Collingswood (No. 203)
LEASE AGREEMENT
BY AND BETWEEN
FIRST STATES PARTNERS NO. 203, LLC, AS LANDLORD
AND
CNB PARTNERSHIP, LLC, AS TENANT
PREMISES:
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx
TABLE OF CONTENTS
ARTICLE DESCRIPTION PAGE
------- ----------- ----
ARTICLE I - DEMISE PREMISES, TERM.............................5
1.01. Demise and Premises...............................5
1.02. Term..............................................6
1.03. Renewal Option....................................6
1.04. Termination Right.................................6
1.05. Zoning Approval...................................7
1.06. Landlord's Inspection Period......................7
ARTICLE II - RENT.............................................7
2.01. Basic Rent........................................7
2.02. Annual Increases in Basic Rent....................8
2.03. Additional Rent...................................8
2.04. Net Rent..........................................9
2.05. Interest on Rent; Late Charges....................9
2.06. Method of Payment.................................9
ARTICLE III - SECURITY DEPOSIT................................9
ARTICLE IV - USE..............................................9
4.01. Use...............................................9
4.02. Continuous Operations............................10
ARTICLE V - TAXES; UTILITIES.................................10
5.01. Taxes Payable by Tenant..........................10
5.02. Proration........................................10
5.03. Contests.........................................11
5.04. Evidence of Payment..............................11
5.05. Forwarding of Bills..............................11
5.06. Utility Charges..................................11
ARTICLE VI - ALTERATIONS.....................................11
6.01. Changes, Alterations and Additional Construction 11
6.02. Manner of Construction...........................12
6.03. Title to Alterations.............................12
ARTICLE VII - SURRENDER......................................12
7.01. Delivery of Possession...........................12
7.02. Removal of Personal Property.....................13
7.03. Retention of Personal Property...................13
ARTICLE VIII - INSURANCE.....................................14
8.01. Casualty Insurance...............................14
8.02. Liability Insurance..............................14
8.03. General Requirements.............................14
8.04. Accidents........................................15
8.05. Proof of Loss....................................15
8.06. Restoration......................................16
8.07. Mutual Waiver of Subrogation.....................16
ARTICLE IX - PERFORMANCE OF TENANT'S AGREEMENTS..............16
ARTICLE X - REPAIRS AND MAINTENANCE..........................17
10.01. Repair of Premises..............................17
10.02. No Obligation of Landlord to Make Repairs.......17
10.03. Commission of Waste.............................17
ARTICLE XI - COMPLIANCE WITH LAWS, ORDINANCES, ETC...........17
11.01. Compliance with Laws............................17
11.02. Compliance with Insurance Requirements..........18
11.03. Contest by Tenant...............................18
11.04. Permits.........................................18
ARTICLE XII - CONSTRUCTION LIENS.............................18
ARTICLE XIII - INSPECTION OF PREMISES BY LANDLORD............19
ARTICLE XIV - INDEMNIFICATION OF LANDLORD....................19
ARTICLE XV - TENANT'S ACCEPTANCE OF CONDITION OF PREMISES....19
ARTICLE XVI - DEFAULT BY TENANT..............................20
16.01. Event of Default................................20
16.02. Multiple Defaults...............................21
16.03. Landlord's Remedies for Tenant's Default........21
16.04. Miscellaneous Default Provisions................23
ARTICLE XVII - DAMAGE AND DESTRUCTION........................24
17.01. Damage by Fire, etc. ...........................24
17.02. Restoration.....................................25
17.03. No Abatement of Rent............................25
17.04. Termination of Lease............................25
ARTICLE XVIII - CONDEMNATION.................................25
18.01. Total Taking....................................25
18.02. Award on Total Taking...........................26
18.03. Partial Taking..................................26
18.04. Reconstruction..................................26
18.05. Award on Partial Taking.........................26
18.06. Settlement Agreement............................26
18.07. Abatement in Basic Rent.........................27
ARTICLE XIX - ASSIGNMENT, SUBLETTING AND MORTGAGING..........27
19.01. Voluntary Assignment or Other Transfer of
Lease...........................................27
19.02. Subletting......................................28
19.03. Transactions with Affiliates; Landlord's
Recapture Rights................................28
19.04. Tenant Remains Responsible......................29
19.05. FDIC............................................29
ARTICLE XX - NOTICES.........................................30
ARTICLE XXI - QUIET ENJOYMENT................................30
ARTICLE XXII - ESTOPPEL CERTIFICATES.........................30
22.01. Tenant's Estoppel...............................30
22.02. Landlord's Estoppel.............................31
ARTICLE XXIII - LEASE NOT SUBJECT TO TERMINATION.............31
23.01. Tenant Remains Bound............................31
23.02. Lease with First Mortgagee......................32
ARTICLE XXIV - ENVIRONMENTAL OBLIGATIONS.....................32
24.01. No Hazardous Materials..........................32
24.02. Definition of Hazardous Materials...............32
24.03. Notification of Hazardous Materials.............33
24.04. Landlord Access.................................34
24.05. Tenant Not Liable for Existing Conditions.......34
ARTICLE XXV - MISCELLANEOUS PROVISIONS.......................34
25.01. Year 2000.......................................34
25.02. Subordination, Attornment and Mortgagee
Protection......................................34
25.03. Integration.....................................35
25.04. No Recording....................................35
25.05. Time of the Essence.............................35
25.06. No Partnership..................................35
25.07. Severability....................................36
25.08. Authority.......................................36
25.09. Governing Law...................................36
25.10. Counterparts....................................36
25.11. Plans...........................................36
25.12. Headings; Pronouns..............................36
25.13. Binding Effect; Successors and Assigns..........37
25.14. Limitation of Landlord's Liability..............37
25.15. Survival........................................37
25.16. Brokers.........................................37
ARTICLE XXVI - RIGHT OF FIRST OFFER..........................38
EXHIBIT "A" - DESCRIPTION OF PREMISES
PROPERTY: Collingswood (No. 203)
LEASE AGREEMENT
This Lease Agreement ("Lease") is entered into as of
September ___, 1999, by and between FIRST STATES PARTNERS NO.
203, LLC, a New Jersey limited liability company, with an
address c/o First States Partners, L.P. at 0000 Xxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Landlord"), and CNB
PARTNERSHIP, LLC, a New Jersey limited liability company, with
an address at 000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx, Xxx
Xxxxxx 00000 ("Tenant"). Landlord and Tenant, each intending to
be legally bound, hereby mutually covenant and agree as follows:
ARTICLE I - DEMISE, PREMISES, TERM
1.01. Demise and Premises. Landlord hereby demises
and lets unto Tenant, and Tenant hereby leases and takes from
Landlord, for the Term (as hereinafter defined) and upon the
covenants, terms and conditions hereinafter set forth, (a) all
that certain tract or parcel of land situated at 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx, and more particularly
described in Exhibit "A" attached hereto and made a part hereof
("Land"), (b) the existing building ("Building"), and all
parking lots, driveways, walkways, utility facilities,
structures and other improvements located on the Land (the
Building and all items referred to in this clause (b) are
sometimes herein collectively called the "Improvements"), (c)
all those fixtures and building machinery and equipment which
are now located in or on the Improvements, and which are
necessary or useful for the supply of heat, air conditioning,
ventilation, electricity, telephone and other utility facilities
to the Improvements, in the quantities and capacities now being
supplied to the Improvements (collectively, "Fixtures"), (d)
trade fixtures and other personal property now located on or in
the Land or the Improvements, including any drive-through bank
equipment, vaults, and security systems (collectively,
"Personalty"), but excluding security system cameras and "smart"
control panels not owned by Landlord, all equipment or systems
that have been leased by Landlord or the prior user of the
Premises, automated teller machines, safe deposit boxes,
computer terminals, adding machines and removable furniture and
(e) all the appurtenances, rights, privileges and easements unto
the Land or Improvements belonging or in anywise appertaining
(the Land, Improvements, Fixtures, Personalty and said
appurtenances, rights, privileges and easements are sometimes
herein collectively called the "Premises").
1.02. Term. The term of this Lease (including any
extensions or renewals, the "Term") shall commence on December
15, 1999 ("Commencement Date"), and shall end upon the
expiration of the last day of the tenth Lease Year following the
Commencement Date ("Expiration Date"), unless extended or sooner
terminated as herein provided. As used herein, "Lease Year"
means each consecutive twelve calendar month period beginning
with the Commencement Date, except that if the Commencement Date
is not the first day of a calendar month, then the first Lease
Year shall also include the days during the Term occurring
before the first day of the first calendar month following the
Commencement Date. Notwithstanding the foregoing, on and after
the date hereof, Tenant may occupy the Premises for any and all
purposes permitted under this Lease, in which event all of the
terms and conditions of this Lease shall apply, except for
Tenant's obligation to pay Basic Rent (defined below). The date
that Tenant so takes possession of the Premises shall be
referred to herein as the "Possession Date".
1.03. Renewal Option. Provided Tenant shall not then
be in default beyond applicable notice or grace periods in the
observance or performance of any of its obligations or
agreements hereunder, Tenant shall have the right to extend the
Term of this Lease for two additional terms of five years each,
which right shall be exercisable by Tenant giving written notice
thereof to Landlord at least 180 days prior to the expiration of
the then current Term. Each such extension shall be on the same
terms and provisions set forth herein, except that Basic Rent
shall be increased as set forth in Section 2.02 hereof.
1.04. Termination Right. No later than October 31,
1999, Tenant or its prospective assignee shall make application
to the Federal Deposit Insurance Company and the Office of the
Comptroller of Currency to become a federally chartered bank
("Regulatory Approval") and shall pursue same in good faith and
with due diligence. Tenant shall immediately give written
notice to the Landlord of Tenant's receipt of Regulatory
Approval or knowledge of the denial of same. In such
connection, if Tenant or its assignee has not received all
necessary Regulatory Approvals on or before April 30, 2000, this
Lease, at the option of Tenant, may be terminated by written
notice to Landlord at any time thereafter (but prior to actual
receipt of Regulatory Approval and notice to Landlord thereof).
