Exhibit 10.40
BUSINESS LEASE
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The Landlord and the Tenant agree to rent the Rental Space for the Term
and at the Rent Stated as follows: (The words Landlord and Tenant include all
landlords and all tenants under this Lease.)
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Date of Lease: September 13, 2005
Term: 15 years with three 5 year options
Beginning date: October 1, 2006
(date to be adjusted to date of occupancy)
Ending date: September 30, 2021
(date to be adjusted to end of 15th year)
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Landlord: FANWOOD PLAZA PARTNERS, LLC
a New Jersey limited liability company
000 Xxxxx Xxxxxx (Xxxxx 000)
Xxx Xxxxxxxxxx, XX 00000
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Tenant: THE TOWN BANK
a corporation of the State of New Jersey
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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Rental Space: a free standing building containing approximately 2,966 square
feet as
1. set forth on the attached proposed floor plan
dated December 13, 2004 prepared by Xxxxx X. Xxxxx,
A.I.A., 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
2. set forth on the attached proposed site plan
dated 2005. prepared by EKA Associates, P.A., 0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxx Xxxxxx, XX, 00000
Building: 000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000 (Lot 5, Block 91)
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Base Rent for the Term is $1,557,000.00. It is subject to adjustment starting
January 1, 2009 in accordance with paragraph 25.
The Rent is payable in advance on the first day of each month as follows:
$8,650.00 starting September 1, 2006 and adjusted annually starting January 1,
2009 in accordance with paragraph 25.
Security: $10,000.00
Liability Insurance: Minimum amounts:
for each person injured: $1,000,000.00;
for any one accident: $3,000,000.00;
for property damage: $1,000,000.00; or
single limit: $3,000,000.00.
casualty limit: $1,000.000.00
9/13/05 Fanwood Plaza Partners, LLC to The Town Bank - Business Lease 1
Municipal Real Estate Taxes $ Base Year 2006 or 2007(1)
Use of Rental Space: Bank branch facility with drive-up windows; marketing and
sale of financial or financial related products. The use includes the business
of a trust company, investment, security and/or safe deposit business, loan
office, operating of a drive-up banking facility, sales of insurance and
insurance related products (i.e., annuities), sales of securities and mutual
funds, operation of one or more automated teller machines (ATM's) including a
drive-up ATM, other financial services, general executive and administrative
offices and all activities necessary or incidental to the foregoing and any
similar or allied business and any combination of the foregoing.
Additional agreements:
The Landlord represents that the Landlord acquired the Property on June
16, 2005 and will make application to the Fanwood Planning Board for site plan
approval of the project set forth on the conceptual plan for the development of
000-000 Xxxxx Xxxxxx, Xxxxxxx, XX (Block 91, Lots 3-5) prepared by EKA
Associates, P.A. dated May 6, 2005.
The site plan shows a proposed second structure for Xxxxxxx Systems for
use as a child care center, with an address of 000 Xxxxx Xxxxxx. The site plan
provides 68 parking stalls for the shared use by the Tenant, the Xxxxxxx School,
and Fanwood Plaza. ss.184-160 of the Fanwood Land Use Ordinance requires one
parking stall per 000 xxxxxx xxxx xx xxxxx xxxx for a bank and one space for
each employee for a child care center. The bank's requirement is 12 parking
spaces. The Xxxxxxx School's requirement is 19 parking spaces. The requirement
for both uses is 31 parking spaces. The remaining 37 parking spaces exceed the
minimum requirement for both uses and are available for both tenants as well as
Fanwood Plaza. Unless directed to do so by the Fanwood Planning Board, the
parking spaces will not be designated for either tenant.
By design, the Rental Space involves shared parking and shared maintenance
of the parking area with the occupant of the child care center about to be
located at 000 Xxxxx Xxxxxx, Xxxxxxx, XX.
All references in this Business Lease to "Landlord's Written Consent" are
amended to provide that the Landlord's consent shall not be unreasonably
withheld or delayed.
The Landlord's obligations under this Lease are contingent upon the
Landlord's obtaining:
a. site plan approval from the Planning Board of the Borough of Fanwood,
b. construction financing from Synergy Bank,(2)
c. a building permit for the construction of a free standing building, and
d. a certificate of occupancy and a zoning use permit upon completion of
construction of a new free standing building.
The Landlord will provide the Tenant with regular status reports as to the
Landlord's obligations, including notice of any public meetings with the Fanwood
Planning Board.
The Tenant's obligations under this Lease are contingent upon:
a. the Tenant's review and approval of the Landlord's proposed free
standing building and site plan,
b. site plan approval from the Planning Board of the Borough of Fanwood,
c. the completion of construction of a new free standing building,
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(1) The base year tax will be established by the Landlord and the Tenant as soon
as practicable after the property is assessed by the Borough of Fanwood.
(2) The construction mortgage closing took place on June 16, 2005.
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d. the issuance of a certificate of occupancy and a zoning use permit
for the Tenant's use of the Rental Space
e. the issuance of all required federal, state and local approvals for
the operation of a branch bank at the Rental Space including, without
limitation, the New Jersey Department of Banking.
The Tenant will provide the Landlord with regular status reports as to the
Tenant's obligations, including notice of any public meetings with the New
Jersey Department of Banking. The Tenant will also assist the Landlord in the
presentation of the site plan application by providing one or more witnesses to
testify as to the Tenant's proposed banking operations at the Property.
