LEASE AGREEMENT
EXHIBIT
10.10
LEASE
AGREEMENT made as of the 3rd day of April, 1990, by and between XXXXXXX X.
XXXXXX, having an office at 000 Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx 00000
(“Landlord”), and STERLING BANK, a New Jersey banking institution x/x Xxxxxxx X.
Xxxxxx, Xx., Xxx., general counsel, 000 Xxxx Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx
00000 (“Tenant”).
WITNESSETH:
Landlord
is the fee simple owner of certain real property and premises (the “Property”)
located at the intersection of Route 38 and Ark Road in Mount Laurel Township,
Burlington County, New Jersey, and more particularly known as Lot 1 in Block
303-06.
Bank
is
desirous of leasing a portion of the Property (the “Leased Premises”) and
constructing a two-story free-standing Bank Facility (hereinafter defined)
thereon.
NOW,
THEREFORE, in consideration of the rents and mutual covenants set forth in
this
Lease, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. Premises:
(a) The
Leased Premises are outlined on a certain plan and legal description attached
hereto as Exhibit “A” and by this reference made a part hereof, which plan has
been prepared by Xxxxxxx X. Xxxxxx Engineering Company bearing a date of
December 13, 1989, and shall include the right to use, in common with others
entitled to such use, on-site utilities including, but not limited to, water,
sewerage, storm sewers, electric and gas facilities (“Common Facilities”), and
all automobile parking areas, driveways, footways, landscaped areas, and other
areas and facilities all of which service the Property and the Leased Premises,
and shall include the Bank Facility to be erected upon the Leased Premises,
as
outlined on Exhibit A.
(b) The
Bank
Facility (“Bank Facility”) to be constructed shall be a two-story free-standing
building inclusive of interior fixtures and improvements, as shown on the plans,
specifications and cost estimates (“Plans & Specifications”) signed by the
parties and attached hereto as Exhibit “B”, “C”, and “D” respectively, or as may
hereafter be amended by mutual agreement of the parties.
2. Term:
(a) Initial
Term
- The
initial term (“Initial Term”) of this Lease shall commence on the date on which
a Certificate of Occupancy as provided in Paragraph 4 below is issued by the
Township of Mount Laurel for the Bank Facility and shall end on the last day
of
the calendar month next succeeding twenty (20) years from the date of the
commencement of the Initial Term.
(b) Renewal
Term
-
Provided that Tenant shall not be in default, this Lease shall be renewed at
Tenant’s option, for two (2) separate, additional ten (10) year terms (“Renewal
Term or Terms” as the case may be) unless the Tenant shall give to the Landlord
one (1) year’s written notice of its intention to terminate the Lease prior to
the expiration of the Initial Term or one (1) year’s written notice of its
intention to terminate this Lease prior to the expiration of any Renewal
Term.
Notification
by Tenant or Landlord that Tenant intends to terminate the Lease shall terminate
all rights of Tenant in the remaining options.
3. Rent:
(a) Initial
Term.
The
rent shall be fixed for the first year of the Lease at Twenty-Five ($25.00)
Dollars per square foot, subject to adjustment as described herein. Total square
footage shall be seven thousand (7,000) square feet.
2
Thereafter,
on each anniversary date of the Initial Term of this Lease, the annual rent
shall be fixed at the sum of the rent charged for the immediately preceding
year
plus (or minus) an amount equal to a percentage of the annual rent for the
immediately preceding year, which percentage shall be the percentage of change
in the National Consumer Price Index (CPI), as compiled by the Bureau
of
Labor Statistics for “All Items”, or any successor index thereto. In the event
of any increase, the amount of any said CPI adjustment shall be limited to
eight
(8%) percent in any one year, provided, however, that that portion of any annual
CPI increase which exceeds eight (8%) percent shall be deferred and shall be
added to the percentage change in the next following year when the CPI increase
shall be less than eight (8%) percent maximum (but not more than eight (8%)
percent increase in any one year). This formula shall be utilized for years
two
(2) through eleven (11) of this Lease. During years twelve (12) through twenty
(20), the annual rent adjustment shall be equivalent to one-half (1/2) of the
annual CPI with the same annual cap (subject to deferrals as above). All rental
percentage increases deferred hereunder shall be paid in the final year of
the
Initial Term by adding such deferrals to the Annual Rent per square
foot.
The
rent
for the first year assumes that Tenant shall arrange for benefit of Landlord
permanent financing for the Bank Facility in the principal amount of One Million
($1,000,000.00) Dollars with an annual financing cost of One Hundred Twenty-One
Thousand, Four ($121,004.00) Dollars, based upon a ten and one-half (10.5%)
percent amortized financing rate, a term of twenty (20) years and one (1) point
for placement. To the extent that the terms and conditions of the permanent
mortgage, when obtained, differ from these assumptions, the parties shall adjust
the rent for the first year of the Lease accordingly.
