Exhibit 10.14
LEASE AGREEMENT
BY AND BETWEEN
XXXXXXX LEASING, LLC
000 XXXXXXXXXX XXX.
XXXXXX XXXXX
AND
TWO RIVER COMMUNITY BANK
APRIL , 2000
TABLE OF CONTENTS
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Demised Premises 1
Article One Term 1
Article Two Payment Of Rent 2
Article Three Repairs And Care 3
Article Four Landlord's Responsibility For Repair & Care 4
Article Five Glass, etc. Damage Repairs 4
Article Six Alternations, Improvements 4
Article Seven Signs 5
Article Eight Compliance With Laws 6
Article Nine Liability Insurance 6
Article Ten Assignment 7
Article Eleven Restriction of Use 9
Article Twelve Mortgage Priority 9
Article Thirteen Condemnation, Eminent Domain 10
Article Fourteen Fire & Other Casualty 10
Article Fifteen Reimbursement of Landlord 11
Article Sixteen Inspection & Repair 11
Article Seventeen Right to Exhibit 12
Article Eighteen Increase of Insurance Rates 12
Article Nineteen Removal of Tenant's Property 13
Article Twenty Remedies Upon Tenant's Default 13
Article Twenty-One Termination on Default 14
Article Twenty-Two Non-Liability of Landlord 15
Article Twenty-Three Non-Waiver of Landlord 16
Article Twenty-Four Non-Performance by Landlord 16
Article Twenty-Five Validity of Lease 16
Article Twenty-Six Notices 16
Article Twenty-Seven Title & Quiet Enjoyment 17
Article Twenty-Eight Entire Contract 17
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Article Twenty-Nine Mechanic's Liens 17
Article Thirty Security 17
Article Thirty-One Due Date for Payment 18
Article Thirty-Two Habitual Late Payment Clause 18
Article Thirty-Three Non-Sufficient Funds Clause 18
Article Thirty-Four Late Fee 18
Article Thirty-Five Application of Minimum Rent 19
Article Thirty-Six Interest 19
Article Thirty-Seven Attorney's Fees 19
Article Thirty-Eight Refuse Removal 19
Article Thirty-Nine Operating Expenses (CAM Charges) 20
Article Forty H.V.A.C. 20
Article Forty-One Holdover 20
Article Forty-Two Parking of Business Use Vehicles 21
Article Forty-Three Liability 21
Article Forty-Four Surrender of Premises 21
Article Forty-Five Tenant's Compliance With Environmental, Health and
Safety Requirements 21
Article Forty-Six Conformity with Laws & Regulations 24
Article Forty-Seven Waiver of Trial by Jury 24
Article Forty-Eight Estoppel Certificate 24
Article Forty-Nine General Provisions 25
Article Fifty Broker 26
Signatures 26
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LEASE
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THIS LEASE, dated this -- day of April, 2000, by and between XXXXXXX
LEASING, LLC, a New Jersey limited liability company, having an office at 000
Xxxxx Xxxx, Xxxxxx Xxxxx, Xxx Xxxxxx, 00000, (mailing address, X.X. Xxx #000,
Xxx Xxxx, Xxx Xxxxxx 00000), hereinafter referred to as "Landlord", and TWO
RIVER COMMUNITY BANK, a New Jersey banking corporation, with office located at
0000 Xxxxxxx 00 Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 hereinafter referred to as
"Tenant".
W I T N E S S E T H
- - - - - - - - - -
DEMISED PREMISES
In consideration of the rents and covenants herein set forth herein,
Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord, the
premises containing approximately 3650 square feet, actual square footage to be
determined located at the 000 Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx, as
depicted on Schedule A (hereinafter called "Leased Premises" or "Demised
Premises") and other improvements thereon, hereinafter collectively called
"Building". This Lease shall be for the Term set forth below and subject to the
terms and conditions set forth in this Lease and the Schedules attached hereto.
It is understood and agreed that the architectural design, aesthetic
appeal and use of the Building is and shall remain always in the sole control of
Landlord. Notwithstanding anything to the contrary contained herein, Landlord
does hereby reserve the right from time to time or at any time to make changes
and additions, without restrictions, to the Building, improvements or other
areas, including without limitation, eliminating land, adding other lands,
decreasing or changing the Building, except the Demised Premises, which are
deemed desirable by Landlord, and the making of such changes or additions shall
not invalidate or affect this Lease or any rights hereunder nor constitute an
eviction of Tenant or a breach of this Lease, nor give rise to any claim for
damages.
ARTICLE ONE
TERM
The Term of this Lease shall commence August 1, 2000 ("Term
Commencement Date") and, except as may otherwise be provided herein, the Term
shall expire at the end of ten (10) years from the Term Commencement Date. The
Demised Premises shall be used and occupied only for and for no other purposes
than a retail bank and bank administrative offices to conduct any banking
activities permitted under the laws of the State of New Jersey and any other use
is a violation of this restriction. Rent shall commence thirty (30) days from
the Term Commencement Date (Rent Commencement Date). Landlord and Tenant agree
to execute a writing setting forth the Term Commencement Date, the Expiration
Date and Rent Commencement Date.
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ARTICLE TWO
PAYMENT OF RENT
2.01 Minimum Rent. Tenant covenants to pay to Landlord without
notice, demand, setoff, deduction or abatement at Landlord's address first above
set forth, or at such other place as may hereafter be designated in writing by
Landlord, on the days and in the manner herein prescribed for the payment
thereof, guaranteed minimum rent and additional rent for the Demised Premises as
set forth in this Article.
Tenant covenants to pay a fixed guaranteed minimum annual rent,
herein called "Minimum Rent", as follows:
YEAR 1: $26.00/SF $94,900.00/YEAR $7,908.33/MONTH
YEAR 2: $27.04/SF $98,700.00/YEAR $8,225.00/MONTH
YEAR 3: $28.12/SF $102,638.00/YEAR $8,553.17/MONTH
YEAR 4: $29.24/SF $106,725.00/YEAR $8,893.75/MONTH
YEAR 5: $30.41/SF $111,000.00/YEAR $9,250.00/MONTH
YEAR 6: $31.68/SF $115,440.00/YEAR $9,620.00/MONTH
YEAR 7: $32.90/SF $120,084.00/YEAR $10,007.00/MONTH
YEAR 8: $34.22/SF $125,000.00/YEAR $10,416.67/MONTH
YEAR 9: $35.59/SF $129,900.00/YEAR $10,825.00/MONTH
YEAR 10: $37.00/SF $135,050.04/YEAR $11,254.17/MONTH
The Minimum Rent shall be payable in the monthly amounts in advance on the first
day of each month throughout the Term of this Lease, however, the first month's
Minimum Rent shall be payable in advance upon execution of this Lease, and the
second month's Minimum Rent payable in advance on the first day of the month
following the Term Commencement Date. The Minimum Rent for a period of less than
one calendar month shall be prorated.
2.02 Additional Rent. In addition to the Minimum Rent stipulated
herein, Tenant covenants and agrees to pay to Landlord as additional rent,
hereafter "Additional Rent", all other sums and charges which are, pursuant to
the terms of this Lease, to be paid as Additional Rent by the Tenant. Except as
otherwise provided in this Lease, Additional Rent shall be due and payable on
the first day of the month following the date on which Tenant is given notice of
Additional Rent due.
2.03 Late Payment. In the event Tenant shall fail to pay any part of
Minimum Rent and/or Additional Rent when due in accordance with terms of this
Lease, and such default shall continue for 10 days then, in addition to the
Landlord's rights as contained in Article 20, interest shall at Landlord's
option accrue thereon at the rate of fifteen (15%) percent per annum from the
tenth day after the due date to the date of payment.
2.04 Option to Extend Term. So long as Tenant has not been in
default during the Term of this Lease or any previous option period, Tenant
shall have the option to renew the within Lease for two (2), five (5) year
periods. The First Option Period shall commence the day after the expiration of
the original Lease Term and end five years thereafter. The Second Option Period
shall commence the day after the expiration of the First Option Period and end
five (5) years thereafter. Tenant covenants to pay a fixed guaranteed Minimum
Rent for the First and Second Option Periods as follows:
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FIRST, FIVE (5) YEAR OPTION
YEAR 11: $38.48/SF $140,448.00/YEAR $11,704.00/MONTH
YEAR 12: $40.02/SF $146,073.00/YEAR $12,172.75/MONTH
YEAR 13: $41.62/SF $151,920.00/YEAR $12,660.00/MONTH
YEAR 14: $43.28/SF $157,980.00/YEAR $13,165,00/MONTH
YEAR 15: $45.00/SF $164,250.00/YEAR $13,687.50/MONTH
SECOND, FIVE (5) YEAR OPTION
YEAR 16 $46.80/SF $170,820.00/YEAR $14,235.00/MONTH
YEAR 17 $48.67/SF $177,648.00/YEAR $14,804.00/MONTH
YEAR 18: $50.62/SF $184,764.00/YEAR $15,397.00/MONTH
YEAR 19: $52.64/SF $192,132.00/YEAR $16,011.00/MONTH
YEAR 20: $54.75 SF $199,821.00/YEAR $16,651.80/MONTH
Tenant must exercise each renewal option in writing, by certified mail, return
receipt requested, to Landlord, no later than one hundred eighty (180) days
prior to the expiration date of original Lease Term or prior renewal term, as
applicable. Time is "of the essence" with respect to the exercising all renewal
options.
