LEASE AGREEMENT
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This Lease Agreement ("Lease") made as of the __________ of
October , 1994, by and between The Lalor Urban Renewal Limited Partnership
("Landlord"), a LIMITED PARTNERSHIP existing under the laws of the State of NEW
JERSEY, having its principal offices at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxx
Xxxxxx 00000, and The Yardville National Bank ("Tenant"),
WITNESSETH:
That for and in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
LEASE PROVISIONS AND SCHEDULES
Section 1.1. Certain Defined Terms
A. Retail center area" or "retail center" means that area
within that certain parcel of land, situated in Trenton, NEW JERSEY, commonly
known as The Lalor Plaza.
B. "Building complex" means the building or store in which the
premises are located which is known as Unit No, B-lb Right.
C. "Premises" means that portion of the building complex
having approximately 1500 square feet of floor area.
D. "Term" means a period of 5 (Five ) YEARS commencing and
ending as provided in Section 3.1.
E. "Permitted Use" means Bank. For this purpose and this
purpose only.
F. "Annual basic rental" means the sum of $ 15.00 per square
foot multiplied by the number of square feet in the floor area of the premises,
which shall be subject to the proration as provided in this Agreement.
$ 15.00 x 1500 sq. feet = $ 22,500.00 for the first year or $
1875.00 per month.
The annual basic rental shall increase each annual anniversary
date on the basis of the Consumer Price Index for all Urban Consumers, New York,
New York-Northeastern New Jersey, all items (Index average for all items was 100
in 1967) issued by the Bureau of Labor Statistics for the United State
Department of Labor or by a *SEE BASIC LEASE PROVISION increase over the
previous year's base rental, whichever is greater.
G. "Renewal Option(s)" means Tenant shall have the right and
option to extend the term of this lease on the same terms, conditions and
covenants as provided herein for 3 periods of five (5 years beyond the original
term hereof, except that Section 1.lF Annual Basic Rental shall be amended as
shown in Basic Lease Provisions.
Rent during each option period is payable in advance on the
first day of each and every month.
The Tenant will notify the Landlord in writing See Basic Lean
Provisions prior to the expiration of the Lease of their intentions to vacate,
renew or exercise option. In the event the Tenant fails to give the above
referred to notice and has an option to renew, the Landlord may choose one of
the following: 1) Waive the notice requirements and consider the option
exercised; 2) Serve the Tenant notice to vacate on the expiration date of the
present term; or 3) Renegotiate the terms of any extension of the Lease. The
Landlord will make one of the above choices prior to the expiration date of the
particular term of the Lease in force, at that time.
H. "Security Deposit" means the sum of $ See Basic Lease
Provisions. To secure the covenants and promises of the Tenant contained herein,
the Tenant shall deposit with the Landlord the sum of the See Basic Lease
Provisions in cash, as a security deposit. This sum shall be returned to the
Tenant without interest at the expiration of the term provided the Tenant has
performed in accordance with the terms hereof. The Landlord may apply any part
of said sum to cure any default of Tenant and the Tenant shall, upon demand,
deposit with the Landlord an amount equal to that applied so that Landlord shall
have the full deposit on hand at all times during the term of this Lease. If, at
the end of the term, repairs are necessary to correct any condition beyond
ordinary wear and tear or any payment to be made by Tenant to Landlord remains
unpaid, then the security, or a portion thereof, may be used by the Landlord to
make such repairs or payments and the balance remaining shall be returned to the
Tenant. The security deposited under this Lease shall not be mortgaged, assigned
or encumbered by the Tenant without the written consent of the Landlord. Tenant
hereby waives any future law or laws which may require the Landlord to segregate
the aforementioned security deposit or to pay interest on said security deposit.
I. "Advance Rental" means that, upon the execution hereof,
Tenant shall pay to the Landlord the first month's rent of $ See Basic Lease
Provisions.
J. "Tenant notice address" means See Basic Lease Provisions.
K. "Tenant trade name" means See Basic Lease Provisions.
L. "Floor area" means the actual number of square feet in the
building complex `which is See Basic Lease Provisions square feet designed f or
the exclusive use and occupancy of rent paying tenants, excluding common areas.
M. "Common area" means those areas and facilities which may be
furnished by Landlord on or near the retail area for the non-exclusive general
common use of tenants, and other occupants of the center areas, also use of such
areas of facilities, their officers, agents, employees and customers, including
(without limitation) all parking areas, access roads, employee parking area,
truckways, driveways, loading docks and areas, delivery passages, package
pick-up stations, sidewalks, malls, courts, ramps, landscapes and planted areas,
retaining walls, roofs, lighting facilities, rest rooms, and other similar
areas, facilities or improvements. "Common area" shall specifically include all
lands lying within the retail area with respect to which Landlord by agreement
either provides maintenance and/or landscaping services or contributes all or
any portion of the cost of providing such service.
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N. "Landlord" means and includes only the owner of the fee
title of the premises. Upon the transfer by Landlord of the fee title hereunder,
the Landlord shall advise the Tenant, in writing, by certified mail, return
receipt requested, of the name of Landlord's transferee. In such event, the then
Landlord shall be automatically freed and relieved from and after the date of
such transfer of title of all liability with respect to the performance of any
of the covenants and obligations on the part of the Landlord herein contained to
be performed subsequent to the date of such transfer of title, provided any such
transfer and conveyance by the Landlord is expressly subject to the assumption
by the grantee or transferee of the obligations of the Landlord to be performed
pursuant to the terms and conditions of the within lease, including an express
assumption by the said grantee or transferee of the obligation to repay any
security which has been or may be deposited with the Landlord pursuant to the
terms and conditions of the within lease.
O. "Default rate" means the monthly rate of interest as set
forth in paragraphs 16.1 F "Event of Default" Defined and 16.2 B Remedies.
Section 1.2. Attachments
The following document is attached hereto, and such document,
as well as all drawings and documents prepared pursuant thereto, shall be deemed
to be a part of this lease.
See List of second page of Basic Lease Provisions.
ARTICLE II
PREMISES
Section 2.1. Demise
Landlord hereby leases to Tenant, and Tenant hereby takes from
Landlord, the premises for the term and at the rental hereinafter described.
Tenant takes the premises "as is" except as otherwise may be specifically set
forth herein.
Section 2.2. Measurement of Premises
Notice is hereby given that the floor area of the premises is
See Basic Lease Provisions square feet. Said measurements shall be deemed to be
the floor area of the premises for all purposes of this lease unless, within ten
(10) days after receipt of this notice, Tenant shall give Landlord written
notice that Tenant believes Landlord's measurement to be inaccurate, in which
event Landlord shall cause its architect or engineer to make such measurement
and certify the same to the parties and shall be deemed to be floor area of the
premises for all purposes of this lease. Landlord warrants that the floor area
of the premises determined by measurement pursuant to this Section shall be
within ten percent (10%) of the approximate floor area shown in Clause C of
Section 1.1.
(Optional Measurement of Premises paragraph)
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On or before the commencement of the term, Landlord shall
measure the premises and shall give Tenant notice of the floor area so
determined. The floor area of the premises disclosed by +, such notice shall be
deemed to be floor area of the premises - See Basic Lease Provisions with the
language continuing from this point as set forth in above paragraph).
ARTICLE III
TERM
Section 3.1. Term
A. The term shall commence as hereafter provided unless sooner
terminated hereby. Said term, and Tenants' obligation to pay rent, shall
commence on the earlier of the following dates: (a) the See Basic Lease
Provisions day of _______________l9_: (b) the date which is Basic Lease
Provisions days after the Tenant has been notified in writing the demised
premises are ready for occupancy, or the date the tenant shall open the Demised
Premises for business, whichever shall first occur. In the event that the Basic
Lease Provisions day period does not occur on the first day of the month or
Tenant shall have opened the demised premises for business on a day other than
the first day of the month, then the term shall commence on the first day of the
month next succeeding. However, the Tenant shall pay rent for the fractional
month on a per diem basis (calculated on the basis of a thirty day month) until
the first day of the month when the term commences: and thereafter the rent
shall be paid in equal monthly installments in advance on the first day of each
month during the term of this lease. It is presently contemplated that the
commencement date of this lease shall be on or about See Basic Lease Provisions,
19__, subject to terms and conditions hereinafter provided.
Section 3.2. Termination
This lease shall terminate at the end of the term without the
necessity of any notice from either Landlord or Tenant to terminate the same,
and Tenant hereby waives notice to vacate or quit the premises and agrees that
Landlord shall be entitled to the benefit of provisions of law respecting
summary recovery of possession of the premises from a Tenant holding over to the
same extent as if statutory notice has been given. For the period of three (3)
months prior to the expiration of the term, Landlord shall have the right to
display on the exterior of the premises the customary sign "For Rent" and during
such period Landlord may show the premises, and all parts thereof, to
prospective tenants during normal business hours.
Section 3.3. Holding Over
A. If Tenant shall be in possession of the premises at the end
of the term with the consent or permission of Landlord, the tenancy under this
lease shall become month-to-month, terminable by either party on thirty (30)
days' written notice.
B. During and for any hold-over period in which Tenant
occupies the premises after expiration of the term, the monthly rental shall be
double the monthly rental for the month immediately preceding the hold-over
period, and all other responsibilities and obligations of Tenant hereunder shall
continue in full force and effect.
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Section 3.4. Surrender of Premises
On the last day or sooner termination of the term, Tenant
shall quit and surrender the premises broom-clean, in good condition and repair
(reasonable wear and tear and damage by Acts of God, fire extended coverage
perils excepted), together with all alterations, additions and improvements
which may have been made in, on or to the premises, except movable furniture or
unattached movable trade fixtures put in at the sole expense of Tenant; Trade
fixtures which are built in specifically with regard to use as will be removed
by the tenant and at tenants expense. If the premises be not surrendered as and
when aforesaid, Tenant shall indemnify Landlord against loss of liability
resulting from the delay by Tenant in so surrendering the premises including,
without limitation, the claims made by any succeeding occupant founded on such
delay. Tenant's obligation under this Section shall survive the expiration or
sooner termination of the term.
Section 3.5. Tenants Personal Property
Any equipment, fixtures, goods, or other property of the
tenant not removed by the tenant upon the 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 held accountable to the
tenant for any part of the proceeds of such sale, if any. However, in the event
that the Landlord incurs substantial costs in the disposition of the personal
property of the tenant, then, in that event, Landlord shall be entitled to add
the cost to all sums due it from the Tenant and proceed with the new amount as a
claim against the tenant.
ARTICLE IV
CONTINUOUS OPERATION AND USE
Section 4.1. Prompt Occupancy and Use
Tenant shall occupy the premises upon commencement of the term
and thereafter shall continuously use the premises for the permitted use and for
no other purpose whatsoever. In addition to the conditions set forth in Article
VIII (Operations), Tenant shall:
A. Keep its store continuously, fully stocked with high
quality, salable merchandise except under circumstances in which tenant is a
service business;
B. Keep its store fully staffed with employees, no store shall
be left open with out an attendant;
C. Tenant shall cause its business to be conducted and
operated in good faith and in such manner as shall assure the transaction of a
maximum volume of business in and at the premises.
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Section 4.2. Storage and Office Area
Tenant shall use only such minor portions of the premises for
storage and office purposes as are reasonably required therefor and shall not
perform any office or clerical function in the premises for any other store.
Section 4.3. Tenant's Trade Name
Unless otherwise approved by Landlord, Tenant shall conduct
business in the premises only in Tenant's trade name.
Section 4.4. Operating Hours
A. Unless other hours are approved by Landlord, in writing,
Tenant shall cause the premises to be open for business at least 40 hours per
week.
ARTICLE V
RENTAL
Section 5.1. Rentals Payable
Tenant covenants and agrees to pay to Landlord as rental for
the premises, the following;
An annual sum equal to the annual basic rental specified in
Clause F of Section 1.1.
Section 5.2.
A. Annual basic rental shall be payable in equal monthly
installments, in advance, on the first day of each full calendar month during
the term, the first such payment to include also any prorated annual basic
rental for the period from the date of the commencement of the term to the first
day of the first full calendar month in the term.