3
Such
rent
shall be determined by equating, within One Thousand ($1,000.00) Dollars, the
present value of rental payments during the Initial Term with the present value
of land and financing payments over the same term. This equation shall assume
the percentage adjustment provisions described previously for rental payments;
an assumed CPI of five (5%) percent; a present value rate of ten (10%) percent;.
the land payment/ground rent schedule as agreed to by both parties in the Letter
of Intent dated August 18, 1989 (Exhibit “E”); and, the financing payments
necessary to satisfy the terms and conditions of the permanent mortgage. An
example of this calculation is contained in Exhibit “F” based upon the One
Million ($1,000,000.00) Dollar principal amount and the financing
terms expressed
previously. As specified in Paragraph 16, the permanent mortgage shall be
limited to the costs associated with constructing the bank building and the
site
improvements for which the Tenant is responsible. Mobile equipment, furnishings,
and the costs for acquiring the temporary bank building shall not be included
in
the permanent mortgage.
Upon
commencement of the obligation to pay rent as aforesaid, Tenant shall convey
all
right, title and interest in the permanent facility to Landlord.
(b) Renewal
Term.
Rent
for the renewal term(s) shall be “fair market rent” to be negotiated and agreed
upon by the parties thirteen (13) months prior to the expiration of the Initial
Term. In the event that the parties fail to agree to rent to be paid during
the
renewal term(s), then the-Lease will terminate.
(c) Commencement
of Rent.
Rent as
described herein (the “full rent obligation”) shall commence upon the issuance
of a temporary or permanent Certificate of Occupancy for the Bank
Facility or
closing on the permanent financing, whichever shall occur first. Rent payments
shall be payable five (5) days prior to the periodic payment date required
by
4
the
permanent financing once applicable and in all other cases on the first day
of
each month. In the event that Tenant shall not have occupied the Bank Facility
as of December 1, 1990, Tenant shall pay ground rent to Landlord commencing
December 1, 1990 and until commencement of the full rent obligation described
above. The aforesaid ground rent payable on December 1, 1990 shall be Four
Thousand, One Hundred Sixty-Seven ($4,167.00) Dollars per month and on December
1, 1991, if Applicable, shall increase to Five Thousand ($5,000.00) Dollars
per
month.
The
obligation to pay ground rent, as aforesaid, is conditioned upon Landlord having
submitted by May 1, 1990 all required applications related to the bank site
plan
approval. Any time delays by Landlord for such submissions shall extend the
ground rent commencement date as described above for the number of days that
Landlord’s submissions extend beyond May 1, 1990.
(d) In
addition to the above, Tenant shall pay to Landlord the sum of One Thousand
($1,000.00) Dollars per month as and for a non-refundable option payment which
such payment shall commence upon the first day of May, 1989, and continue until
the commencement of the full rent obligation or
ground
rent obligation, described above, whichever shall occur first.
If
the
Tenant has not completed the construction of the Bank Facility and has not
commenced payment of the full rent obligation on or before November 30, 1992,
Tenant may extend the obligation to complete to April 30, 1993 and Tenant shall
pay ground rent of Eight Thousand ($8,000.00) Dollars per month. Thereafter,
Landlord shall have the option to terminate the Lease upon reasonable notice
to
Tenant.
4. Construction
of Building.
Tenant
agrees, to construct upon the Leased Premises a two-story building with
dimensions and layout as are more particularly set forth in the Plans and
5
Specifications
attached hereto as Exhibit B. Landlord has reviewed design of the building
and
has approved same.
Tenant
agrees to proceed with the construction of the Bank Facility within ninety
(90)
days of receipt of all necessary, permits and approvals, and strictly in
accordance with the approved Plans and Specifications, and to prosecute the
same
to completion within eighteen (18) months from the date of this Lease; it being
expressly agreed that the period for completion of the Bank Facility shall
be
extended for such additional time as is equal to the time lost by Tenant in
construction of the Bank Facility due to strikes or other labor disputes,
governmental restrictions and limitations, scarcity of labor or materials,
war
or other national emergency, accidents, casualties, weather conditions, natural
catastrophes, Acts of God or any other causes beyond the control of
Tenant.
5. Responsibility
for Various Approvals and Construction Costs; Design Changes.
(a) Landlord,
at Landlord’s expense, shall provide all engineering and site plans necessary to
obtain site plan approval, NJDOT access permits and sewer and water permits.
Tenant, at Tenant’s expense, shall be responsible for the cost of site plan
activity by the Hillier Group, Plans & Specifications and the approvals
associated with construction of the Bank Facility. Further, Tenant shall pay
the
sewer and water connection fees relative to the Bank Facility. Tenant shall
provide the Landlord with copies of all Plans & Specifications. Tenant will
proceed expeditiously to furnish the required items as quickly as possible.