2.05 Utilities. Tenant shall pay when due all the rents or charges
for all utilities used by the Tenant, which are or may be assessed or imposed
upon the Leased Premises, or which are or may be charged to the Landlord by the
suppliers thereof during the Term hereof, and if not paid, such rents or charges
shall be added to and become payable as Additional Rent with the installment of
rent next due or within thirty (30) days of demand therefor, whichever occurs
sooner. If separately metered, Tenant shall register all utility accounts in its
own name.
ARTICLE THREE
REPAIRS AND CARE
Tenant has examined the Leased Premises and has entered into this
Lease without any representation on the part of the Landlord as to the condition
thereof. Landlord shall deliver Leased Premises to Tenant in "as-is" clean
condition, with all walls, partitions, lighting and other fit up, excluding
existing bank counters and bank equipment. Landlord shall make every effort to
provide the bank vault that is currently located in the Leased Premises,
provided however, in the event that the bank vault is removed, Landlord and
Tenant shall adjust the Minimum Rent to provide for the cost of a suitable vault
of the same standard and specification as the existing vault. The Tenant shall
take good care of the Leased Premises and shall, at the Tenant's own cost and
expense, make all repairs, including painting and decorating, and shall maintain
the Leased Premises in good condition and state of repair, and at the end or
other expiration of the Term hereof, shall deliver the Leased Premises in good
order and condition, wear and tear from a reasonable use thereof, and damage by
the elements not resulting from the neglect or fault of the Tenant, excepted.
The Tenant shall neither encumber nor obstruct the sidewalks, driveways, yards,
entrances, hallways and stairs, but shall keep and maintain the same in a clean
condition, free from debris, trash, refuse, snow and ice.
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ARTICLE FOUR
LANDLORD'S RESPONSIBILITY FOR REPAIR & CARE
Tenant stipulates and agrees that the only duty of Landlord for
repair and care of the Leased Premises is the duty to repair, care for and
maintain the structural elements of the Building housing the Leased Premises.
Interior and exterior doors provide access to or through the Leased Premises are
non-structural elements and any and all damage to such doors, no matter what the
cause may be, shall be the repair, replacement and maintenance responsibility of
the Tenant. Landlord shall maintain all other doors in the Common Areas of the
Building. Tenant is advised to protect all non-structural elements with proper
insurance. Any and all requests to Landlord from Tenant for repair must be sent
to Landlord by certified mail.
ARTICLE FIVE
GLASS, ETC. DAMAGE REPAIRS
In case of the destruction of, or any damage to, the glass in the
Leased Premises, or the destruction or damage of any kind whatsoever to the
Leased Premises, the Tenant shall repair the said damage or replace or restore
any destroyed parts of the Leased Premises, as speedily as possible, at the
Tenant's own cost and expense.
ARTICLE SIX
ALTERATIONS, IMPROVEMENTS
6.01 Tenant shall make no alterations, decorations, installations,
additions or improvements (hereinafter "Tenant Changes") in or to the Demised
Premises without in each instance obtaining the Landlord's prior written
consent, and then only by contractors or mechanics subject to Landlord's
approval, which shall not be unreasonably withheld and in conformance with
detailed plans and specifications previously submitted to the Landlord and
subject to the Landlord's prior written approval. All Tenant Changes shall be
done at Tenant's sole cost and expense and at such times and in such manner as
Landlord may from time to time designate. All Tenant Changes upon the Demised
Premises, made by either party (excepting only Tenant's movable trade fixtures)
shall, unless Landlord shall elect otherwise (which election may be made at any
time prior to expiration or other termination of this Lease), become the
property of Landlord, and shall remain upon, and be surrendered with, the
Demised Premises as a part thereof at the end of the Term. In the event Landlord
shall elect otherwise as to any Tenant Changes upon the Demised Premises, the
same shall be removed by Tenant and Tenant shall restore the Demised Premises to
the condition existing immediately prior to such Tenant Changes and such removal
and restoration shall be at Tenant's own cost and expense, which covenant shall
survive the termination of this Lease.
6.02 Tenant agrees that any Tenant Changes shall be done in a good
and workmanlike manner, in conformity with the plans and specifications approved
by Landlord, and shall comply with all laws, ordinances and regulations of all
public authorities having jurisdiction over the Tenant Changes. All salvage in
connection therewith shall be properly disposed of by the Tenant.
6.03 Tenant agrees that it will also procure all necessary permits
before making any Tenant Changes. Landlord agrees that, without cost or expense
to Landlord, it will cooperate
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with Tenant in obtaining such permits. Tenant agrees to pay when due the entire
cost of any work done by or for Tenant upon the Demised Premises so that the
Demised Premises shall at all times be free of liens for labor or materials.
Tenant agrees to require all contractors and materialmen to waive any and all
rights they may have to any mechanics notices of intention and mechanics liens.
Tenant also agrees to indemnify and save Landlord harmless from any and all
liens, and any and all injury, loss, claims, or damages to any person or
property occasioned by or in connection with any Tenant Changes.
6.04 Prior to the commencement of any Tenant Changes that involve
any structural elements of the Demised Premises, Tenant shall also, if
requested, furnish and deliver to the Landlord, at Tenant's sole cost and
expense, performance and payment bonds from a recognized surety licensed to do
business in the State of New Jersey for the performance and payment of Tenant's
Changes. Such bonds are subject to the Landlord's approval as to form and
amount. Tenant shall not be required to post bonds for nonstructural Tenant
Changes.
6.05 All Tenant Changes shall be performed in such manner as not to
interfere with the occupancy of any other tenant in the Building nor delay or
impose any additional expense upon Landlord in the construction, maintenance or
operation of the Building. Throughout the performance of Tenant Changes, Tenant,
at its expense, shall carry or cause to be carried, and duly maintained,
worker's compensation and employers liability insurance in statutory limits, and
general public liability insurance insuring the Landlord against any an all
liability or claims of liability arising out of the performance of the Tenant
Changes, occasioned by or resulting from any accident or otherwise in or about
the Leased Premises for injuries to any person or persons for limits not less
than $1,000,000.00 for injuries to one person and $3,000,000.00 for injuries to
more than one person, in any one accident or occurrence, and for loss or damage
to the property of any persons, for not less than $1,000,000.00, for any
occurrence in or about the Building, on which Landlord and its managing agent,
if any, shall be named as parties insured, with insurers reasonably satisfactory
to Landlord. Tenant shall furnish Landlord with evidence satisfactory to
Landlord that such insurance is in effect before the commencement of Tenant
Changes and, on request, at reasonable intervals thereafter during the
construction of Tenant's Changes.
ARTICLE SEVEN
SIGNS
Tenant shall not place nor allow to be placed any flashing lights,
sound devices, advertisements or signs of any kind whatsoever upon, in or about
the Leased Premises or any part thereof, except for a design and structure and
in or at such places as may be indicated and consented to by Landlord in
writing. In the case the Landlord or the Landlord's agents, employees or
representatives shall deem it necessary to remove any such signs in order to
paint or make any repairs, alterations or improvements in or upon the Leased
Premises, or any part thereof, they may be so removed. Any signs permitted by
the Landlord shall, at all times, conform with all municipal ordinances or other
laws and regulations applicable thereto. Tenant recognizes and stipulates that a
violation of this covenant is a material and substantial breach of the terms and
grounds for termination and eviction, for which Landlord may institute summary
dispossess action in a court of competent jurisdiction. Tenant shall have the
right to seek
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approval of a time and temperature sign to be placed at a location to be
approved by Landlord. Tenant shall secure all necessary governmental approvals
for such signage.
If Tenant's sign is in undesirable condition and/or disrepair,
Landlord may require Tenant to repair/replace sign immediately upon written
notice from Landlord, which notice will state the conditions found to be in
disrepair. If Tenant does not repair or replace such sign, Landlord may remove
sign at Tenant's expense.