B. Annual increases in the base rent in the event of increases
in the cost of living based on the "all items" Index for the New
York-Northeastern New Jersey area of the "Consumers Price Index for all Urban
Consumers" (revised CPI-U (1982 - 1984 equal to 100) published by the Bureau of
Labor Statistics of the U.S. Department of Labor (hereinafter referred to as the
"Index"). The Index figure for the initial month, shall be compared with the
Index figure for the anniversary month in each subsequent year during the term
of this lease, If the latter figure is more than the Index for the initial
month, the latter figure shall be divided by the former figure to determine the
new base rent. The new base rent will be divided by 12 to determine the new
monthly installment. The computations are shown in the following example:
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Example:
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Index Point Change
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CPI - 305.8
299.9 - previous CPI
equals 5.90 Index Point Change
Percentage Change
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Index point difference is 5.90
divided by the previous
Index of 299.9-----0.020 x 100 or 2.00 percent change
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0.020 x $(annual total) annual equals $(yearly total of increase) or
$(monthly increase)27.50 CPI increase
base rental $ (monthly base rent)
+ (monthly increase)
--------------------------------------------
$ (total) new monthly installment
Provided, however, in no event shall the new monthly base rent be less than the
prior years monthly base rent. Since Index figures for the month of the
anniversary month are not available for several weeks after said month of each
year, the base rental will continue to be paid on an estimated basis in monthly
installments equal to the monthly installments for the preceding year. Upon the
availability of the actual month's Index figures, the base rent will be
recomputed and Tenant will pay to Landlord, upon demand, the deficiencies, if
any, in each monthly installment of the current year paid prior to the date of
such computation. Thereafter, Tenant will pay the base rental based on the newly
computed monthly installment.
Section 5.3. "Rental Year" Defined
The term "rental year" shall mean the twelve (12) full
calendar months of the term commencing with the first payment immediately
following the first day of the term and shall end on the last day of the term.
Section 5.4. Payment of Rental
Tenant shall pay all rental when due and payable, without any
setoff, deduction or prior demand. Any rental which is not paid within seven (7)
days after the same is due shall bear interest at the rate of ten percent (10%)
per month as set forth in Section 16.2 (B) Remedies of this Lease, calculated
from the due date until such rental is paid. In the event Tenant issues a check
for any rental which is returned to Landlord as unpaid for any reason, Landlord
shall be entitled to add the 10% per month rate to the next rental xxxx
representing a service charge for such occurrence. Such amount shall be
collectible by Landlord as additional rental based on a 360-day year. Any
additional rental which shall become due shall be payable, unless otherwise
provided herein, with the next Installment of annual basic rental. Rental and
statements required of Tenant shall be paid and delivered to Landlord at the
management office of Landlord in the retail center or at such other place as
Landlord may, from time to time, designate in a notice to Tenant. Any payment by
Tenant or acceptance by Landlord of a lesser amount than shall be due from
Tenant to Landlord shall be treated as payment on account. The acceptance by
Landlord of a check for a lesser amount with an endorsement or statement
thereon, or upon any letter accompanying such check, that such lesser amount is
payment in full, shall be given no effect, and Landlord may accept such check
without prejudice to any other rights or remedies which Landlord may have
against Tenant.
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ARTICLE VI
TAXES
Section 6.1. Tenant to Pay Proportionate Share of Taxes
Tenant shall pay in each tax year during the term, as
additional rental, a proportionate share of all real estate taxes, ad valorem
taxes and assessments, general and special assessments, taxes on real estate
rental receipts, taxes on Landlord's gross receipts, business use and occupancy
taxes, business operations taxes, or any other tax imposed upon or levied
against real estate or upon owners of real estate as such rather than
personally, generally, or payments made to a federal, state or local government
authority by Landlord in lieu of any such taxes or assessments, payable with
respect to or allocable to the entire tax lot of which the premises are a part
(excepting only those portions of the said lot which are a part of the "common
areas" as defined herein), together with the reasonable cost (including fees of
attorneys, consultants and appraisers) of any negotiation, contest or appeal
pursued by Landlord in an effort to reduce any such tax, assessment or charge,
the same being collectively referred to herein as "taxes". In computing the
value of the common area to be excepted, the entire assessed value of the land
shall be deemed to be distributed equally throughout the lot on a square foot
basis. Tenant's proportionate share of taxes for any tax year shall be computed
by multiplying the amount of such taxes by a fraction, the numerator of which
shall be the floor area of the premises and the denominator of which shall be
the total floor area of all leasable area. For the tax year in which the term
commences or terminates, Tenant's liability for its proportionate share of any
taxes shall be subject to a prorated adjustment based upon the number of days of
such tax year falling within the term, as set forth in Section 6.3 below. (Note
above mentioned taxes apply only if in existence in state of property this lease
is on.)
Section 6.2. Payment of Proportionate Share of Taxes
Tenant's proportionate share of taxes shall be paid by Tenant,
in equal monthly installments, in such amounts as are estimated and billed for
each tax year by Landlord at the commencement of the term and at the beginning
of each successive tax year during the term, each such installment being due on
the first day of each month. Within sixty (60) days after Landlord's receipt of
tax bills for each tax year, or such reasonable (in Landlord's determination)
time thereafter, Landlord will certify to Tenant the amount of taxes for the tax
year in question and the amount of Tenant's proportionate share thereof. Annual
taxes will be divided by 10 installments and billed monthly. Due to advance
collection of taxes by municipalities the annual contribution towards taxes by
Tenant will be billed monthly but divided by ten (10). Tenants' excess
contributions of real estate taxes, if any, will be credited at the end of the
term. If tenants' contribution of real estate taxes have not fully paid its
proportionate share, the amount so due and owing shall be paid by the Tenant to
the Landlord at the end of the term.
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Section 6.3. "Tax Year" Defined
The term "tax year" shall mean the twelve (12) full calendar
months of the term commencing with the January 1st immediately following the
first day of the term and shall end December 31st of such calendar year;
thereafter each tax year shall consist of successive periods of twelve (12)
calendar months; provided, however, that the first tax year shall commence on
the first day of the term and terminate on the immediately following 31st day of
December, and the last tax year shall terminate on the last day of the term.
Section 6.4. Taxes on Rental
In addition to Tenant's proportionate share of taxes, Tenant
shall pay to the appropriate agency any and all sales taxes, excise taxes, and
business use and occupancy taxes (not including, however, Landlord's income
taxes) levied, imposed or assessed by the State of See Basic Lease Provisions or
any political subdivision thereof or other taxing authority, upon any rental
payable hereunder.
Section 6.5. Change in Method or Scope of Taxation
A. If at any time following the execution of this lease the
method or scope of taxation prevailing at the date of such execution shall be
altered, modified or enlarged so as to cause the method of taxation to be
changed, in whole or in part, so that some other tax, levy or other imposition
is substituted in whole or in part for the real estate taxes assessed against
the premises on the date of execution of this lease, then and in such event,
each and every such substituted tax or other imposition shall be payable and
discharged by Tenant in the manner required pursuant to the law promulgating
such tax or other imposition. If any such substitute tax or other imposition
shall be in the form of an income tax or in the form of any other tax or
imposition which the law promulgating the same shall require Landlord to pay,
then Tenant shall pay Landlord as additional rental during the term of this
lease such amount as shall be equivalent to the amount by which the real estate
taxes have been decreased or diminished. Such payments shall be made by Tenant
to Landlord at such time or times as Landlord shall be required to pay such
substitute taxes in accordance with law and with the provisions of this lease.
B. It being Tenant's obligation to pay all prorated shares of
real estate taxes assessed against the premises as provided elsewhere in this
lease, the parties recognize and acknowledge that the intent and purpose of this
paragraph is to provide against and assure that Landlord does not suffer or
sustain any diminution in the Landlord's gross receipts from the rental of the
premises resulting from any change in the scope or form of taxation which has
the effect of shifting any of Tenant's obligations under this lease, or any part
thereof, to Landlord; and Tenant hereby agrees to protect Landlord against any
such diminution in gross receipts as a result thereof.
C. In the event that any dispute shall arise between the
parties with respect to any provisions contained in this Section, then the
parties agree to submit such dispute for arbitration in accordance with the
rules of the American Arbitration Association.
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D. Landlord agrees to provide Tenant with all reasonable tax
xxxx documentation, including a copy of tax xxxx and a copy of calculations
required to support the xxxx.
ARTICLE VII
IMPROVEMENTS
Section 7.1. Tenant's Improvements
A. On or before the commencement of the term, Tenant shall, at
its sole cost and expense, complete all improvements and other work to be
performed by it. Tenant shall be permitted by Landlord to enter the premises for
the purpose of performing its improvements and for the purpose of installing its
fixtures and other equipment, provided:
(i) Tenant shall have obtained Landlord's
written approval of the plans and specifications for such work as attached
Exhibit "E"; and
(ii) Tenant shall have deposited with Landlord
the policies or certificates of insurance required in Article XIII; and
(iii) Tenant shall have secured all necessary
permits and approvals of all boards, bureaus and agencies having jurisdiction
and Tenant shall have provided copies of such to Landlord; and
(iv) Tenant's activities shall be conducted so as
not unreasonably to interfere with Landlord's construction activities or with
other tenants.
B. Tenant shall, at its expense, remove from the premises and
from the retail center area, all trash which may accumulate in connection with
Tenant's activities. During such period, Tenant shall perform all duties and
obligations imposed by this lease, including, without limitation, those
provisions relating to insurance and indemnification, saving and excepting only
the obligation to pay rental (other than any additional rental arising out of
any failure of Tenant to perform its obligations under this lease), which
obligation shall commence when the term commences.
Section 7.2. Mechanic's Liens
No work which Landlord permits Tenant to do pursuant to this
lease, whether in the nature of erection, construction, alteration or repair,
shall be deemed to be for the immediate use and benefit of Landlord so that no
mechanic's or other lien shall be allowed against the estate of Landlord by
reason of any consent given by Landlord to Tenant to improve the premises.
Tenant shall pay promptly all persons furnishing labor or materials with respect
to any work performed by Tenant or its contractor on or about the premises. In
the event any mechanic's or other lien or notice of intention to claim such lien
shall at any time be filed against the premises by reason of work, labor,
services or materials performed or furnished, or alleged to be performed or
furnished, to Tenant or to anyone holding the premises through or under Tenant,
Tenant shall forthwith cause the same to be discharged of record or bonded to
the satisfaction of Landlord. If Tenant shall fail to cause such lien or notice
forthwith to be so discharged or bonded after being notified of the filing
thereof, then, in addition to any other right or remedy of Landlord, Landlord
may discharge the same by paying the amount claimed to be due, and the amount so
paid by Landlord including reasonable attorneys' fees incurred by Landlord in
procuring the discharge of such lien or notice, together with interest thereon
at the default rate, shall be due and payable by Tenant to Landlord as
additional rental and shall be paid in -monthly installments.
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Section 7.3. Tenant's Trade Fixtures
All unattached, movable trade fixtures and movable furniture
(as distinguished from leasehold improvements) owned by Tenant and installed in
the premises shall remain the property of Tenant and shall be removable at any
time, including upon the expiration of the term; provided Tenant shall not at
such time be in default of any terms, conditions, provisions or covenants of
this lease, and provided further that Tenant shall repair any damage to the
premises caused by the removal of said fixtures and furniture. If Tenant is in
default, Landlord shall have the benefit of any applicable lien on Tenant's
property located in or on the premises as may be permitted under any federal or
state laws, and in the event such lien is asserted by Landlord in any manner or
by operation of law, Tenant shall not remove or permit the removal of said
property until the lien has been removed and all defaults have been cured.
ARTICLE VIII
OPERATIONS
Section 8.1. Operations by Tenant
A. In regard to the use and occupancy of the premises, Tenant
shall, at its expense (i) keep the inside and outside of all glass in the doors
and windows of the premises clean; (ii) keep all exterior store surfaces of the
premises, including, but not limited to, Tenant's awnings and signs, clean and
iii good condition; (iii) replace promptly any cracked or broken glass of the
premises with glass of like kind and quality; (iv) maintain the premises in a
clean, orderly and sanitary condition and free of insects, rodents, vermin and
other pests; (v) keep any garbage, trash, rubbish or other refuse in rat proof
containers within the interior of the premises until removed; (vi) have such
garbage, trash, rubbish and refuse removed as directed by Landlord; (vii) keep
all mechanical apparatus free of vibration and noise which may be transmitted
beyond the premises; (viii) comply with all rules, regulations and reasonable
recommendations of Landlord's fire insurance rating organization now or
hereafter in effect; (ix) conduct its business in all respects in a dignified
manner in accordance with the highest standards of store operation of the retail
center area and comply, at its own expense, with all municipal and other
governmental laws, ordinances, rules and regulations applicable to the use and
occupancy of the premises.