In such event, neither party shall have any further rights or
obligations hereunder. If Tenant fails to so notify Landlord of
its inability to obtain the necessary Regulatory Approvals on or
before April 30, 2000, Tenant shall be deemed to have obtained
all necessary Regulatory Approvals and to have waived its right
to terminate this Lease pursuant to this Section 1.04.
1.05. Zoning Approval. On or before November 15,
1999, Tenant shall apply to the Borough of Collingswood, Zoning
Board of Adjustment to obtain a variance to use the Premises as
a bank and for any and all other municipal permits and approvals
necessary for Tenant's intended use and occupancy of the
Premises ("Zoning Approval") and shall pursue same in good faith
and with due diligence. Tenant shall immediately give written
notice to Landlord of Tenant's receipt of such Zoning Approval
or knowledge of the denial of same. If Tenant has not received
all necessary Zoning Approvals and provided Landlord with
satisfactory evidence of same on or before April 30, 2000, this
Lease, at the option of Tenant, may be terminated by written
notice to Landlord at any time thereafter (but prior to actual
receipt of the Zoning Approval and notice to Landlord thereof).
If Tenant fails to so notify Landlord of its inability to obtain
the necessary Zoning Approvals and of its election to terminate
this Lease on or before April 30, 2000, Tenant shall be deemed
to have obtained all necessary Zoning Approvals and to have
waived its right to terminate this Lease pursuant to this
Section 1.05.
1.06. Landlord's Inspection Period. On or before
October 21, 1999, Landlord shall inspect the HVAC system serving
the Premises to determine the extent of repairs required to
bring the system into good operating condition ("HVAC Repair
Work"). If Landlord determines that the cost of HVAC Repair
Work exceeds $20,000, Landlord shall so notify Tenant, in which
event Landlord, in Landlord's sole discretion, may terminate
this Lease by written notice to Tenant unless Tenant, having no
obligation to do so, agrees in writing to pay the cost of the
HVAC Repair Work in excess of $20,000 as Additional Rent
hereunder. If this Lease is so terminated, Landlord promptly
shall return the Security Deposit to Tenant. If the cost of the
HVAC Repair Work is $20,000 or less, Landlord shall perform the
HVAC Repair Work, at Landlord's sole cost and expense, no later
than the Commencement Date.
ARTICLE II - RENT
2.01. Basic Rent. Beginning on the Commencement Date
and continuing throughout the fifth Lease Year, Tenant shall pay
to Landlord annual basic rent ("Basic Rent") of $45,000.00,
payable in equal monthly installments of $3,750.00. During the
sixth Lease Year, Tenant shall pay to Landlord annual Basic
Rent of $49,500.00, payable in equal monthly installments of
$4,125.00. During the seventh and subsequent Lease Years
throughout the Term, including any renewal or extensions
thereof, the Basic Rent payable by Tenant shall be increased as
expressed in Section 2.02 below. Each monthly installment of
Basic Rent shall be payable in advance on the first day of each
month during the Term, the first such installment to be paid on
the Commencement Date, provided, however, if the Commencement
Date is not the first day of a calendar month, then the Basic
Rent for the calendar month in which the Commencement Date
occurs shall be prorated on the basis of the portion of such
month which occurs during the Term, which prorated amount shall
be paid on the Commencement Date.
2.02. Annual Increases in Basic Rent. On the first
day of the seventh and each subsequent Lease Year throughout the
Term, the Basic Rent payable by Tenant shall be increased by an
amount determined by multiplying the Basic Rent payable during
the then current Lease Year by the greater of the (i) the CPI
Increase or (ii) 3%. The term "CPI Increase" shall mean a
fraction, expressed as a decimal, the numerator of which is the
Current CPI minus the Prior CPI and the denominator of which is
the Prior CPI. The "Current CPI" is the CPI for the calendar
month that is three months prior to the first calendar month of
the Lease Year for which the Basic Rent increase is being
calculated and the "Prior CPI" is the CPI for the calendar month
that is fifteen months prior to the first calendar month of the
Lease Year for which the Basic Rent increase is being
calculated. The term "CPI" shall mean the "Consumer Price Index
for All Urban Consumers (CPI-U)" published by the Bureau of
Labor Statistics of the United States Department of Labor, All
Items (1982-84=100), U.S. City Average, or any successor index
thereto, appropriately adjusted. If the CPI ceases to be
published and there is no successor thereto, such other
government or non-partisan index or computation shall be used
which would obtain a substantially similar result as if the CPI
has not been discontinued.
2.03. Additional Rent. From and after the Possession
Date, and throughout the Term of this Lease, Tenant shall pay as
additional rent ("Additional Rent", the Basic Rent and
Additional Rent, and each installment and increment thereof, are
sometimes herein collectively called "Rent") all additional
(i.e., in addition to the Basic Rent) sums, costs, expenses and
other payments which Tenant in any of the provisions of this
Lease assumes or agrees to pay or discharge and, in the event of
any non-payment thereof, Landlord shall have all the rights and
remedies provided for herein or by law in the case of non-
payment of rent.
2.04. Net Rent. It is intended that the provisions
of this Lease shall require Tenant to pay all costs and expenses
attributable to the Premises during the Term as if Tenant owned
the Premises during the Term, including without limitation, all
real estate taxes, special and general assessments, insurance
premiums and maintenance and repair costs and expenses. It is
intended that (a) Landlord shall incur no cost or expense with
respect to the Premises during the Term and (b) the Basic Rent
shall be an absolute net return to Landlord throughout the Term
of this Lease, without offset or deduction and free of all
expenses, charges, diminution and other deductions whatsoever.
2.05. Interest on Rent; Late Charges. Any Rent not
paid within ten days following the due date therefor shall bear
interest at the annual rate of 12% ("Default Rate") from its due
date until the date of payment. In addition, Tenant shall pay
Landlord a late charge equal to 5% of the amount of any Rent not
paid within ten days following the due date therefor.
2.06. Method of Payment. All Rent shall be payable
to Landlord at 0000 Xxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
or to such other person and/or at such other place as shall be
designated in writing by Landlord to Tenant. All Rent shall be
paid by Tenant without offset, deduction or, except as otherwise
expressly provided for herein, demand.
ARTICLE III - SECURITY DEPOSIT
Tenant shall pay on the later to occur of (i) Tenant's
execution of this Lease or (ii) September 23, 1999, a security
deposit in the sum of $8,250.00 to be retained by Landlord,
without interest, and not in trust or a separate account, as
security for the faithful performance and observance by Tenant
of all the covenants and conditions of this Lease. In the event
Tenant defaults in any of its obligations under this Lease,
Landlord may apply the whole or any part of said security
deposit on account of unpaid rent hereunder and any expenditures
made by Landlord by reason of Tenant's default. Unless and to
the extent the security deposit shall be so applied by Landlord,
it shall be paid to Tenant within 30 days following the end of
the term of this Lease.
ARTICLE IV - USE
4.01. Use. The Premises shall be used as office
space, retail space, for financial service company uses,
including as a branch bank office and for organization
activities prior thereto, and for no other purpose without the
prior written consent of Landlord, which consent Landlord shall
not unreasonably withhold.
4.02. Continuous Operations. From and after the
Commencement Date and continuing throughout the Term of this
Lease and any renewals thereof, Tenant covenants and agrees with
Landlord to conduct business operations within the Premises
weekdays (excluding legal holidays) for at least six (6) hours
per day (subject to any conditions contained in any Regulatory
Approvals or applicable rules, regulations, ordinances or laws).
Notwithstanding the foregoing, Tenant may from time to time
cease or suspend operations within the Premises for not more
than six months during any consecutive twenty-four month period,
but no such cessation or suspension of operations shall release
Tenant from performance of its other obligations hereunder,
including, without limitation, Tenant's obligation to pay Rent
and to maintain and repair the Premises as set forth herein.
ARTICLE V - TAXES; UTILITIES
5.01. Taxes Payable by Tenant. Tenant shall pay all
taxes, general and special assessments, excises, levies, license
and permit fees and other governmental charges, general or
special, ordinary or extraordinary, unforeseen or foreseen, of
any kind and nature whatsoever (including without limitation all
penalties and interest thereon), which at any time during the
Term may be assessed, levied, imposed upon, or grow or become
due and payable out of or in respect of, the Premises or any
part thereof, or the use or occupancy thereof, or which at any
time during the Term hereof may become a lien on the Premises or
any part thereof (all of the foregoing are sometimes herein
collectively called "Taxes"). Taxes shall not include any
transfer tax imposed on Landlord in connection with a sale of
the Premises, net income taxes, excess profit taxes, gross
receipts taxes, excise taxes, business privilege taxes or fees,
inheritance taxes or any capital stock or franchise taxes, or
any environmental lien not resulting from an act or omission for
which Tenant is responsible for under Article 24 hereof.
5.02. Proration. Any Tax assessed on the basis of a
fiscal or tax period of the relevant taxing authority, a part of
which period is included within the Term and a part of which
falls before the Term or after the Term, shall be prorated
between Landlord and Tenant so that Tenant shall pay such
proportion of said Tax as applies to the Term, and Landlord
shall pay the remainder thereof. If Tenant is permitted to pay,
and elects to pay, any Tax for which Tenant is responsible in
installments, Tenant may pay such Tax in the maximum number of
installments permitted.
5.03. Contests. Tenant shall have the right to
contest, at Tenant's sole cost and expense, the amount or
validity, in whole or in part, of any Tax, by appropriate
proceedings diligently conducted by Tenant in good faith, but
only establishing a funded reserve for the amount of Tax not
paid by Tenant, including any interest or penalties determined
to be due thereon.
5.04. Evidence of Payment. Tenant shall furnish to
Landlord for inspection within ten days of demand of Landlord, a
photocopy of the official receipt of the appropriate taxing
authority, or, in lieu thereof, other proof satisfactory to
Landlord evidencing payment of such Tax.