The Landlord shall provide the Rental Space to the Tenant in accordance
with a "work letter" to be attached to this Lease. The "work letter" will be
prepared and mutually agreed upon after the Landlord's architect completes the
construction plans for the building. The Tenant shall "fit up" the Rental Space
in accordance with the "work letter".
The Landlord will not lease the building at 000 Xxxxx Xxxxxx to another
financial institution with the same or similar uses as the Tenant without the
Tenant's consent.
The Landlord has not conducted a Phase 1 Environmental Audit. The two
existing structures at 314 & 000 Xxxxx Xxxxxx were constructed as single-family
residential dwellings. During the past fifteen years, the buildings have been
used by Children's Specialized Hospital as office buildings. The lot at 000
Xxxxx Xxxxxx was virgin wooded land until 1986 when it was cleared and developed
as a parking lot for Fanwood Plaza. The SIC numbers for the past uses are exempt
from the requirements of ISRA.
The Landlord will, as part of the demolition of the two existing
structures and the construction of the two new structures at 314 & 000 Xxxxx
Xxxxxx, remove all asbestos and underground storage tanks. The Tenant shall have
the right to inspect the site during the course of the demolition and
construction and to conduct such environmental investigations as the Tenant
deems appropriate.
TABLE OF CONTENTS
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1. Possession and Use
2. Delay in Giving of Possession
3. No Assignment or Subletting
4. Base Rent and Additional Rent
5. Security
6. Liability Insurance
7. Unavailability of Fire Insurance, Rent Increases
8. Water Damage
9. Liability of Landlord and Tenant
10. Acceptance of Rental Space
11. Quiet Enjoyment
12. Utilities and Services
13. Tenant's Repairs, Maintenance and Compliance
14. Landlord's Repairs and Maintenance
15. No Alterations
16. Signs
17. Window Treatments
18. Access to Rental Space
19. Fire and Other Casualty
20. Eminent Domain
21. Subordination to Mortgage
22. Tenant's Certificate
23. Violation, Eviction, Re-entry and Damages
24. ISRA Compliance
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25. Rent Adjustment for Third through Twentieth Years
26. Option to Renew
27. Right of First Refusal
28. Notices
29. No Waiver
30. Survival
31. End of Term
32. Binding
33. Full Agreement
1. Possession and Use
The Landlord shall give possession of the Rental Space to the Tenant for
the Term stated above. The Tenant shall take possession of and use the Rental
Space for the purpose stated above. The Tenant may not use the Rental Space for
any other purpose without the written consent of the Landlord.
The Tenant shall not allow the Rental Space to be used for any unlawful or
hazardous purpose. The Tenant shall obtain any necessary certificate of
occupancy, use permit or other certificate permitting the Tenant to use the
Rental Space for that Use.
The Landlord has advised the Tenant that the Building is located in the GC
General Commercial District and that a bank or other financial institution is a
permitted use. The Tenant has represented to the Landlord that the Tenant will
use the Rental Space for the use set forth above in accordance with the
requirements of the GC General Commercial District. The Tenant shall not
knowingly use the Rental Space in any way that would violate the Municipal
Zoning Ordinance.
The Tenant shall not use the Rental Space in any manner that results in:
a. an increase in the rate of fire or liability insurance, or
b. cancellation of any fire or liability insurance policy on the Rental
Space.
The Tenant shall comply with all requirements of the insurance companies
insuring the Rental Space.
The Tenant shall not abandon the Rental Space during the Term of this
Lease or permit it to become vacant for extended periods.
2. Delay in Giving of Possession
This paragraph applies if:
a. the Landlord cannot give possession of the Rental Space to the Tenant
on the beginning date, and
b. the reason for the delay is not the Landlord's fault.
The Landlord shall not be held liable for the delay. The Landlord shall
then have 180 days in which to give possession. If possession is given within
that time, the Tenant shall accept possession and pay the rent from that date.
The ending date of the Term shall be fifteen years after the starting date. If
possession is not given within that time, this Lease may be cancelled by either
party on notice to the other.
3. No Assignment or Subletting
The Tenant may not do any of the following without the Landlord's written
consent:
a. assign this Lease, except to a successor by merger or acquisition
b. sublet all or any part of the Rental Space, or
9/13/05 Fanwood Plaza Partners, LLC to The Town Bank - Business Lease 4
c. permit any other person or business to use the Rental Space.
The Landlord specifically consents to a shared use of the Rental Space by a
joint venture partner engaged in the sale of financial or financial related
products pursuant to an agreement with the Tenant.
If the Tenant requests the Landlord to assign or sublet this Lease, the
following provisions shall apply:
a. Landlord's Consent Required. Upon requesting the Landlord's consent to
an Assignment or Sublease, Tenant shall notify Landlord, in writing, of
the name and address of the Assignee and the nature and character of the
Assignee's business, and shall provide Landlord with appropriate financial
information including, without limitation, financial statements of the
Assignee. Landlord shall not unreasonably withhold or delay the Landlord's
consent to any Assignment or Sublease, provided, however, it shall
conclusively be deemed that the Landlord's refusal or withholding of
consent is not unreasonable if:
(1) the net worth of the proposed Assignee does not, in Landlord's
sole judgment, provide adequate credit for the proposed Assignee to assume
the performance of all of the Tenant's obligations under the Lease; or
(2) the business reputation, managerial skills and operational
skills of the proposed Assignee are not in accordance with generally
acceptable commercial standards;
(3) the use of the Rental Space by the proposed Assignee is not
identical to the use permitted by this Lease; or
(4) the use of the Rental Space by the proposed Assignee will
violate or create a potential violation of any laws or other agreements
affecting the Rental Space, the Landlord or other tenants and occupants of
the Property.