B. In regard to the use and occupancy of the premises and the
common area, Tenant will not: (i) place or maintain any merchandise, trash,
refuse or other articles in any vestibule or entry of the premises, on the
footwalks adjacent thereto or elsewhere on the exterior of the premises so as to
obstruct any driveway, corridor, footwalk, parking area, mall or any other
common area, or throw, discard or deposit any paper, glass or extraneous matter
of any kind, except in designated receptacles, or create litter or hazards of
any kind; (ii) use or permit the use of any objectionable advertising medium
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such as, without limitation, loudspeakers, phonographs, public address systems,
sound amplifiers, reception of radio or television broadcasts within the retail
center in such manner that any sounds reproduced, transmitted or produced shall
be directed beyond the interior of the premises; (iii) use any sound-making
device of any kind or create or produce in any manner noise or sound that is
annoying or unpleasant or constitutes a nuisance in the common areas; (iv)
permit undue accumulations of or burn garbage, trash, rubbish or other refuse
within or without the premises; (v) cause or permit objectionable odors to
emanate or to be dispelled from the premises; (vi) vend, peddle or solicit
orders for sale or distribution of any merchandise, device, service, periodical,
book, pamphlet or other material whatsoever in the common areas; (vii) solicit
membership in any organization, group or association or contribution for any
purpose in the common areas; (viii) exhibit or distribute any sign, placard,
banner, notice, circular, booklet, pamphlet, handbill or other written material
in the common areas; (ix) permit the operation of any "elephant trains" or
similar transportation devices or any solicitations, demonstrations or itinerant
vending in the common areas, unless the same shall be part of promotional
activities of the retail center which are approved by Landlord and do not
unreasonably interfere with the commercial operations of tenants and other
occupants of the retail center; (x) permit the parking of delivery vehicles so
as to interfere unreasonably with the use of any driveway, corridor, footwalk,
parking area, mall, or other common areas; (xi) receive or ship articles of any
kind outside the designated loading areas for the premises; (xii) parade, rally,
patrol, picket, demonstrate or engage in any conduct that might tend to
interfere with or impede the use of the common areas by persons entitled to use
the same, create a disturbance, attract attention or harass, annoy, disparage of
be detrimental to the interest of any of the retail establishments within the
retail center; (xiii) use or permit the use of the premises, the common areas,
or any part thereof, in a manner likely to injure the reputation of the retail
center or which will violate the laws of any applicable unit of government, nor
permit any part of the premises or the common areas to be used for any
disreputable or immoral purpose or for any activity of a type which is not
generally considered appropriate for first class retail centers conducted in
accordance with good and generally accepted standards of operation; (xiv) use or
permit the use of any portion of the premises as regular living quarters,
sleeping apartments of lodging rooms; (xv) conduct or permit to be conducted any
auction, fire, going out of business, bankruptcy, or other similar type sale in
or connected with the premises (but this provision shall not restrict the
absolute freedom of Tenant in determining its own selling prices, nor shall it
preclude the conduct of periodic seasonal, promotional or clearance sales; (xvi)
place a load upon any floor which exceeds the floor load which the floor was
designed to carry (xvii) deface, damage or demolish any sign, light standard or
fixtures, landscaping material or other improvement or property in the common
areas; or (xviii) operate its heating or air conditioning in such a manner as to
drain heat or air conditioning from the premises of any other tenant or other
occupant of the retail center.
C. Tenant acknowledges that it is Landlord's intent that the
retail center area be operated in a manner which is consistent with the highest
standards of decency and morals prevailing in the community which it serves.
Accordingly, Tenant agrees it will not sell, distribute, display or offer for
sale any item which, in Landlord's good faith judgment, is inconsistent with the
quality of operation of the retail center area or may tend to injure or detract
from the moral character or image of the retail center within such community.
Without limiting the generality of the foregoing, subject to prevailing local
ordinances, Tenant will not sell, distribute, display or offer for sale (i) any
paraphernalia commonly used in the ingestion of illicit drugs, or (ii) any
pornographic, lewd, suggestive or "adult" newspaper, book, magazine, picture,
representation or merchandise of any kind.
-12-
Section 8.2. Signs and Advertising
A. Tenant shall not place on any exterior door, wall or window
of the premises any sign or advertising matter without first obtaining
Landlord's written approval and consent. Tenant agrees to maintain such sign or
advertising matter as approved by Landlord in good condition and repair. All
signs shall comply with applicable ordinances or other governmental restrictions
and with determination of such requirements and the prompt compliance therewith
shall be the responsibility of the Tenant. The Landlord may elect to provide
signage in accordance with the architectural design of center. In the event that
the Landlord exercises this option the Tenant will be obligated to reimburse the
Landlord for the cost and expense for providing the signage. The payment shall
be due prior to installation of signage.
B. All advertising used by Tenant shall clearly indicate that
Tenant is located at or is a part of See Basic Lease Provisions should the
shopping center have a sign identifying its name.
Tenant shall not paint or decorate any part of the exterior of
the premises, or any part of the interior visible from the exterior thereof,
without first obtaining Landlord's written approval. Tenant will install and
maintain at all times, subject to the other provisions of this lease, displays
or merchandise in the show window (if any) of the premises. All articles, and
the arrangement, style, color and general appearance thereof, in the interior of
the premises including, without limitation, window displays, advertising matter,
signs, merchandise and store fixtures shall be in keeping with the character of
the retail center area and standards of Landlord. Landlord reserves the right to
require Tenant to correct any non-conformity.
Section 8.3. Trash Removal Service See Basic Lease Provisions
The Tenant shall maintain a trash removal service for their
store at the cost and expense of the Tenant. Tenant shall keep any and all
garbage, trash, rubbish or other refuse in rat proof containers within the
exterior of the premises in the rear in a place designated therefor until
removed.
Section 8.4. Compliance
Upon notice by Landlord to Tenant that Tenant is not complying
with and of the aforesaid as required in this Article, Tenant agrees forthwith
to cease and discontinue the same within ten (10) days thereafter, to make such
changes in the premises and install therein or remove therefrom such apparatus
or equipment as may be required by Landlord for the purpose of remedying any
such condition or conduct. If any such condition or conduct is not so remedied,
then Landlord may, at its option, either (i) enter upon the premises and cure
such condition in any manner Landlord shall deem necessary and add the cost and
expense incurred by Landlord, together with all damages, including reasonable
attorneys' fees sustained by Landlord to the next installment of the additional
rental due and Tenant agrees to pay such amount; or (ii) treat such failure on
the part of the Tenant to remedy such condition as an event of default
hereunder. Tenant hereby further agrees to indemnify and save Landlord free and
harmless of and from all fines, claims, demands, actions, proceedings, judgments
and damages (including reasonable attorneys' fees) of any kind or nature by
anyone whomsoever, arising or growing out of any breach or non-performance by
Tenant of the covenants contained in this Article.
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ARTICLE IX
REPAIRS AND ALTERATIONS
Section 9.1. Repairs to be Made by Landlord
Landlord, at its expense, will make, or cause to be made
structural repairs to exterior walls, structural columns and structural floors
which collectively enclose the premises (excluding, however, all door frames,
storefronts, windows and glass); provided Tenant shall give Landlord notice of
the necessity for such repairs and provided that the necessity for such repairs
shall not have arisen from nor shall have been caused by the negligence or
willful acts of Tenant, its agents, concessionaires, officers, employees,
licensees, invitees or contractors.
Section 9.2. Repairs to be Made by Tenant
All repairs to the premises or any installations, equipment or
facilities therein, other than those repairs required shall be made by Landlord
pursuant to Section 9.1 or Section 14.1, agents, shall be made by Tenant at its
expense.(as set forth in Article XII, Landlord shall cause certain repairs and
maintenance to be done, on Tenant's behalf and as Tenant's agent, for which
Tenant shall remain responsible and for which Tenant shall pay, as provided in
Article XII). Without limiting the generality of the foregoing, Tenant shall
keep the interior of the premises, together with all electrical, plumbing,
roofing and air conditioning and other mechanical installations therein (other
than items to be repaired by Landlord pursuant to Section 9.1), in good order
and repair and shall make all replacements from time to time required thereto at
its expense; (tenant may avail himself of any warranties that landlord may have
on the installations) Tenant will not overload the electrical wiring serving the
premises or within the premises, and will install at its expense, subject to the
provisions of Section 9.4, any additional electrical wiring which may be
required in connection with Tenant's apparatus. Any damage or injury sustained
by any person because of mechanical, electrical, plumbing, roofing, air
conditioning or any other equipment or installations whose maintenance and
repair shall be the responsibility of Tenant, shall be paid for by Tenant, and
Tenant shall indemnify and hold Landlord harmless from and against all claims,
actions, damages and liability in connection therewith, including but not
limited to, attorneys' and other professional fees, and any other cost which
Landlord might reasonably incur. In the event that Tenant shall be in occupancy
of the within premises for a term in excess of five (5) years (including any
renewal options if provided for elsewhere in this lease agreement) Tenant does
agree to redecorate the interior of the leased premises at least every five
years of the lease term or renewal term. At landlords request should the
interior of the store fall below responsible standards of acceptable cosmetic
appearance.
-14-
Section 9.3. Damage to Premises
Tenant shall repair promptly, at its expense, any damage to
the premises, and, upon demand, shall reimburse Landlord (as additional rental)
for the cost of the repair of any damage elsewhere in the retail center, caused
by bringing into the premises any property for Tenant's use, or by the
installation or removal of such property, regardless of fault or by whom such
damage shall be caused (unless caused solely by Landlord, its agents, employees
or contractors), and in default of such repairs by Tenant, at the expiration of
five (5) days after notice to Tenant, Landlord may make or cause the same to be
made and Tenant agrees to pay to Landlord promptly upon Landlord's demand, as
additional rental, the cost thereof with interest thereon at the default rate
until paid.
Section 9.4. Alterations by Tenant
Tenant shall not make any alterations, renovations,
improvements or other installations in, on or to the premises or any part
thereof (including without limitation, any alterations of the storefront or
signs, structural alterations, or any cutting or drilling into any part of the
premises or any securing of any fixture, apparatus, or equipment of any kind to
any part of the premises) unless and until Tenant shall have caused plans and
specifications therefor to have been prepared, at Tenant's expense by an
architect or other duly qualified person and shall have obtained Landlord's
written approval thereof. If such approval is granted, Tenant shall cause the
work described in such plans and specifications to be performed, at its expense,
promptly, efficiently and competently by duly qualified or licensed persons or
entities without interference with or disruption of the operations of tenants or
other occupants of the retail center. All such work shall comply with all
applicable laws, codes, rules, regulations and ordinances. In addition, Tenant
may not disturb or tamper with Landlord's mechanical and electrical equipment
that have been installed within the leasehold premises, or building complex,
without first obtaining Landlord's written approval.
Section 9.5. Changes and Additions to Center
Landlord reserves the right at any time and from time to time
to:
A. Make or permit changes in or revisions to the common area,
including without limitation, additions to subtractions from, rearrangements of,
alterations of, modifications of or supplements to the building areas, walkways,
parking areas, driveways or other common areas; and
B. Construct other buildings or improvements in the retail
center area and to make alterations thereof or additions thereto and to build
additional stories on any such building or buildings and to build adjoining
same; and
C. Make or permit changes or revisions to the building
complex, including additions and alterations thereto; and
D. Convey portions of the retail center area to others for the
purpose of constructing thereon other buildings or improvements, including
additions thereto and alterations thereof; provided, however, that no such
changes, rearrangements or other construction shall reduce the parking areas
provided by Landlord below the number of parking spaces required by law to be
provided for the retail center area.
-15-
Section 9.6. Roof and Walls
Landlord shall have the exclusive right to use all or any part
of the roof of the premises for any purpose; to erect additional stories or
other structures over all or any part of the premises; to erect in connection
with the construction thereof temporary scaffolds and other aids to construction
on the exterior of the premises, provided that access to the premises shall not
be denied; and to install, maintain, use, repair and replace within the
premises, pipes, ducts, conduits, wires and all other mechanical equipment
serving other parts of the retail center area, the same to be in a location
within the premises as will not unreasonably deny Tenant's use thereof. Landlord
may make any use it desires of the side or rear walls of the premises, provided
that such use shall not encroach on the interior of the premises. Should
landlords above mentioned rights damage the roof the landlord will make repairs.