ARTICLE EIGHT
COMPLIANCE WITH LAWS
Tenant shall promptly comply with all laws, ordinances, rules,
regulations, requirements and directives of the federal, state and municipal
governments or public authorities and of all their departments, bureaus and
subdivisions applicable to and affecting the Demised Premises, their use and
occupancy, the correction, prevention and abatement or nuisances, violations or
other grievances in, upon or connected with the Demised Premises, during the
Term hereof, and shall promptly comply with all orders, regulations,
requirements and directives of the Board of Fire Underwriters or similar
authority and of any insurance companies which have issued or are about to issue
policies of insurance covering the Demised Premises and its contents, for the
prevention of fire or other casualty, damage or injury, at the Tenant's own cost
and expense.
ARTICLE NINE
LIABILITY INSURANCE
9.01 Tenant, at Tenant's own cost and expense, shall obtain or
provide and keep in full force for the benefit of the Landlord, during the Term
hereof, general public liability insurance insuring the Landlord against any and
all liability or claims of liability arising out of, occasioned by or resulting
from any accident or otherwise in or about the Leased Premises for injuries to
any person or persons for limits not less than $1,000,000.00 for injuries to one
person and $3,000,000.00 for injuries to more than one person, in any one
accident or occurrence, and for loss or damage to the property of any persons,
for not less than $1,000,000.00. The policy or policies of insurance shall be of
a company or companies authorized to do business in New Jersey and shall be
delivered to the Landlord, together with evidence of the payment of the premiums
therefor, not less than fifteen days prior to the commencement of the Term
hereof or of the date when the Tenant shall enter into possession, whichever
occurs sooner. At least thirty (30) days prior to the expiration or termination
date of any policy, the Tenant shall deliver a renewal or replacement policy
with proof of the payment of the premium therefor. The Tenant also agrees to and
shall save, hold and keep harmless and indemnify Landlord from and for any and
all payments, expenses, costs, attorney fees and from and for any and all claims
and liability for losses or damage to the property or injuries to persons
occasioned wholly or in part by or resulting from any acts or omissions by the
Tenant or the Tenant's agents, employees, guests, licensees, invitees,
subtenants, assignees or successors, or for any cause or reason whatsoever
arising out of or by reason of the occupancy by the Tenant and the conduct of
Tenant's business.
In the event that at any time during the Term or any Renewal Term of
this Lease, Landlord shall be advised by its insurance representatives that
increases in one or more insurance
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coverages are reasonably necessary to comply with insurance company
recommendations, Tenant shall secure such increases in coverage to the extent
that such coverages are available.
9.02 All of the aforesaid insurance and any other insurance policies
of the Tenant shall be considered primary insurance, and except for workers
compensation, shall be issued in the name of Tenant and Landlord and any
designees and/or mortgagees of Landlord, as additional insureds, and shall be
written by one or more qualified, licensed insurance companies satisfactory to
Landlord and in form satisfactory to Landlord, which approval shall not be
unreasonably withheld; all such insurance policies shall contain endorsements
providing for at least thirty (30) days prior written notice to Landlord of any
material change in or cancellation of such policy or coverage.
9.03 Tenant shall be solely responsible for payment of premiums and
Landlord (or its designee) shall not be required to pay any premium for such
insurance. Tenant shall deliver to Landlord at least thirty (30) days prior to
the time such insurance is first required to be carried by Tenant, and
thereafter at least forty-five (45) days prior to the expiration of such policy,
either a duplicate original or certificate of insurance and true copy of all
policies procured by Tenant in compliance with obligations hereunder, together
with satisfactory evidence of the payment of the premiums therefor, it being the
intention of the parties hereto that the insurance required under the terms
hereof shall be continuous during the entire term of this lease and renewal, if
any, and any other period of time during which, pursuant to the term hereof,
said insurance is required.
9.04 With respect to the Demised Premises and the contents,
improvements, and betterments therein, Landlord shall not be liable for any
damage by fire or other peril includable in the coverage afforded by the
standard form of all risk property coverage insurance policy (whether or not
such coverage is in effect), no matter how caused, it being understood that the
Tenant will look solely to Tenant's insurer for reimbursement.
9.05 If as a result of the failure of Tenant to comply with the
foregoing provisions, Landlord is adjudged a co-insurer by its insurance
carrier, then any loss or damage Landlord shall sustain by reason thereof shall
be borne by Tenant and shall be immediately paid by Tenant upon demand as
Additional Rent.
ARTICLE TEN
ASSIGNMENT
10.01 Tenant shall not assign, mortgage, hypothecate, pledge, or in
any manner, transfer this Lease or any estate or interest hereunder whether by
operation of law or otherwise (collectively "assign") and shall not sublet the
Demised Premises or any part or parts thereof ("sublet") without the previous
written consent of Landlord in each instance. If Tenant violates the provisions
of this Article 10, Landlord may, in addition to any remedies it has under this
Lease, accept from any assignee, licensee, concessionaire or anyone who claims a
right to any part of the interest of Tenant under this Lease (collectively
"assignee"), or anyone who occupies any part or the whole of the Demised
Premises ("sublessee"), the payment of Minimum Rent and Additional Rent and/or
the performance of any of the other obligations of Tenant under this Lease, but
acceptance shall not be deemed to be a waiver by Landlord of the breach by
Tenant of the provisions of this Article 10, nor a recognition by Landlord that
any such assignee or
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sublessee has succeeded to the rights of Tenant hereunder, nor a release by
Landlord of Tenant from further performance by Tenant of the covenants on
Tenant's part to be performed under this Lease; provided, however, that the net
amount of rent actually collected from any such assignee or sublessee shall be
applied by Landlord to the rent to be paid hereunder. Any consent by Landlord to
any such assignment, transfer, mortgage license or concession or other matter or
thing contained in this Article 10 (collectively "assignment") or subletting
shall not in any way be construed to relieve Tenant from obtaining the prior
written consent of Landlord to any other or future assignment or subletting.
10.02 In the event of a merger or consolidation, or if at any time
during the Term of this Lease, (i) if the Tenant is a corporation and there
shall occur any change in the ownership of, or power to vote, the majority of
the outstanding capital stock of Tenant, or (ii) if the Tenant is a partnership
and/or joint venture and the partners and/or joint venturers, owners, or members
of any such partnership and/or joint venture change in any manner, the Landlord
shall thereafter have the right, at its option, to terminate this Lease by
notice to Tenant. If such option is exercised, the Term of this Lease shall in
no event be earlier than the end of the calendar month in which occurs the
thirtieth (30th) day after the giving of such notice. In any such event, the
collection of rent and/or acceptance by Landlord of the performance of any of
the obligations of Tenant under this Lease shall not be deemed to be a waiver by
Landlord of any of its rights under the provisions of this Section 10.02. This
Section 10.02 shall not be applicable to any corporation in which all of the
outstanding voting stock is, on the date of this Lease, listed on a national
securities exchange (as defined in the Securities Exchange Act of 1934, as
amended), or if sixty percent (60%) or more of the outstanding shares of such
voting stock is on such date owned by any fifty (50) or more shareholders.
10.03 If Landlord consents in writing to an assignment or
subletting, then such consent to an assignment or subletting shall (unless
expressed clearly to the contrary in said consent) be deemed conditioned upon
Tenant's further compliance with the following provisions:
(a) At Landlord's option, the assignment and/or subletting must be,
respectively, of all of Tenant's leasehold interest and of the entire Demised
Premises and, in the case of assignment, shall also transfer to the assignee all
of the Tenant's rights in, and interest under, this Lease including the
security, if any, deposited hereunder. However, notwithstanding anything to the
contrary in this Lease, Tenant, and the guarantor, if any, shall continue to
remain liable, jointly and severally, with any such assignee or subtenant for
all of the obligations of "Tenant" under this Lease.
(b) At the time of such assignment and/or subletting, this Lease
must be in full force and effect without any breach or default thereunder on the
part of the Tenant.
(c) The assignee or sublessee shall assume, by written recordable
instrument, in form and content satisfactory to Landlord, the due performance of
all of Tenant's obligations under this Lease, including any accrued obligations
at the time of the assignment or subletting.
(d) A copy of the assignment or sublease and the original assumption
agreement (both in form and content satisfactory to the Landlord) fully executed
and acknowledged by the assignee and/or sublessee together with a certified copy
of properly executed corporate resolutions authorizing such documents, shall be
delivered to the Landlord within five (5) days from the effective date of such
assignment or subletting.
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(e) Any permitted sublease or assignment shall be on similar terms
as this Lease insofar as compliance with laws and regulations and permitted uses
are concerned.
(f) Tenant shall reimburse Landlord's reasonable attorney's fees for
examination of and/or preparation of any documents in connection with such
assignment and/or subletting.