b. Permitted Transfers. The Tenant may, upon written notice to the
Landlord, assign this Lease without need of the prior consent of the
Landlord to:
(1) any wholly-owned subsidiary or the Tenant's parent corporation,
(2) any person or corporation owning 100% of Tenant's stock, or
(3) any company into which the Tenant may be merged or consolidated
so long as substantially all the assets then held by the Tenant become the
property of the continuing entity.
c. Written Instrument Required. The Landlord's consent to any Assignment
or Sublease shall not be effective unless and until a written instrument
of such Assignment or Sublease, in form and substance reasonably
acceptable to Landlord, has been delivered to and executed by the
Landlord.
The Tenant shall pay Landlord the sum of five hundred dollars
($500.00) to cover Landlord's administrative costs, overhead and
attorney's fees in connection with such Assignment or Sublease. The money
is payable upon Tenant's initial submission of its Assignment or Sublease
proposal to Landlord.
The consent by Landlord to any Assignment or Sublease shall not
relieve the Tenant from the obligation to obtain the Landlord's express
written consent to any other Assignment or Sublease, nor shall reference
anywhere else in this Lease to an assignee or subtenant be considered as a
consent by the Landlord to such Assignment or Sublease or a waiver of the
provisions of this Lease.
d. No Release of Tenant's Liability. No sublease or any other transfer by
Tenant, either with or without the Landlord's consent, required or
otherwise, during the term of this Lease, shall release the Tenant from
any liability under the terms of this Lease, nor shall the Tenant be
relieved of the obligation of performing any of the terms, covenants and
conditions of this Lease.
The Tenant may, however, request the Landlord to release the Tenant
and the Landlord will, in good faith, assess the Tenant's request in the
context of the financial strength and stability of the assignee. The
decision of the Landlord is a matter of the Landlord's sole discretion and
cannot be contested by the Tenant.
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Exception: If the Landlord approves an Assignment of Lease (as
distinguished from a Sublease), such assignment shall release the Tenant
from any liability under the terms of this Lease and shall relieve the
Tenant of the obligation of performing the terms, covenants and conditions
of this Lease.
4. Base Rent and Additional Rent
The Tenant shall pay the Base Rent and Additional Rent to the Landlord at
the Landlord's address.
The Tenant shall pay rent to the Landlord by U.S. mail or personal
delivery. Although good personal checks will be accepted by the Landlord, if the
Landlord receives any check which is returned by the Tenant's bank, the Landlord
reserves the right to require the Tenant to pay rent by money order, bank
cashier's checks, certified check, or cash.
If the Tenant fails to comply with any agreement in this Lease after
reasonable notice and a reasonable opportunity to cure, the Landlord may do so
on behalf of the Tenant. The Landlord may charge the cost to comply, including
reasonable attorney's fees (as defined in subparagraph (f) below), to the Tenant
as "Additional Rent". The Additional Rent shall be due and payable as Rent with
the next monthly Rent payment. Non-payment of Additional Rent shall give the
Landlord the same rights against the Tenant as if the Tenant failed to pay the
Rent.
The Tenant shall also pay as Additional Rent:
a. Tax Rent -- Real Estate Taxes: Tax Rent equal to 100% of the municipal
real estate tax attributable to the Rental Space at 000 Xxxxx Xxxxxx. The
tax is not yet known and will not be known until the building is
constructed and approved and the property is assessed by the Borough of
Fanwood.(3) The Tenant shall pay the monthly tax on the first day of each
month starting with the first rent payment. The Landlord shall, in turn,
pay the tax to the municipality. The monthly amount shall be adjusted when
the second year's final tax xxxx is received by the Landlord. Thereafter,
the monthly amount shall be adjusted when future final tax bills are
received by the Landlord. The Tenant's liability for this Tax Rent shall
be pro-rated for any part of the calendar year that the Tenant does not
occupy the Rental Space under this Lease.
b. Late Charge: The Tenant will pay a Late Charge of 5% of the monthly
rent installment if rent is paid on or after the 6th day after the due
date. The late charge is to account for the Landlord's administrative
costs and expenses.
c. Interest: If the Tenant shall fail to pay any Rent or Additional Rent
within 15 days after the same first became due and payable, such unpaid
amounts shall bear interest at a rate of 5% above the announced prime or
base rate set by CitiBank, N.A. (or its successor) from the due date
thereof to the date of its payment, but in no event at more than the
highest legal rate.
d. Bank Fee: A $40.00 fee for each check returned by a bank (i.e., for
insufficient or uncollected funds, etc.)
e. Replacement Key Charge: A $150.00 fee for each key replaced by the
Landlord.
f. Legal Costs: All reasonable attorney's fees, court costs, court officer
fees and other expenses incurred by the Landlord in the enforcement of the
Tenant's obligations, including suits for possession, except where the
Landlord's claim is adjudicated to be without merit. The minimum fee for a
suit for possession is $750.00.
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(3) The Fanwood Tax Assessor will provide the allocation between the two
buildings as to the improvement assessment. The land assessment will be
allocated as follows: 000 Xxxxx Xxxxxx - 75%; 000 Xxxxx Xxxxxx -00%.