Section 9.7. Acceptance of Premises
After Tenant opens for business, Tenant shall have no right to
cancel this lease, seek a diminution of rental, xxx for damages, or assert any
other contractual, legal or equitable remedy based either on a claim that
Landlord failed to deliver possession in accordance with the terms of this lease
or based on a claim that the size, location, layout, dimensions or construction
of the building in which the premises are located or service areas (if any),
sidewalks, parking or other common areas (if any) or other facilities to be
furnished by Landlord, were not completed or furnished in accordance with the
terms of this lease. Notwithstanding the foregoing, if after Tenant's opening
for business and during the term hereof, Landlord is in default under any of its
lease obligations, Tenant shall have such rights at law or equity to which it
may be entitled on account of such default, except that Tenant hereby waives any
right to seek a diminution of rental. Upon opening of the premises for business
to the public, Tenant shall be deemed to have certified to Landlord and to the
holder of any mortgage to which this lease is, or shall thereafter be, subject
and subordinate, that the premises has been delivered to it in accordance with
the terms of this lease, that possession thereof has been fully and completely
accepted by Tenant who is then in possession of the same, and that the term of
this lease and the opening for business to the public and the date for the
payment of annual basic rental hereunder have all theretofore commenced and that
the premises, the parking areas, and all other portions of the retail center
have been completed in accordance with the requirements and terms of this lease
and that there has not been any violation of any of the lease terms on the part
of the Landlord. The foregoing provision shall be self-operative and no further
instrument, letter or certificate shall be required by the Landlord or any such
mortgagee unless either said Landlord or mortgagee shall deem same appropriate,
in which event, in confirmation of the foregoing, the Tenant shall promptly
execute, in writing, any instrument letter and/or certificate containing the
foregoing and such other like provisions in regard to the condition of the
premises, the building in which the premises are located, the retail center
(and/or portions thereof), the rental(s), term and date of the opening of the
premises for business to the public shall be requested by the Landlord and/or
said mortgagee and Tenant hereby constitutes and appoints Landlord the Tenant's
attorney-in-fact to execute any such instrument(s), letter(s), and/or
certificate(s) for and on behalf of the Tenant. Should Landlord execute any such
document, Landlord agrees to provide Tenant with an exact copy of such document
within ten (10) days of its execution.
-16-
ARTICLE X
COMMON AREAS
Section 10.1. Use of Common Areas
Landlord grants to Tenant and its agents, employees and
customers, a non-exclusive license to use the common areas in common with others
during the term, subject to the exclusive control and management thereof at all
times by Landlord and subject, further, to the rights of Landlord set forth in
Section 10.2.
Section 10.2. Management and Operation of Common Areas
Landlord will operate and maintain or will cause to be
operated and maintained the common areas including all parking areas in a manner
deemed by Landlord to be reasonable and appropriate and in the best interest of
the retail center. Landlord shall have the right (i) to establish, modify and
enforce reasonable rules and regulations with respect to the common areas; (ii)
to enter into, modify and terminate easement and other agreements pertaining to
the use and maintenance of the parking areas and common areas; (iii) to close
temporarily any or all portions of the common areas; (iv) to discourage
non-customer parking; and (v) to do and perform such other acts in and to said
areas and improvements as, in the exercise of good business judgment, Landlord
shall determine to be advisable. Landlord agrees that it shall use its best
efforts to make available to Tenant's employees convenient parking facilities in
reasonable proximity to the premises.
Section 10.3. Tenant to Share Expenses of Common Areas
In each rental year Tenant shall pay Landlord, as additional
rental, a proportionate share of that portion of Landlord's operating costs
which are allocated to retail use as set forth in Section 10.4 below which shall
be computed by multiplying Landlord's operating costs allocated to retail use as
set forth in Section 10.4 below for the rental year in question by a fraction,
the numerator of which shall be the floor area of the premises and the
denominator which shall be the total retail floor area of all leasable area in
the retail center area. Such proportionate share shall be paid by Tenant in
monthly installments in such amounts as are estimated and billed by Landlord in
the beginning of each twelve (12) month period commencing and ending on dates
designated by Landlord, each installment being due on the first day of each
calendar month. Within one hundred twenty (120) days (or such additional time
thereafter as is reasonable under the circumstances), after the end of each such
twelve (12) month period, Landlord shall deliver to Tenant a statement of
Landlord's operating costs for such twelve (12) month period and the monthly
installments paid or payable shall be adjusted between Landlord and Tenant, the
parties hereby' agreeing that Tenant shall pay Landlord or Landlord shall credit
Tenant's account (or, if such adjustment is at the end of the term, pay Tenant),
as the case may be, within thirty (30) days of receipt of such statement, such
accounts as may be necessary to effect adjustment to the agreed proportionate
share for such twelve (12) month period. Upon reasonable notice, Landlord shall
make available for Tenant's inspection at Landlord's office, during normal
business hours, Landlord's records relating to Landlord's operating costs for
such preceding twelve (12) month period. Failure of Landlord to provide the
statement called for hereunder within the time prescribed shall not relieve
Tenant from its obligations hereunder. Landlord will xxxx Tenant for its share
of expenses of common areas on a monthly basis as part of its rental xxxx and
Tenant shall be obligated to pay the same on a monthly basis.
-17-
Section 10.4. "Landlord's Operating Costs" Defined
A. The term "landlord's operating costs" including taxes and
insurance means the costs and expenses incurred in operating and maintaining or
in causing to be operated and maintained the common areas (including all parking
areas) pursuant to Section 10.2, including, without limitation, all costs and
expenses of operating, maintaining, repairing, lighting, signing, cleaning,
painting, striping, policing, and security (if any) of the common areas
(including costs of uniforms, equipment and employment taxes), alarm system (if
any), insurance (including liability insurance for personal injury, death and
property damage, insurance against fire, extended coverage, theft or ether
casualties, worker's compensation insurance covering personnel, fidelity bonds
for personnel, insurance against liability for defamation and claims of false
arrest occurring in and about the common areas and plate glass insurance for
glass exclusively serving the common areas); maintenance for sprinkler system
serving the common areas; removal of snow, ice, trash, and debris; regulation of
traffic; costs and expenses of inspecting and depreciation of machinery and
equipment used in the operation and maintenance of the common areas and personal
property taxes and other charges incurred in connection with such equipment;
costs and expenses of repair or normal maintenance of paving, curbs, walkways,
landscaping, drainage, pipes, ducts, conduits and similar items, and lighting
facilities; costs and expenses of planting, replanting, and replacing flowers,
shrubbery and planters; costs and expenses incurred in the rental of music
program services and loudspeaker systems, including furnishing electricity
therefor; costs of providing energy to heat, ventilate and air condition
interior areas in which any part of the common areas are located; cost of the
water services, if any, furnished by Landlord for non-exclusive use of all
tenants' parcel pick-up and delivery services; vacant store window display;
replacement and installation of new awnings and cleaning and maintenance of
store fronts and windows; social security, unemployment and other payroll taxes;
legal, accounting and other professional fees and disbursements incurred in
connection with the operation and management of the common areas; charges of
independent contractors performing work included within this definition of
Landlord's operating costs; and administrative costs equal to fifteen percent
(15%) of the total costs and expenses of operating and maintaining the common
areas. Such costs and expenses shall n0t include depreciation (other than
depreciation as above specified).
B. Landlord's operating costs shall be allocated on an
equitable basis among the respective classes of retail, office, end residential
occupants of See Basic Lease Provisions retail center area. For the purposes of
this Article X, Landlord's operating costs shall include all amounts, costs of
operation and expenditures (as hereinabove defined) which are identified as
applicable and relating solely to the total leasable retail floor area in the
retail center and that portion of the common areas reasonably allocable thereto,
together with those items, amounts, costs, and expenditures which (if they
cannot be so specifically identified) are allocated on an equitably
proportionate basis to said retail floor area and common area.
-18-
ARTICLE XI
UTILITIES
Section 11.1. Heating
The Landlord shall install the heating and air conditioning
facilities and same shall be in working order, except as provided below. The
Tenant shall be obligated to pay for the cost of:
(i) Maintenance of the heating facilities;
(ii) floating and air conditioning the
premises; and
(iii) semi-annual cleaning of the heating and
air conditioning systems.
Section 11.2. Other Utilities
The Landlord will provide to the premises the facilities
necessary to obtain water, electricity, telephone and sanitary sewer service or
septic and all costs thereafter rendered by the various authorities shall be the
sole obligation of the Tenant. Repairs to the utilities shall be Tenant's
responsibility.
ARTICLE XII
INDEMNITY AND INSURANCE
Section 12.1. Indemnity by Tenant
Tenant agrees to indemnify and save Landlord and Landlord's
agents harmless of and from all losses, costs, liabilities, claims, damages and
expenses, including reasonable attorneys' fees, penalties and fines, incurred in
connection with or arising from (i) any default by Tenant in the observance or
performance of any of the terms, covenants, or conditions of this lease on
Tenant's part to be observed or performed, or (ii) the use, occupancy, control
or management, or manner of use, occupancy, control or management of the
premises by Tenant or any person claiming through or under Tenant, or (iii) any
acts, omissions or negligence of Tenant or contractors, agents, servants,
employees, of Tenant or any such person, in or about the premises or the
building complex or the retail center either prior to, during, or after the
expiration of, the term including any acts, omissions or negligence in the
making or performing of any improvements.
Section 12.2. Indemnity Payments by Tenant
Tenant shall pay to Landlord, as additional rental, within ten
(10) days next following receipt by Tenant of bills or statements therefor, sums
equal to all losses, costs, liabilities, claims, damages and expenses referred
to in Section 12.1 Tenant's obligations under this Article shall survive the
termination of the term.
-19-
Section 12.3. Landlord Not Responsible for Acts of Others
Landlord shall not by responsible or liable to Tenant, or to
those claiming by, through or under Tenant, for any loss or damage which may he
occasioned by or through the acts or omissions of persons occupying apace
adjoining the premises or any part of the premises adjacent to or connecting
with the premises or any other part of the retail center, or otherwise, or for
any loss or damage incurred by Tenant, or those claiming by, through or under
Tenant or its or their property, from the breaking, bursting, stoppage or
leaking of electrical cable and wires, water, gas, sewer or steam pipes. To the
maximum extent permitted by law, Tenant agrees to use and occupy the premises,
and to use such other portions of the common areas and retail center as Tenant
is herein given the right to use, at Tenant's own risk.
Section 12.4. Tenant's Insurance
At all times after the execution of this lease, Tenant shall
take out and keep in force, at its expense:
A. Public liability insurance, including insurance against
assumed or contractual liability with respect to the premises, to afford
protection to the limit, for each occurrence, of not less than one million
dollars ($1,000,000) with respect to personal injury or death, and five hundred
thousand dollars ($500,000) with respect to property damages; and
B. All-risk casualty insurance, written at replacement cost
value and with replacement cost endorsement, covering all of Tenant's personal
property in the premises (including, without limitation, inventory, trade
fixtures, floor coverings, furniture and other property removable by Tenant
under the provisions of this lease) and all leasehold improvements installed in
the premises by Tenant; and
C. If and to the extent required by law, worker's compensation
or similar insurance in form and amounts required by law.
Section 12.5. Tenant's Contractor's Insurance
Tenant shall require any contractor of Tenant performing work
on the premises to take out and keep in force, at no expense to Landlord:
A. Comprehensive general liability insurance, including
contractor's liability coverage, contractual liability coverage, completed
operations coverage, broad form property damage endorsement and contractor's
protective liability coverage, to afford protection to the limit, of each
occurrence, with respect to property damage; and
B. Worker's compensation or similar insurance if form and
amounts required by law.
-20-
Section 12.6. Policy Requirements
The company or companies writing any insurance which Tenant is
required to take out and maintain or cause to be taken out or maintained
pursuant to Sections 13.4 and 13.5 as well as the form of such insurance shall
at all times be subject to Landlord's approval and any such company or companies
shall be licensed to do business in New Jersey. Each policy evidencing such
insurance shall name Landlord or its designee as additional insured and shall
also contain a provision by which the insurer agrees that such policy shall not
be cancelled except after thirty (30) days written notice to Landlord or its
designee. Each such policy, or a certificate thereof, shall be deposited with
Landlord by Tenant promptly upon commencement of Tenant's obligation to procure
the same. If Tenant shall fail to perform any of its obligations under Sections
12.4, 12.5 or 12.6, Landlord may perform the same and the cost of same shall be
deemed additional rental and shall be payable by Tenant upon Landlord's demand.
Section 12.7. Landlord's Insurance
A. Tenant shall pay to Landlord during each rental year or
partial rental year its prorated share of the total fire, extended coverage and
public liability insurance premiums charged to Landlord for insuring the
building complex, and any improvements thereon, for any such year. For any
partial lease year of the term hereof, such amount shall be further prorated on
a time basis. Tenant's prorated share shall mean a fractional portion of said
total insurance premiums, the numerator of which shall be the floor area of the
premises and the denominator of which shall be the floor area of all leasable
area of the building complex. Payment hereunder shall be made within thirty (30)
days after receipt of a written statement from Landlord setting forth the amount
of such share of insurance premiums together with reasonable proof of payment
thereof by Landlord. Said are payable as and constitute additional rental. The
Tenants' annual insurance contribution will be collected on a monthly basis but
will be divided by Ten (10) in order to allow for the insurance company's
advance collection of premiums. Tenants' excess contributions to annual
insurance, if any, will be credited at the end of the term. If Tenants'
contribution of insurance have not fully paid its proportionate share, the
amount so due and owing shall be paid by the Tenant to the Landlord at the end
of the term.