5.05. Forwarding of Bills. Landlord shall, promptly
upon receipt of a xxxx for any Tax, or notice of assessment, or
notice of increase, or other change therein, forward the same to
Tenant, but Tenant's nonreceipt thereof shall not excuse Tenant
from the timely payment of any Tax which Tenant is obligated to
pay hereunder or otherwise relieve Tenant of Tenant's
liabilities and duties hereunder. Tenant may make arrangements
with the taxing authorities for the transmission of bills and
notices simultaneously to Landlord and Tenant.
5.06. Utility Charges. Tenant shall pay, before any
interest or penalty shall accrue thereon, all water and sewer
rentals and charges and all charges for gas, electricity,
telephone and communication services and other utility services
used, rendered or consumed upon the Premises during the Term
hereof.
ARTICLE VI - ALTERATIONS
6.01. Changes, Alterations and Additional
Construction. Tenant shall not construct any (a) additional
building or improvement on the Premises (i.e., in addition to
the Improvements existing on the date hereof), or (b) change,
alteration or addition in or to the Improvements that would
reduce the value thereof or that would impair the structural
integrity of the Improvements or the use of the Premises use as
a bank branch, or (c) wall, fence, exterior lighting facility,
driveway, roadway, parking area, loading, service or storage
facility on the Premises (any and all of the foregoing being
herein collectively called an "Alteration"), unless and until,
in each instance, Tenant shall have and submitted to Landlord
plans, specifications and other materials as Landlord may
request, and Landlord shall have approved same. Subject to the
limitations expressed in Section 4.01 hereof prior to the Use
Restriction Termination Date, Tenant may, without Landlord's
consent, but only to the extent permitted by applicable law,
place, erect or maintain signs on or about the Premises,
provided Tenant shall remove the same at the expiration or
sooner termination of the Term.
6.02. Manner of Construction.
(A) All Alterations shall be constructed by
Tenant, without expense to Landlord, in a good and workmanlike
manner, employing new materials of good quality, and in
compliance with the Landlord-approved plans and specifications
therefor and all applicable permits, laws, ordinances and
regulations and orders, rules and regulations of the Board of
Fire Insurance Underwriters or any other body exercising similar
functions, and in compliance with the terms and conditions of
this Lease.
(B) Promptly upon the completion of
construction of each Alteration, Tenant shall deliver to
Landlord one complete set of "as built" drawings thereof.
6.03. Title to Alterations. Except to the extent
otherwise expressly provided herein, upon the completion of
construction of each Alteration, such Alteration shall
automatically be deemed part of the Improvements and Premises
for purposes of this Lease and, upon any termination of this
Lease or Tenant's right of possession of the Premises, title to
such Alterations automatically shall pass to, vest in and belong
to Landlord without further action on the part of either party
and without cost or charge to Landlord. Notwithstanding the
foregoing, Landlord may condition Landlord's approval of
Tenant's construction of an Alteration on Tenant's agreement to
remove all or a portion of such Alteration at the end of the
Term hereof and, in such event, upon any termination of this
Lease or Tenant's right of possession of the Premises, all such
Alterations, or any part or parts thereof so designated by
Landlord at the time of Landlord's approval thereof, shall be
removed from the Premises and the Premises restored
substantially to their condition immediately prior to the
construction thereof, all at Tenant's expense.
ARTICLE VII - SURRENDER
7.01. Delivery of Possession. Tenant shall, on the
Expiration Date of the Term, or upon any earlier termination of
this Lease, or upon any termination of Tenant's right to possess
the Premises pursuant to the provisions of this Lease, well and
truly surrender and deliver up the Premises into the possession
and use of Landlord (except as may be otherwise required by
Landlord pursuant to Article VI hereof) without fraud or delay
and in the condition in which Tenant has herein agreed to
maintain them, broom clean and free and clear of all lettings,
occupancies, liens and encumbrances of any party claiming
through Tenant, other than those existing immediately prior to
the commencement of the Term. If Tenant holds over in the
Premises after the expiration of the Term or any earlier
termination of this Lease or of Tenant's right to possess the
Premises, then, at Landlord's option, and without limitation to
any right or remedy of Landlord with respect to such holding
over, such holding over shall create a tenancy at sufferance
only, subject to Tenant's obligation to pay rental equal to 200%
of the Rent (prorated on a daily basis) in effect immediately
prior to such expiration or termination, and subject to all the
provisions and conditions of this Lease, other than provisions
relating to length of Term, which tenancy may be terminated at
any time by Landlord giving notice thereof to Tenant.
Landlord's acceptance of any such rental during the period of
Tenant's holding over shall not waive or otherwise affect any
claim, right or remedy which Landlord may have with respect to
such holding over.
7.02. Removal of Personal Property. Any and all
fixtures, machinery, equipment, furniture, furnishings and other
personal property furnished or installed by or at the expense of
Tenant which does not constitute part of the Premises, shall be
removed by Tenant and all damage to the Premises caused by such
removal repaired by Tenant, prior to the expiration or earlier
termination of the Term or the termination of Tenant's right to
possess the Premises.
7.03. Retention of Personal Property. Any personal
property which shall remain on the Premises after the expiration
of the Term or earlier termination of this Lease or Tenant's
right to possess the Premises may, at the option of Landlord, be
deemed to have been abandoned by Tenant and may be retained by
Landlord as Landlord's property or be disposed of, without
liability of Landlord, in such manner as Landlord may see fit,
or Landlord, at its option, may require Tenant to remove the
same at Tenant's expense. In case of such removal, all costs of
removal and of repairing any damage to the Premises arising from
such removal shall be paid by Tenant upon Landlord's demand.
Tenant shall pay to Landlord on demand (a) a reasonable fee for
storing and disposing of any such personal property, and (b) all
costs and expenses incurred by Landlord in storing and disposing
of any such personal property (including, without limitation,
counsel fees relating to claims against Landlord by any and all
parties claiming interests in such personal property).
ARTICLE VIII - INSURANCE
8.01. Casualty Insurance. Tenant shall at all times
during the Term keep the Premises insured for the protection of
Landlord against such risks, and with such coverages, as
Landlord shall from time to time require, including without
limitation, broad form fire and extended coverage insurance, in
an amount not less than the full replacement value (as from time
to time designated by Landlord) of all Improvements, with
coverage (in addition to the standard coverage afforded by such
insurance) for theft, vandalism, malicious mischief, boiler
explosion, and rent insurance with respect to the Rent payable
for the one year period following the occurrence of any
casualty. All insurance policies required by this Section shall
contain (a) a noncontributory mortgagee clause in favor of all
holders of mortgages affecting the Premises, (b) a waiver of
subrogation as to Landlord, and (c) a waiver of co-insurance as
to Landlord and all holders of mortgages on the Premises.
8.02. Liability Insurance. Tenant, at Tenant's sole
cost and expense, shall maintain commercial general liability
insurance against any claims for bodily injury, death or
property damage, occurring on, in or about the Premises, and on,
in or about the adjoining streets, property, parking lots and
passageways, and against contractual liability for any such
claims, such insurance to afford minimum protection (including
excess coverage) in the amount of $3,000,000. Landlord, and any
mortgagee of the Premises designated by Landlord, shall be named
as additional insured parties under all such policies.
8.03. General Requirements. Without limitation to
the foregoing, the following provisions shall apply to each and
every policy of insurance which Tenant is hereby required to
carry: (a) the form, amount and coverage of each policy, and
the insurer under each policy, shall be subject to Landlord's
approval, (b) Tenant shall cause each carrier to deliver its
certificate of insurance to Landlord and any holder of a
mortgage on the Premises designated by Landlord, certifying the
applicable insurance provisions herein required, (c) within five
days after Landlord's request, Tenant shall deliver to Landlord
and any holder of a mortgage on the Premises designated by
Landlord a copy of each policy, (d) each certificate shall state
that the applicable policy has been prepaid by Tenant for a
minimum period of one year (or in lieu of such statement, Tenant
shall provide Landlord with evidence of such prepayment), and
shall require 30 days written notice by the carrier to Landlord
and any holder of a mortgage on the Premises designated by
Landlord prior to any cancellation, expiration, amendment or
lapse thereof, (e) at least 30 days prior to the expiration of
each policy, Tenant shall provide Landlord and any holder of a
mortgage on the Premises designated by Landlord with
certificates (or copies of policies, if required by Landlord as
aforesaid) of renewal or replacement policies, (f) each policy
shall be issued by a carrier duly licensed in the state in which
the Premises are located, (g) Tenant shall not permit any
condition to exist on the Premises, and shall not commit any act
or omission, which would wholly or partially invalidate any
insurance, (h) if any insurance shall expire, be withdrawn,
lapse, become void or unsecure by reason of Tenant's breach of
any condition thereof or by reason of the failure or impairment
of the capital of any carrier thereof, or if for any reason
whatsoever the insurance shall be unsatisfactory to Landlord,
Tenant shall place new insurance on the Premises which conforms
to the insurance requirements herein set forth, and (i) in the
event of any default by Tenant with respect to its obligations
pertaining to insurance, Landlord, at its option but without
being obliged to do so, and in addition to any other rights and
remedies Landlord may have on account of such default, shall
have the right to cure such default (including, without
limitation, the right to purchase single interest coverage
protecting only the interest of Landlord, the right to make
premium payments and the right to cause changes to be made to
policies then carried by Tenant), whereupon all costs and
expenses incurred by Landlord in curing such default together
with interest at the Default Rate from the respective dates of
expenditures by Landlord, shall be paid by Tenant on demand.
Tenant may maintain any or all of the foregoing insurance
coverages under blanket insurance policies covering other
premises and property owned or leased by Tenant so long as the
coverages afforded with respect to the Premises under such
blanket policies are at least equal to the required limits
hereunder and coverage is not reduced below such limits by
reason of occurrences elsewhere.
8.04. Accidents. Upon the occurrence of any
accident, injury or personal property casualty in or about the
Premises, Tenant shall give immediate notice thereof to
Landlord, and shall provide Landlord with evidence that such
liability of Landlord relating thereto is covered by the
insurance which Tenant is required by this Lease to carry.