9/13/05 Fanwood Plaza Partners, LLC to The Town Bank - Business Lease 6
If any action or proceeding arising out of or relating to this Lease is
commenced by either party then, as between the Landlord and the Tenant, the
prevailing party shall be entitled to receive from the other party, in addition
to any other relief that may be granted, all reasonable attorney's fees, costs
and expenses incurred in that action or proceeding.
5. Security
Any security deposit paid pursuant to this Lease will be held by the
Landlord during the Term of this Lease. The Landlord may deduct from the
Security any expenses incurred in connection with the Tenant's violation of any
agreement in this Lease. For example, if the Tenant does not leave the Rental
Space in good condition at the end of the Term, normal wear and tear excepted,
the security may be used to put it in good condition. If the amount of damage
exceeds the Security, the Tenant shall pay the additional amount to the Landlord
on demand.
If the Landlord uses the security or any part of it during the Term, the
Tenant shall, on demand, pay the Landlord for the amount used. The amount of the
security is to remain constant throughout the Term. The security is not to be
used by the Tenant for the payment of Rent. The Landlord shall account to the
Tenant for any security used and repay to the Tenant any balance remaining
within a reasonable time (not to exceed 60 days) after the end of the Term. The
Tenant shall not be entitled to interest on the security.
If the Landlord's interest in the Rental Space is transferred, the
Landlord shall turn over the security to the new Landlord. The Landlord shall
notify the Tenant of the name and address of the new Landlord. Notification must
be given within 5 days after the transfer, by registered or certified mail. Once
the new Landlord assumes the Landlord's obligations under this Lease, the
Landlord shall then no longer be responsible to the Tenant for the repayment of
the security. The new Landlord shall be responsible to the Tenant for the return
of the security in accordance with the terms of this Lease.
6. Casualty and Liability Insurance
The Tenant shall obtain, pay for, and keep in effect for the benefit of
the Landlord and the Tenant casualty and public liability insurance on the
Rental Space in the amounts set forth on page 1 of this Lease. The insurance
company and the Broker must be acceptable to the Landlord. This coverage must be
in at least the minimum amounts stated above.
All policies shall state that the insurance company cannot cancel or
refuse to renew without at least 10 days written notice to the Landlord.
The Tenant shall deliver the original policy to the Landlord with proof of
payment of the first year's premium. This shall be done not less than 5 days
before the Beginning of the Term. The Tenant shall deliver a renewal policy to
the Landlord with proof of payment not less than 5 days before the expiration
date of each policy.
The Tenant's public liability insurance on the Rental Space shall:
a. include a waiver of subrogation,
b. include fire legal liability coverage, and
c. designate the Landlord as an additional insured (not a named insured).
7. Unavailability of Fire Insurance, Rate Increases
If, due to the Tenant's use of the Rental Space, the Landlord cannot
obtain and maintain fire insurance on the Building in an amount and form
reasonably acceptable to the Landlord, the Landlord may cancel this Lease on 30
days notice to the Tenant. If due to the Tenant's use of the Rental Space the
fire insurance rate is increased, the Tenant shall pay the increase in the
premium to the Landlord on demand.
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8. Water and Other Damage
The Landlord shall not be liable for any damage or injury to any person or
property caused by the leak or flow of water over which the Landlord has no
control from or into any part of the Building. The Tenant has to insure this
risk of loss. Note: The Landlord's insurance does not cover all losses for
damage to the Tenant's property and the Landlord does not indemnify the Tenant
as to water damage not covered by the Landlord's insurer. Exception: The
Landlord shall remain liable for any damage or injury to any person or property
caused by the leak or flow of water arising from any structural defect in the
Landlord's building.
9. Liability of Landlord and Tenant
The Landlord shall not be liable for injury or damage to any person or
property unless it is due to the Landlord's willful act or neglect. The Landlord
shall defend the Tenant from and reimburse the Tenant for all liability costs
resulting from any injury or damage due to the willful act or neglect of the
Landlord or the Landlord's authorized representatives (i.e., employees, agents,
customers or clients, and guests).
The Tenant is liable for any loss, injury or damage to any person or
property caused by the act or neglect of the Tenant or the Tenant's authorized
representatives, customers or clients, and guests. The Tenant shall defend the
Landlord from and reimburse the Landlord for all liability and costs resulting
from any injury or damage due to the act or neglect of the Tenant or the
Tenant's authorized representatives (i.e., employees, agents, customers or
clients, and guests).
For the purpose of this paragraph, the obligation of a party to indemnify
or hold harmless shall be limited to the sum that exceeds the amount of
insurance proceeds, if any, received by the party being indemnified.
10. Acceptance of Rental Space
The Landlord shall deliver the Rental Space to the Tenant in a new and
clean condition in accordance with the "work letter" to be attached to this
Lease. The Tenant shall inspect the Rental Space and determine whether the
Rental Space is in satisfactory condition, suitable for the Tenant's intended
use. Thereafter, the Tenant shall "fit up" the Rental Space in accordance with
the Tenant's "work letter".
11. Quiet Enjoyment
Upon satisfaction of the contingencies set forth above under Additional
Agreements, the Landlord has the right to enter into this Lease. If the Tenant
complies with this Lease, the Landlord must provide the Tenant with undisturbed
possession of the Rental Space. This means that on paying the rent and
performing the conditions and covenants contained in this Business Lease, the
Tenant shall and may peaceably and quietly have, hold and enjoy the Rental
Space.