B. Tenant shall not do or suffer to be done, or keep or suffer
to be kept, anything in, upon or about the premises which shall contravene
Landlord's policies of hazard or liability insurance or which will prevent
Landlord from procuring such policies of companies acceptable to Landlord. If
anything done, omitted to be done or suffered by Tenant to be kept in, upon or
about the premises shall cause the rate of fire or other insurance on the
premises or the building complex or on other property of Landlord or of others
within the retail center to be increased beyond the minimum rate from time to
time applicable to the premises or the building complex, or to any such property
for the use or uses made thereof, Tenant shall pay, as additional rental, the
amount of any such increase upon Landlord's demand, notwithstanding that what is
done or kept by Tenant is otherwise permitted under this lease.
Section 12.8. Waiver of Right of Recovery
Neither party shall be liable to the other party or to any
insurance company (by way of subrogation or otherwise) insuring the other party
for loss or damage to any building, structure or other tangible property, even
though such loss or damage might have been occasioned by the negligence of such
party, its agents or employees; provided, however, that if, by reason of the
foregoing waiver, either party shall be unable to obtain any such insurance
without the payment of an additional premium therefor, then, unless the party
claiming the benefit of such waiver shall agree to pay the party seeking to
obtain insurance for the cost of such additional premium, within thirty (30)
days after notice by such party setting forth such requirements and the amount
of the additional premium, such waiver shall be of no force and effect between
the parties.
-21-
ARTICLE XIII
DAMAGE AND DESTRUCTION
Section 13.1. Landlord's Obligation to Repair and Reconstruct
If the premises shall be damaged by fire,, the elements,
accident or other casualty (any of such causes being referred to herein as a
"casualty"), provided not caused by or attributable to any act or omission of
Tenant, its servants, employees, agents, invitees, and the like, but the
premises shall not be thereby rendered wholly or partially untenantable,
Landlord shall promptly cause such damage to be repaired and there shall be no
abatement of rental or additional rental. If, as the result of casualty, the
premises shall be rendered wholly or partially untenantable, then, subject to
the provisions of Section 13.2, Landlord shall cause such damage to be repaired
and all rental (other than additional rental due Landlord by reason of Tenant's
failure to perform any of its obligations hereunder) shall be abated
proportionately to the portion of the premises rendered untenantable, during the
period of such untenantability. All such repairs shall be made at the expense of
the Landlord. Landlord shall not be liable for interruption to Tenant's business
or for damage to or replacement or repair of Tenant's personal property
(including, without limitation, inventory, trade fixtures, floor coverings,
furniture and other property removable by Tenant under the provisions of this
lease) or to any leasehold improvements installed in the premises by Tenant or
otherwise, all of which damage, replacement or repair shall be undertaken and
completed by Tenant promptly.
Section 13.2. Landlord's Option to Terminate Lease
If the premises are (i) rendered wholly untenantable, or (ii)
damaged as a result of any cause which is not covered by Landlord's insurance,
or (iii) damaged or destroyed on whole or in part during the last three years of
the term, or if the building complex or the entire retail center is damaged to
the extent of thirty percent (30%) or more of the respective floor areas
thereof, then, in any of such events, Landlord may elect to terminate this lease
by giving to Tenant notice of such election within ninety (90) days after the
occurrence of such event. If such notice is given, the rights and obligations of
the parties shall cease as of the date of such notice, and rental (other than
any additional rental due Landlord by reason of Tenant's failure to perform any
of its obligations hereunder) shall be adjusted as of the date of such
termination.
Section 13.3. Demolition of Building Complex
If the building complex shall be so substantially damaged that
it is reasonably necessary, in Landlord's judgment, to demolish such building
complex for the purpose of reconstruction, Landlord may demolish the same in
which event the rental shall be abated to the same extent as if the premises
were rendered untenantable by a casualty.
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ARTICLE XIV
CONDEMNATION
Section 14.1. Effect of Taking
If the whole or any part of the premises shall be taken under
the power of eminent domain, this lease shall terminate as to the part so taken
on the date Tenant is required to yield possession thereof to the condemning
authority. Landlord shall make such repairs and alterations as may be necessary
in order to restore the part not taken to useful condition and all rental (other
than any additional rental due Landlord by reason of Tenant's failure to perform
any of its obligations hereunder) shall be reduced proportionately to the
portion of the premises so taken. If the loss of the portion of the premises so
taken substantially impairs the usefulness of the remainder of the premises for
the permitted use, either party may terminate this lease as of the date when
Tenant is required to yield possession by giving notice to that effect within
thirty (30) days after such date. If twenty percent (20%) or more of the floor
area in the retail center is taken as aforesaid, or if parking spaces in the
retail center are reduced below the number required by law, and Landlord does
not deem it reasonably feasible to replace such parking spaces with other
parking spaces on the portion of the retail center area not taken, then Landlord
may elect to terminate this lease as of the date on which possession thereof is
required to be yielded to the condemning authority, by giving notice of such
election within ninety (90) days after such date. If any notice of termination
is given pursuant to this Section, this lease and the rights and obligations of
the parties hereunder shall cease as of the date such notice, and rental (other
than any additional rental due Landlord by reason of Tenant's failure to perform
any of its obligations hereunder) shall be adjusted as of such date.
Section 14.2. Condemnation Awards
All compensation awarded, for any taking of the premises or
the retail center area or any interest in either (including, without limitation,
the value of the unexpired portion of the term) shall belong to and be the
property of Landlord, Tenant hereby assigning to Landlord all rights with
respect thereto; provided, however, nothing contained herein shall prevent
Tenant from applying for reimbursement from the condemning authority (if
permitted by law) for moving expenses, or the expense of removal of Tenant's
trade fixtures, but if, and only if, such action shall not reduce the amount of
the award or other compensation otherwise recoverable from the condemning
authority by Landlord or the owner of the fee simple estate in the retail center
area.
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ARTICLE XV
ASSIGNMENT AND SUBLETTING
Section 15.1. Landlord's Consent Required
A. Tenant shall not assign this lease, in whole or in part,
nor sublet all or any part of the premises, nor license concessions or lease
departments therein, without first obtaining the written consent of Landlord.
This prohibition includes any subletting or assignment which would otherwise
occur by operation of law, merger, consolidation, reorganization, transfer or
other change of Tenant's corporate or proprietary structure, or an assignment,
subletting to or by a receiver or trustee in any federal or state bankruptcy,
insolvency, or other proceedings. Consent by Landlord to any assignment or
subletting shall not constitute a waiver of any obligation of the Tenant to
Landlord (it being understood that Tenant shall remain liable not withstanding
any assignment or subletting) nor shall consent by the Landlord constitute a
waiver of the requirement for such consent to any subsequent assignment or
subletting, provided that such consent shall not be unreasonably withheld.
B. If this lease is assigned to any person or entity pursuant
to the provisions of the bankruptcy code, 11 U.S.C. 101 et seq. (the "bankruptcy
code"), any and all moneys or other considerations payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord and shall be and remain the exclusive property of Landlord or of the
estate of Landlord within the meaning of the Bankruptcy Code. Any and all moneys
or other considerations constituting Landlord's property under the preceding
sentence not paid or delivered to Landlord shall be held in trust for the
benefit of Landlord and be promptly paid or delivered to Landlord.
Section 15.2. Acceptance of Rent from Transferee
The acceptance by Landlord of the payment of rental following
any assignment or other transfer prohibited by this Article shall not be deemed
to be a consent by Landlord to any such assignment or the transfer nor shall the
same be deemed to be a waiver of any right or remedy of Landlord hereunder.
Section 15.3. Subletting or Assignment at Higher Rental
In the event that Landlord consents to a subletting of the
premises, or an assignment of this lease by Tenant, Landlord shall be entitled
to recapture and receive payment from Tenant of any profit realized by Tenant
from assignment of the lease or subletting of the premises at a rent greater
than the rental reserved hereunder. Tenant shall pay any such profit to Landlord
promptly upon its receipt by Tenant, whether it is received in monthly or other
periodic payments or in a lump sum. For purposes of this Section "profit" shall
refer to the difference between: (i) all payments made by a subtenant or
assignee to Tenant as rental or otherwise under or in connection with said
assignment or sublease; and (ii) the costs and expenses paid by Tenant in
connection with said assignment or sublease including annual basic rental and
additional rental payable hereunder with respect to the assigned or sublet space
and the reasonable brokerage, legal and alteration expenses, if any, incurred in
connection with said assignment or sublease. Promptly after the commencement of
any such assignment or sublease Tenant shall deliver to Landlord a statement of
the expenses incurred in connection with the assignment or subletting and
payments of the profit in connection therewith shall be made monthly as
additional rental hereunder.
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ARTICLE XVI
DEFAULT
Section 16.1. "Event of Default" Defined
Any one or more of the following events shall constitute an
"event of default":
A. The sale of Tenant's interest in the premises under
attachment, execution or similar legal process; or
B. The filing of any petition in bankruptcy or insolvency by
Tenant, or any guarantor of Tenant's obligations hereunder, or the
reorganization of Tenant or any such guarantor with its creditors, whether
pursuant to the federal Bankruptcy Act or any similar federal or state
proceeding, unless such petition is filed by a party other than Tenant or any
such guarantor and is withdrawn or dismissed within thirty (30) days after the
date of its filing; or
C. The admission, in writing, by Tenant or any such guarantor
of its inability to pay its debts when due; or
D. The appointment of a receiver or trustee for the business
or property of Tenant, or any such guarantor, unless such appointment shall be
vacated within ten (10) days of its entry; or
E. The making by Tenant, or any such guarantor, of an
assignment for the benefit of its creditors; or
F. The failure of Tenant to pay any rental, additional rental,
or other sum of money when due hereunder. All such sums of money which are not
paid within ten (10) days of the due date thereof, shall bear penalty at the
rate of ten percent (10%) per month.
G. The failure of Tenant either to continuously operate and
use the premises as required (unless beyond the tenants control) in Section 4.1
or to maintain the minimum operating hours required in Section 4.4; or
H. Default by Tenant in the performance or observance of any
covenant or agreement of this lease (other than a default involving the payment
of money), which default is not cured within ten (10) days after the giving of
notice thereof by Landlord, unless such default is of such nature that it cannot
be cured within such ten (10) period, in which case no event of default shall
occur so long as Tenant shall commence the curing of the default within such ten
(10) day period and shall thereafter diligently prosecute the curing of same.
I. Tenant shall not at any time during the term hereof permit
its net worth, determined in accordance with generally accepted accounting
principles consistently applied, to be less than one year's annual basic rental.
If Tenant shall default in the payment of any installment of rental hereunder,
Tenant shall deliver to Landlord within five (5) business days after demand a
balance sheet of Tenant as of a date not more than thirty (30) days prior to the
first day of the month during which said installment of rental was due
hereunder, certified by Tenant's President or Chief Financial Officer to present
fairly the financial position of Tenant as of the date of such balance sheet. If
Tenant fails to deliver its balance sheet in accordance with the provisions of
the preceding sentence, Tenant shall be conclusively deemed to be in default
under the first sentence of this subparagraph. The obligations of Tenant under
this subparagraph are a material obligation of Tenant's tenancy under this
lease.
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Section 16.2. Remedies
A. Upon the occurrence of an event of default, Landlord,
without notice to Tenant in any instance (except where expressly provided for
below) may do any one or more of the following:
(i) Landlord may sell at public or private sale
all or any part of the goods, chattels, fixtures and other personal property
belonging to Tenant which are or may be put into the premises during the term,
whether exempt or not from sale under execution or attachment (it being agreed
that said property shall at all times be bound with a lien in favor of Landlord
and shall be chargeable for the payment of all rental and for the fulfillment of
the other covenants and agreements herein contained) and apply the proceeds of
such sale, first, to the payment of all costs and expenses of conducting the
sale or caring for or storing paid property, including the payment of all legal
and other professional fees and disbursements; second, to the payment of any
indebtedness, including (without limitation) indebtedness for rental, which may
be or may become due from Tenant to Landlord; and third, to the payment to
Tenant, on demand, in writing, of any surplus remaining after all indebtedness
of Tenant to Landlord has been fully paid.
(ii) Landlord may perform, on behalf and at the
expense of Tenant, any obligation of Tenant under this lease which Tenant has
failed to perform and of which Landlord shall have given Tenant notice, the cost
of which performance by Landlord, together with interest thereon at the default
rate from the date of such expenditure, shall be deemed additional rental and
shall be payable by Tenant to Landlord upon demand.
(iii) Landlord may elect to terminate this lease
and the tenancy created hereby
by giving ten (10) days notice of such election to Tenant, and/or may re-enter
the premises, by summary proceedings or otherwise, and may remove Tenant and all
other persons and property from the premises, and may store such property in a
public warehouse or elsewhere at the cost of and for the account of Tenant
without resort to legal process and without Landlord being deemed guilty of
trespass or conversion or becoming liable for any loss or damage occasioned
thereby.