8.05. Proof of Loss. In the event of any loss or
damage to the Improvements, or any part thereof, for which a
claim may be rendered against any such policy of insurance,
Landlord, at its option (and without limitation to Landlord's
rights under the preceding paragraph), may submit proof of loss
to the appropriate insurer, and may apply for and be named the
sole payee for proceeds of any such loss or damage.
8.06. Restoration. If the Improvements, or any part
thereof, are destroyed or damaged by any cause, Tenant shall, as
below required by Article XVII, give immediate notice thereof to
Landlord and restore, repair and rebuild the Premises. Landlord
shall make available to Tenant all proceeds of insurance
actually paid under policies Tenant is hereby required to carry,
to the extent necessary to pay the actual costs and expenses of
such repair or restoration of the Premises, provided that
Landlord shall have the right to elect from time to time: (i)
to disburse such proceeds directly to Tenant or to Tenant's
contractor monthly as the repair or restoration progresses based
on the work complete, (ii) to complete such repair or
restoration itself, using such proceeds for such purpose, or
(iii) to apply such proceeds to the Rent if any default by
Tenant shall occur.
8.07. Mutual Waiver of Subrogation. Any provision of
this Lease to the contrary notwithstanding, Landlord and Tenant
hereby release the other from any and all liability or
responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise from any and all
liability for any loss or damage to the property of the
releasing party to the extent that the releasing party's loss or
damage is insured under commercially available "all risk"
property insurance policies, even if such loss or damage or
legal liability shall be caused by or result from the fault or
negligence of the other party or anyone for whom such party may
be responsible and even if the releasing party is self-insured
or the amount of the releasing party's insurance is inadequate
to cover the loss or damage or legal liability. It is the
intention of the parties that Landlord and Tenant shall look
solely to their respective insurance carriers for recovery
against any such loss or damage or legal liability, without such
insurance carriers having any rights or subrogation against the
other party.
ARTICLE IX - PERFORMANCE OF TENANT'S AGREEMENTS
If Tenant shall at any time fail to observe or perform
any of its agreements or obligations under this Lease, and such
failure shall continue beyond any default cure period specified
herein, then Landlord shall have the right, but not the
obligation, in addition to all its other rights and remedies, to
observe or perform all or part (as Landlord may elect) of such
agreements or obligations on behalf of Tenant, in which event
Landlord shall have the right to enter the Premises for such
purposes. All costs and expenses (including without limitation
counsel fees) incurred by Landlord in exercising any of its
rights under this Article, together with interest thereon at the
Default Rate from the respective dates of Landlord's incurring
of such costs or expenses until the date of payment, shall
constitute Additional Rent and shall be paid by Tenant to
Landlord on demand.
ARTICLE X - REPAIRS AND MAINTENANCE
10.01. Repair of Premises. Throughout the Term of
this Lease, Tenant, at Tenant's sole cost and expense, shall
take good care of the Premises, including the roof, all interior
and exterior structural elements, and the parking lots,
sidewalks and curbs (if any) adjoining the Premises, and shall
keep the same in good order and condition, and make all
necessary repairs thereto, ordinary and extraordinary, interior
and exterior. When used in this Article, the term "repairs"
shall include all necessary replacements and alterations as well
as the correction of construction defects in the Improvements.
All repairs made by Tenant shall be substantially equivalent in
quality and class to the original work.
10.02. No Obligation of Landlord to Make Repairs.
Landlord shall not be required to furnish any services or
facilities or to make any repairs in or to the Premises. Tenant
hereby assumes the full and sole responsibility for the
condition, operation, repair, replacement, maintenance and
management of the Premises. Notwithstanding the foregoing, but
subject to the limitations expressed in Section 1.06 hereof,
Landlord shall perform the HVAC Repair Work, at Landlord's sole
cost and expense, no later than the Commencement Date.
10.03. Commission of Waste. Tenant shall not cause
or permit any waste or damage, disfigurement or injury to any of
the Premises or any part or parts thereof.
ARTICLE XI - COMPLIANCE WITH LAWS, ORDINANCES, ETC.
11.01. Compliance with Laws. Throughout the Term of
this Lease, Tenant, at Tenant's sole cost and expense, shall
conform to, comply with and take any and all action necessary to
avoid or eliminate any violation of all present and future laws,
statutes, ordinances, orders, rules, regulations or requirements
of any federal, state or municipal government, agency,
department, commission, board or officer having jurisdiction,
foreseen or unforeseen, ordinary or extraordinary, which shall
be applicable to the Premises, or any part thereof, or to the
use or manner of use thereof by any of the occupants thereof,
whether or not such law, ordinance, order, rule, regulation or
requirement necessitates structural changes or improvements or
interferes with the use and enjoyment of the Premises.
11.02. Compliance with Insurance Requirements.
Tenant shall observe and comply with the requirements of all
policies of insurance which Tenant is required hereby to
maintain from time to time with respect to the Premises, and all
orders, rules and regulations of the Board of Fire Insurance
Underwriters (or any other body exercising similar functions)
applicable thereto, or any use, manner of use or condition
thereof.
11.03. Contest by Tenant. Tenant shall have the
right to contest, by appropriate proceedings diligently
conducted in good faith, without cost or expense to Landlord,
the validity or application of any law, ordinance, order, rule,
regulation or requirement of the nature referred to in this
Article, provided that the delay in conformance to or compliance
with the same, attendant upon and pending the prosecution of
such proceedings, shall not subject Landlord to any fine,
penalty or criminal liability or render the Premises, or any
part thereof, liable to lien, forfeiture or loss. In the event
of the termination of this Lease prior to the conclusion of such
contest, Tenant shall immediately comply with any such contested
law, ordinance, order, rule, regulation or requirement. Tenant
shall, within 10 days after Landlord's demand, reimburse
Landlord for all costs and expenses (including, without
limitation, counsel fees) incurred by Landlord in connection
with any such contest. Tenant shall defend, indemnify and save
harmless Landlord from all other liability, costs and expenses
incurred in connection with any such contest.
11.04. Permits. Throughout the Term of this Lease,
Tenant, at Tenant's sole cost and expense, shall procure and
maintain all permits, licenses and authorizations required by
the Tenant for the Premises and each part thereof, and any use
of the Premises permitted hereby by Tenant, and for the lawful
and proper operation and maintenance thereof.
ARTICLE XII - CONSTRUCTION LIENS
Tenant shall not suffer or permit any construction
lien to be filed against the interest of Landlord or Tenant in
the Premises by reason of work, services or materials supplied
to Tenant, the Premises, or any part thereof. If any such lien
shall be filed at any time, Tenant shall promptly, and in any
event within 30 days after the filing thereof, cause the same to
be discharged of record, provided, if Tenant shall promptly bond
such lien with a responsible surety company, Tenant may contest
the amount or validity of any such lien by appropriate
proceedings, diligently prosecuted, and such contest shall defer
for its duration Tenant's duty hereunder to discharge the same.
ARTICLE XIII - INSPECTION OF PREMISES BY LANDLORD
Tenant shall permit Landlord and the duly authorized
representatives of Landlord to enter the Premises, including
without limitation the interior of the Improvements, at all
reasonable times during usual business hours for the purpose of
inspecting the same.
ARTICLE XIV - INDEMNIFICATION OF LANDLORD
Tenant agrees to defend with counsel reasonably
satisfactory to Landlord, indemnify and save harmless Landlord
from and against any and all claims, damages, losses, costs and
expenses, including without limitation counsel fees, suffered or
incurred by Landlord with respect to: (a) the conduct,
operation or management of, or any work, act or thing whatsoever
done in, on or about the Premises by or at the direction of
Tenant or those for whom Tenant is legally liable, (b) the
condition of the Premises, (c) any breach or default on the part
of Tenant in the observance or performance of any of its
agreements or obligations hereunder, (d) any act or forbearance
of Tenant or any sublessee or concessionaire of Tenant or any of
Tenant's or such sublessee's or concessionaire's agents,
contractors, servants, employees, business invitees, licensees,
visitors or guests with respect to the Premises, and (e) any
accident, injury to or death of any person or damage to any
property howsoever caused in or on the Premises, except to the
extent that any of the foregoing arise from the negligence or
intentional misconduct of Landlord.
ARTICLE XV - TENANT'S ACCEPTANCE OF CONDITION OF PREMISES
Landlord has made the Premises available for Tenant's
inspection and testing, and Tenant has heretofore inspected and
tested same to the extent and as often as Tenant deemed
necessary. Tenant hereby leases the Premises, and accepts them
"as is" in their present condition, as a result of whatever
inspecting and testing Tenant deemed necessary, and not as a
result of or in reliance upon any representation or warranty of
any nature whatsoever by Landlord, or any employee or agent of
Landlord. Landlord shall not be liable for any latent or patent
defect in the Premises, including, without limitation, any
building or improvement constituting part thereof.
ARTICLE XVI - DEFAULT BY TENANT
16.01. Event of Default. Tenant shall not be deemed
to be in default hereunder unless one or more of the following
events ("Event of Default") shall have occurred:
(A) Failure on the part of Tenant to pay the
Rent or any other sum of money called for herein when due and
the continuation of such default for five days after notice from
Landlord;
(B) Failure on the part of Tenant to observe
or perform any other covenant, agreement or undertaking of the
Tenant contained in this Lease, and the continuation of such
failure for twenty days after notice from Landlord, and if such
default cannot reasonably be cured within such twenty day
period, Tenant shall not be in default hereunder if Tenant
commences to cure within such twenty day period and prosecutes
the cure to completion in good faith and with due diligence;
(C) If Tenant abandons or ceases business
operations within the Premises (beyond any applicable grace
periods) at any time during the Term of this Lease or any
renewal thereof;
(D) If Tenant shall file a voluntary petition
in bankruptcy or shall be adjudicated a bankrupt or insolvent,
or in any action or proceeding shall file any petition or answer
seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under
any present or future federal or state bankruptcy,
reorganization or debt reduction law, or shall seek or consent
to or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant or of all or substantially all of Tenant's
property or of the Premises; and
(E) If within 60 days after the commencement
of any proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation, debt
adjustment, dissolution or similar relief under any present or
future federal or state law, such proceeding shall not have been
dismissed; or if, within 60 days after the appointment, without
consent or acquiescence of Tenant, of any trustee, receiver or
liquidator of Tenant or of all or substantially all of Tenant's
property or of the Premises, such appointment shall not have
been vacated; or if, within 60 days after the expiration of any
such stay, such appointment shall not have been vacated.