(g) Landlord may, as a condition of consenting to any assignment or
subletting, require Tenant and any assignee or sublessee of Tenant to pay to
Landlord as Additional Rent any and all consideration payable to Tenant in
excess of the Minimum Rent required hereunder for the area involved for any
assignment or subletting, as and when such consideration is payable pursuant to
the assignment or sublease. Said consideration to be computed on the basis of
average square foot rent for the gross square footage Tenant has assigned or
sublet.
If this Lease is assigned or if the Demised Premises or any part
thereof be subleased or occupied by anybody other than Tenant, whether with or
without Landlord's consent, Landlord may collect from the assignee, sublessee,
occupant, licensee or concessionaire, any rental or other charges payable by
Tenant under this Lease, and apply the amount collected to the rental and other
charges herein reserved, but such collection by Landlord shall not be deemed an
acceptance of the assignee, sublessee, occupant, licensee or concessionaire as
tenant nor a release of Tenant from the performance by Tenant of this Lease.
ARTICLE ELEVEN
RESTRICTION OF USE
The Tenant shall not occupy or use the Leased Premises or any part
thereof, nor permit or suffer the same to be occupied or used for any purposes
other than as herein limited, nor for any purpose deemed unlawful, disreputable,
or extra hazardous, on account of fire or other casualty.
ARTICLE TWELVE
MORTGAGE PRIORITY
This Lease shall not be a lien against the Leased Premises in
respect to any first mortgage that may hereafter be placed upon said Leased
Premises. The recording of such mortgage shall have preference and precedence
and be superior and prior in lien to this Lease, irrespective of the date of
recording and the Tenant agrees to execute any instruments, without cost, which
may be deemed necessary or desirable, to further effect the subordination of
this Lease to any such mortgage. A refusal by the Tenant to execute such
instruments shall entitle the Landlord to the option of canceling this Lease,
and the term hereof is hereby expressly limited accordingly.
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ARTICLE THIRTEEN
CONDEMNATION, EMINENT DOMAIN
If the land and premises leased herein or of which the Leased
Premises are a part or any portion thereof, shall be taken under eminent domain
or condemnation proceedings, or if suit or other action shall be instituted for
the taking or condemnation thereof, or if in lieu of any formal condemnation
proceedings or actions, the Landlord shall grant an option to purchase and or
shall sell and convey said premises or any portion thereof, to the governmental
or other public authority, agency, body or public utility, seeking to take said
land and premises or any portion thereof, then this Lease, at the option of the
Landlord, shall terminate, and the Term hereof shall end as of such date as the
Landlord shall fix by notice in writing and the Tenant shall have no claim or
right to claim or be entitled to any portion of any amount which may be awarded
as damages or paid as the result of such condemnation proceedings or paid as the
purchase price for such option, sale or conveyance in lieu of formal
condemnation proceedings and all rights of the Tenant to damages, if any, are
hereby assigned to the Landlord. The Tenant agrees to execute and deliver any
instruments at the expense of the Landlord, as may be deemed necessary or
required to expedite any condemnation proceedings or to effectuate a proper
transfer of title to such governmental or other public authority, agency, body
or public utility seeking to take or acquire the said lands and premises or any
portion thereof the Tenant covenants and agrees to vacate the said premises,
remove all the Tenant's personal property therefrom and deliver up peaceable
possession thereof to the Landlord or to such other party designated by the
Landlord in the aforementioned notice. Failure of the Tenant to comply with any
provisions in this Article 13 shall subject the Tenant to such costs, expenses,
damages and losses as the Landlord may incur by reason of the Tenant's breach
hereof.
ARTICLE FOURTEEN
FIRE & OTHER CASUALTY
In the event of fire or other casualty, Tenant shall give immediate
notice thereof to Landlord.
In the event that the fire or other casualty and damage shall be the
result of the carelessness, negligence or improper conduct of Tenant, or
Tenant's agents, employees, guests, licensees, invitees, subtenants, assignees
or successors; Tenant's liability for the payment of rent and the performance of
all other covenants, conditions and terms to be performed by Tenant shall
continue; and Tenant shall be liable to Landlord for the damage and loss
suffered by Landlord; If the Demised Premises are only partially damaged, but
remain tenantable, so that Tenant can reasonably continue its operations,
Landlord shall repair the damage as rapidly as practicable.
In the event that the fire or other casualty and damage shall result
from a cause other than that specified above and if the Demised Premises are
only partially damaged, but remain tenantable, so that Tenant can reasonably
continue its operations, Landlord shall repair the damage as rapidly as
practicable. Tenant's obligation to pay the rent shall not cease but shall be
pro-rated as to Tenant's usable portion of the Demised Premises, until such time
as Landlord restores the damaged portion of the Demised Premises to its original
condition. At that time, Tenant shall resume payment of the full rent.
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In the event that the Demised Premises are so extensively and
substantially damaged as to render them untenantable, then the rent shall cease
until such time as the Demised Premises shall be made tenantable by Landlord.
However, if the Demised Premises are totally destroyed, or, in Landlord's
opinion, so damaged as to require practically a rebuilding thereof, then the
rent shall be paid up to the time of such destruction and from thenceforth this
Lease shall terminate.
In every case, if Tenant was insured against any of the risks herein
described, then the proceeds of such insurance shall be paid over to Landlord to
the extent of Landlord's actual costs and expenses to make the repairs
hereunder, and such insurance carriers shall have no recourse against Landlord
for reimbursement.
ARTICLE FIFTEEN
REIMBURSEMENT OF LANDLORD
In the event that the Tenant shall fail or refuse to comply with and
perform any of the conditions and covenants of the Lease, the Landlord may, if
the Landlord so elects, carry out and perform such conditions and covenants at
the cost and expense of the Tenant, and the said cost and expense shall be
payable on demand, or at the option of the Landlord, shall be added to the
installment of Minimum Rent due immediately thereafter but in no case later than
one month after such demand, whichever occurs sooner, and shall be due and
payable as Additional Rent. This remedy shall be in addition to such other
remedies as the Landlord may have hereunder by reason of the breach by the
Tenant of any of the covenants and conditions in this Lease contained.
ARTICLE SIXTEEN
INSPECTION AND REPAIR
Landlord, by its duly authorized employees and agents, upon
reasonable notice and accompanied by a Tenant employee may enter the Demised
Premises at reasonable hours (i) to inspect the same, (ii) to determine whether
Tenant is complying with all its obligations hereunder, (iii) to supply any
other service to be provided by Landlord to Tenant under the terms and
conditions of this Lease, (iv) to make repairs to any adjoining space or utility
services, or to make repairs, alterations or improvements to any other portion
of the Shopping Center and (v) to perform any work therein that may be necessary
to comply with any laws, statutes, ordinances, regulations, orders or
requirements of any governmental authorities having jurisdiction over the
Demised Premises, or to prevent waste or deterioration of the Demised Premises;
provided, however, that all such work shall be done as promptly as reasonably
possible and so as to cause as little interference to Tenant as reasonably
possible. Landlord may, during the progress of any work in the Demised Premises,
keep and store upon the Demised Premises, all necessary materials, tools and
equipment required for said work. Landlord shall have the right to use any and
all means which Landlord may deem proper to open said doors in an emergency in
order to obtain entry to the Demised Premises, and any entry to the Demised
Premises obtained by Landlord by any of said means or otherwise shall not under
any circumstances be construed or deemed to be forcible or unlawful entry into
or a detainer of the Demised Premises or any portion thereof. Notwithstanding
anything contained in this Article 16, Landlord shall not be
11
required to incur overtime or additional expense in order to minimize
interference with Tenant's use and occupancy of the Demised Premises.
ARTICLE SEVENTEEN
RIGHT TO EXHIBIT
The Tenant agrees to permit the Landlord and the Landlord's agents,
employees or other representatives to show the Demised Premises to persons
wishing to rent or purchase same, and Tenant agrees that on or after one hundred
twenty (120) days next preceding the expiration of the Term or any option
period, the Landlord or the Landlord's agents, employees or other
representatives shall have the right to place notices on the front of the
Demised Premises or any part thereof, offering the Demised Premises for rent or
for sale and the Tenant hereby agrees to permit the same to remain thereon
without hindrance or molestation.
ARTICLE EIGHTEEN
INCREASE OF INSURANCE RATES
Increases in Fire Insurance Premiums Attributable to Tenant. Tenant
shall not keep, use, sell or offer for sale in or upon the Premises any article
which may be prohibited by the standard form of fire insurance policy. Tenant
agrees to pay one hundred percent (100%) of any increase in premiums for fire
and extended coverage insurance that may be charged during the Term on the
amount of such insurance which may be carried by Landlord on Landlord's
Building, resulting from the type of merchandise sold by Tenant in the Premises,
whether or not Landlord has consented to the same. In determining whether
increased premiums are the result of Tenant's use of the Premises, a schedule,
issued by the organization making the insurance rate on the Premises, showing
the various components of such rate, shall be conclusive evidence of the several
items and charges which make up the fire insurance rate on the premises.