Tenant shall make application for all required building permits necessary to
commence construction of the Bank Facility within ten (10) days following
issuance of all approvals and execution of the approved site plans by all
governmental agencies.
6
(b) Landlord
agrees that from and after the date of execution of this Lease, Tenant and
Tenant’s agents, employees and representatives shall be permitted to enter upon
the Leased Premises for purposes of conducting site analysis, engineering
studies, soil tests, feasibility studies, and any other tests and studies deemed
necessary by Tenant in connection with Tenant’s intended development of the
Leased Premises. The aforesaid tests and studies shall be conducted solely at
Tenant’s cost and expense and Tenant shall indemnify and hold Landlord harmless
from and against any loss, cost, expense, damage and/or claim that may arise
out
of or be occasioned by the entry upon the Leased Premises as permitted by this
subparagraph.
(c) Tenant
shall have the right to contract with any contractor of Tenant’s selection for
the construction of the Bank Facility and site improvements following Landlord’s
review and approval, such approval not to be unreasonably withheld. With respect
to temporary, shared and off-site improvements, Landlord and Tenant shall
mutually agree upon the contractor, provided, however, that Tenant may
coordinate all such construction activity.
Tenant
shall include in the contract with the contractor an agreement that the
contractor, on behalf of itself and all sub-contractors and materialmen, waive
the right to file mechanic’s liens against the Leased Premises. In the event a
lien is filed, Tenant agrees within sixty (60) days to cause such lien to be
discharged or satisfied or record, or in any other manner, pursuant to law,
removed from the records so that the same shall not be a lien against the Leased
Premises.
Tenant
agrees to hold Landlord harmless and to indemnify Landlord against any loss,
cost, damage, reasonable counsel fees or expenses, suffered or incurred out
of
Tenant’s construction of the
Bank
Facility and Tenant shall provide Landlord with a
Certificate of Insurance naming Landlord as an additional insured on
Tenant’s liability policy for the same
7
amount
as
shall be insured by Tenant, but in no event less than one Million
($1,000,000.00) Dollars
(d) If,
after
construction has begun, Tenant desires to make changes in or additions to the
Plans and Specifications, Tenant shall provide Landlord with the appropriate
plans and specifications showing the nature of the changes or additions desired.
Landlord shall give notice, within ten (10) days of the receipt of such plans
and specifications, of any objections it might have to the changes or additions.
Failure to object within the required time periods shall be deemed an approval.
Provided Landlord’s objections are not unreasonable, Tenant shall not make such
changes or additions.
(e) In
constructing the Bank Facility, Tenant shall comply with all applicable
ordinances, rules and regulations of governmental authorities having
jurisdiction thereof. Tenant shall obtain all necessary permits and Landlord
agrees it will cooperate in obtaining such permits in either the name of
Landlord or Tenant, as appropriate.
(f) Concurrently
with the construction of the Bank Facility, Tenant agrees to install and
complete certain improvements to the Leased Premises pursuant to the approved
site plan and in the manner provided in the Plans and Specifications (Exhibit
C).
(g) Notwithstanding
anything to the contrary herein contained, Tenant shall only be obligated to
pay
forty (40%) percent of
the
cost for the installation, connection and maintenance of
shared
utilities including water, storm drain, sanitary sewer, gas, electric and
telephone lines servicing the Property in accordance with the Cost Estimates
set
forth in Exhibit G. However, Tenant shall be fully responsible for the
construction and maintenance costs associated with the Connector Road and
parking lot facilities within the Leased Premises and as set forth on the Plans
and Specifications. Landlord shall have free access to the Connector Road
8
(the
drive connecting Xxxxx 00 xxx Xxx Xxxx within the Leased Premises) and, further,
Tenant agrees to reserve fourteen (14) parking spaces on the westerly side
of
the Leased Premises for Landlord’s future use.
(h) As
concerns off-site improvements, Tenant shall pay forty (40%) percent of the
costs thereof. (See Exhibit H).
6. Temporary
Site.
At the
option of the Tenant, Landlord shall permit the Tenant, at Tenant’s expense, to
locate a trailer with associated improvements at the approximate location where
shown on Exhibit I, until such time as the permanent building shall be
completed. Cost estimates of the site improvements for the temporary site area
are contained in Exhibit J. Upon placement of the trailer on the Leased
Premises, Tenant shall be obligated to pay all relevant expenses in connection
with the use of the Leased Premises, including, but not limited to, utilities,
real estate taxes, insurance and maintenance and repairs with respect to the
trailer.