16.02. Multiple Defaults. Notwithstanding any
contrary provision hereof, Landlord shall not be required to
give any notice of default to Tenant (and the foregoing
provisions of this Article determining Events of Default shall
be deemed to exclude all provisions regarding notice of default)
if, on two or more occasions during any period of not more than
twelve months, Tenant shall have defaulted in the observance or
performance of any of its agreements or obligations hereunder,
and Landlord shall have given Tenant notice of default with
respect thereto.
16.03. Landlord's Remedies for Tenant's Default. If
any Event of Default shall have occurred and then be continuing,
then in addition to all rights and remedies provided by law or
equity, or provided for elsewhere in this Lease, Landlord shall
have all of the rights and remedies specified in the following
paragraphs of this Section.
(A) Landlord shall have the right, by notice
to Tenant, to accelerate all Basic Rent due hereunder and
otherwise payable in installments over the remainder of the
Term, and, at Landlord's option, Additional Rent to the extent
that Additional Rent can be determined and calculated to a fixed
sum; and the amount of accelerated rent shall be due and payable
by Tenant upon Landlord's demand. Additional Rent which has not
been included, in whole or in part, in accelerated rent, shall
be due and payable by Tenant during the remainder of the Term,
in the amounts and at the times otherwise provided for in this
Lease. Notwithstanding the foregoing or the application of any
rule or law based on election of remedies or otherwise, if
Tenant fails to pay the accelerated rent in full when due,
Landlord shall have the right to terminate Tenant's further
right to possession of the Premises or, as Landlord may elect,
to terminate this Lease, as below provided. If Tenant shall
tender payment of part but not all of the accelerated rent, then
Tenant's failure to make full payment shall be deemed a separate
Event of Default hereunder, without any obligation of Landlord
to give notice of default and without any opportunity of Tenant
to cure such default, and, Landlord shall have the right to
refuse to accept same, or to accept same and to apply such
partial payment, or portions thereof, to the various obligations
and sums owing by Tenant hereunder in such order and priority as
Landlord, in its sole discretion, shall determine.
(B) At any time following the occurrence of
an Event of Default or the expiration or sooner termination of
the Term, Landlord immediately shall have the right, whether or
not Landlord elects to terminate this Lease, to recover
possession of the Premises by all lawful means. Tenant hereby
expressly waives any and all rights of redemption granted by or
under any present or future laws in the event of Tenant being
evicted or dispossessed of the Premises for any cause, or in the
event of Landlord obtaining possession of the Premises, by
reason of Tenant committing an Event of Default or otherwise.
(C) If, at any time following the occurrence
of an Event of Default, Landlord, without terminating this
Lease, shall recover or be entitled to recover possession of the
Premises, then: (i) Landlord may, but shall not be obliged to,
relet the Premises, or any part or parts thereof, and/or, at
Landlord's election, demolish or renovate the Improvements and
relet the remaining Premises, or any part or parts thereof, on
such terms as Landlord may deem desirable, and (ii) Tenant shall
continue to be obliged to pay the full Rent reserved by this
Lease and to observe and perform all its agreements and
obligations hereunder. The failure or inability of Landlord to
relet the Premises or any part or parts thereof shall not
release or affect Tenant's liability for such Rent. If Landlord
so relets the Premises, then Landlord shall credit against
Tenant's continuing obligation to pay Rent, the net rentals
actually received by Landlord for such reletting, after first
deducting expenses as Landlord may incur in connection with such
reletting, including, without limitation, counsel fees and
expenses, brokerage fees and commissions, advertising expenses
and of demolishing or renovating the Improvements (if, and to
the extent, Landlord elects to do so and only if such actions
reduce Tenant's total liabilities under this Lease) and of
preparing the Premises for reletting. Landlord, in putting the
Premises, or any part or parts thereof as Landlord may elect, in
good order, or in preparing the same for rerental, may, at
Landlord's option, make such alterations, repairs, replacements,
and decorations therein as Landlord, in Landlord's sole
judgment, considers advisable, and the making of such
alterations, repairs, replacements, and/or decorations shall not
operate or be construed to release Tenant from any liability
hereunder. Landlord shall in no event be liable in any way
whatsoever for failure to relet the Premises, or, in the event
that the Premises are relet, for failure to collect the rent
under such reletting, and in no event shall Tenant be entitled
to receive any excess of such net rents, if any, over the Rent
payable by Tenant to Landlord hereunder. No re-entry or
reletting of the Premises by Landlord following Tenant's
default, and no payment by Tenant of the Rent thereafter, shall
constitute a release of any of Tenant's liability hereunder
(except to the extent of such payment of Rent) or shall
prejudice Landlord's claim for and right to collect from Tenant
other sums payable by Tenant hereunder, or Landlord's actual
damages with respect to any Event of Default occurring
hereunder.
(D) At any time following the occurrence of
an Event of Default, Landlord may give Tenant notice of
Landlord's intention to terminate this Lease on a date specified
in such notice, and upon such date, the Term hereof and the
estate hereby granted with respect to the Premises shall
terminate, without any right of Tenant to redeem same or to
prevent such forfeiture, and Tenant shall surrender possession
of the Premises to Landlord (except to the extent Tenant shall
be obliged to remove Alterations pursuant to Article VI hereof).
Upon such termination, Landlord shall be entitled to recover
from Tenant in addition to all accrued rental and other sums due
from Tenant as of such termination date, damages in an amount
equal to: (i) the amount of Rent reserved for the balance of
the Term, plus (ii) all costs and expenses incurred by Landlord
in doing any and all of the following, to the extent Landlord
elects to do so: securing possession of the Premises from
Tenant, disposing of any Personalty located in the Premises,
restoring the Premises to the condition in which Tenant is
herein obliged to surrender same to Landlord, preparing and
attempting to relet the Premises, maintaining and safeguarding
the Premises, demolishing the Premises, renovating the Premises,
and recovering said damages from Tenant. Such costs and
expenses shall include, without limitation, attorneys' fees and
expenses, brokerage fees and expenses, watchmen's wages and
insurance premiums. No act or proceeding done or undertaken by
Landlord with respect to an Event of Default shall constitute a
termination of this Lease by Landlord unless and until Landlord
shall give to Tenant the termination notice provided for above.
(E) If proceedings shall be commenced to
recover possession of the Premises and Improvements either at
the end of the Term or upon sooner termination of this Lease or
of Tenant's right to possess the Premises, or for nonpayment of
Rent or for any other reason, Tenant agrees that, any custom or
statute to the contrary notwithstanding, the notice and cure
rights expressly set forth herein shall be sufficient in either
or any such case.
16.04. Miscellaneous Default Provisions.
(A) Tenant expressly waives the benefits of
all laws, now or hereafter in force, exempting any property or
goods on the Premises or elsewhere, and the proceeds of the sale
thereof, from distraint, levy, sale, execution or other legal
proceedings taken by the Landlord to enforce any rights under
this Lease.
(B) The right to enforce all of the
provisions of this Lease may, at the option of any assignee of
Landlord's rights in this Lease, be exercised by any such
assignee.
(C) Any notation or statement by Tenant on
any draft, check or other method of payment of any obligation
hereunder, or in any writing accompanying or accomplishing such
payment, which notation, or statement purports to impose
conditions on such payment or to invoke the doctrine of accord
and satisfaction, shall be absolutely void and of no effect, and
may be ignored by Landlord.
(D) No right or remedy herein conferred upon
or reserved to Landlord is intended to be exclusive of any other
right or remedy, and every right and remedy shall be cumulative
and in addition to any other right or remedy given hereunder or
now or hereafter existing at law or in equity. Landlord shall
be entitled to injunctive relief in case of the violation, or
attempted or threatened violation, of any covenant, agreement,
condition or provision of this Lease and to a decree compelling
performance of any covenant, agreement, condition or provision
of this Lease, or to any other remedy allowed by law or in
equity.
(E) No failure by Landlord to insist upon the
strict performance of any covenant, agreement, term or condition
of this Lease on the part of Tenant to be performed, or to
exercise any permitted right or remedy consequent upon a default
therein, and no acceptance of Tenant's performance or of
Tenant's payment of full or partial Rent after such default,
shall constitute a waiver by Landlord of such default or of such
covenant, agreement, term or condition, or any right or remedy
of Landlord with respect thereto.
ARTICLE XVII - DAMAGE AND DESTRUCTION
17.01. Damage by Fire, etc. In the event that any of
the Improvements shall be damaged or destroyed by fire or any
other hazard, risk or casualty whatsoever (such damaged or
destroyed Improvements being herein called the "Damaged
Improvements"), then Tenant shall give prompt notice thereof to
Landlord, and, unless this Lease is terminated as expressed in
Section 17.04 hereof, Tenant shall, as soon as possible, at
Tenant's cost and expense, restore, replace and repair the
Damaged Improvements to the condition that existed immediately
prior to the fire or other casualty. Such work by Tenant shall
be done pursuant to plans, specifications and a work schedule
which shall be subject to Landlord's prior approval, which
approval shall not be unreasonably withheld, conditioned or
delayed.
17.02. Restoration. In the event Tenant shall be
obliged to restore, repair or replace the Damaged Improvements,
then Tenant, regardless of the sufficiency or availability of
the proceeds of insurance, shall restore or replace the Damaged
Improvements as nearly as possible to the value and condition
thereof as they existed prior to such damage or destruction,
such restoration or replacement to be begun promptly following
such damage or destruction, and continued diligently until
completion thereof.