12. Utilities and Services
The Tenant shall arrange and pay for all separately metered utilities and
services required for the Rental Space, including the following; Y=Yes N=No
[ Y ] HVAC
[ Y ] Hot and cold water
[ Y ] Electric
[Y] Gas
[ Y ] Telephone
[ Y ] Cable Television
[ Y ] Janitorial service
The Tenant's failure to make timely payment of the Tenant's utility charges
shall be an event of default for which Landlord reserves a right of re-entry
under Paragraph 23.
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The Tenant shall pay pro rata (25%) for the following utilities and
services that are to be shared with the occupant of the building at 000 Xxxxx
Xxxxxx, Xxxxxxx, XX:
[ Y ] Lawn care
[ Y ] Snow removal
[ Y ] Leaf Removal
[ Y ] Sanitary sewer
[ Y ] Trash disposal
[ Y ] Reserves for replacement of the landscaping and parking lot
improvements
The Xxxxxxx School, its successors and assigns, will pay the remaining
75%.
The Landlord is not liable for any inconvenience or harm caused by any
stoppage or reduction of utilities and services beyond the control of the
Landlord. This does not excuse the Tenant from paying Rent.
13. Tenant's Repairs, Maintenance and Compliance
The Tenant shall:
a. Promptly comply with all laws, orders, rules and requirements of
governmental authorities, insurance carriers, board of fire underwriters
or similar groups.
b. Maintain the Rental Space and all equipment and fixtures in it in good
repair and appearance.
c. Make all necessary repairs and replacements to the Rental Space and all
equipment and fixtures in it, except structural repairs as per paragraph
14.
d. Maintain the Rental Space in a neat, clean, safe, and sanitary
condition, free of all garbage.
e. Keep the walks, driveway, parking area, yard, entrances, hallways and
stairs clean and free from trash and debris. This includes, without
limitation, cleanup of the ATM area and the drive-up window area.
f. Use all electric, plumbing and other facilities in the Rental Space
safely.
g. Use no more electricity than the wiring or feeders to the Rental Space
can safely carry.
h. Promptly replace all broken glass in the Rental Space.
i. Do nothing to destroy, deface, damage or remove any part of the Rental
Space.
j. Keep nothing in the Rental Space which is inflammable, dangerous or
explosive or which might increase the danger of fire or other casualty.
k. Promptly notify the Landlord when there are conditions that need
structural repair.
l. Do nothing to destroy the peace and quiet of the Landlord, other
tenants or persons in the neighborhood.
m. Avoid littering in the building or on its grounds.
n. Recycle recyclables in accordance with the law and the Landlord's
requirements.
o. Maintain an inside temperature during the heating season of not less
than 50(degree) F.
The Tenant shall pay any reasonable expenses involved in complying with
the above.
14. Landlord's Repairs and Maintenance
The Landlord shall;
a. Maintain (subject to the provisions of this Lease) the public areas,
roof, and exterior walls in good condition,
b. Make all structural repairs (the Tenant may be liable for the cost
incurred by the Landlord when made necessary by the act or neglect of the
Tenant or the Tenant's authorized representatives, customers or clients,
and guests),
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15. No Alterations
Except for emergency repairs, the Tenant may not make any changes or
additions to the Rental Space without the Landlord's written consent. All
changes or additions made without the Landlord's written consent shall be
removed by the Tenant on demand.
All changes or additions made with the Landlord's written consent shall
become the property of the Landlord when completed and paid for by the Tenant.
They shall remain as part of the Rental Space at the end of the Term. The
Landlord may demand that the Tenant remove any changes or additions at the end
of the Term. The Tenant shall promptly pay for all costs of any permitted
changes or additions. The Tenant shall not allow any mechanic's lien or other
claim to be filed against the Building. If any lien or claim is filed against
the Building as the result of any action of the Tenant, the Tenant shall have it
promptly removed.
The Tenant intends to install a vault that will become a permanent part of
the Rental Space. It will not have to be removed at the end of the term of the
Lease.
16. Signs
The Tenant shall be permitted to place signs on or about the Rental Space,
provided that the Tenant or the Landlord (as part of the Landlord's site plan
application to the Planning Board of the Borough of Fanwood) obtains
governmental approval for the signs. The Tenant shall obtain the Landlord's
written consent before placing any sign on or about the Rental Space. Signs must
conform with all applicable municipal ordinances and regulations.
The Tenant's signs must conform to Landlord's design standards for the
building. The Tenant must remove the Tenant's signs at the end of the term of
the Lease.
17. Window Treatments
Tenant shall obtain the Landlord's written consent before placing any
window treatments on or about the Rental Space. Window treatments must conform
to the standards established by the Landlord, subject to the Tenant's security
requirements.
18. Access to Rental Space
The Landlord shall have access to the Rental Space on reasonable notice to
the Tenant to:
a. inspect the Rental Space,
b. make necessary repairs, alterations or improvements,
c. supply services, and
d. show it to prospective buyers, mortgage lenders, contractors or
insurers.
The Landlord may show the Rental Space to rental applicants at reasonable
hours on notice to the Tenant within 6 months before the end of the Term.
The Landlord may enter the Rental Space at any time without notice to the
Tenant in case of emergency.
Except for an emergency, all access by the Landlord to the Rental Space
shall be:
a. in the company of the Tenant's Security Officer or another officer
designated by the Tenant,
b. when the Tenant is not open for business to the public, and
c. with minimum possible disruption of the Tenant's business.
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19. Fire and Other Casualty
The Tenant shall notify the Landlord at once of any fire or other casualty
in the Rental Space. The Tenant is not required to pay Rent when the Rental
Space is unusable. If the Tenant uses part of the Rental Space, the Tenant must
pay Rent pro-rata for the usable part.
