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LEASE
from
ENGLISH CREEK PROPERTIES, L.L.C.
to
COMMERCE BANK, N.A.
Article I
Reference Date and Exhibits
1.1 Data
DATE : July 31, 1998
LOCATION OF PREMISES : English Creek Rd.
: Egg Harbour twp., New Jersey
LANDLORD : ENGLISH CREEK PROPERTIES, L.L.C.
ORIGINAL ADDRESS OF : 00000 Xxxxxxx Xxx
Xxxxx 000
Xx. Xxxxxx, XX 00000
TENANT : COMMERCE BANK, N.A.
ORIGINAL ADDRESS OF : c/o Commerce Bancorp, Inc.
0000 Xxxxx 00 Xxxx
Xxxxxx Xxxx, XX 00000
LEASE TERM : Twenty Years
ANNUAL FIXED RENT RATE : Year 1-5 $55,000.00
6-10 $60.500.00
11-15 $66,550.00
16-20 $73,205.00
INSURANCE LIMITS : $2,000,000 Single Action
$4,000,000 Aggregate
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1.2 Table of Contents
ARTICLE I - Reference Data and Exhibits Page
1.1 Data 1
1.2 Table of Contents 2
ARTICLE II - Promises and Term
2.1 Premises 4
2.2 Term 4
2.3 Option to Extend 4
ARTICLE III - Improvements
3.1 Construction of Improvements 4
3.2 Contractor 5
3.3 Signs 5
ARTICLE IV - Rent
4.1 The Rent, Minimum Fixed and Percentage 5
ARTICLE V - Real Estate Taxes
5.1 Real Estate Taxes 5
5.2 Taxes 5
5.3 Method of Payment 6
ARTICLE VI - Utilities and Services
6.1 Utilities and Charges Therefore 6
ARTICLE VII - TENANT'S Additional Covenants
7.1 Affirmative Covenants 7
7.1.1 Use 7
7.1.2 Compliance with Law 7
7.1.3 Payment of TENANT'S Work 7
7.1.4 Indemnity and Liability Insurance 8
7.1.5 LANDLORD'S Right to Enter 8
7.1.6 Personal Property at TENANT'S Risk 8
7.1.7 Payment of LANDLORD'S Cost of Enforcement 8
7.1.8 Yield Up 8
7.1.9 Maintenance 9
7.1.10 Insurance 9
7.2 Negative Comments 9
7.2.1 Overloading, Nuisance, etc. 9
7.2.2 Installation, Alteration or Additions 10
ARTICLE VIII - LANDLORD'S Additional Covenants
8.1 Warranty on Use 10
8.2 Competing Use 10
ARTICLE IX - Casualty or Taking
9.1 TENANT to Repair or Rebuild in the Event of Casualty 10
9.2 Right to Terminate in Event of Casualty 10
9.3 Eminent Domain 11
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ARTICLE X - Defaults Page
10.1 Events of Default 11
10.2 Remedies 12
10.3 Remedies Cumulative 12
10.4 LANDLORD'S and TENANT'S Right to Cure Defaults 12
10.5 Effect of Waivers of Default 13
ARTICLE XI - Miscellaneous Provisions
11.1 Assignment, Subletting, etc. 13
11.2 Notice from One Party to Other 13
11.3 Quiet Employment 13
11.4 Recording 13
11.5 Acts of God 14
11.6 Waiver of Subrogation 14
11.7 Rights of Mortgagee and Subordination 14
11.7.1 14
11.7.2 No Accord and Satisfaction 15
11.8 Applicable Law and Construction 15
ARTICLE XII - Permits and Approvals
12.1 Tenant Obligations 15
12.2 Approvals 15
12.3 Easements 15
ARTICLE XIII - Net, Net, Net Lease
13.1 Net, Net, Net Lease 16
ARTICLE XIV - Right of First Refusal
14.1 Right of First Refusal to Lease 16
14.2 Right of First Refusal to Purchase 16
ARTICLE XV - Holdover
15.1 Holdover 17
ARTICLE XVI - Common Area
16.1 Construction Cost 17
ARTICLE XVII - Environmental
17.1 Environmental Matters 17
ARTICLE XVIII -
18.1 Title 18
18.2 Ownership 19
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ARTICLE 11
Premises and Term
2.1 Premises - LANDLORD hereby leases to TENANT and TENANT hereby leases
from LANDLORD, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the premises shown on Exhibit "A" and
described in Exhibit "B", both annexed hereto and made a part hereof, together
with any and all improvements, appurtenances, rights, privileges and easements
befitting, belonging or pertaining thereto and a building no greater than 4,000
square feet, so long as such building is within the perimeter of the leased
premises as shown on Exhibit W.