In the event Tenant's occupancy causes any increase of premium for
the fire, and/or casualty rates on Landlord's Building, Tenant shall pay the
additional premium on the fire and/or casualty insurance policies by reason
thereof. The Tenant also shall pay, in such event, any additional premium on the
rent insurance policy that may be carried by the Landlord for its protection
against rent loss through fire. Bills for such additional premiums shall be
rendered by Landlord to Tenant at such times as Landlord may elect, and shall be
due from, and payable by, Tenant when rendered, and the amount thereof shall be
deemed to be, and be paid as, Additional Rent.
ARTICLE NINETEEN
REMOVAL OF TENANT'S PROPERTY
Any equipment, fixtures, goods or other property of the Tenant, not
removed by the Tenant upon termination of this Lease, or upon any quitting,
vacating or abandonment of the premises by the Tenant, or upon the Tenant's
eviction, shall be considered as abandoned and the Landlord shall have the
right, without any notice to the Tenant, to sell or otherwise dispose of the
same, at the expense of the Tenant, and shall not be accountable to the Tenant
for any part of the proceeds of such sale, if any.
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ARTICLE TWENTY REMEDIES UPON TENANT'S DEFAULT
20.01 Tenant shall, without any previous demand therefor, pay to
Landlord the Minimum Rent and Additional Rent at the times and in the manner
herein provided.
In the event:
(a) of default after fifteen (15) days written notice in the payment
of said rents or of any installment or part thereof, or in the
payment of any other sum or any part thereof which may become due
from Tenant to Landlord hereunder, at the times and in the manner
provided herein, or
(b) the Demised Premises shall be deserted, abandoned or vacated, or
(c) of the violation by Tenant of any of the covenants, agreements
and conditions herein provided or of any of the Rules and
Regulations now or hereafter established by Landlord, and the
failure to cure such violation within thirty (30) days after notice
in writing of such violation by Landlord to Tenant;
then upon the happening of any such event, Landlord may, at its option, elect to
terminate this Lease and/or enter the Demised Premises, either by force or
otherwise, without being liable for any prosecution or damage therefor, and
relet the Demised Premises, and receive the rent therefor, upon such terms as
shall be satisfactory to Landlord, and all rights of Tenant to repossess the
Demised Premises under this Lease shall cease and end upon such termination or
entry. Such termination or entry for reletting by Landlord shall not operate to
release Tenant from any Additional Rent to be paid or covenants to be performed
hereunder during the full term of this Lease. For the purpose of reletting,
Landlord shall be authorized to make such repairs or alterations in or to the
Demised Premises as may be necessary to place the same in good order and
condition. Tenant shall be liable for and hereby agrees to pay to Landlord the
cost of such repairs or alterations and all expenses of such reletting. If the
sum realized or to be realized from the reletting is insufficient to satisfy the
rent provided in this Lease, Landlord, at its option may require Tenant to pay
such deficiency in advance month by month (or at any greater intervals), or may
require Tenant to pay in advance the entire deficiency resulting from such
reletting. Landlord is hereby granted a lien, in addition to any statutory lien
or right to distrain that may exist, on all personal property of Tenant in or
upon the Demised Premises, including without limitation, furniture, fixtures
(including trade fixtures) and merchandise of Tenant, to assure payment of the
rent and performance of the covenants and conditions of this Lease. Landlord
shall have the right, as agent of Tenant, to take possession of all personal
property of Tenant found in or about the Demised Premises, including without
limitation, furniture, fixtures, and merchandise of Tenant, and sell the same at
public or private sale and to apply the proceeds thereof to the payment of any
monies becoming due under this Lease, or remove all such effects and store the
same in a public warehouse or elsewhere at the cost of and for the account of
Tenant, or any other occupant, Tenant hereby waiving the benefit of all laws
exempting property from execution, levy and sale on distress or judgment.
Landlord, however, shall not be responsible or liable for any failure to relet
the Demised Premises, or for any failure to collect any rent due upon any such
reletting.
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20.02 In the event of any breach or threatened breach by Tenant of
any of the agreements, terms, covenants or conditions contained in this Lease,
Landlord shall have the right to invoke any right and remedy allowed at law or
in equity regardless of whether such remedy is specifically provided for in this
Lease.
20.03 Each right and remedy of Landlord provided for in this Lease
shall be cumulative and shall be in addition to every other right or remedy
provided for in this Lease now or hereafter existing at law or in equity or by
statute or otherwise, and the exercise or beginning of the exercise by Landlord
of any one or more of the rights or remedies provided for in this Lease or now
or hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by Landlord of any or all other
rights or remedies provided for in this Lease now or hereafter existing at law
or in equity or by statute or otherwise.
20.04 If the Term of this Lease shall be terminated due to default
by the Tenant of any of the terms or covenants herein contained, this Lease and
the Term and estate hereby granted, whether or not the Term shall heretofore
have commenced, shall terminate with the same effect as if that day were the
expiration date of the Term of this Lease, except that Tenant shall remain
liable for all damages as are provided for herein, including but not limited to
the Minimum Rent for the full Term of this Lease as originally provided for
hereunder.
ARTICLE TWENTY-ONE
TERMINATION ON DEFAULT
21.01 At any time prior to or during the Term of this Lease, if
Tenant shall make an assignment for the benefit of its creditors; or if Tenant
shall file a voluntary petition in bankruptcy; or if Tenant shall be adjudicated
a bankrupt or insolvent; or if the affairs of Tenant shall be taken over by or
pursuant to an order of any court or of any other officer or governmental
authority pursuant to any federal, state or other statute or law; or if Tenant
shall admit in writing its inability to pay debts generally as they become due;
or if Tenant shall file any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under the present or any future federal bankruptcy act or any other
present or future applicable federal, state or other statute or law; or if
Tenant shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or of all or any substantial part of its
property; or if, within sixty (60) days after the commencement of any proceeding
against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
future federal, state or other statute or law, such proceedings shall have not
been dismissed; or if, within sixty (60) days after the appointment, without the
consent or acquiescence of Tenant, of any trustee, receiver, or liquidator of
Tenant or of all or any substantial part of its property, such appointment shall
not have been vacated or stayed on appeal or otherwise, or if, within sixty (60)
days after the expiration of any such stay, such appointment shall not have been
vacated; or in the event action shall be taken by Tenant in furtherance of any
of the aforesaid purposes, then and in any such event Landlord may, in such
event, terminate this Lease as a result of such bankruptcy, insolvency, levy or
sale prior to the expiration of its term only with the concurrence of any
Receiver or Liquidator appointed by such Authority, provided, that in the event
that this Lease is terminated by any such Receiver or Liquidator, the maximum
claim of Landlord for rent, damages or indemnity resulting from the termination,
rejection or abandonment of the unexpired
14
term of this Lease by such Receiver or Liquidator shall, by law, in no event be
greater that an amount equal to all accrued and unpaid rent to the date of such
termination.
Such causes for the termination of this Lease as set forth in this
Article 21 shall constitute a default by Tenant and all rights and remedies
stated or otherwise shall be available to Landlord. The word "Tenant" in this
Article 21 shall be construed to include any surety or guarantor of this Lease.
21.02 It is stipulated and agreed that in the event of the
termination of this Lease pursuant to this Article 21, Landlord shall forthwith,
notwithstanding any other provisions of this Lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the Minimum Rent reserved hereunder for the unexpired portion
of the Term and the then fair and reasonable rental value of the Demised
Premises for the same period. If the Demised Premises or any part thereof be
relet by Landlord for the unexpired Term of said Lease, or any part thereof,
before presentation of proof of such liquidated damages to any court commission
or tribunal, the amount of rent reserved upon such reletting shall be prima
facia evidence as to the fair and reasonable rental value for the part or the
whole of the Demised Premises so relet during the Term of the reletting. Nothing
herein contained shall limit or prejudice the right of the Landlord to prove for
and obtain as liquidated damages by reason of such termination an amount equal
to the maximum allowed by any statute or rule of law in such damages are to be
provided, whether or not such amount be greater than, equal to or less than the
amount of the difference referred to above.
ARTICLE TWENTY-TWO
NON-LIABILITY OF LANDLORD
The Landlord shall not be liable for any damage or injury, except
that caused by its own negligence, which may be sustained by the Tenant or any
other person, as a consequence of the failure, breakage, leakage or obstruction
of the water, plumbing, steam, sewer, waste of sod pipes, roof, drains, leaders,
gutters, valleys, downspouts or the like or of the electrical, gas, power,
conveyer, refrigeration, sprinkler, air conditioning or heating systems,
elevators or hoisting equipment; or by reason of the elements; or resulting from
the carelessness, negligence or improper conduct on the part of any other Tenant
or this or any other Tenant's agents, employees, guests, licensees, invitees,
subtenants, assignees or successors; or attributable to any interference with,
interruption of or failure, beyond the control of the Landlord, of any services
to be furnished or supplied by the Landlord.