17.03. No Abatement of Rent. No damage to or
destruction of any of the Premises as a result of fire or any
other hazard, risk or casualty whatsoever shall permit Tenant to
surrender this Lease or shall relieve Tenant from Tenant's
liability to pay the full Rent payable under this Lease, except
to the extent Landlord actually receives rent interruption
insurance proceeds, or from any of Tenant's other obligations
hereunder, except to the extent otherwise provided in this
Article, and Tenant waives any right now or hereafter conferred
upon Tenant by statute or otherwise to surrender this Lease or
the Premises, or any part thereof, or to any suspension,
diminution, abatement or reduction of Rent, by reason of such
damage or destruction.
17.04. Termination of Lease. Any provision of this
Lease to the contrary notwithstanding, in the event that (a) the
Damaged Improvements constitute 50% or more of the floor area of
the Premises, (b) it will take more than 180 days to repair and
restore the Damaged Improvements or (c) the damage or
destruction occurs during the last two years of the Term,
Landlord and Tenant each shall have the right on or prior to the
60th day following the occurrence of such damage or destruction,
to terminate this Lease by giving notice to the other party.
Upon any such termination, Tenant shall pay to Landlord an
amount equal to the cost to repair and restore the Damaged
Improvements to the condition that existed immediately prior to
the fire or other casualty either in cash or, at Landlord's
election, by assignment of all insurance policies and proceeds
with respect to the Damaged Improvements.
ARTICLE XVIII - CONDEMNATION
18.01. Total Taking. In the event that the whole of
the Premises shall be taken under the exercise of the power of
eminent domain or by agreement with any condemnor in lieu of
such taking (herein called a "Total Taking"), then this Lease
shall terminate as of the earlier of the date when title thereto
vests in the condemnor or the date when possession thereof shall
be delivered to the condemnor.
18.02. Award on Total Taking. The entire award with
respect to any Total Taking shall be paid to Landlord, except
that Tenant shall be entitled to any award which the condemnor
may make, and which shall be provided for by law, specifically
for Tenant's moving expenses and business dislocation damages,
provided that same are not deducted from the award otherwise
payable to Landlord.
18.03. Partial Taking. In the event that any portion
or portions of the Premises shall be taken under the exercise of
the power of eminent domain or by agreement with any condemnor
in lieu of such taking (herein called a "Partial Taking"), then
this Lease, only as to the portion or portions so taken, shall
terminate as of the date possession thereof shall be delivered
to the condemnor, but otherwise this Lease shall remain in full
force and effect. If following a Partial Taking Tenant
reasonably and in good faith determines that the Premises as
altered by the Partial Taking can no longer be used for Tenant's
business purposes, Tenant may terminate this Lease by notice to
Landlord not later than 90 days following the date of the
Partial Taking.
18.04. Reconstruction. If during the Term there
shall be a Partial Taking, then, unless this Lease is terminated
by Tenant as expressed in Section 18.03, (a) Tenant shall
repair and restore the remaining portion of the Premises so that
they constitute architectural units with the same general
character and condition to the nearest extent possible under the
circumstances as the previous Premises, (b) Landlord shall make
condemnation damages received by Landlord available to Tenant,
to the extent necessary to reimburse Tenant for Tenant's repair
and restoration expenses, and (c) this Lease shall remain in
full force and effect with respect to such remaining portion of
the Premises.
18.05. Award on Partial Taking. The entire award
with respect to any Partial Taking shall be paid to Landlord.
18.06. Settlement Agreement. For the purposes of
this Lease, all amounts paid pursuant to an agreement with any
condemnor in settlement of any condemnation or any eminent
domain proceeding affecting the Premises shall be deemed to
constitute an award made in such proceeding, provided that no
action of Landlord to settle or compromise its claim shall be
deemed a settlement or satisfaction of any independent claim or
award to which Tenant may be entitled for Tenant's moving
expenses, business dislocation damages or otherwise.
18.07. Abatement in Basic Rent. In the case of a
Partial Taking which does not result in a termination of this
Lease, the annual Basic Rent payable under this Lease after
possession of the portion so taken shall be delivered to the
condemnor shall be reduced in the same proportion as the amount
of usable floor area of the buildings, drive throughs and
automatic teller machine kiosks constituting part of the
Premises shall have been reduced by such Taking; but any such
Partial Taking shall not relieve Tenant from Tenant's liability
to pay the full Additional Rent payable under this Lease, or
from any of Tenant's other obligations hereunder, and, except as
herein expressly provided, Tenant waives any right now or
hereafter conferred upon Tenant by statute or otherwise to any
suspension, diminution, abatement or reduction of Rent or to
surrender this Lease or the Premises by reason of such Partial
Taking.
ARTICLE XIX - ASSIGNMENT, SUBLETTING AND MORTGAGING
19.01. Voluntary Assignment or Other Transfer of
Lease.
(A) Except as otherwise provided in this
Section, Tenant shall not mortgage, pledge, hypothecate, assign
or transfer this Lease, or any part or portion of the Term
hereby created, or any interest therein, without, in each
instance, having first obtained the prior written consent of
Landlord, which consent Landlord shall not unreasonably
withhold, and in case any such consent is given, no subsequent
similar transaction shall be entered into by Tenant or Tenant's
assignee or transferee without again obtaining the consent of
Landlord thereto. Notwithstanding Landlord's consent, no such
assignment or transfer shall be valid unless there shall be
delivered to Landlord, within 30 days after the date of the
assignment or transfer: (i) a duplicate original of the
instrument of assignment or transfer; and (ii) an instrument of
assumption by the assignee or transferee of all of Tenant's
obligations under this Lease in form satisfactory to Landlord.
(B) Subject to the foregoing provisions of
this Section, the obligations of this Lease shall bind and
benefit the assignees and transferees of Tenant, and any such
assignee or transferee, by accepting such assignment or
transfer, shall be deemed to have assumed all such obligations.
(C) Except as otherwise provided in this
Section, neither this Lease, nor the leasehold estate of Tenant,
nor any interest of Tenant hereunder in the Premises shall be
subject to involuntary assignment, transfer or sale, or to
assignment, transfer or sale by operation of law in any manner
whatsoever, and any such attempted involuntary assignment,
transfer or sale shall be void and of no effect.
19.02. Subletting. Except as otherwise provided in
this Section, Tenant shall not sublease the Premises, or any
portion thereof, or grant licenses and concessions thereat,
without, in each instance, the prior written consent of
Landlord, which consent Landlord shall not unreasonably
withhold. Notwithstanding Landlord's consent, no such
subletting, license or concession shall be valid, unless Tenant,
prior to the effective date of such transaction, shall deliver
to Landlord copies of each instrument evidencing the sublease,
license agreement or concession agreement entered into by
Tenant.
19.03. Transactions with Affiliates; Landlord's
Recapture Rights. Landlord acknowledges that Tenant has advised
Landlord that Tenant intends to assign this Lease and all rights
and obligations hereunder to an entity formed by Tenant members
("Tenant Bank") and to qualify the Tenant Bank as a federally
chartered bank. Landlord hereby consents to and approves of the
assignment of this Lease to the Tenant Bank and agrees that,
following such assignment, (i) all references in this Lease to
"Tenant" shall be deemed to refer to "Tenant Bank" and its
successors and permitted assigns (and not to the original Tenant
that executed this Lease, (ii) the Tenant Bank shall assume and
be responsible for all duties and obligations of "Tenant"
hereunder and (iii) any provision of Section 19.04 to the
contrary notwithstanding, the original Tenant that executed this
Lease shall be released from all further liability hereunder.
Thereafter, any provision of this Article to the contrary
notwithstanding, but subject nevertheless to the provisions of
Section 19.04 hereof, Tenant shall be permitted to assign this
Lease or sublet all or a portion of the Premises to any entity
that (i) controls, is controlled by or under common control with
Tenant, (ii) is the surviving entity of a merger or other
corporate combination with or into Tenant or (iii) acquires all
or substantially all of the assets and liabilities of Tenant
(any such entity, an "Affiliate"), all upon prior notice to
Landlord, but without the need to obtain Landlord's consent or
approval. In the event that Tenant desires to assign this Lease
or to sublet more than 50% of the Premises other than to an
Affiliate of Tenant, Tenant shall first give Landlord written
notice of such proposed assignment or subletting, which notice
shall specify the terms and conditions of the proposed
assignment or subletting. In such event, Landlord shall have
the right, exercisable by written notice to Tenant within 30
days following the date of Tenant's notice to Landlord, either
(a) in the case of a proposed assignment of this Lease, to
terminate this Lease, effective as of the date set forth in
Tenant's notice to Landlord as the proposed effective date for
the assignment of this Lease by Tenant or (b) in the case of a
subletting of more than 50% of the Premises, to recapture and
delete from the Premises for the term of the proposed subletting
those portions of the Premises proposed to be sublet in Tenant's
notice to Landlord, effective as of the date set forth in
Tenant's notice to Landlord as the proposed effective date for
the subletting. In the event Landlord exercises such
termination and recapture right, all of Tenant's rights and
obligations with respect to the Premises or, in the case of a
subletting, those portions of the Premises covered by the
proposed subletting and only for the term of the proposed
subletting, including, without limitation, Tenant's obligation
to pay Rent with respect thereto, shall cease and terminate as
of the effective date for the Lease termination or Premises
recapture as described above. In the event that Landlord fails
to timely exercise its termination and recapture rights by
written notice to Tenant within the 30 day period, such right
shall be deemed waived by Landlord and of no further force and
effect with respect to the proposed assignment or subletting
transactions described in Tenant's notice.
19.04. Tenant Remains Responsible. Notwithstanding
any assignment or subletting (other than the assignment of the
Lease to the Tenant Bank as expressed in Section 19.03 hereof),
whether or not consented to or required to be consented to by
Landlord, Tenant and any person who may in the future become a
successor to or guarantor of Tenant's obligations under this
Lease shall at all times remain fully responsible and liable for
the payment of the Rent herein specified and for compliance with
all of Tenant's other obligations under this Lease.