2.2 Term - TO HAVE AND TO HOLD for a term beginning at the earlier of (a)
Ninety (90) days (inclusive of the time for objectors to appeal for any
approval) after LANDLORD has obtained approval for the construction of the
branch bank as set forth in Article 12 (notwithstanding TENANT may not have
commenced construction) and continuing for the Lease term of twenty (20) years
unless sooner terminated as hereinafter provided. When dates of the beginning
and end of the Lease term have been determined, such dates shall be evidenced by
a document in form for recording, executed by LANDLORD and TENANT and delivered
each to the other.
2.3 Option to Extend - So long as TENANT is not in default hereunder,
TENANT shall have the right to extend this Lease for four (4) five (5) year
terms under the same terms, conditions and provisions as in the original term,
at the following rentals:
Option Years 1-5 $80,525.00
6-10 $88,578.00
11-15 $97,435.00
16-20 $107,179.00
TENANT shall give written notice of its intention to exercise each
extension option not less than Ninety (90) days prior to the expiration of the
then current term. Lack of written notice by TENANT of its intention to exercise
any option prior to ninety (90) days before the expiration of the then current
term shall be deemed to constitute exercise of that option by the TENANT.
ARTICLE III
Improvements
3.1 Construction of Improvements - TENANT agrees to construct, at its sole
cost, a branch banking facility, pursuant to the attached Site Plan, subject to
reasonable approval by the LANDLORD of the building plans and specifications.
3.2 Contractor - TENANT shall have the right to select and approve the
contractor to complete the construction, which shall be subject to the approval
of the LANDLORD. Approval by LANDLORD shall not be unreasonably withheld.
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3.3 Signs - TENANT shall have the right to erect such signs as permitted by
applicable ordinances within the leased area.
ARTICLE IV
Rent
4.1 The Rent. Minimum Fixed - TENANT covenants and agrees to pay rent to
LANDLORD at the original address of LANDLORD or such other place as LANDLORD may
by notice In writing to TENANT from time to time direct, at the following rates
and times.
(a) TENANT agrees to pay to LANDLORD base annual fixed rent for the
Premises in accordance with and in the amount set forth In Paragraph 1.1 "Data".
The base annual fixed rent shall be paid in equal monthly installments in
advance on the first (1st) day of each month beginning on the Commencement Date.
In addition to the base annual fixed rent, TENANT shall pay as and when the same
become due and owing as additional rents, all other monies provided for in the
Lease. It is the parties intention that all charges and assessments charged to
or assessed against the Premises shall be the responsibility of the TENANT, such
that the Lease shall be "net, net, net" to the LANDLORD, excepting only interest
and principal on any mortgage made by the LANDLORD and effecting the Premises.
(b) For purposes of this Lease, the scheduled increases in the base annual
fixed rate shall occur on the first day of the sixth (6th), eleventh (11th) and
sixteenth (16th) years of the Initial Term as same is determined pursuant to
Paragraph 2.2 and on the first day of the sixth (6th) eleventh (11th) and
sixteenth (16th), years of the Option Terms.
(c) If any installment under this Lease is not paid within fifteen (15)
days of the time and at the place and in the manner specified, then LANDLORD
may, at its option, declare TENANT in default.
ARTICLE V
Real Estate Taxes
5.1 Real Estate Taxes - As additional rent, TENANT agrees to pay all real
estate taxes levied upon the Premises, Improvements located on the Premises, the
leasehold estate, or any sublease hold estate of any nature including special
assessments. The obligation for payment by TENANT of all real estate taxes shall
commence simultaneously with the payment of rent hereunder.
5.2 Taxes - TENANT agrees to pay all taxes levied upon rents and personal
property, including trade fixtures and inventory, kept on the demised Premises,
covered by Section 5.1 after presentation to TENANT by LANDLORD of statements
from the taxing jurisdiction in which said property is located. TENANT, however,
will pay only the lowest discounted amount and will not be required to pay
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any penalty, Interest or cost occurring by reason of LANDLORD'S failure to
secure said tax statements in a timely fashion from the taxing authorities for
any tax required to be paid by TENANT.