ARTICLE TWENTY-THREE
NON-WAIVER OF LANDLORD
The various rights, remedies, options and elections of the Landlord,
expressed herein are cumulative, and the failure of the Landlord to enforce
strict performance by the Tenant of the conditions and covenants of this Lease
or to exercise any election or option or to resort or have recourse to any
remedy herein conferred or the acceptance by the Landlord of any installment of
rent after any breach by the Tenant, in any one or more instances, shall not be
construed or deemed to be a waiver or a relinquishment for the future by the
Landlord of any
15
such conditions and covenants, options, elections or remedies, but the same
shall continue in full force and effect.
ARTICLE TWENTY-FOUR
NON-PERFORMANCE BY LANDLORD
This Lease and the obligation of the Tenant to pay the rent
hereunder and to comply with the covenants and conditions hereof, shall not be
affected, curtailed, impaired or excused because of the Landlord's inability to
supply any service or material called for herein, by reason of any rule, order,
regulation or preemption by any governmental entity, authority, department,
agency or subdivision of for any delay which may arise by reason of negotiations
for the adjustment of any fire or other casualty loss or because of strikes or
other labor trouble or for any cause beyond the control of the Landlord.
ARTICLE TWENTY-FIVE
VALIDITY OF LEASE
The terms, conditions, covenants and provisions of this Lease shall
be deemed to be severable. If any clause or provision herein contained shall be
adjudged to be invalid or unenforceable by a court of competent jurisdiction or
by operation of any applicable law, it shall not affect the validity of any
other clause or provision herein, but such other clauses or provisions shall
remain in full force and effect.
ARTICLE TWENTY-SIX
NOTICES
All notices required under the terms of this Lease shall be given
and shall be complete by mailing such notices by certified or registered mail,
return receipt requested or receipted overnight courier, to the address of the
parties as shown on the first page of this Lease, or to such other address as
may be designated in writing, which notice of change of address shall be given
in the same manner.
ARTICLE TWENTY-SEVEN
TITLE & QUIET ENJOYMENT
The Landlord covenants and represents that the Landlord is the owner
of the Leased Premises and has the right and authority to enter into, execute
and deliver this Lease; and does further covenant that the Tenant on paying the
Minimum Rent and performing the conditions and covenants herein contained, shall
and may peaceably and quietly have, hold and enjoy the Leased Premises for the
Term.
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ARTICLE TWENTY-EIGHT
ENTIRE CONTRACT
This Lease contains the entire contract between the parties. No
representative, agent or employee of the Landlord has been authorized to make
any representations or promises with reference to the Leased Premises or to
vary, alter or modify the terms hereof. No additions, changes or modifications,
renewals or extensions hereof, shall be binding unless reduced to writing and
signed by the Landlord and the Tenant.
ARTICLE TWENTY-NINE
MECHANIC'S LIENS
If any mechanics' or other liens shall be created or filed against
the Leased Premises by reason of labor performed or materials finished for the
Tenant in the erection, construction, completion, alteration, repair or addition
to any building or improvement, the Tenant shall upon demand, at the Tenant's
sole cost and expense, cause such lien or liens to be satisfied and discharged
of record together with any Notices of Intention that may have been filed.
Failure to do so shall entitle the Landlord to resort to such remedies as are
provided herein in the case of any default of this Lease, in addition to such as
are permitted by law.
ARTICLE THIRTY
SECURITY
The Tenant has deposited with the Landlord the sum of Fifteen
Thousand Eight Hundred Sixteen 66/100 ($15,816.66) Dollars which represents two
(2) months Minimum Rent as security for the payment of the rent hereunder and
the full and faithful performance by the Tenant of the covenants and conditions
on the part of the Tenant to be performed. On the first year anniversary of this
Lease and on each anniversary date thereafter, the Tenant shall deposit the
additional money due to maintain the security deposit in an amount equal to two
(2) months Minimum Rent. Thereafter, the security deposit will always be equal
to two (2) months Minimum Rent. Said sum shall be refunded to the Tenant,
without interest, after the expiration of the term hereof, provided that the
Tenant has fully and faithfully performed all such covenants and conditions and
is not in arrears in any Minimum Rent or Additional Rent. During the Term
hereof, the Landlord may, if the Landlord so elects, have recourse to such
security, to make good any default by the Tenant, in which event the Tenant
shall on demand, promptly restore said security to its original amount. If
Tenant shall be in default by non-payment of rent, Landlord may apply such
security deposit to Minimum Rent, or Additional Rents due, and the Lease shall
be declared terminated and Tenant shall become a month to month Tenant, and not
otherwise. Liability to repay said security to the Tenant shall run with the
reversion of title to said premises, whether any change in ownership thereof be
by voluntary alienation or as the result of judicial sale, foreclosure or other
proceedings, or the exercise of a right of taking or entry by any mortgagee. The
Landlord shall assign or transfer said security, for the benefit of Tenant, to
any subsequent owner or holder of the reversion of title to said premises, in
which case the assignee shall become liable for the repayment thereof as herein
provided, and the assignor shall be deemed to be released by the Tenant from all
liability to return such security. This provision shall be applicable to every
alienation or change in title and shall in no way be deemed to permit
17
the Landlord to retain the security after termination of the Landlord's
ownership of the reversion of title. The Tenant shall not mortgage, encumber or
assign said security without consent of the Landlord.
ARTICLE THIRTY-ONE
DUE DATE FOR PAYMENT
The Minimum Rent shall be payable on the first day of each month,
and in the event this Lease commences on a day other than the first day of any
month, the rent shall be pro-rated for that time and shall be payable on the
first day of the next succeeding month.
ARTICLE THIRTY-TWO
HABITUAL LATE PAYMENT CLAUSE
Landlord and Tenant specifically agree that, at the option of the
Landlord, this Lease shall terminate without notice the third time Tenant pays
its Minimum Rent fifteen (15) days subsequent to the due date of such Minimum
Rent during any consecutive twelve (12) month period. In the event this Lease
terminates by reason of the late payment of Minimum Rent, as provided herein,
Tenant's occupancy thereafter shall be on a month-to-month basis and not
otherwise.
ARTICLE THIRTY-THREE
NON-SUFFICIENT FUNDS CLAUSE
Tenant understands and agrees that upon the return of any one check
for non-sufficient funds in Tenant's account, Tenant will then be placed on a
"Cash, Certified Check, or Money Order Only" basis and Landlord will not accept
any personal checks from Tenant as payment for Minimum Rent or for any other
charges which may be due or become due until further notice by Landlord.
ARTICLE THIRTY-FOUR
LATE FEE
Tenant agrees to pay a late charge of One Hundred 00/100 ($100.00)
Dollars for each installment of Minimum Rent which is received by Landlord later
than five (5) days subsequent to its due date. An additional One Hundred 00/100
($100.00) Dollars late fee will accrue for each subsequent thirty (30) days of
delinquency. Such late charge shall be payable as Additional Rent.
ARTICLE THIRTY-FIVE
APPLICATION OF MINIMUM RENT
Monies received from Tenant will be applied to an outstanding
account in an order determined at Landlord's discretion. Where the amount paid
does not satisfy all charges due, the Landlord may apportion the proceeds to
Minimum Rent, taxes, common area
18
maintenance, utilities, or any other charges billed to Tenant, without regard to
age or nature of the charge. Tenant shall not have the right to designate how a
payment shall be applied.
ARTICLE THIRTY-SIX
INTEREST
Amounts overdue by more than thirty (30) days shall incur an
interest charge of fifteen (15%) percent per annum. This interest charge is in
addition to, and not as a substitute for, any late charge otherwise provided for
herein. Interest charges billed to Tenant shall be considered as Additional
Rent.
ARTICLE THIRTY-SEVEN
ATTORNEY'S FEES
In the event Landlord employs an attorney to enforce the provisions
of this Lease to recover damages, rents or otherwise, or, for any dispossess
action or other court action, Tenant agrees to pay in addition all reasonable
filing fees, costs and legal fees incurred. All such costs, fees and legal fees
shall be payable as Additional Rent.