In
addition, Tenant shall pay to the Landlord as temporary site rent the sum of
One
Thousand ($1,000.00) Dollars per month for the first six (6) months that the
trailer is on the Leased Premises. Thereafter, the temporary site rent will
be
Two Thousand ($2,000) Dollars per month. Tenant shall remove the trailer and
any
improvements constructed in connection with the trailer (as designated by
Landlord at time of removal of the trailer) within forty-five (45) days
following the issuance of the Certificate of Occupancy for the Bank Facility,
but no later than November 30, 1992. Site Plan approval for the temporary site
shall be coordinated with the site plan application for the permanent Bank
Facility, but Tenant shall be responsible for providing temporary site plans
and
obtaining installation and operating permits. Landlord shall have the right
to
relocate the trailer to an alternate location on the site in the event that
there shall be a conflict with the construction of an
adjacent planned office building. The cost of any such
9
relocation
shall be borne by the Landlord. Further, Landlord shall reimburse Tenant for
the
cost of any improvements in the area of the temporary facility which Landlord
shall elect to use for its own purposes after removal of the trailer. The value
of said improvements to the Landlord shall be determined by a mutually agreeable
third party, when and if the Landlord exercises his right to use said
improvements. If Landlord does not exercise his right within five (5) years
of
the initial construction of said improvements the value of the improvements
shall be
deemed
to be zero. Construction costs for any shared
utilities and/or off-site improvements shall be shared between Landlord and
Tenant as specified in Paragraphs 5(g) and 5(h).
7. Signs:
Tenant
shall have the right, at its own cost and expense, to erect suitable and
appropriate signs in such number, size and location as shall be approved by
Mount Laurel Township and which shall
be
subject to Landlord’s consent, which consent shall not be unreasonably
withheld.
8. Condition
of Leased Premises and Facility.
Tenant
shall maintain the Leased Premises and Bank Facility in good repair and
condition at all times and at Tenant’s sole cost and expense. Landlord shall be
under no duty or obligation to maintain or make any repairs to the Bank
Facility. However, should Tenant fail to maintain the Bank Facility and Leased
Premises in good repair and condition, Landlord shall have the right upon ten
(10) days written notice to Tenant, to enter upon the Leased Premises, make
any
necessary repairs and present Tenant with a xxxx for all costs incurred. Tenant
agrees to reimburse Landlord for the cost of any such repair within twenty
(20)
days from the date it receives the xxxx.
9. Taxes.
In
addition to the aforesaid Rent and throughout the Term of this Lease, Tenant
shall promptly reimburse Landlord for all real estate taxes, water and sewer
rents, municipal improvement assessments and any other charges imposed by any
public authority
10
which,
upon assessment or upon failure of payment, become a lien upon the Leased
Premises. The obligation to reimburse real estate taxes shall begin upon
execution of this Lease. The obligation to pay all other taxes, rents, charges
and assessments shall commence (except as to the temporary site as described
in
Paragraph 5 above) simultaneously with Tenant’s obligation to commence payment
of rent as set forth in Paragraph 3.
10. Utilities.
Tenant
shall be
solely
responsible for and pay all charges and rents for gas, telephone, heat,
electricity and such other services used or consumed in or servicing the Leased
Premises and shall likewise pay and be solely responsible for all other costs
and expenses involved in the care, management and use thereof, consistent with
the provisions of Paragraph 4. The obligation to pay such charges, costs and
expenses should commence when incurred.
11. Insurance.
Landlord shall procure from companies acceptable to Bank certain policies of
insurance as follows:
(a) All-risk
fire insurance policy with extended coverage endorsement in the amount of at
least ninety-eight (98%) percent of the full replacement value of the Bank
Facility (exclusive of foundations and excavation) covering the Bank Facility
and naming Landlord and Tenant as the insureds. Said insurance shall include
a
rental loss provision. The said policy shall provide that it may not be canceled
or modified without thirty (30) days prior written notice to Landlord and its
mortgagee. Landlord shall cause the holder of any first mortgage upon the Leased
Premises to be in such policy in a standard mortgagee clause, and in such event,
shall deliver the original policy to such mortgagee, upon demand. Landlord
shall
supply Tenant with certificates of insurance, evidencing such coverage and
with
evidence of payment of premiums. Tenant shall reimburse Landlord for all
reasonable premiums paid. Copies of all insurance policies or binders being
renewed shall be delivered to Tenant prior to the appropriate expiration
11
date.
Landlord shall secure the agreement of the holder of any mortgage now or
hereafter secured upon the Leased Premises to make available to the Landlord
the
proceeds of any such policy in the event the Leased Premises shall be damaged
or
destroyed by an insured occurrence during the term of this Lease or any
extension or renewals thereof to repair any damage to the Leased
Premises.