LANDLORD may, however, direct the taxing authorities to send the statements
directly to TENANT. "In the event LANDLORD directs the taxing authorities to
send a statement directly to TENANT, TENANT shall make all such payments
directly to the taxing authority at least ten (10) days before any delinquency
and before any fine, interest or penalty shall become due or imposed by
operation of law for their nonpayment. Further, TENANT shall furnish to LANDLORD
within ten (10) days of the date when any tax, assessment or charge would become
delinquent, receipts or other satisfactory evidence establishing the timely
payment of said taxes or charges." LANDLORD further agrees that TENANT, in the
name of LANDLORD, but at TENANT'S sole expense, may protest any assessment
before any taxing authority or board or maintain any necessary legal action in
reference to said assessment or for the recovery of any taxes paid thereon.
Nothing herein contained shall require TENANT to pay any income or excess
profits, taxes assessed against LANDLORD or any corporation, capital stock, or
franchise tax imposed upon LANDLORD.
5.3 Method of Payment - LANDLORD shall give written notice advising TENANT
of the amount of real estate taxes, together with a copy of the tax xxxx, and
TENANT shall pay such amount to LANDLORD within thirty (30) days after receipt
of such notice. If this Lease shall terminate during a tax year, TENANT shall
pay to LANDLORD, a prorated portion of the amount that would have been due for
the full tax year based on the number of days of said tax year expired on the
date of termination.
ARTICLE VI
Utilities and Services
6.1 Utilities and Charges Therefore - TENANT agrees to pay directly to the
authority charged with the collection thereof, all charges for water, gas,
electricity, sanitary sewer and sprinkler changes, telephone connection and
standby fees and other utilities used or consumed in the Premises and shall make
its own arrangements for such utilities. In the event any such services cannot
be reasonably procured from any public agency, and LANDLORD provides any such
services, TENANT shall reimburse LANDLORD for its proportionate share of any
such services used or consumed in the demised premises as additional rental.
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ARTICLE VII
TENANT'S Additional Covenants
7.1 Affirmative Covenants - TENANT covenants at its expense at all times
during the Lease term and such further time as TENANT occupies the Premises or
any part thereof.
7.1.1 Use - TENANT shall use and permit the use of the Premises and
the improvements to be constructed thereon primarily for the operation of a
branch bank, provided that (subject to the other terms and conditions of this
Lease), TENANT may at any time use the Premises and the building and other
improvements to be constructed thereon, for any other lawful commercial
purposes. Neither TENANT nor its subtenants, if any, shall commit any nuisance,
nor permit the emission of any objectionable noise or odor, nor bring on,
deposit or allow to be brought on or deposited on the Premises any asbestos
materials or any other Hazardous Substance or materials as the same may be
defined by Federal, State or local laws, rules, statutes or regulations or in
the Environmental Rider annexed hereto, nor use the property in such a manner
which negatively effects the reversion.
7.1.2 Compliance with Law - To make all repairs, alterations,
additions or replacements to the Premises required by any law or ordinance or
any order or regulation of any public authority because of TENANT'S use of the
Premises, to keep the Premises equipped with all safety appliances so required
because of such use; to pay all municipal, county or state taxes assessed
against the personal property of any kind owned by or placed in, upon or about
the premises by TENANT; and to comply with the orders and regulations of all
governmental authorities, as well as all Insurance Carriers and Underwriters.
7.1.2 (A) TENANT has the right to contest by appropriate judicial or
administrative proceeding, without cost or expense to the LANDLORD, the validity
or application of any law, ordinance, order, rule, regulation or requirement
("law") which the TENANT legitimately deems unduly burdensome or inappropriate
and TENANT shall not be in default for failure to comply with such law until the
legally permitted time following final determination of TENANT'S contest
expires; provided, however, if LANDLORD gives notice of request, TENANT shall
first furnish LANDLORD with a bond, satisfactory to LANDLORD in form and
insurer, guaranteeing compliance by TENANT with the contested law and
indemnifying LANDLORD against all liability that LANDLORD may sustain by reason
of TENANT'S failure or delay in complying with the law. LANDLORD may, but is not
required to, contest any such law independent of TENANT. On TENANT'S notice of
request, LANDLORD may join in TENANT'S contest.
7.1.3 Payment for TENANT'S Work - To pay promptly when due the entire
cost of any work to the Premises undertaken by TENANT and to bond against or
discharge any liens for labor or materials within ten (10) days after written
request by LANDLORD; to procure all necessary permits
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before undertaking such work; and to do all of such work in a good and
workmanlike manner, employing new materials of good quality and complying with
all governmental requirements.