ARTICLE THIRTY-EIGHT
REFUSE REMOVAL
In the event that municipal refuse removal shall cease being
provided to the Demised Premises, Tenant agrees to provide, at its own expense,
a garbage or refuse dumpster at a location to be designated by Landlord. Tenant
further agrees to separate all garbage or refuse as per county, state or local
authority rules, regulations or ordinances and Tenant is responsible for the
removal of such separated garbage, refuse or debris. Tenant further agrees that
if spillovers, refuse and debris (recyclable garbage and debris included) of
Tenant is cleaned up by Landlord, Landlord's cost of labor and equipment is to
be computed at a rate of Seventy-Five ($75.00) Dollars per hour or any part
thereof and that cost is to be paid by Tenant to Landlord upon presentation of
an itemized statement. All monies due Landlord under the provisions of this
Article shall be considered as Additional Rent, and for the nonpayment of which
Landlord shall be entitled to institute a summary dispossess action in a court
of competent jurisdiction. Tenant further agrees to discontinue the use of any
such dumpster facility upon notification by Landlord to Tenant that the Landlord
has installed and/or procured a common compactor disposal unit or other common
disposal facility for the use of all tenants, and Tenant agrees to participate,
on a pro-rata basis, in the cost and maintenance of such common unit which cost
is to be included in the common area maintenance xxxxxxxx generated by Landlord
under the provisions of Article 39 entitled "Operating Expenses."
ARTICLE THIRTY-NINE
OPERATING EXPENSES (CAM CHARGES)
During the term of this Lease, or any extension thereof, the Tenant
is required to pay, as Additional Rent and in addition to the base rent, his
pro-rata share of the direct operating
19
cost of the Building. This cost to the Tenant shall be pro-rated based upon the
number of square feet leased by the Tenant as related to the whole square
footage of leasable space. Operating costs include, but is not limited to, real
estate taxes, assessments, janitorial, guard and maintenance services, labor,
reasonable managerial expenses, insurance, electricity, water and sewerage (if
any), payroll expenses, materials and supplies, and all other direct costs of
operating and maintaining the building. Landlord agrees to keep books and
records reflecting direct operating costs of the premises in accordance with the
standard method of accounting. This determination shall be conclusive between
all parties as to operating costs. All such charges shall be due and payable
upon presentation of an invoice. However, Landlord may later require that the
Tenant pay an estimated monthly or quarterly Common Area Maintenance (CAM)
charge during the term of this Lease, to be applied to the annual operating
expenses (CAM), attributable to Tenant. Upon execution of this Lease, Tenant
agrees that its pro-rata share of CAM charges is equal to 21.13% and its
estimated 2000 real estate taxes are currently Two and 45/100 ($2.45/sq. ft)
Dollars or Seven Hundred Forty-Five and 21/100 ($745.21) Dollars per month. In
the event the Tenant remains open on a twenty four (24) hour a day basis, Tenant
shall be solely liable for all additional CAM charges incurred and will
cooperate with Landlord's contractors as needed to provide necessary services to
the Leased Premises and Building.
ARTICLE FORTY
H.V.A.C.
In the event this is an original Lease, Landlord will guarantee the
air conditioning and heating unit for one (1) year and after one (1) year Tenant
must provide Landlord with proof of a service contract for the air conditioning
and heating unit for the duration of this Lease.
ARTICLE FORTY-ONE
HOLDOVER
If Tenant holds possession of the Demised Premises after the
termination of the Lease or any extension or renewal thereof, Tenant shall
become a Tenant from month-to-month at two (2) times the Minimum Rent and upon
all other terms of this Lease, and shall continue to be a tenant from
month-to-month until such tenancy shall be terminated by Landlord, or, until
Tenant shall have given to Landlord a written notice of at least one month of
intention to terminate such tenancy. Nothing contained in this Lease shall be
construed as a consent by Landlord to the occupancy or possession of the Demised
Premises by Tenant after the termination of the Lease or any extension or
renewal thereof, and Landlord, upon said termination, shall be entitled to the
benefit of all public general or public local laws relating to the speedy
recovery of the possession of lands and tenements held over by tenants that now
may be in force or thereafter may be enacted.
ARTICLE FORTY-TWO
PARKING OF BUSINESS USE VEHICLES
Upon notice from the Landlord, Tenant covenants and agrees that (a)
any and all motor vehicles owned and/or used by Tenant in the conduct or
operation of Tenant's business or operation will be parked in an area designated
by Landlord, and/or, (b) Tenant shall not permit
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itself or its agent's, employees or invitees to have vehicles displaying "for
sale" signs nor shall Tenant, its agents, employees or invitees conduct the sale
of such vehicle(s) in the common areas of Building. Tenant recognizes and
stipulates that a violation of this covenant is a material and substantial
breach of the terms and provisions of this Lease and that any such violation is
grounds for termination and eviction, for which the Landlord may institute
summary dispossess action in a court of competent jurisdiction.
ARTICLE FORTY-THREE
LIABILITY
Tenant and Landlord each for themselves, their heirs and assigns and
subrogees, hereby releases the other, to the extent of each other's insurance
coverage.
ARTICLE FORTY-FOUR
SURRENDER OF PREMISES
Tenant shall, upon the expiration or sooner termination of the term
of this Lease, (i) surrender to Landlord the Leased Premises, together with all
alterations (unless Landlord shall elect to require Tenant to remove same) and
replacements thereof then on the Leased Premises, in good order, condition and
repair, except for reasonable wear and tear and (ii) remove all of Tenant's
signs from the Building and all directory signs and replace each such sign with
a blank white panel. The Leased Premises shall not be deemed to have been
surrendered by Tenant, and all rental and other payment obligations under this
Lease shall continue, until Landlord has received all keys to the Leased
Premises from Tenant.
ARTICLE FORTY-FIVE
TENANT'S COMPLIANCE WITH ENVIRONMENTAL, HEALTH
AND SAFETY REQUIREMENTS
45.01 Tenant shall comply with all federal, state and local
environmental, health and safety laws, including but not limited to the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
9601, the New Jersey Industrial Site Recovery Act ("ISRA"), N.J.S.A. 13:1K-6 et
seq. the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11b,
et seq. all successor laws and amendments to each of the foregoing and all
rules, regulations, orders, directives, notices and requirements of governmental
agencies or bodies or insurance companies issued or promulgated under or
relating to such laws (collectively, "Environmental Laws").
Tenant agrees not to cause or permit the generation, storage,
handling, manufacture, refinement, transportation, treatment, disposal, or
release of Hazardous Substances on or about the Premises other than de minimis
amounts of Hazardous Substances customarily used for normal business operations
and in strict compliance with all Environmental Laws. As used herein "Hazardous
Substance" means any substance that is toxic, ignitable, reactive, or corrosive
or that is regulated by any local, state or federal government. "Hazardous
Substance" includes but is not limited to, any and all materials or substances
that are defined as "hazardous waste," "extremely hazardous waste," "hazardous
substance", "contaminants" or "pollutants"
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pursuant to Environmental Laws. "Hazardous Substance" includes, but is not
limited to, asbestos, polychlorinated biphenyls ("PCBs"), petroleum and
petroleum products.
45.02 Tenant represents to Landlord that: (1) during the term of the
Lease, Tenant will use the Premises for a retail bank and bank administrative
offices to conduct any banking activities permitted under the laws of the State
of New Jersey; and (2) Tenant's operations, and its use of the Premises, is not
and will not become subject to ISRA, unless Landlord's consent is first
obtained. Within ten (10) business days following the execution of this Lease,
Tenant shall notify Landlord of Tenant's Standard Industrial Classification
(SIC) code as designated in the Standard Industrial Classification Manual
prepared by the Office of Management and Budget, in the Executive Office of the
President of the United States. Tenant must provide its SIC code as a condition
precedent to taking possession of the premises. If the SIC code provided is
subject to ISRA, or Tenant is otherwise subject to ISRA, prior to Tenant taking
possession of the leasehold, Landlord may at its sole discretion terminate this
Lease.
45.03 After Tenant takes possession of the leasehold, any change in
use of the premises by Tenant or any change of operations by Tenant which
results in the Tenant being subject to ISRA, shall require Landlord's written
consent. The request for consent to this change shall be sent in writing to
Landlord sixty (60) days prior to the proposed change or Landlord, at its sole
option, may deny consent. In the event that Landlord denies consent to the
change, the Lease shall be deemed terminated as of thirty (30) days from the
date of Landlord's written denial of the request.
In the event that Tenant now is, or hereafter becomes subject to
ISRA, including under any amendment to or successor law to ISRA, Tenant agrees
that it shall, at its sole cost and expense, fulfill, observe and comply with
all of the terms and provisions of ISRA and all rules, regulations, ordinances,
opinions, orders and directives issued or promulgated pursuant to or in
connection with ISRA by the Department of Environmental Protection ("DEP"), or
any subdivision or bureau thereof or any other governmental or
quasi-governmental agency, authority or body having jurisdiction thereof.