(iv) If Tenant shall default (i) in the payment of
any rental, or additional rental, and any such default shall continue or be
repeated for two (2) consecutive months, or for a total of four (4) months in
any period of twelve (12) months, or (ii) in the performance of any other
covenant of this lease more than six (6) times in the aggregate, in any period
of twelve (12) months then, notwithstanding that such defaults have been cured
(within any period after notice if applicable, as above provided), any further
similar default shall be deemed deliberate and an immediate event of default and
Landlord may thereafter serve a three (3) day notice of termination without
offering Tenant an opportunity to cure such default.
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(v) Landlord may exercise any other legal or
equitable right or remedy which it may have.
B. Anything in this lease agreement to the contrary
notwithstanding, at Landlord's option, Tenant shall pay as a "late charge" and
not as a penalty ten percent (10%) per month of any installment of fixed annual
rent and additional rent paid more than seven (7) days after the due date
thereof, to cover the extra expense involved in handling delinquent payments.
Each month the payment is not submitted in a timely manner, an additional Late
Charge shall be assessed.
C. Should Tenant pay rent later than seven (7) days after the
due date more than twice within a six (6) month period or more than four times
within a Lease Year, then Tenant will be considered an "habitual late payer".
If Tenant defaults in the performance of any of its
obligations hereunder, or if Tenant shall be an habitual late payer, or if
Tenant fails to perform or observe any of the provisions required by it to be
performed or observed by Tenant under any other agreement relating to the
Demised Premises, then Landlord may at its option terminate this Lease upon
giving ten (10) days notice of termination to Tenant, in which event neither
Tenant nor any person claiming through or under the Tenant shall be entitled to
possession or to remain in possession of the Demised Premises but shall
forthwith quit and surrender the Demised Premises.
Section 16.3. Bankruptcy
A. In the event Tenant becomes the subject debtor in a case
pending under the Bankruptcy Code, or in any bankruptcy court or Division,
Landlord's right to terminate this lease shall be subject to the rights of the
trustee in bankruptcy to assume or assign this lease. To the extent permitted or
allowed by law, the trustee shall not have the right to assume or assign this
lease until the trustee (i) promptly cures all defaults under the lease, (ii)
promptly compensates Landlord for monetary damages incurred as a result of such
default, and (iii) provides "adequate assurance of future performance" which
shall mean (in addition to any other statutory requirements) that all of the
following have been satisfied; (i) in addition to rental payable under the
lease, the trustee shall establish with Landlord a security deposit equal to
three (3) months' annual basic rental; (ii) maintain said security deposit in
said amount whenever it is drawn upon by Landlord; (iii) trustee must agree that
Tenant's business shall be conducted in a first class manner; (iv) the use of
the premises shall not change. If all of the foregoing are not satisfied, Tenant
shall be deemed not to have provided Landlord with adequate assurance of future
performance of this lease.
B. In addition, if Tenant becomes the subject debtor under the
Bankruptcy Code or in any bankruptcy court or Division, any person or entity to
which this lease is assigned pursuant to the provisions of the Bankruptcy Code,
11 U.S.C. 101 et seq., shall be deemed without further act or deed to have
assumed all of the obligations arising under this lease on and after the date of
such assignment. Any such assignee shall, upon demand, execute and deliver to
Landlord an instrument confirming such assumption.
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Section 16.4. Damages
A. If this lease is terminated by Landlord pursuant to Section
16.2C, Tenant nevertheless shall remain liable for any rental and damages which
may be due or sustained prior to such termination, and all reasonable costs,
fees and expenses incurred by Landlord in pursuit of its remedies hereunder, or
in renting the premises to others from time to time (all such rental, damages,
costs, fees and expenses being referred to herein as "termination damages") and
additional damages (the "liquidated damages") equal to the rental which, but for
termination of this lease, would have become due during the remainder of the
term, less the amount of rental, if any, which Landlord may receive during such
period from others to whom the premises may be rented (other than any additional
rental received by Landlord as a result of any failure of such other person to
perform any of its obligations to Landlord).
B. Termination damages shall be due and payable immediately
upon demand by Landlord following any termination of this lease pursuant to
Section 16.2C. Liquidated damages shall be computed and payable in monthly
installments, in advance, on the first day of each calendar month following
termination of the lease and continuing until the date on which the term would
have expired but for such termination. Any suit or action brought to collect any
liquidated damages for any month shall not, in any manner, prejudice the right
of Landlord to collect any liquidated damages for any subsequent month by a
similar proceeding.
C. If this lease is terminated pursuant to Section 16.2 C,
Landlord may relet the premises, or any part thereof, alone or together with
other premises, for such term or terms (which may be greater or less than the
period which otherwise would have constituted the balance of the term) and on
such terms and conditions (which may include rent concessions, or free rent and
alterations of the premises) as Landlord, in its uncontrolled discretion, may
determine but Landlord shall not be liable for, nor shall Tenant's obligations
hereunder, be diminished by reason of, any failure by Landlord to relet, or to
attempt to relet, the premises or any failure of Landlord to collect any rent
due upon such reletting.
D. Whether or not Landlord shall have collected any monthly
deficiencies as aforesaid, Landlord shall, at its sole option, be entitled to
recover from Tenant, and Tenant shall pay Landlord, on demand, as and for total
liquidated and agreed final damages, a sum equal to the amount by which the
rental payable hereunder for the period which otherwise would have constituted
the unexpired portion of the term (conclusively presuming the annual basic
rental to be the amount arrived at pursuant to the calculation set forth in
section 16.4 A above) exceeds the then fair and reasonable rental value of the
premises for the same period, both discounted to present worth at the rate of
10% per annum. If, before presentation of proof of such total liquidated damages
to any court, commission or tribunal, the premises, or any part thereof, shall
have been relet by Landlord for the period which otherwise would have
constituted the unexpired portion of the term, or any part thereof, the amount
of rental upon such reletting shall be deemed, prima facie, to be the fair and
reasonable rental value for the part or the whole of the premises so relet
during the term of the reletting.
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ARTICLE XVII
SUBORDINATION, ATTORNMENT AND FINANCING
Section 17.1. Subordination
A. Unless a mortgagee (as hereinafter defined) shall otherwise
elect, as provided in Section 17.2, Tenant's rights under this lease are and
shall remain subject and subordinate to the operation and effect of:
(i) Any lease of land only, or of land and
buildings, in a sale-leaseback transaction involving the premises; or
(ii) Any mortgage, deed of trust or other security
constituting a lien upon the premises, whether the same shall be in existence on
the date hereof or created hereafter, any such lease, mortgage, deed of trust or
other security instrument being referred to herein as a "mortgage" and the party
or parties having the benefit of the same, whether as lessor, mortgagee, trustee
or note holder, being referred to herein as a "mortgagee". Tenant's knowledge of
and agreement to subordination provided for in this Section is self-operative
and no further instrument of subordination shall be required; however, Tenant
shall execute such further assurances thereof as shall be required or as may be
requested, from time to time, by Landlord or a mortgagee.
B. In the event that a bona fide institutional lender shall
request reasonable modifications in this lease, as a condition of providing
Landlord with financing for the construction of any alterations or improvements
of the premises, building complex or retail center area, then Tenant shall not
unreasonably withhold or delay its written consent to such modifications
provided that same do not increase the obligations of Tenant hereunder or
materially adversely effect either the leasehold interest hereby created or
Tenant's use and enjoyment of the premises.
Section 17.2. Mortgagee's Unilateral Subordination
If a mortgagee shall so elect by notice to Tenant or by the
recording of a unilateral declaration of subordination, this lease and Tenant's
rights hereunder shall be superior and prior in right to the mortgage of which
such mortgagee has the benefits with the same force and effect as if this lease
had been executed, delivered and recorded prior to the execution, delivery and
recording of such mortgage, subject, nevertheless, to such conditions as may be
set forth in any such notice of declaration.
Section 17.3. Attornment
If any person shall succeed to all or part of Landlord's
interest in the premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease, or otherwise, and if so
requested or required by such successor in interest and shall execute such
agreement in confirmation of such attornment as such successor in interest shall
reasonably request.
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ARTICLE XVIII
NOTICES
Section 18.1. Sending of Notices
Any notice, request, demand, approval or consent given, or
required to be given, under this lease shall be in writing and shall be deemed
to have been given on the third (3rd) day following the day on which the same
shall have been mailed by United States registered or certified mail, return
receipt requested, with all postal charges prepaid, and shall be addressed, if
intended for Landlord, to See Basic Lease Provisions, c/o Hofing Management,
X.X. Xxx 00000, Xxxx Xxxxxxx, Xxx Xxxxxx 00000 or, if intended for the Tenant,
to Tenant, at the Tenant Notice Address. Either party may, at any time, change
its address for the above purposes by sending a notice to the other party
stating the change of and setting forth the new address.
Section 18.2. Notice to Mortgagees
If any mortgagee shall notify Tenant that it is the holder of
a mortgage affecting the premises, no notice, request or demand thereafter sent
by Tenant to Landlord shall be effective unless and until a copy of the same
shall also be sent to such mortgagee in the manner prescribed in Section 19.1
and to such address as such mortgagee shall designate.
ARTICLE XIX
MISCELLANEOUS
Section 19.1. Estoppel Certificates
At any time, and from time to time, within ten (10) days after
Landlord shall request the same, Tenant shall execute, acknowledge and deliver
to Landlord and to such mortgagee or other party as may be designated by
Landlord, a certificate in the form attached hereto as Exhibit "A", with respect
to the matters set forth in Schedule A, and such other matters relating to this
lease or the status of performance of obligations of the parties hereunder as
may be reasonably requested by Landlord. In the event that Tenant fails to
provide such certificate submitted to Tenant by Landlord and Landlord is hereby
authorized to so certify.
Section 19.2. Inspections by Landlord
Tenant shall permit Landlord, its agents, employees and
contractors to enter all parts of the premises during Tenant's business hours to
inspect the same and to enforce or carry out any provisions of this lease.
Section 19.3. Memorandum of Lease
The parties hereby agree that, upon the request of either
party, each shall execute, acknowledge and deliver a short form of memorandum of
this lease in recordable form. Recording, filing and like charges and any charge
for recording or for transfer or other tax shall be paid by the party requesting
execution of the same.
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Section 19.4. Waiver of Jury Trial and Counterclaim
The parties hereby waive trial by jury in any action,
proceeding or counterclaim brought by either party against the other on any
matter whatsoever arising out of or in any way connected with this lease, the
relationship of Landlord and Tenant created hereby, the use or occupancy of the
premises or any claim for injury or damage. Tenant shall not interpose any
counterclaim of whatever nature or description in any such proceedings. In
addition, Tenant expressly waives any and all rights of redemption granted by or
under any present or future laws in the event Tenant shall be evicted or
dispossessed from the premises for any cause, or Landlord re-enters the
premises, following the occurrence of an event of default hereunder, or this
lease is terminated before the expiration date originally fixed herein.
Section 19.5. Remedies Cumulative
No reference to any specific right or remedy shall preclude
Landlord from exercising any other right or from having any other remedy or from
maintaining any action to which it may otherwise be entitled at law or in
equity. No failure by Landlord to insist upon strict performance of any
agreement, term, covenant or condition hereof, or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a present or
future waiver of any such breach, agreement, term, covenant or condition. No
waiver by Landlord of any breach by Tenant under this lease, or of any breach by
any other tenant under any other lease of any portion of' the retail center,
shall affect or alter this lease in any way whatsoever, nor shall constitute a
waiver for the future of any such breach or any provision hereof.
Section 19.6. Successors and Assigns
This lease and the covenants and conditions herein contained
shall inure to the benefit of and be binding upon Landlord, its successors and
assigns, and shall be binding upon Tenant, its successors and assigns and shall
inure to the benefit of Tenant and only such assigns of Tenant to whom the
assignment of this lease by Tenant has been consented to by Landlord. Upon any
sale or other transfer by Landlord of its interest in the premises, Landlord
shall be relieved of all obligations under this lease occurring thereafter.
Section 19.7. Compliance with Laws and Regulations
Tenant, at its sole cost and expense, shall comply with and
shall cause the premises to comply with (i) all federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations and
ordinances affecting the premises, or any part thereof, or the use thereof,
including those which require the making of any structural, unforeseen or
extraordinary changes, whether or not any such statutes, laws, rules, orders,
regulations or ordinances which may hereafter be enacted involve a change of
policy on the part of the governmental body enacting the same; and (ii) all
rules, orders and regulations of the National Board of Fire Underwriters of
Landlord's fire insurance rating organization or other bodies exercising similar
functions in connection with the prevention of fire or the correction of
hazardous conditions which apply to the premises. Notwithstanding the foregoing,
any structural changes shall be the responsibility of the Landlord.
