Environmental Protection Agency (or any successor agency) as
hazardous substances (40 CFR Part 302 and amendments thereto); (iii) such other
substances, materials and wastes which are or become regulated under applicable
local, state or federal laws, or which are classified as hazardous or toxic
under federal, state or local laws or regulations; and (ix) any material, waste
or substance which is (a) petroleum; (b) asbestos (c) polochlorinated biphenyls;
(d) designated as a "Hazardous Substance" pursuant to Section 311 or the Clean
Water Act, 13 U.S.C. ss. 1321 (33 U.S.C. ss.1321), or listed pursuant to Section
307 of the Clean Water Act (33 U.S.C. ss.1317); (e) flammable explosives; or (f)
radioactive materials.
32. ENFORCEABILITY
If for any reason whatsoever any of the provisions hereof shall be
void, unenforceable or ineffective, all of the other provisions shall be and
remain in full force and effect.
33. COMMISSIONS
Each of the parties (i) represents and warrants to the other that it
has not dealt with any broker or finder in connection with this Lease, except as
described on the Reference Page and (ii) indemnifies and holds the other
harmless from any and all losses, liability, costs or expenses (including
attorneys' fees) incurred as a result of any breach of the foregoing warranty.
34. TIME AND APPLICABLE LAW
TIME IS OF THE ESSENCE with respect to this Lease and all of its
provisions. This Lease shall in all respects be governed by the laws of the
state in which the Premises is located.
35. PARKING
Tenant shall have the right to use, in common with the other tenants or
occupants of the Building, the parking facilities as designated from time to
time by Landlord. Tenant shall not at any time park or permit the parking of
Tenant's vehicles, or the vehicles of others, adjacent to loading areas or so as
to interfere in any way with the use of such areas. Tenant shall not park or
permit to be parked any inoperative vehicles or equipment on any portion of the
parking or loading areas. Notwithstanding the foregoing, Tenant shall be
permitted to use and park in the loading areas for deliveries to the Premises by
armored vehicles.
36. SUCCESSORS AND ASSIGNS
Subject to the provisions of Article 11 (Assignment and Subletting) and
Article 25 (Sale by Landlord), the terms, covenants and conditions contained
herein shall be binding upon and inure to the benefit of the heirs, successors,
executors, administrators, marital communities, if any, and assigns of the
parties hereto.
37. ENTIRE AGREEMENT
This Lease, together with its exhibits, contains all agreements of the
parties hereto and supersedes any previous negotiations and correspondence,
including without limitation, the term sheet, if any. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its exhibits. This Lease may not be
modified except by written instrument duly executed by the parties hereto.
38. EXAMINATION NOT OPTION
Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound hereby until its delivery to Tenant of an
executed copy hereof signed by Landlord, already having been signed by Tenant,
and until such delivery Landlord reserves the right to exhibit and lease the
Premises to other prospective tenants. Notwithstanding anything contained herein
to the contrary, Landlord may withhold delivery of possession of the Premises
from Tenant until such time as Tenant has paid to Landlord the
15
first and last month's rent as set forth in Article 3 and any sum owed prior to
the Occupancy Date pursuant hereto.
39. RECORDATION
Neither Landlord nor Tenant shall record this Lease or a short form
memorandum hereof without consent of the other party, and the party offering the
same for recording shall pay all charges and taxes incident thereto.
40. LIMITATION OF LANDLORD'S LIABILITY
The obligations of Landlord herein are intended to be binding only on
the property of the entity acting as Landlord and shall not be personally
binding, nor shall any resort be had to the private properties of, any of its
trustees or board of directors and officers, as the case may be, its investment
manager, the general partners thereof or any employees or agents of Landlord, or
the investment manager.
IN WITNESS WHEREOF, this Lease has been duly executed by the parties
hereto as of the date first written above.
Landlord: Tenant:
By: /s/ Xxxxxxxxxxxxxx By: /s/ Xxxxxxxxxxxxxx
------------------ ------------------
Title: President/CEO Title: President/CEO
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EXHIBIT A
LEASED PREMISES
17