45.04 Without limiting the foregoing, upon Landlord's request
therefor, and in all events prior to the earlier of the termination of its
leasehold, or its "closing operations or transferring ownership or operations"
(as said terms are defined in ISRA) Tenant shall, at its sole cost and expense,
provide the Landlord with a true copy of documentation from DEP (or such other
agency or body which shall then have jurisdiction over matters) in a form
satisfactory to Landlord stating that ISRA does not apply to Tenant and Tenant's
use and occupancy of the Premises. If the premises is subject to ISRA, then
Tenant shall provide Landlord with a negative declaration, as that term is used
in ISRA, or another document demonstrating, to Landlord's satisfaction, that
Tenant has complied with ISRA. Nothing in this paragraph shall be construed as
limiting Tenant's obligation to otherwise comply with ISRA and Environmental
Laws.
45.05 Tenant agrees that it shall, at its sole cost and expense: (i)
post any financial guarantee or other bond required to secure implementation and
completion of all investigations, remedial action plans and cleanup plans
required by any Environmental Laws; (ii) promptly implement and diligently
prosecute to completion said work; and (iii) bear all costs and expenses
resulting from, arising out of or connected with Tenant's use or occupancy of
the Premises including, but not limited to, state agency oversight fees,
environmental consulting and engineering fees, investigation, sampling, analysis
and remedial/cleanup costs, filing fees,
22
attorneys' fees, court costs, and financial assurance and suretyship expenses
(collectively, "Environmental Costs"). Tenant expressly understands,
acknowledges and agrees that Tenant's compliance with the provisions of this
section may require Tenant to expend funds or do acts after the expiration or
termination of the Lease Term and Tenant shall not be excused therefrom.
The Tenant shall immediately copy the Landlord on all
correspondence, reports, notices, orders, findings, declarations and other
materials pertinent to the Tenant's compliance with Environmental Laws,
including, but not limited to ISRA. Tenant agrees to execute such documents as
Landlord reasonably deems necessary to make such applications as Landlord
reasonably requires to assure the Tenant's, the Landlord's or the Premises'
compliance with ISRA and/or any other Environmental Laws.
Tenant, at its sole cost and expense, shall promptly discharge and
remove any lien or encumbrance against the Premises, the building, or the
complex imposed due to Tenant's use or occupancy of the Premises or its failure
to comply with Environmental Laws.
45.06 Prior to the termination of the Lease, Tenant shall remove all
Hazardous Substances from the premises in accordance with Environmental Laws.
Tenant agrees to indemnify and hold harmless the Landlord and each
mortgagee of the Premises from and against any and all Environmental Costs and
all liabilities, damages, claims, investigations, proceedings, settlements,
fines, penalties, losses, judgments, causes of action, costs and expenses
(including the reasonable fees and expenses of counsel) which may be incurred by
or on behalf of the Landlord or any mortgagee, or which may be threatened
against the Landlord or any mortgagee, relating to or arising out of: any breach
by Tenant of the undertakings set forth in this section; Tenant's use or
occupancy of the Premises; and any potential application of ISRA or other
Environmental Laws to Tenant.
The foregoing representations, covenants, undertakings and
indemnifications shall survive the expiration or sooner termination of the Lease
and surrender of the Premises and shall also survive sale, lease or assignment
of the Premises by Landlord.
ARTICLE FORTY-SIX
CONFORMITY WITH LAWS & REGULATIONS
46.01 The Landlord may pursue the relief or remedy sought in any
clause that may be declared invalid by a court of competent jurisdiction, by
conforming the said clause with the provisions of the statutes or the
regulations of any governmental agency in such case made and provided as if the
particular provisions of the applicable statutes or regulations were set forth
herein at length.
46.02 In all references herein to any parties, persons, entities or
corporations the use of any particular gender or the plural or singular number
is intended to include the appropriate gender or number as the text of the
within instrument may require. All the terms, covenants and conditions herein
contained shall be for and shall inure to the benefit of and shall bind the
respective parties hereto, their heirs, executors, administrators, personal or
legal representatives, successors and assigns.
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ARTICLE FORTY-SEVEN
WAIVER OF TRIAL BY JURY
To the extent permitted by applicable law, Landlord and Tenant
hereby waive trial by jury in any action, proceeding or counterclaim brought by
either against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant and Tenant's
use or occupancy of the Demised Premises including any claim of injury or
damage, or any emergency or other statutory remedy with respect thereto.
ARTICLE FORTY-EIGHT
ESTOPPEL CERTIFICATE
48.01 Tenant agrees, at any time and from time to time, as requested
by Landlord, upon not less than ten (10) days prior written notice, to execute
and deliver without cost or expense to the Landlord or its nominee a statement
in form satisfactory to Landlord certifying that, (i) this Lease is unmodified
and in full force and effect (or if there have been approved modifications),
(ii) certifying the dates to which the Minimum Rent and Additional Rent have
been paid, (iii) stating whether or not, to the best knowledge of Tenant,
Landlord is in default in performance of any of its obligations under this
Lease, and, if so, specifying each such default of which Tenant may have
knowledge, (iv) certifying that the Tenant has made no advancements for or on
behalf of the Landlord for which it has the right to deduct from or offset
against future rentals as of the day of the certificate and has not paid rent
for more than the current month during which the certification is made and (v)
such other provisions as may be requested by any mortgagees having a mortgage
upon the leasehold or fee of the Demised Premises.
48.02 It is intended that any such statement delivered to the
Landlord or its nominee pursuant to this Article 48 may be relied upon by any
prospective purchaser of the fee or any mortgagee thereof or any assignee of any
mortgage upon the leasehold or fee of the Demised Premises or any proposed
lessee of all or part of the Building.
ARTICLE FORTY-NINE
GENERAL PROVISIONS
49.01 This Lease does not create the relationship of principal and
agent or of partnership or joint venture or of any association between Landlord
and Tenant, the sole relationship between Landlord and Tenant, being that of
landlord and tenant.
49.02 The consent to or approval by Landlord of any act by Tenant
requiring Landlord's consent or approval, including but not limited to
permission to assign this Lease or sublet the Demised Premises or any portion
thereof, shall not waive or render unnecessary Landlord's consent to or approval
of any subsequent similar act by Tenant.
49.03 Each term and each provision of this lease performable by
Tenant shall be construed to be both a covenant and a condition.
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49.04 Unless expressly so provided, no action required or permitted
to be taken by or on behalf of Landlord under the terms or provisions of this
Lease shall be deemed to constitute an eviction or disturbance of Tenant's
possession of the Demised Premises.
49.05 The Tenant, whenever the weather shall require, shall heat or
cool the Demised Premises to a level satisfactory to the Landlord.
49.06 Space outside the Demised Premises or space not within the
Demised Premised which Tenant may be permitted to use and/or occupy shall be
deemed to be used and/or occupied under a revocable license and if any such
license shall be revoked or if the amount of such be diminished, Landlord shall
not be subject to any liability nor shall Tenant be entitled to any compensation
or diminution or abatement of rent nor shall such revocation or diminution be
deemed constructive or actual eviction.
49.07 The submission of this Lease for examination or as
solicitation for an offer does not constitute a reservation of or option for the
Demised Premises, or an offer to lease.
49.08 The marginal and topical headings of the Articles are not a
part of this Lease, but are for convenience only and do not define, enlarge,
limit or construe any of the provisions hereof.
49.09 All preliminary negotiations are merged into and incorporated
in this Lease.
49.10 The laws of the State of New Jersey shall govern the validity,
performance and enforcement of this Lease.
49.11 Tenant shall not record this Lease, but if Landlord should
desire to record a short form Memorandum of Lease setting forth only the
parties, the Demised Premises, and the Term, such Memorandum of Lease as
prepared or approved by Landlord shall be executed, acknowledged and delivered
to Landlord by Tenant.
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ARTICLE FIFTY
BROKER
Tenant and Landlord covenant and agree that neither has dealt with
any broker or brokers concerning this Lease transaction. Tenant and Landlord
agree to indemnify, defend and hold the other harmless from and against any
claims for brokerage Commission or finders fee arising out of or based on any
alleged actions of Tenant or Landlord with any other broker or brokers.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands
and seals, or caused these presents to be signed by their proper corporate
officers and their proper corporate seal to be hereto affixed, the day and year
first above written.
WITNESS: XXXXXXX LEASING, LLC,
a New Jersey Limited Liability Company
BY: /s/ Xxxxx X. Xxxxxxx, Xx.
------------------------ -----------------------------------
XXXXX X. XXXXXXX, XX., Member
ATTEST: TWO RIVER COMMUNITY BANK,
a New Jersey Banking Corporation
/s/ Xxxxxxx X. Kotza BY: /s/ Xxxxx X. Xxxxxx
------------------------------ -----------------------------------
ASST. SECRETARY Print Name: Xxxxx X. Xxxxxx
---------------------------
Its: Chairman
----------------------------------
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
SENIOR VICE PRESIDENT
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