(b) A
public
liability insurance policy or policies naming Landlord and Tenant as insureds
with a combined single limit of Five Million ($5,000,000.00) Dollars. Copies
of
the said policy shall be delivered to Tenant together with evidence of payment
of premiums thereon. Tenant shall reimburse Landlord for all reasonable premiums
paid. The said policy shall provide that it may not be canceled or modified
without thirty (30) days prior written notice to Tenant.
12. Damage
by Fire.
If the
Bank Facility or other improvements on the Leased Premises shall be damaged
or
destroyed by fire or other casualty, Landlord shall promptly and diligently
proceed to repair, rebuild or replace the Bank Facility and other
improvements,
so
as to
restore the Leased Premises to the condition in which they were immediately
prior to such damage or destruction. The net proceeds of any insurance recovered
by reason of such damage or destruction shall be held in trust by Landlord
and
released for the purpose of paying the fair and reasonable cost of restoring
the
Bank Facility and other improvements. Proceeds shall be released by Landlord
from time to time as the work progresses.
This
provision shall not apply to any insurance proceeds for
loss
of equipment or personal property of Tenant. Prior to the commencement of the
work, Landlord and Tenant shall agree upon a contractor to perform the repairs.
Tenant shall not be required to expend any funds to repair the Banking
Facility.
12
If
at any
time it is determined that the balance of such proceeds are not adequate to
pay
the cost of restoration, or there is reasonable doubt of the adequacy, Landlord
may, at Landlord’s sole option, either (i) terminate this Lease by giving Tenant
at least sixty (60) days prior notice specifying the termination date, unless
Tenant before the termination date agrees to pay the excess cost when determined
and gives Landlord adequate security for the payment, or (ii) make additional
funds available for restoration.
Except
as
provided for herein, it is understood and agreed that damage to or destruction
of all or any portion of the Leased Premises by fire or by any other cause
shall
not terminate this Lease nor entitle Tenant to surrender the Leased Premises.
However, Tenant’s obligation to pay the rent and other sums hereunder, shall be
abated for the period of time that the Premises shall be rendered uninhabitable
for Tenant’s purposes; provided that the amount of the abatement shall be
limited to proceeds for rental loss insurance.
13. Condemnation.
(a) If
all of
the land comprising the Leased Premises is taken or condemned for a public
or
quasi-public use (a sale in lieu of condemnation to be deemed a taking or
condemnation for purposes of this Lease), then this Lease shall terminate as
of
the date title to the condemned
real estate vests in the condemnor and the rent herein reserved shall be
apportioned and paid in full by Tenant to the Landlord to that date and any
excess rent repaid by Landlord to Tenant and neither party shall thereafter
have
any liability hereunder.
(b) Partial
Condemnation.
if only
part of the land comprising the Leased Premises is taken or condemned for a
public or quasi-public use, there shall be an equitable abatement of the rent
according to the value of the Leased Premises before and after the taking.
In
the event that the parties are unable to agree upon the amount of such
abatement, either party
13
may
submit the issue for arbitration, pursuant to the rules then obtaining of the
American Arbitration Association and the determination or award rendered by
the
arbitrator shall be final, conclusive and binding upon the parties, not subject
to appeal and judgment thereon may be entered in any court of competent
jurisdiction. In the event that any such partial condemnation either results
in
denial of access to the Leased Premises
from roads available for public use by way of the approved curb cuts, or
adversely affects the use of the Leased Premises so substantially that business
operations cannot be conducted in a reasonable manner and Landlord cannot
provide substitute access and/or contiguous area to the reasonable satisfaction
of Tenant, then Tenant may, at Tenant’s option, terminate this Lease as of the
date title to the condemned real estate vests in the condemnor, and the rent
herein defined shall be apportioned and paid in full by Tenant to Landlord
to
that date, and neither party shall thereafter have any liability
hereunder.
(c) Award.
All
compensation awarded for any taking of the fee and the leasehold, or any part
thereof, shall belong to and be the property of Landlord. Tenant shall have
the
right to claim such compensation as may
be
separately awarded or allocated by reason of the cost of loss to which Tenant
might be put in removing Tenant’s merchandise, fixtures, leasehold improvements
and equipment.
Any
such
appropriation of condemnation proceedings shall not operate as or be deemed
an
eviction of Tenant or a breach of Landlord’s covenant for quiet
enjoyment.
14. Tenant’s
Default.
In the
event the Tenant defaults in any of the provisions of the Lease, Landlord shall
have the right to terminate the Lease and relet the Leased Premises whereon
Tenant’s liability shall be limited to the difference between
Tenant’s rent
and
other payment obligations (exclusive of utilities) and the amount of rent and
other payment obligations
14
(exclusive
of utilities) Landlord receives for the Leased Premises upon reletting. Landlord
shall make every reasonable good faith effort to procure another tenant for
the
Leased Premises and to rent the Leased Premises at a reasonable
rent.