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Section 19.8. Captions and Headings
The table of contents and the Article and Section captions and
headings are for convenience of reference only and in no way shall be used to
construe or modify the provisions set forth in this lease.
Section 19.9. Joint and Several Liability
If two or more individuals, corporations, partnerships or
other business associations (or any combination of the two or more thereof)
shall sign this lease as Tenant, the liability of each such individual,
corporation, partnership or other business association to pay rent and perform
all other obligations hereunder, shall be deemed to be joint and several, and
all notices, payments and agreements given or made by, with or to any one of
such individuals, corporations, partnerships or other business associations
shall be deemed to have been given or made by, with or to all of them. In like
manner, if Tenant shall be a partnership or other business association, the
members of which are, by virtue of statute or federal law, subject to personal
liability, the liability of each such member shall be joint and several.
Section 19.10. No Discrimination
It is intended that the retail center shall be developed so
that all prospective tenants thereof, and all customers, employees, licensees
and invitees of all tenants shall have the opportunity to obtain all the goods,
services, accommodations, advantages, facilities and privileges of the retail
center without discrimination because of race, creed, color, sex, age national
origin or ancestry. To that end, Tenant shall not discriminate in the conduct
and operation of its business in the premises against any person or group of
persons because of the race, creed, color, sex, age, national origin, or
ancestry of such person or group of persons.
Section 19.11. No Joint Venture
Any intention to create a joint venture or partnership
relation between the parties herein is hereby expressly disclaimed. The
provisions of this lease in regard to the payment by Tenant and the acceptance
by Landlord of a percentage of gross sales of Tenant and others is a reservation
of rent by Landlord for the use of the premises by Tenant.
Section 19.12. No Option
The submission of this lease for examination does not
constitute a reservation of or option to lease the premises, and this lease
shall become effective only upon execution and delivery thereof by both parties.
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Section 19.13. No Modification
This writing is intended by the parties as a final expression
of their agreement and as a complete and exclusive statement of the terms
thereof; all negotiations, considerations and representations between the
parties have been incorporated herein. No course of prior dealings between the
parties or their officers, employees, agents or affiliates shall be relevant or
admissible to supplement, explain, or vary any of the terms of this lease.
Acceptance of, or acquiescence in, a course or performance rendered under this
or any prior agreement between the parties or their affiliates shall not be
relevant or admissible to determine the meaning of any of the terms of this
lease. No representations, understandings, or agreements have been made or
relied upon in the making of this lease other than those specifically set forth
herein. This lease can be modified only by a writing signed by the party against
whom the modification is enforceable.
Section 19.14. Severability
If any term or provision, or any portion thereof, of this
lease, or the application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this lease shall be valid and be
enforced to the fullest extent permitted by law.
Section 19.15. Third Party Beneficiary
Nothing contained in this lease shall be construed so as to
confer upon any other party the rights of a third party beneficiary except
rights contained herein for the benefit of a mortgagee.
Section 19.16. Corporate Tenants
In the event Tenant is a corporation, the persons executing
this lease on behalf of Tenant hereby covenant and warrant that: Tenant is a
duly constituted corporation qualified to do business in New Jersey, all
Tenant's franchise and corporate taxes have been paid to date; all future forms,
reports, fees and other documents necessary for Tenant to comply with applicable
laws shall be filed by Tenant when due; and such persons are duly authorized by
the board of directors of such corporation to execute and deliver this lease on
behalf of the corporation. (Tenant to furnish Landlord with a resolution
authorizing execution of the within lease.)
Section 19.17. Applicable Law
This lease and the rights and obligations of the parties
hereunder shall be construed in accordance with the internal laws of the state
of New Jersey applicable to leases made and to be performed in the state of New
Jersey without regard to principles of conflicts of law.
Section 19.18. Construction of Lease
A. This lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
lease to be drafted.
B. Words and phrases used in the singular shall be deemed to
include the plural and vice versa, and nouns and pronouns used in any particular
gender shall be deemed to include any other gender.
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C. The rule of "ejusdem generis" shall not be applicable to
limit a general statement following or referable to an enumeration of specific
matters to matters similar to the matters specifically mentioned.
Section 19.19. Performance of Landlord's Obligations by Mortgagee
Tenant shall accept performance of any of Landlord's
obligations hereunder by any mortgagee.
Section 19.20. Limitation of Liability
In connection with the provisions of this lease and the
obligations and covenants of Landlord herein set forth, if Landlord or any
successor in interest be an individual, joint venture, tenancy-in-common,
partnership, unincorporated association or other unincorporated aggregate of
individuals (all of which are referred to below, individually and collectively,
as an "unincorporated landlord"), then anything elsewhere to the contrary
notwithstanding, unincorporated landlord in the premises, building complex and
retail center area for the satisfaction of Tenant's remedies, for the collection
of a judgment (or other judicial process) requiring the payment of money by
Landlord in the event of any default or breach by Landlord with respect to any
of the terms, covenants and conditions of this lease to be observed and/or
performed by Landlord, and no other property or assets of such unincorporated
landlord, or any general or limited partner thereof, shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies.
(Optional Paragraphs To Be Used)
Section 19.21. Lessee's Franchisor Required Statements. Anything
contained in this lease to the contrary not withstanding, upon Landlord's prior
written consent, which may be granted or withheld for any or no reason, this
lease and the right, title and interest of the Tenant thereunder, may be
assigned by the Tenant to See Basic Lease Provisions (Tenant's Franchisor), or
its designee, provided that said See Basic Lease Provisions shall execute such
documents evidencing its agreement to thereafter keep and perform, or cause to
be kept and performed, all of the obligations of the Tenant arising under his
lease from and after the time of such assignment and Tenant shall remain fully
liable for all obligations under this lease.
Section 19.22. Additional Notice. Landlord shall give written notice
to See Basic Lease Provisions (Name of Tenant's Franchisor) concurrently with
the giving of such notice to Tenant, of any default, by Tenant under the lease
and See Basic Lease Provisions shall have, after the expiration of the period
during which the Tenant may cure such default, an additional five (5) days to
cure, at its sole option, any such default. Mailing address: See Basic Lease
Provisions.
Section 19.23. Additional Terms
The expressed intent of the parties as set forth in Sections
6.1 Taxes, 10.3 Tenant to Share Expenses of Common Area and 12.7 Landlord's
Insurance is that Tenant will be responsible only for its prorated share of the
entire premises based upon their percentage of occupancy.
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(Optional Paragraphs to be Used)
Section 19.24. Landlord's Approval
Whenever this lease requires Landlord's consent or approval,
Landlord will not withhold its approval or consent unreasonably or in bad faith,
and Landlord will not unreasonably delay its response to Tenant's request for
its approval or consent. Landlord will be deemed to have given its consent or
approval to any request made by Tenant if Landlord does not respond to Tenant in
writing within ten (10) days after Landlord's receipt of the request. If
Landlord withholds its consent or approval; its response will explain its reason
for doing so.
Section 19.25. Exclusive Agreement
Landlord agrees that Tenant shall be the only tenant in the
shopping center allowed to See Exhibit "G" of any kind and Landlord shall not
lease to any other tenant nor allow a tenant to sublease to anyone performing
such services. This shall also apply to any future leases of space which is
within 1000 feet of the boundary of this shopping center if said space has
ownership by any stockholder, officer, partner, or proprietary interest of
Landlord.
Section 19.26. Submission of Lease to Tenant
THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE
NO BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR THE LEASING OF
THE PREMISES, NOR CONFER ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON' EITHER PARTY
UNTIL THE EXECUTION THEREOF BY LANDLORD AND THE DELIVERY OF AN EXECUTED ORIGINAL
COPY THEREOF TO TENANT OR ITS REPRESENTATIVES.
ARTICLE XX
TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES
Section 20.1. Hazardous Substances
The term "Hazardous Substances," as used in this Lease, shall
include, without limitation, flammables, explosives, radioactive materials,
asbestos, polychlorinated biphenyls (PCBS), chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now or
hereafter enacted or promulgated by any governmental authority.
Section 20.2. Tenant's Restrictions
A. Tenant shall not cause or permit to occur:
(i) Any violation of any federal, state, or local
law, ordinance, or regulation now or hereafter enacted, related to environmental
conditions on, under, or about the Premises, or arising from Tenant's use or
occupancy of the Premises, including, but not limited to, soil and ground water
conditions; or
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(ii) The use, generation, release, manufacture,
refining, production, processing, storage, or disposal of any Hazardous
Substance on, under, or about the Premises, or the transportation to or from the
Premises of any Hazardous Substance, except as specifically disclosed on
Schedule A to this Lease.
Section 20.3. Environmental Clean-up
A. Tenant shall, at Tenant's own expense, comply with all laws
regulating-the use, generation, storage, transportation, or disposal of
Hazardous Substances ("Laws").
B. Tenant shall, at Tenant's own expense, make all submissions
to, provide all information required by, and comply with all requirements of all
governmental authorities (the "Authorities") under the Laws.
C. Should any Authority or any third party demand that a
cleanup plan be prepared and that a clean-up be undertaken because of any
deposit, spill, discharge, or other release of Hazardous Substances that occurs
during the term of this Lease, at or from the Premises, or which arises at any
time from Tenant's use or occupancy of the Premises, then Tenant shall, at
Tenant's own expense, prepare and submit the required plant and all related
bonds and other financial assurances; and Tenant shall carry out all such
cleanup plans.
D. Tenant shall promptly provide all information regarding the
use, generation, storage, transportation, or disposal of Hazardous Substances
that is requested by Owner. If Tenant fails to fulfill any duty imposed under
this Section (20.3) within a reasonable time, Owner may do so; and in such case,
Tenant shall cooperate with Owner in order to prepare all documents Owner deems
necessary or appropriate to determine the applicability of the Laws to the
Premises and Tenant's use thereof, and for compliance therewith, and Tenant
shall execute all documents promptly upon Owner's request. No such action by
Owner and no attempt made by Owner to mitigate damages under any Law shall
constitute a waiver of any of Tenant's obligations under this Section (20.3).
Section 20.4. Tenant's Indemnity
A. Tenant shall indemnify, defend, and hold harmless Owner,
the manager of the property, and their respective officers, directors,
beneficiaries, shareholders, partners, agents, and employees from all fines,
suits, procedures, claims, and actions of every kind, and all costs associated
therewith (including attorneys' and consultants' fees) arising out of or in any
way connected with any deposit, spill, discharge, or other release of Hazardous
Substances that occurs during the term of this Lease, at or from the Premises,
or which arises at any time from Tenant's use or occupancy of the Premises, or
from Tenant's failure to provide all information, make all submissions, and take
all steps required by all Authorities under the Laws and all other environmental
laws.
B. Tenant's obligations and liabilities under this Section
(20.4) shall survive the expiration of this Lease.
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ARTICLE XXI
OWNER'S RIGHT TO PERFORM BUILDING RENOVATIONS
A. Tenant understands and agrees that Owner may, at any time
or from time to time during the term of this Lease, perform substantial
renovation work in and to the Building or the mechanical systems serving the
Building (which work may include, but need not be limited to, the repair or
replacement of the building's exterior facade, exterior window glass, elevators,
electrical systems, air conditioning and ventilating systems, plumbing systems,
common hallways, or lobby), any of which work may require access to the same
from within the premises.
B. Tenant agrees that:
(i) Owner shall have access to the premises at all
reasonable times, upon reasonable notice, for the purpose of performing such
work, and
(ii) Owner shall incur no liability to Tenant, nor
shall Tenant be entitled to any abatement of rent on account of any noise,
vibration, or other disturbance of Tenant's business at the Premises (provided
that Tenant is not denied access to said Premises) which shall arise out of said
access by Owner or by the performance by Owner of the aforesaid renovations at
the building.
C. Owner shall use reasonable effort (which shall not include
any obligation to employ labor at overtime rates or payment to any subcontractor
in excess of those sums originally agreed upon for normal working hour
provisions or materials ordered) to avoid disruption of Tenant's business during
any such entry upon the Premises by Owner.
D. It is expressly understood and agreed by and between Owner
and Tenant that if Tenant shall commence any action or proceeding seeking
injunctive, declaratory, or monetary relief in connection with the rights
reserved to Owner under this provision, or if Owner shall commence any action or
proceeding to obtain access to the Premises in accordance with this provision,
and if Owner shall prevail in any such action, then Tenant shall pay to Owner,
as additional rent under this Lease, a sum equal to all legal fees, costs, and
disbursements incurred by Owner in any way related to or arising out of such
action or proceeding.