If the Rental Space is partially damaged by fire or other casualty, the
Landlord shall repair it as soon as possible. This includes the damage to the
Rental Space and fixtures installed by the Landlord. The Landlord need not
repair or replace anything installed by the Tenant.
Either party may cancel this Lease if the Rental Space is so damaged by
fire or other casualty that it cannot be repaired within 180 days. If the
parties cannot agree, the opinion of a contractor chosen by the Landlord and the
Tenant will be binding on both parties.
This Lease shall end if the Rental Space is totally destroyed. The Tenant
shall pay Rent to the date of destruction.
Note: If the fire or other casualty is caused by the act or neglect of the
Tenant or the Tenant's employees, the Tenant shall be responsible to pay for all
repairs and all other damage.
20. Eminent Domain
Eminent domain is the right of a government to lawfully condemn and take
private property for public use. Fair value must be paid for the property. The
taking occurs either by court order or by deed to the condemning party. If any
part of the Rental Space is taken by eminent domain, either party may cancel
this Lease on 30 days notice to the other. The entire payment for the taking
shall belong to the Landlord. The Tenant shall make no claim for the value of
this Lease for the remaining part of the Term.
21. Subordination to Mortgage; Non-Disturbance by Mortgagees
In a foreclosure sale all mortgages that now or in the future affect the
Building have priority over this Lease. This means that the holder of a mortgage
may end this Lease on a foreclosure sale. Subject to the terms of the
non-disturbance agreement referred to below, the Tenant shall sign all papers
needed to give any mortgage priority over this Lease. If the Tenant refuses, the
Landlord may sign the papers on behalf of the Tenant.
The Landlord shall obtain from any mortgagee or ground lessor a
non-disturbance agreement (in such form and substance as may reasonably be
acceptable to the Tenant) that permits the Tenant to use and occupy the Rental
Space so long as the Tenant is not in default under this Lease. The Tenant must
attorn to the mortgagee or ground lessor.
In the event of a foreclosure, the Landlord shall immediately notify the
Tenant (in accordance with paragraph 29) of the pendency of the foreclosure
proceeding.
The Landlord warrants and represents that as of the date of this Lease no
such proceeding has been filed and the Landlord is not aware of any threatened
foreclosure proceeding.
22. Tenant's Certificate
At the request of the Landlord, the Tenant shall sign a certificate
stating that:
a. this Lease has not been amended and is in effect or, if it has been
amended, specifying such amendment,
b. the Landlord has fully performed all of the Landlord's agreements in
this Lease,
c. the Tenant has no rights to the Rental Space except as stated in this
Lease,
d. the Tenant has paid all Rent to date, and
9/13/05 Fanwood Plaza Partners, LLC to The Town Bank - Business Lease 11
e. the Tenant has not paid Rent for more than one month in advance.
The Certificate shall also list all the property attached to the Rental
Space owned by the Tenant.
23. Violation, Eviction, Re-entry and Damages
The Landlord reserves a right of re-entry that allows the Landlord to end
this Lease and re-enter the Rental Space if the Tenant violates any agreement in
this Lease. This is done by eviction. Eviction is a court procedure to remove a
tenant. Eviction is started by the filing of a complaint in court and the
service of a summons on a tenant to appear in court.
The Landlord may also evict the Tenant for any one of the other grounds of
good cause provided by law. After a court order of eviction and compliance with
the warrant of removal, the Landlord may re-enter and take back possession of
the Rental Space. If the cause for eviction is non-payment of Rent, notice does
not have to be given to the Tenant before the Landlord files a complaint. If
there is any other cause to evict, the Landlord must give to the Tenant the
notice required by law before the Landlord files a complaint for eviction.
The Tenant is liable for all damages caused by the Tenant's violation of
any agreement in this Lease. The Landlord is also liable for all damages caused
by the Landlord's violation of any agreement in this Lease. This includes
reasonable attorneys fees and costs in accordance with paragraph 4.f.
After eviction, the Tenant shall be liable to pay the Rent for the Term or
until the Landlord re-rents the Rental Space, if sooner. If the Landlord
re-rents the Rental Space for less than the Tenant's Rent, the Tenant shall pay
the difference until the end of the Term. The Tenant shall not be entitled to
any excess resulting from the re-renting. The Tenant shall also be liable to
pay:
a. all reasonable expenses incurred by the Landlord in preparing the
Rental space for re-renting, and
b. commissions paid to a broker for finding a new tenant.
24. Environmental Representations/ISRA Compliance
The Landlord represents that to the best of the Landlord's knowledge,
information and belief:
a. No toxic wastes, pollutants, asbestos, PCB's or other toxic substances
are located upon or beneath the premises in which the Rental Space is
located,
b. No debris has been buried beneath the Property,
c. Landlord has no knowledge that the Property has ever been used to
generate, refine, produce, store, handle, transfer, process or transport
any "Hazardous Substance" or "Hazardous Waste" as such terms are defined
in N.J.S.A. 58:10-23.1l(b)(k) and/or N.J.A.C. 7:1-3.3,
d. The premises will not be so used by any party prior to the commencement
date of this Lease.
e. No notice has been received of any outstanding violation of any
governmental law, rule, statute, ordinance or regulation by the Landlord
or any agent or affiliate of the Landlord.
The Landlord shall indemnify and hold harmless the Tenant with respect to any
violation of these representations.