19.05. FDIC. Notwithstanding any other provision in
this Lease, in the event the depository institution then
operating on the Premises (a) shall become insolvent or bankrupt
or its interests under this Lease shall be levied upon or sold
under execution or other legal process, or (b) is closed or is
taken over by any depository institution supervisory authority
("Authority"), Landlord may, in either such event, terminate
this Lease only with the concurrence of any Receiver or
Liquidator appointed by such Authority; provided that in the
event this Lease is terminated by the Receiver or Liquidator
(but not otherwise), the maximum claim of Landlord for Rent,
damages or indemnity for injury resulting from the termination,
rejection, or abandonment of the unexpired Lease shall by law in
no event be in an amount equal to all accrued and unpaid Rent to
the date of termination.
ARTICLE XX - NOTICES
All notices, demands, requests, consents and other
communications required or relating to this Lease shall be
effective only if in writing, and shall be personally delivered
(by courier, overnight delivery service or otherwise), or shall
be mailed United States registered or certified mail, return
receipt requested, postage prepaid, to the other respective
party at its address set forth below, or at such other address
as such other party shall designate by notice. Any official
courier or delivery service receipt or U. S. Postal Service
delivery receipt shall constitute conclusive proof of such
delivery.
If to Landlord: First States Partners No. 203, LLC
c/o First States Partners, L.P.
0000 Xxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
with a copy to: Xxxxxx X. Xxxxx Xx., Esquire
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
If to Tenant: CNB Partnership, LLC
Attn: Xxxxxx X. Xxxxx, Esquire,
000 Xxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, Xxx Xxxxxx 00000
ARTICLE XXI - QUIET ENJOYMENT
Tenant, upon observing and keeping all covenants,
agreements and conditions of this Lease on Tenant's part to be
kept and observed, shall quietly have and enjoy the Premises
throughout the Term without hindrance or molestation by Landlord
or by anyone claiming by, from, through or under Landlord,
subject, however, to the exceptions, reservations and conditions
of this Lease.
ARTICLE XXII - ESTOPPEL CERTIFICATES
22.01. Tenant's Estoppel. Tenant agrees, at any time
and from time to time, upon not less than ten days' prior
written notice by Landlord, to execute, acknowledge and deliver
to Landlord a statement in writing certifying (a) that this
Lease is unmodified and in full force and effect (or if there
have been modifications, that the same is in full force and
effect as modified and stating the modifications), (b) whether
there are then existing any offsets or defenses against the
enforcement of any of the terms, covenants or conditions hereof
upon the part of Landlord or Tenant to be performed (and if so,
specifying the same), (c) the dates to which the Rent and other
charges have been paid in advance, if any, and (d) stating
whether, to the best knowledge of Tenant, Landlord is in default
in Landlord's performance of any covenant, agreement or
condition contained in this Lease and, if so, specifying each
such default of which Tenant may have knowledge and also stating
whether any notice of default has been given under this Lease
which has not been remedied and, if so, stating the date of the
giving of said notice, it being intended that any such statement
delivered pursuant to this Section may be relied upon by any
prospective purchaser of the Premises.
22.02. Landlord's Estoppel. Landlord agrees, at any
time and from time to time, upon not less than ten days' prior
written notice by Tenant, to execute, acknowledge and deliver to
Tenant a statement in writing certifying (a) that this Lease is
unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as
modified and stating the modifications), (b) the dates to which
the Rent and other charges have been paid in advance, if any,
and (c) stating whether, to the best knowledge of Landlord,
Tenant is in default in Tenant's performance of any covenant,
agreement or condition contained in this Lease and, if so,
specifying each such default of which Landlord may have
knowledge and also stating whether any notice of default has
been given under this Lease which has not been remedied and, if
so, stating the date of the giving of said notice, it being
intended that any such statement delivered pursuant to this
Section may be relied upon by any prospective assignee or
mortgagee of this Lease or prospective sublessee of the whole or
any part of the Premises.
ARTICLE XXIII - LEASE NOT SUBJECT TO TERMINATION
23.01. Tenant Remains Bound. Except as otherwise
expressly provided herein, this Lease shall not be deemed
terminated, nor shall Tenant be entitled to any abatement of
Rent, nor shall the respective obligations of Landlord and
Tenant hereunder be affected, by reason of any damage to or
destruction of all or any portion of the Improvements, any
condemnation of a portion thereof, any prohibition of Tenant's
use of the Premises, any bankruptcy, insolvency, reorganization,
composition, readjustment, liquidation, dissolution, winding-up
or other proceeding affecting Landlord or any assignee of
Landlord, or for any other cause whether similar or dissimilar
to the foregoing, any present or future law to the contrary
notwithstanding, it being the intention of the parties hereto
that the entire Rent shall continue to be payable in all events
unless the obligation to pay the same shall be terminated
pursuant to the express provisions of this Lease.
23.02. Lease with First Mortgagee. In the event
that, notwithstanding the express provision of this Lease, this
Lease shall be deemed terminated by operation of law, or by
action of court, or in the event any receiver, trustee in
bankruptcy, liquidator or assignee of Landlord shall initiate
any action for the taking of the Rent and the application
thereof for the benefit of any creditors of Landlord other than
the holder of a first mortgage on Landlord's interest in the
Premises, then Tenant shall, upon ten days' written demand to
Tenant by the holder of said first mortgage, enter into a new
lease with said holder containing the same remaining terms and
provisions as this Lease. Forthwith upon the execution and
delivery of such new lease, this Lease and all obligations of
Tenant hereunder shall be deemed terminated without further
action by either party hereto.
ARTICLE XXIV - ENVIRONMENTAL OBLIGATIONS.
24.01. No Hazardous Materials. Tenant covenants that
no Hazardous Materials (as hereinafter defined) shall be brought
onto, or stored, disposed of or used at the Premises by Tenant
or any of its employees, agents, independent contractors,
licensees, subtenants or invitees, except for Hazardous
Materials that are typically found, brought into, stored or used
at comparable general-purpose office complexes similar to the
Premises. Except for Hazardous Materials that are typically
used in the maintenance and/or operation of plumbing or waste
treatment systems of office buildings, no Hazardous Materials
shall be placed into the plumbing or waste treatment systems of
the Premises.
24.02. Definition of Hazardous Materials. "Hazardous
Materials" means any hazardous or toxic substance, material or
waste (including constituents thereof) which is or becomes
regulated by one or more applicable governmental or other
authority. The words "Hazardous Material" include any material
or substance which is (a) listed or defined as a "hazardous
waste", "extremely hazardous waste", "restricted hazardous
waste", "hazardous substance" or "toxic substance" under any
applicable law, rule, regulation or order, (b) petroleum and its
by-products, (c) asbestos, radon gas, urea formaldehyde foam
insulation, (d) polychlorinated biphenyl, or (e) designated as a
pollutant, contaminant, hazardous or toxic waste or substance or
words of similar import pursuant to the Federal Water Pollution
Control Act (33 U.S.C. 1317), the Federal Resource Conservation
and Recovery Act (42 U.S.C. 6903), the Comprehensive
Environmental Response, Compensation and Liability Act, as
amended (42 U.S.C. 9601 et seq.), the Toxic Substances Control
Act (15 U.S.C. et seq.), or the Hazardous Materials Transporta-
tion Act (49 U.S.C. Section 1801 et seq.).
24.03. Notification of Hazardous Materials. Tenant
shall promptly (but in any case within 14 days of the occurrence
of any of the following events) notify Landlord when Tenant
becomes aware of (i) the presence of Hazardous Materials in
violation of this Section, (ii) the release or suspected release
on or from the Premises and areas immediately adjoining the
Premises or in the air of Hazardous Materials, whether or not
caused or permitted by Tenant or any subtenant, (iii) the
issuance to Tenant, any subtenant or any sub-subtenant of space
in, or any other user of, the Premises or any assignee of Tenant
of any written communication, notice, complaint or order of
violation or non-compliance or liability, of any nature
whatsoever, with regard to the Premises or the use thereof with
respect to any law, rule regulation or order applicable thereto,
and (iv) any written notice of any applicable governmental or
other authority of a pending or threatened investigation as to
whether Tenant's (or Tenant's permitted subtenant's or
assignee's) operation on the Premises are not in compliance with
any such laws applicable thereto. Such notice shall include as
much detail as reasonably possible, including identity of the
location, type and quantity, circumstance, date and time of
release and Tenant's response or proposed response to such
release. Tenant, at its sole expense, shall promptly (but in
any case within 14 days of the occurrence of any of the
following events) give any notices to any applicable
governmental or other authorities with respect to such release
or suspected release, and shall promptly take all actions to
remediate the Premises, in accordance with the laws, rules,
orders and regulations applicable thereto, and return the
Premises to the condition existing prior to the events which
resulted in any such release and shall provide to Landlord a
detailed description of all such actions, along with copies of
communications with or from applicable governmental or other
authorities or other third parties, and any reports, opinions
and data developed from those actions. Tenant has not and will
not, and will not permit any of its employees, agents,
independent contractors, licensees, subtenants, affiliates or
invitees to, engage in any activity at or on the Premises that
will result in liability or potential liability under any
environmental or other law, rule, order or regulation.
24.04. Landlord Access. Tenant shall allow Landlord
access to the Premises from time to time during the Term for the
purpose of conducting such environmental assessments,
investigations or tests as Landlord deems necessary or desirable
to assess compliance with the terms of this Section. Tenant
shall reimburse Landlord for the cost of such environmental
assessment, investigation or test if it reveals the existence of
Hazardous Materials in violation of this Article.
24.05. Tenant Not Liable for Existing Conditions.
Any provision of this Lease to the contrary notwithstanding,
Tenant shall not be obligated to remediate or otherwise incur
any liability for the cost of any Hazardous Materials that are
present on or about the Premises on the Commencement Date.