15. Landlord’s
Defaults.
In the
event of Landlord’s failure to pay any mortgage constituting a lien on the
Leased Premises, or in the event of Landlord’s failure to perform any of
Landlord’s obligations hereunder, Tenant, shall have the right to make payment
of such sums or to perform such obligations and Landlord shall promptly
reimburse Tenant for all such sums upon request for same. In addition, Tenant
shall have the right to receive an assignment of the claim of any payee against
Landlord and shall have the further right to set off against accrued or accruing
rents or other sums payable to Landlord any such payments or expenditures over
any amounts set off against accruing rents and other sums. Tenant shall have
the
specific right to make the mortgage payments should Landlord-mortgagor
default.
16. Financing.
Tenant
shall provide its own financing for the
construction of the temporary facility, the Bank Facility and related site
improvements. Landlord, upon request of the Tenant, shall allow a non-recourse
construction mortgage (limited to that portion of the real estate upon which
the
Bank Facility and related site improvements shall be situate) to encumber the
Leased Premises and Landlord’s interest shall be subordinated to the
construction mortgage.
Upon completion of construction, Tenant shall arrange on behalf of the Landlord
permanent financing for the
Bank
Facility (exclusive of the temporary bank building, mobile equipment and
furnishings)
for a
term to
coincide with the Initial Term of the Lease in the principal amount of One
Million ($1,000,000.00) Dollars and an annual financing cost of One Hundred
Twenty-One Thousand, Four ($121,004.00) Dollars (ten and one-half (10.5%)
percent plus one (1) “point” placement fee). The provisions and conditions of
such permanent financing shall be subject to
15
the
consent of the Landlord, which consent shall not be unreasonably withheld.
In
the event that the principal amount of the mortgage, the interest rate, or
the
placement fee shall be different at the time the permanent loan is secured,
then
the rent shall be adjusted pursuant to Paragraph 3 (a). In no event shall the
principal amount of the mortgage be less than Seven Hundred Fifty Thousand
($750,000.00) Dollars.
17. Assigning,
Mortgagor, Subletting.
it is
expressly agreed by and between the parties hereto, that Tenant shall have
the
right to assign, pledge or otherwise encumber this Lease, or sublet the whole
or
any part of the Leased Premises However, such right to sublet shall be subject
to the consent of the Landlord and such consent shall not be unreasonably
withheld. Moreover, the ability to sublet the ground floor space of the Bank
Facility shall be limited to another banking institution. Notwithstanding
anything to the contrary, Tenant shall remain principally liable on the lease
in
the event of any assignment.
18. Grace
Periods.
Notwithstanding anything to the contrary herein contained, any act or omission
which would otherwise be a default by either party hereunder
unless:
(a) The
non-defaulting party shall have given the defaulting party written notice of
the
alleged default; and
(b) The defaulting
party shall have failed to correct the alleged default within a period of thirty
(30) days thereafter if the default is one which can be cured by the payment
of
money; and
(c) The
defaulting party shall have failed to correct the alleged default within a
period of forty-five (45) days thereafter if the default is one which
cannot be
cured
by the payment of money, or, if the alleged default is one which cannot with
due
diligence be cured
16
within
said forty-five (45) days, within such additional period as is reasonably
necessary to correct the alleged default; or
(d) In
the
event of a legitimate dispute as to a default, the default hereunder may be
stayed by the alleged defaulting party filing an immediate action for relief
in
a court of competent jurisdiction of the State of New Jersey and depositing
in
an interest-bearing account a sum of money equal to the approximate cost of
cure
in the escrow account of an attorney of the State of New Jersey; or
(e) Tenant
agrees to provide a copy of any notice of default directed to Landlord to any
mortgagee or mortgagees designated by the Landlord, and Tenant hereby agrees
that any mortgagee so designated shall be entitled to the same opportunity
to
cure any default as is Landlord.
19. Right
of First Refusal to Purchase.
Landlord agrees that if at any time during the term of this Lease it proposes
to
sell the fee of the Building and/or land which are part of the leasehold it
shall give Tenant the opportunity to purchase such fee for the same purchase
price and on the same terms and conditions as Landlord proposes to sell said
fee
to any third party. Landlord agrees to submit a true copy of any proposed bona
fide offer for the sale of said fee to Tenant, together with a notice to the
effect that Landlord intends to enter into such contract with a third party
for
a sale of said fee. Tenant shall have the right, exercisable by it within thirty
(30) days after the receipt of such notice and agreement, to execute and deliver
the contract to Landlord or conclude the proposed sale on the terms contained
in
the contract forwarded to the Tenant. Notwithstanding Tenant’s failure to
exercise the right of first refusal, if Landlord does not consummate the
proposed transaction with said third party for such sale of the fee, Tenant’s
right of first refusal shall remain in effect and apply to any future proposed
sale of the fee by
17
Landlord.