The Tenant shall, at the Tenant's own expense, comply with the Industrial
Site Recovery Act ("ISRA"), N.J.S.A. 13:1K-6 et seq. and the regulations
promulgated thereunder. This means that the Tenant shall:
a. Make, if required by law or regulation, all submissions to, provide all
information to and comply with all requirements of the Bureau of
Industrial Site Evaluations of the New Jersey Department of Environmental
Protection.
b. Prepare and submit, if required by law or regulation, any required
plans and financial assurance and carry out the approved plans.
9/13/05 Fanwood Plaza Partners, LLC to The Town Bank - Business Lease 12
c. Provide all information requested by the Landlord for preparation of a
non-applicability affidavit and promptly sign such affidavits when
requested by the Landlord.
d. Indemnify, defend and save harmless the Landlord from all fines, suits,
procedures, claims, and actions of any kind arising out of, or in any way
connected with, any discharge of hazardous substances or waste at the
Rental Space which occur during the term of this Lease as a result of the
Tenant's actions; or arising out of the Tenant's failure to provide all
information, make sure all submissions are made, and take all actions
required by the ISRA Bureau or any other division of NJDEP. The Tenant's
failure to abide by the terms of this Paragraph shall be restrainable by
injunction.
The Tenant shall not be responsible for prior acts of the Landlord or
other tenants of the Landlord, and, in no event shall the Tenant be responsible
for any liability arising out of any acts prior to the Tenant's occupancy.
25. Rent Adjustment for Third through Fifteenth Years
The monthly rent reserved during the third through fifteenth years shall
be $8,650.00 adjusted by the revised Consumer Price Index for Urban Wage Earners
and Clerical Workers for New York, New York-Northeastern New Jersey (C.P.I.)
with a base period of June 2006 ( ) as follows:
SAMPLE Monthly Rent Adjustment
Starting Date
------------------------
C.P.I. for June 2008 ( ) x $8,650.00 = $
----------------------------
C.P.I. for June 2006 ( ) 1 January 1, 2009
C.P.I. for June 2009 ( ) x $8,650.00 = $
----------------------------
C.P.I. for June 2006 ( ) 1 January 1, 2010
C.P.I. for June 2010 ( ) x $8,650.00 = $
----------------------------
C.P.I. for June 2006 ( ) 1 January 1, 2011
The same formula shall be applied to calculate the adjustments for the remaining
years of the term. No annual adjustment shall exceed 1.05% of the previous
year's rent. If, however, the C.P.I. exceeds 1.05%, the excess shall be "banked"
and applied to one or more future rent adjustments where the C.P.I. is le than
1.05%. The intent here is that the 1.05% shall be cumulative during the term of
the Lease.
26. Option to Renew
The Landlord hereby grants to the Tenant an option to renew this Lease for
three additional terms of five years from:
January 1, 2021 to December 31, 2025
January 1, 2026 to December 31, 2030
January 1, 2031 to December 31, 2035.
If the Tenant fails to notify the Landlord of the Tenant's intention to exercise
each option to renew by the following notice dates:
January 1, 2020
January 1, 2025
January 1, 2030
each such option to renew shall become null and void. The notice shall be given
in accordance with Paragraph 29 of this Lease.
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For the first five-year option, the monthly rent reserved starting January
1, 2021 shall be adjusted (but not reduced) to Fair Market Rent ("FMR") for the
Rental Space. The monthly rent starting January 1, 2022 shall be adjusted by the
Revised Consumer Price Index for Urban Wage Earners and Clerical Workers for New
York, New York-Northeastern New Jersey (C.P.I.) with a base period of June 2020
( ) as follows:
Monthly Rent Adjustment
Starting Date
-----------------------
C.P.I. for June 2021 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2020 ( ) 1 January 1, 2022
C.P.I. for June 2022 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2020 ( ) 1 January 1, 2023
C.P.I. for June 2023 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2020 ( ) 1 January 1, 2024
C.P.I. for June 2024 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2020 ( ) 1 January 1, 2025
For the second five year option, the monthly rent reserved starting
January 1, 2026 shall be adjusted (but not reduced) to Fair Market Rent ("FMR")
for the Rental Space. The monthly rent starting January 1, 2027 shall be
adjusted by the Revised Consumer Price Index for Urban Wage Earners and Clerical
Workers for New York, New York-Northeastern New Jersey (C.P.I.) with a base
period of June 2025 ( ) as follows:
Monthly Rent Adjustment
Starting Date
-----------------------
C.P.I. for June 2026 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2025 ( ) 1 January 1, 2027
C.P.I. for June 2027 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2025 ( ) 1 January 1, 2028
C.P.I. for June 2028 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2025 ( ) 1 January 1, 2029
C.P.I. for June 2029 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2025 ( ) 1 January 1, 2030
For the third five year option, the monthly rent reserved starting January
1, 2031 shall be adjusted (but not reduced) to Fair Market Rent ("FMR") for the
Rental Space. The monthly rent starting January 1, 2032 shall be adjusted by the
Revised Consumer Price Index for Urban Wage Earners and Clerical Workers for New
York, New York-Northeastern New Jersey (C.P.I.) with a base period of June 2030
( ) as follows:
Monthly Rent Adjustment
Starting Date
-----------------------
C.P.I. for June 2031 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2030 ( ) 1 January 1, 2032
C.P.I. for June 2032 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2030 ( ) 1 January 1, 2033
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C.P.I. for June 2033 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2030 ( ) 1 January 1, 2034
C.P.I. for June 2034 ( ) x FMR = $
---------------------------- ---
C.P.I. for June 2030 ( ) 1 January 1, 2035
For the purpose of this Paragraph the Fair Market Rent is to be determined as
follows:
a. By the agreement of the parties.