ARTICLE XXII
CONSTRUCTION AND FINANCING OF LEASED PREMISES
A. In the event this Lease is on property that is to be
constructed, Landlord shall, at its own cost and expense, construct the Leased
Premises in accordance with plans and specifications prepared by Landlord,
incorporating in such construction all items of work described in "Exhibit C"
(annexed hereto and made a part hereof).
B. If Landlord's construction work, as specified in "Exhibit
C" or in "Addendum C", is not substantially underway on or before See Basic
Lease Provision either Landlord or Tenant may elect to terminate this Lease by
giving the other written notice within sixty (60) days of said date. Failure to
give such notice shall constitute a waiver of the right to so terminate. In the
event of such termination, this Lease shall become null and void with neither
party having any further liability to the other.
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C. Landlord shall not be obligated to proceed with the
construction of the Shopping Center or the Leased Premises unless and until
financing acceptable to Landlord is obtained. Should such financing not be
obtained within eighteen (18) months after execution of this Lease, Landlord
shall have the right at any time during and after said period to cancel this
Lease. If Landlord can obtain financing only upon the basis of modifications of
the terms of this Lease, Landlord shall have the right to caned this Lease if
Tenant refused to approve in writing any such modifications within fifteen (15)
days after Landlord's request therefor, which request may not be made after
delivery of possession. If Landlord's right to cancel is exercised as herein
provided, this Lease shall thereafter be null and void, any money or security
deposited hereunder shall be returned to Tenant, and neither party shall have
any further liability to the other.
IN WITNESS WHEREOF, the parties hereto intending to be legally
bound hereby have executed this Lease as of the day and year first above
written.
Witness/Attest: The Lalor Urban Renewal Limited Partnership
_____________________________ By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx, President
The Lalor Corporation
General Partner
Yardville National Bank
_____________________________ By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxx, President & CEO
Yardville National Bank
_____________________________ By: /s/ Xxx X. Xxxxxxxxxx
----------------------------------------
Xxx X. Xxxxxxxxxx
Chairman of the Board
-38-
EXHIBIT A
October , 1994
Re: Lease dated the ______ day of October, 1994, between
The Lalor Urban Renewal Limited Partnership, as Landlord, and Yardville National
Bank, as Tenant.
Tenant Trade Name: Yardville National Bank
Gentlemen:
It is our understanding that you have committed to make a
mortgage loan secured by some part or all of the premises known as The Lalor
Plaza, Unit #B-lb Right and that as a condition precedent to the making of such
loan you have required this certificate by the undersigned.
The undersigned as Tenant under the above-captioned lease
hereby ratifies said lease and certifies that the undersigned has entered into
occupancy of the premises on November 1, 1994, and the annual basic rental in
the amount of $22,500.00 CPI increases annually commenced to accrue from that
date; that said lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way except by agreement between
Landlord and Tenant as to this leasing; that the term of said lease commenced on
date above set forth; that Tenant's floor area is 1500 square feet; that all
conditions under said lease to be performed by Landlord have been satisfied,
including without limitation, all co-tenancy requirements thereunder, all
required contributions by Landlord to Tenant on account of Tenant's improvements
that have been received, and on this date there are no existing defenses or
offsets which the undersigned has against the full enforcement of said lease by
Landlord; no rental has been paid in advance; that all rental due up to and
including 1995 has been paid; and that the approximate costs of Tenant's
improvements to the premises (exclusive of any contributions toward the cost of
such improvement by Landlord) is $________ .
Unless the context otherwise requires, all capitalized terms
used herein have the same meanings as are ascribed to them in said lease.
Very truly yours,
The Yardville National Bank
By: /s/ Xxxxxxx X. Xxxx
------------------------
Xxxxxxx X. Xxxx
President & CEO
By: /s/ Xxx X. Xxxxxxxxxx
------------------------
Xxx X. Xxxxxxxxxx
Chairman of the Board
A-1
EXHIBIT F
---------
Date: October , 1994
COMMISSION AGREEMENT
--------------------
Xxxxxx X. Xxxxxxx of Casual Consulting Services, Broker of
Record, a licensed Real Estate Broker in the State of NEW JERSEY, is recognized
by both Landlord and Tenant as the sole and exclusive broker, and the sole
procuring cause, consummating a Lease Agreement between The Lalor Urban Renewal
Limited Partnership, Landlord, and Yardville National Bank, Tenant, with said
Lease commencing on the 1st day of November, 1994, for premises located in Lalor
Plaza, Trenton, New Jersey.
WHEREIN said Xxxxxx X. Xxxxxxx, shall be entitled to a
commission of .06% percent of the gross base rent, payable quarterly by the
Landlord from the proceeds of rent collected, with the first payment being due
Three (3) Months from the date rent is collected, Rent is due to commence March
1, 1995. In the event the initial Lease expires and a new Lease is negotiated
between said Landlord and Tenant, or whether Tenant remains on a month-to-month
basis or becomes a hold-over tenant after the expiration of the initial term of
the Lease, or any exercised options thereof, Xxxxxx R, Xxxxxxx, shall still be
entitled to the same rate of commission as set forth herein above. In the event
of non-payment of rent, the obligation to pay commission will terminate or be
delayed until rent is collected from the Tenant. Landlord agrees to pay a
commission for any options, extensions and renewals. The Broker will receive the
same commission in the event the Tenant occupies additional space at the Lalor
Plaza location, or any other property the Landlord owns or controls for a period
of three (3) years commencing as of the execution of this Lease Agreement.
IN THE EVENT that during the time this Lease is in full force
and effect there is a sale of the entire building by the Landlord to a third
party or their legal representatives, successors or assigns respectively, then
this Commission Agreement shall survive the closing date of said sale.
FURTHER, it is understood and agreed that the covenants and
agreements herein contained are binding on the parties hereto and upon their
respective successors, heirs, executors, administrators and assigns, and
personal representatives.
Witness/Attest: The Lalor Urban Renewal Limited Partnership
_____________________________ By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx, President
The Lalor Corporation
General Partner
F-1
Capital Consulting Services
By:________________________________________
Xxxxxx X. Xxxxxxx, President
Yardville National Bank
_____________________________ By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxx, President & CEO
Yardville National Bank
_____________________________ By: /s/ Xxx X. Xxxxxxxxxx
----------------------------------------
Xxx X. Xxxxxxxxxx
Chairman of the Board
F-2
EXHIBIT G
---------
ADDENDUM TO LEASE AGREEMENT
---------------------------
The Lalor Urban Renewal Limited Partnership, Landlord
AND
Yardville National Bank, Tenant
The following changes to the Lease dated October, 1994
indicated above arc hereby agreed to by the Lessor and the Lessee. In the event
of a conflict between this Addendum and the Main Lease, the Addendum shall
prevail.
All other provisions of the existing Lease will prevail except
that the Lease is subject to the following:
1. Yardville National Bank (YNB) must successfully obtain
approval for this branch location from the Office of the Comptroller of the
Currency (0CC).
2. Yardville National Bank (YNB) must successfully obtain
necessary local approvals for this local branch.
3. Yardville National Bank (YNB) must be able to secure
permission and approvals to construct a bank drive-thru window facility on
building B at the Lalor Plaza Shopping Center or on vacant land owned by the
City of Trenton known as Xxxxx 000, Xxx 00.
4. In the event the above conditions are not fulfilled by
January 1, 1995, then in that event, this lease shall become null and void
unless Yardville National Bank chooses to waive one or more of the above
conditions.
5. In the event H&R Block does not exercise their option to
renew their lease, then in that event, Yardville National Bank will have the
First Right of Refusal for thirty (30) days to rent the additional 1500 square
feet to the left of YNB's unit #B-lb.
IN WITNESS WHEREOF, the parties hereto intending to be legally
bound hereby have executed
Witness/Attest: The Lalor Urban Renewal Limited Partnership
_____________________________ By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx, President
The Lalor Corporation
General Partner
G-1
Yardville National Bank
_____________________________ By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxx, President & CEO
Yardville National Bank
_____________________________ By: /s/ Xxx X. Xxxxxxxxxx
----------------------------------------
Xxx X. Xxxxxxxxxx
Chairman of the Board
G-2
ADDENDUM
--------
TO
--
LEASE
-----
The contents of this Addendum are intended to be an integral
part of the Lease Agreement between Lalor Urban Renewal Limited Partnership
-and- Yardville National Bank and wherever the terms of this Addendum and the
Lease Agreement conflict, the Addendum shall govern.
1. This is to clarify that the proportionate share of Tenant's
responsibility for real estate taxes, common area maintenance, operating costs
and insurance on the project is 3.3%. The Tenant's late charge for any late
payment (more than 7 days after the due date) is 10% of the monthly payment.
There is no additional interest charged on late payments.
2. Paragraph 3.3 of the Lease is modified to state that the
monthly rental shall be increased to 1 1/2 times the existing rent if the Tenant
were to hold over after the expiration of the lease term.
3. Paragraph 3.5 of the Lease is modified to require the
Landlord to give the Tenant ten days notice prior to the removal or disposal of
any items of the Tenant's personal property following the termination of this
Lease or eviction of the Tenant.
4. Paragraph 6.1 of the Lease is modified to state that the
Tenant will only be responsible for reasonable attorney's fees associated with
any negotiation, contest or appeal of the real estate taxes pursued by the
Landlord in an effort to reduce any such tax, assessment or charge.
5. Paragraph 6.4 of the Lease is hereby modified to state that
the Tenant will pay its sales tax, excess tax, business use and occupancy tax
affecting its leased property but will not be responsible for any other of said
taxes affecting any other leased premises in the Lalor Shopping Plaza.
6. Paragraph 7.2 of the Lease is modified to state that the
Tenant shall be given 45 days in which to discharge any mechanics liens
affecting the property from the date the lien is filed.
7. Paragraph 8.2 of the Lease is modified to state that the
Tenant will have the option to place signage visible to traffic on Interstate 29
provided Tenant obtains the proper written approval of the Landlord and approval
from all city and state authorities, If Landlord approves said signage, Landlord
agrees to cooperate with the Tenant to obtain all necessary approvals from the
city and state authorities.
8. Paragraph 9.3 of the Lease is modified to state that the
Tenant will be responsible for the repairs mentioned therein only if they are
caused by the negligence of the Tenant.
9. Paragraph 11.2 of the Lease is hereby modified to state
that Tenant will only be responsible for repairing those utilities within its
leased premises. Tenant will not be responsible for repairing any utilities
outside of the leased premises or within any other Tenant's premises.
10. Paragraph 12.3 of the Lease is hereby modified to state
that the Tenant will not be limited from bringing an action against the Landlord
for any actions of the Landlord in allowing another Tenant to conduct activity
on its leased premises which adversely affects the Tenant in this Lease.
11. Paragraph 13.2 of the Lease is modified to state that the
Tenant also has the option to terminate the Lease for the same reasons that the
Landlord has the option to terminate the Lease under this paragraph.
12. Paragraph 19.4 of the Lease is hereby deleted.
13. The Lease is contingent upon Yardville National Bank
obtaining all necessary permits, variances, approvals, etc. from the City of
Trenton and State of New Jersey to build/construct its proposed drive-thru
facility at the subject premises by March 1, 1995. If approvals are not obtained
by March 1, 1994 and Tenant waives this contingency, Landlord, nevertheless,
agrees to cooperate with Tenant to obtain this approval at some future date and
consents to the construction of a drive-thru facility at the location presently
contemplated.
14. The Tenant shall not be responsible for any additional
offsite improvements required of the Landlord by the City of Trenton or State of
New Jersey subsequent to the execution of this Lease. Landlord may not include
such costs into the common area maintenance or operating costs to be
proportionately shared by this Tenant.
15. Landlord agrees not to lease any other rental unit within
the Lalor Plaza Shopping Center to any state or federally chartered bank and/or
savings and loan during the term of this Lease or any extensions hereof. In the
event the Landlord violates this covenant not to lease to a competitor of
Yardville National Bank, then the Tenant will have the right to seek injunctive
relief with a court of law to prevent this violation. In the event Tenant is
required to incur attorney's fees in connection with this injunctive relief the
Landlord agrees to pay the reasonable attorney's fees of the Tenant incurred for
this reason.
16. Payments of rent under this Lease shall commence on March
1, 1995.
IN WITNESS WHEREOF, the parties hereto intending to be legally
bound hereby have executed this Addendum to Lease as of this 20th day of
December, 1994.
Witness/Attest: The Lalor Urban Renewal Limited Partnership
____________________________ By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx, President
The Lalor Corporation
General Partner
-2-
Yardville National Bank
____________________________ By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxx, President & CEO
____________________________ By: /s/ Xxx X. Xxxxxxxxxx
----------------------------------------
Xxx X. Xxxxxxxxxx
Chairman of the Board
-3-