Landlord Agrees that if Tenant elects not to take advantage of its right of
first refusal and conclude the sale on the basis of the proposed contract,
Landlord will not change or modify the terms of the sale with said third party
without reinstating Tenant’s right of first refusal upon such revised terms by
employing the procedures hereinabove set forth.
20. Jurisdiction
of Regulatory Agencies.
Notwithstanding any other provisions contained in this Lease and to the extent
permitted by applicable law, in the event the Tenant is closed or taken over
by
the banking authority of the State of New Jersey, or other bank supervisory
authority, the Landlord may terminate the Lease only with the concurrence of
such banking authority or other bank supervisory authority, and any such
authority shall in any event have the election either to continue or terminate
the Lease: Provided, that in the event this Lease is terminated, the maximum
claim of Landlord for damages or indemnity for injury resulting from the
rejection or abandonment of the unexpired term of the Lease shall in no event
be
in an amount exceeding the rent and sums defined (exclusive of utilities) by
the
Lease, without acceleration, for the year next succeeding the date of the
surrender of the premises to the Landlord, or the date of re-entry of the
Landlord, whichever first occurs, whether before or after the closing of the
bank, plus an amount equal to the unpaid rent accrued (without acceleration
up
to such date), plus one and one-half (1. 5%) percent interest per
month.
21. Notices.
All
notices required to be given hereunder shall be sufficiently given only if
mailed by registered or certified mail, postage prepaid, addressed to the party
entitled to receive same, at the following address, or such other address as
may
be given hereafter, in writing, to the other party by notice as
aforesaid.
A.
|
As
to Landlord:
|
Xxxxxxx
X. Xxxxxx
|
|
000
Xxxx Xxxxxx
|
00
Xxxxx
Xxxxx, Xxx Xxxxxx 00000
|
|
With
copy to:
|
|
Xxxxxx
X. Xxxxx, Esq.
|
|
000
X. Xxxxx Xxxxxxx
|
|
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
|
|
B.
|
As
to Tenant:
|
Sterling
Bank
|
|
0000
Xxxxx 00
|
|
Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
|
|
With
copy to:
|
|
Xxxxxxx
X. Xxxxxx, Xx., Esq.
|
|
000
Xxxx Xxxxx 00
|
|
Xxxxxxxxxx,
Xxx Xxxxxx 00000
|
22. Parties
Bound.
This
Lease shall inure to the benefit of and be binding upon the parties hereto,
their heirs, successors and assigns.
23. Integration
Clause.
This
Lease contains the entire agreement between the parties hereto and may not
be
modified or terminated except by agreement in writing signed by both of the
parties hereto.
24. Headings.
Any
heading preceding the text of the several paragraphs or subparagraphs hereof
are
inserted solely for convenience of reference and shall not constitute a part
of
this Lease nor shall they affect its meaning, construction or
effect.
25. Contingency
for Approvals.
Performance of this Lease Agreement, except as to those provisions relating
to
payments specified in Paragraph 3(d) and such other provisions which pertain
to
design of the permanent facility and securing of approvals related thereto,
is
contingent upon Tenant securing final approvals from the New Jersey Department
of Banking and the Federal Deposit Insurance Corporation authorizing Tenant
to
open for business Do later than August 1, 1990. Tenant shall continue to
diligently secure said authorization in an expeditious manner. In the event
that
Tenant shall not secure said authorization by August 1,
19
1990,
as
aforesaid, then Landlord shall have the option to terminate or extend this,
provided however, that this time shall be extended automatically if Tenant
has
submitted all documentation and is awaiting action on its application. If
terminated, Tenant shall reimburse Landlord reasonable expenses for preparation
of plans and approvals.
26. Estoppel
Certificate by Tenant.
Tenant
agrees at any upon not less than twenty (20) days prior written request by
the
Landlord, to execute, acknowledge and deliver to Landlord a written statement
certifying that this Lease is unmodified and in full force and effect (or,
if
there have been modifications, that the same is in full force as
modified, and stating the modifications), and the dates to which the basic
rent
and other charges have been paid in pursuance of this Section may be relied
upon
by any prospective purchaser of the fee or mortgagee or assignee of any mortgage
upon the fee of the Premises.
27. Vacation
of Premises.
Tenant
shall deliver up and surrender to Landlord possession of the Premises upon
the
expiration of this Lease, or its earlier termination, in as good condition
and
repair as the same shall be at the commencement of said term except ordinary
wear and tear and loss by fire or other casualty beyond Tenant’s control and
non-structural interior alterations made by Tenant pursuant to this Lease.