b. If the parties are unable to agree, by arbitration in Fanwood, New
Jersey. The Landlord and the Tenant shall each select an appraiser having
the qualifications of an MAI with a principal office located within ten
miles from the Rental Space. If the appraisers selected by the Landlord
and the Tenant are unable to agree upon a Fair Market Rent within 21 days
after the issue is submitted to each appraiser, then both appraisers shall
select a third independent appraiser having the qualifications of State
Certified Real Estate Appraiser to determine the Fair Market Rent within
21 days after the issue is submitted. The cost of the appraisal shall be
shared equally between the Landlord and the Tenant. The Fair Market Rent
shall not be less than the lower of the two appraisals nor higher than the
higher of the two appraisals.
27. Right to Purchase at Fair Market Value
The Landlord grants to the Tenant the right to purchase the property at
000-000 Xxxxx Xxxxxx if and when the Landlord elects to sell the property to a
third party. Sales to present or future members of the Landlord will not be
deemed to be a third party. This means that the Landlord shall first offer to
the Tenant the right to purchase the property at Fair Market Value. The
Landlord's notice shall be given in accordance with paragraph 29 of this
Business Lease. If the Tenant fails to exercise the right to purchase the
property at Fair Market Value within thirty (30) calendar days after receipt of
the Landlord's notice, this right to purchase shall become null and void and the
Landlord shall have the right to market and sell the property to a third party.
For the purpose of this paragraph, the Fair Market Value is to be
determined as follows:
a. By the agreement of the parties.
b. If the parties are unable to agree, by arbitration in Scotch Plains,
New Jersey. The Landlord and the Tenant shall each select an appraiser
having the qualifications of an MAI and with a principal office located
within ten miles from the Rental Space. If the appraisers selected by the
Landlord and the Tenant are unable to agree upon a Fair Market Value
within 21 days after the issue is submitted to each appraiser, then both
appraisers shall select a third independent appraiser having the
qualifications of a State Certified Real Estate Appraiser to detetinine
the Fair Market Value within 21 days after the issue is submitted. The
cost of the appraisal shall be shared equally between the Landlord and the
Tenant. The Fair Market Value shall not be less than the lower of the two
appraisals nor higher than the higher of the two appraisals.
28. Notices
All notices given under this Lease must be in writing. Each party must
accept and claim the notices given by the other. Unless otherwise provided by
law, they may be given by:
a. personal delivery, or
b. certified mail, return receipt requested, or
c. confirmed telephone facsimile or other electronic media, or
d. recognized national courier service with delivery confirmation (i.e.,
Federal Express, Airborne Express, United Parcel Service).
Notices shall be addressed to the Landlord at the address written at the
being of this Lease and to the Tenant at the Rental Space with a copy to:
9/13/05 Fanwood Plaza Partners, LLC to The Town Bank - Business Lease 15
Leib, Kraus, Grispin & Xxxx
Attn: Xxxxxx X. Xxxxx, Esq.
000 Xxxx Xxxxxx, P. O. Xxx 000
Xxxxxx Xxxxxx, XX 00000-0000
29. No Waiver
The Landlord's failure to enforce any agreement in this Lease shall not
prevent the Landlord from enforcing the agreement for any violations occurring
at a later time.
30. Governing Law/Survival
This Lease shall be construed by a court of competent jurisdiction in the
State of New Jersey in accordance with the laws of the State of New Jersey. If
any agreement in this Lease is contrary to law, the rest of the Lease shall
remain in effect.
31. End of Term
At the end of the Term, the Tenant shall:
a. leave the Rental Space clean,
b. remove all of the Tenant's property,
c. remove all signs and restore that portion of the Rental Space on which
they were placed,
d. repair all damage caused by moving, and
e. return the Rental Space to the Landlord in the same condition as it was
at the beginning of the Term except for normal wear and tear.
If the Tenant leaves any property in the Rental Space, the Landlord may
a. dispose of it and charge the Tenant for the cost of disposal, or
b. keep it as abandoned property.
32. Binding
This Lease binds the Landlord and the Tenant and all parties who lawfully
succeed to their rights or take their places.
33. Full Agreement
The parties have read this Lease. It contains their full agreement. It may
not be changed except in writing signed by the Landlord and the Tenant.
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SIGNATURES
The Landlord and the Tenant agree to the terms of this Business Lease by signing
below. (If a party is a corporation or limited liability company, this Lease is
signed by its proper corporate officers and its corporate seal is affixed or it
is signed by its proper limited liability company officers and the company seal
is affixed.)
WITNESSED OR ATTESTED BY: FANWOOD PLAZA PARTNERS, LLC
/s/ Xxxx X. Xxxxx /s/ Xxxx X. Xxxxx, III
----------------------------------- ---------------------------------------
Xxxx X. Xxxxx By Xxxx X. Xxxxx, III Manager
/s/ Xxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
----------------------------------- ---------------------------------------
Xxxx X. Xxxxx By Xxxxxx X. Xxxxx Manager
THE TOWN BANK
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------------- ---------------------------------------
Secretary By Xxxxxx X. Xxxxxx, Xx. President
9/13/05 Fanwood Plaza Partners, LLC to The Town Bank - Business Lease 17