ARTICLE XXV - MISCELLANEOUS PROVISIONS
25.01. Year 2000. Tenant represents to Landlord that
the risk that certain computer applications used by Tenant may
be unable to recognize and perform properly date-sensitive
functions involving dates prior to and after December 31, 1999,
will not result in any material adverse effect on the ability of
Tenant to duly and punctually pay or perform its obligations
hereunder.
25.02. Subordination, Attornment and Mortgagee
Protection. This Lease is subject and subordinate to all
mortgages, deeds of trust, encumbrances and any renewals,
modifications, replacements or extensions thereof ("Mortgages")
now or hereafter placed upon the Premises and all other
encumbrances and matters of public record applicable to the
Property, provided, however, with respect to any such Mortgage
hereafter placed upon the Premises, Tenant shall subordinate and
attorn to the holder of such Mortgage ("Holder") provided such
Holder agrees not to disturb Tenant's possession hereof as long
as Tenant is not in default hereunder beyond any applicable
notice and cure periods provided for herein. If any foreclosure
proceedings are initiated by any Holder or a deed in lieu is
granted (or if any ground lease is terminated), Tenant agrees,
upon written request of any such Holder or any purchaser at
foreclosure sale, to attorn and pay Rent to such party and to
execute and deliver any instruments necessary or appropriate to
evidence or effectuate such attornment (provided such Holder or
purchaser shall agree to accept this Lease and not disturb
Tenant's occupancy, so long as Tenant does not default and fail
to cure within the time permitted hereunder. However, in the
event of attornment, no Holder shall be: (i) liable for any act
or omission of Landlord, or subject to any offsets or defenses
which Tenant might have against Landlord (prior to such Holder
becoming Landlord under such attornment), (ii) liable for any
security deposit or bound by any prepaid Rent not actually
received by such Holder, or (iii) bound by any future
modification of this Lease not consented to by such Holder. Any
Holder may elect to make this Lease prior to the lien of its
Mortgage, by written notice to Tenant, and if the Holder of any
prior Mortgage shall require, this Lease shall be prior to any
subordinate Mortgage. Tenant agrees to give any Holder by
certified mail, return receipt requested, a copy of any notice
of default served by Tenant upon Landlord, provided that prior
to such notice Tenant has been notified in writing of the
address of such Holder. Tenant further agrees that if Landlord
shall have failed to cure such default any Holder whose address
has been provided to Tenant shall have an additional period of
thirty (30) days in which to cure (or such additional time as
may be required due to causes beyond such Holder's control,
including time to obtain possession of the Property by power of
sale or judicial action). Tenant shall execute such
documentation as Landlord may reasonably request from time to
time, in order to confirm the matters set forth in this Section
in recordable form.
25.03. Integration. This Lease and the documents
referred to herein set forth all the promises, agreements,
conditions and understandings between Landlord and Tenant
relative to the leasing of the Premises, and there are no
promises, agreements, conditions or understandings, either oral
or written, between them other than as are herein set forth. No
subsequent alteration, amendment, supplement, change or addition
to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by them.
25.04. No Recording. This Lease shall not be
recorded or otherwise filed or made a matter of public record,
and any attempt to record or file same by Tenant shall be deemed
a default by it hereunder.
25.05. Time of the Essence. Time wherever specified
herein for satisfaction of conditions or performance of
obligations by the parties is of the essence of this Lease.
25.06. No Partnership. The parties do not intend to
create hereby any partnership or joint venture between
themselves with respect to the Premises or any other matter.
25.07. Severability. Any provision of this Lease
that shall be prohibited or unenforceable in any jurisdiction or
with respect to any person shall, as to such jurisdiction or
person, be ineffective only to the extent of such prohibition or
unenforceability, without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability shall not
invalidate or render unenforceable such provision in any other
jurisdiction or, as the case may be, with respect to any other
person. To the extent permitted by applicable law, the parties
hereto hereby waive any law that renders any provision hereof
prohibited or unenforceable in any respect.
25.08. Authority. Each party warrants that it has
full power, authority and legal right to execute and deliver
this Lease, and to keep and observe all of the terms and
provisions of this Lease on such party's part to be observed and
performed. Each party warrants that this Lease is its valid and
enforceable obligation, subject to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforceability of rights of creditors generally and subject to
the application of equitable principles.
25.09. Governing Law. This Lease and all issues
arising hereunder shall be governed by the laws of the State of
New Jersey with jurisdiction and venue in Camden County, New
Jersey.
25.10. Counterparts. This Lease may be executed by
the parties hereto in separate counterparts, all of which, when
delivered, shall together constitute one and the same
instrument.
25.11. Plans. Nothing shown on any recorded
subdivision plan with respect to the Premises, or on any plan
referred to in this Lease, or on any other plan, shall create or
constitute an additional covenant, representation or agreement
of Tenant or grant to Landlord any easement or right.
25.12. Headings; Pronouns. The headings of the
sections of this Lease are for convenience only and have no
meaning with respect to this Lease or the rights or obligations
of the parties hereto. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided
herein: "person", as used herein, includes an individual,
corporation, partnership, trust, unincorporated association,
government, governmental authority, or other entity; "Premises"
includes each portion of the Premises and each estate or
interest therein; "hereof", "herein", and "hereunder" and other
words of similar import refer to this Lease as a whole; "Lease"
includes these presents as supplemented or amended from time to
time by written instrument(s) entered into by Tenant or
Landlord; "Landlord" includes Landlord's successors and assigns;
"Tenant" includes Tenant's successors and permitted assigns; and
"parties" means Landlord and Tenant. Whenever the context may
require, any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of
pronouns or nouns shall include the plural and vice versa.
25.13. Binding Effect; Successors and Assigns.
Subject to all provisions hereof dealing with assignments, the
terms and provisions of this Lease, and the respective rights
and obligations hereunder of the parties hereto, shall be
binding upon, and inure to the benefit of, the parties and their
respective successors and assigns.
25.14. Limitation of Landlord's Liability. The
obligations of Landlord under this Lease do not constitute
personal obligations of the individual partners, directors,
officers, or shareholders of Landlord, and Tenant shall look
solely to the real estate that is the subject of this Lease and
to no other assets or property of the Landlord for satisfaction
of any liability in respect of this Lease and shall not seek
recourse against any other property of Landlord, or against the
individual partners, directors, officers or shareholders of
Landlord or any of their personal assets for such satisfaction.
25.15. Survival. All agreements and obligations of
Tenant hereunder which require observance or performance after
the expiration or termination of this Lease, or which can not
reasonably be ascertained as having been observed or performed
at the time of such expiration or termination, shall survive,
and be enforceable against Tenant following, such expiration or
termination.
25.16. Brokers. Landlord and Tenant each represent
to the other that neither of them has dealt with any broker or
other person who may be entitled to a real estate broker's
commission or a finder's fee in connection with this transaction
other than Xxxx & Co. and Xxxxxx & Xxxxxx Real Estate
("Designated Brokers"). Landlord shall pay whatever commission
is owed to the Designated Brokers pursuant to a separate
agreement between Landlord and the Designated Brokers. Landlord
and Tenant each shall indemnify and hold the other harmless from
and against any claim for broker's commission or finder's fee
asserted by a person claiming by or through them.
ARTICLE XXVI - RIGHT OF FIRST OFFER TO PURCHASE PREMISES
Subject to the limitations expressed in the last
sentence of this Article, Landlord hereby grants to Tenant a
right of first offer to purchase the Premises on the terms set
forth in this Article. If during the Term of this Lease
Landlord desires to sell or convey the Premises to a third party
purchaser that is not an affiliate of Landlord, Landlord shall
so notify Tenant in writing ("Notice"), which Notice shall
specify the purchase price and include a form of agreement of
sale upon which Landlord is willing to sell the Premises. If
Tenant desires to purchase the Premises at the purchase price
and upon the terms and conditions set forth in the Notice,
Tenant shall so notify Landlord in writing within twenty days
following Tenant's receipt of the Notice and pay to Landlord a
deposit in an amount equal to 10% of the purchase price for the
Premises. In such event, without further action of Landlord or
Tenant, Landlord shall be deemed to have agreed to sell the
Premises to Tenant, and Tenant shall be deemed to have agreed to
purchase the Premises from Landlord, for the purchase price and
upon the terms and conditions set forth in the Notice. If
Tenant does not so agree to purchase the Premises within said
ten business day period, at any time thereafter Landlord shall
be free to sell and convey the Premises free and clear of
Tenant's rights under this Article, provided that (i) Landlord
shall not sell the Premises for a purchase price that is less
than 90% of the purchase price stated in the Notice to Tenant or
(ii) sell the premises more than one year following the date of
the Notice without, in either such case, sending a new Notice
to Tenant, in which event Tenant shall have a further period of
ten business days following Tenant's receipt of the new Notice
to purchase the Premises. Notwithstanding the foregoing, if
Landlord desires to sell or convey the Premises together with
one or more other properties owned by Landlord (or affiliates of
Landlord), the Notice merely shall state that Landlord so
intends to sell the Premises as part of a multi-property
transaction, without specifying the purchase price or other
general terms and conditions upon which Landlord might be
willing to sell the Premises or any other property to Tenant,
and Tenant shall have no right to purchase the Premises (and
Landlord shall have no obligation to sell the Premises to
Tenant) unless, within ten business days following Tenant's
receipt of such Notice, Landlord and Tenant shall in writing
agree that the Premises shall be sold to Tenant on terms and
conditions mutually acceptable to both parties.
IN WITNESS WHEREOF, Landlord and Tenant have caused
this Lease Agreement to be duly executed, all as of the day and
year first above written.
Witness: FIRST STATES PARTNERS NO. 203, LLC
By:
-------------------------- -------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Manager
ATTEST: CNB PARTNERSHIP, LLC
By:
-------------------------- ------------------------------
Name: Name: Xxxxx Xxxxxx
Title: Title: Manager
EXHIBIT "A"
DESCRIPTION OF PREMISES