Upon
said surrender of possession the Tenant shall deliver the keys at the office
of
Landlord or Landlord’s agent.
28. Holding
Over.
If at
the expiration of the term of this lease, or any renewal thereof, Tenant
continues to occupy the Premises, with or without Landlord’s consent, such
holding over shall not constitute a renewal of this Lease, but Tenant shall
be a
Tenant from month-to-month, and such continued occupancy shall not defeat
Landlord’s right to possession of the Premises.
20
29. Short
Form Lease.
This
lease shall not be recorded, but a Memorandum of Lease describing the property
herein demised, giving the term of this Lease and renewal rights, if any, and
referring to this Lease, may be recorded by either party.
30. No
Broker.
Each
party agrees to indemnify and save harmless the other party from and against
any
claims, suits, fines, penalties, damages, losses, fees, costs and expenses
which
may be asserted against such other party by any broker in connection with this
Lease.
31. Right
to Subdivide.
Nothing
shall prevent the Landlord from electing to subdivide the Property. In the
event
that Landlord shall so elect, the leasehold must remain intact and useable
by
Tenant as per the terms of this Agreement. Landlord shall create at or prior
to
the time of subdivision approval any necessary easements or cross-easements
required to effectuate the intent of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused these presents to be executed
the day and year first above written.
WITNESS:
|
LANDLORD:
|
___________________________
|
______________________________L.S.
|
XXXXXXX
X. XXXXXX
|
|
ATTEST:
|
TENANT:
|
STERLING
BANK, a New Jersey Banking Institution
|
|
____________________________
|
By__________________________________
|
21
AMENDMENT
TO LEASE
This
is
an Amendment to a certain Lease Agreement, dated April 31, 1990 between Xxxxxxx
X. Xxxxxx (“Landlord”) and Sterling Bank, a New Jersey Banking institution
(“Tenant”).
WHEREAS,
it is the mutual desire of the parties to clarify certain understandings and
to
resolve certain inconsistencies within the aforesaid Lease
Agreement;
NOW,
THEREFORE, WITNESSETH, that for and in consideration of the mutual promises
and
covenants set forth herein the parties agree as follows:
1. Notwithstanding
anything in the Lease Agreement, dated April 3, 1990, which may be inconsistent
herewith, the parties mutually acknowledge that Tenant shall be obliged to
complete construction of the Bank Facility on or before November 30, 1992,
provided, however, that Tenant shall be permitted to extend this obligation
to
April 30, 1993, as set forth in Paragraph 3(d) of the Lease Agreement and
subject to the payment and termination provisions described
therein.
2. The
provisions of Paragraph 3(a) of the Lease Agreement are hereby amended and
supplemented to additionally adjust the annual rent for the first year (Initial
Term) by the percentage of change in the National Consumer Price Index (CPI),
as
compiled by the Bureau of Labor Statistics for “All Items”, for the time period
between October 3, 1991 and the actual date of Commencement of Rent. For
example, if the calculated rent for the first year (Initial Term) is $25.00
per
square foot and the change in CPI from October 3, 1991 to the actual date of
Commencement of Rent is 5 percent, the rent for the first year of the lease
will
be fixed at $26.25 ($25.00 x 1.05). Thereafter, in accordance with the Lease
Agreement, the CPI percentage adjustments will be applied to the annual
rents.
22
3. The
provisions of Paragraph 4 of the Lease Agreement to the extent that they
conflict or contradict the timetable set forth above are expressly
repealed.
4. The
provisions of Paragraph 6 of the Lease Agreement are hereby modified and
supplemented to:
a.
|
Extend
the outside date by which the temporary trailer must be removed from
the
site to April 30, 1993, rather than November 30, 1992. Such extension
is
conditioned upon Tenant obtaining all necessary permits associated
with
extending occupancy in the trailer.
|
b.
|
Add
to Tenant’s trailer removal obligations, Tenant’s responsibility to remove
and restore to the Phase I sub-grade condition those areas that deviate
from the Phase I site plan.
|
5. Any
other
provision of the aforesaid Lease Agreement which contradicts the intent and
purpose of this Amendment is expressly modified to effectuate the purpose of
this Amendment.
6. In
all
other material respects the parties ratify and confirm the Lease Agreement
dated
April 3, 1990.
23
IN
WITNESS WHEREOF, the parties hereto have caused these presents to be signed
and
sealed this 15 day
of
June, 1991.
WITNESS:
|
LANDLORD:
|
___________________________
|
______________________________L.S.
|
XXXXXXX
X. XXXXXX
|
|
ATTEST:
|
TENANT:
|
STERLING
BANK, a New Jersey Banking Institution
|
|
____________________________
|
By__________________________________
|
Secretary
|
Xxxxxx
X. Xxxxxx, President
|
24