7.1.4 Indemnity and Liability Insurance - To defend with counsel, save
harmless and indemnify LANDLORD from all claims or damage to or of any person or
property while on the premises unless arising from any omission, fault,
negligence or other misconduct of LANDLORD, and from all claims or damage to or
of any person or property occasioned by any omission, fault, neglect or other
misconduct of TENANT; to maintain in responsible companies qualified to do
business in the state in which the premises is located and in good standing
therein, public liability insurance covering the premises insuring LANDLORD, as
well as TENANT, with limits at least equal to those stated in Section 1.1,
workmen's compensation insurance with statutory limits, covering all of TENANT'S
employees working in the premises, and to deposit promptly with LANDLORD
certificates for such insurance and all renewals thereof, bearing the
endorsement that the policies will not be canceled until after ten (10) days
written notice to LANDLORD. TENANT'S obligations hereunder may be satisfied
through a blanket insurance policy covering other interests of the TENANT.
7.1.5 LANDLORD'S Right to Enter - To permit LANDLORD and its agents to
examine the premises at reasonable times and to show the premises to prospective
purchasers and lenders, provided such entry shall not unreasonably interfere
with TENANT'S operation and conduct of its business in the demised premises or
compromise security.
7.1.6 Personal Property at TENANT'S Risk - That all of the
furnishings, fixtures, equipment, effects and property of every kind, nature and
description of TENANT and of all persons claiming under TENANT, may be on the
premises, shall be at the sole risk and hazard of TENANT, and if the whole or
any part thereof shall be destroyed or damaged by fire, water, or otherwise, or
by the leakage or bursting of water pipes, steam pipes or other pipes, by theft
or from any other cause, no part of said loss or damage is to charged to or be
borne by LANDLORD, except that LANDLORD shall in no event be indemnified or held
harmless or exonerated from any liability resulting from its sole negligence,
failure to perform any of its obligations under this Lease or to any extent
prohibited by law.
7.1.7 Payment of LANDLORD'S Cost of Enforcement - To pay on demand
LANDLORD'S expenses, including reasonable attorney's fees, incurred in enforcing
any obligation of TENANT under this Lease or in curing any default by TENANT
under this Lease as provided in Section 10.4, provided LANDLORD shall prevail in
any judicial proceedings in respect to such enforcement.
7.1.8 Yield Up - At the expiration of the Lease term or earlier
termination of this Lease, TENANT shall remove all trade fixtures and personal
property, to repair any damage caused by such removal, to remove all TENANT'S
signs wherever located and to surrender all keys to the premises and yield up
the premises, broom clean and in the same good order and repair in which TENANT
is obligated to keep and maintain the premises by the provisions of this Lease,
reasonable wear and tear and insured
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damage by fire, casualty or taking excepted. Any property not so removed shall
be deemed abandoned and may be removed and disposed of by LANDLORD in such
manner as LANDLORD shall determine, without any obligation on the part of
LANDLORD to account to TENANT for any proceeds therefrom, all of which shall
become the property of LANDLORD. Any holdover by TENANT will not be deemed an
extension of this Lease, and TENANT shall Indemnify LANDLORD against all losses
and damages from a failure to surrender.
7.1.9 Maintenance -Throughout the term, TENANT shall, at TENANT'S sole
cost and expense maintain the premises and all improvements thereon in good
condition and repair, ordinary wear and tear excepted, and in accordance with
all applicable laws, rules, ordinances, orders and regulations of (1) federal,
state, county, municipal and other governmental agencies and bodies having or
claiming jurisdiction and all of their respective departments, bureaus and
officials; (2) the insurance underwriting board or insurance inspection bureau
having or claiming jurisdiction; and (3) all insurance companies insuring all or
any part of the premises of the improvements located thereon, or both except as
provided below and subject only to the provisions of Paragraph 9.2, TENANT shall
promptly and diligently repair, restore and replace as required to maintain the
premises and the improvements in the condition set forth above, or to remedy all
damage to or destruction of all or any part of the improvements.
(A) The completed work of maintenance, compliance, repair, restoration
or replacement shall be equal in value, quality and use to the condition of the
improvements before the event giving rise to the work, unless otherwise provided
for in this Lease. LANDLORD shall not be required to furnish any services or
facilities or to make any repairs or alterations of any kind in or upon or on
the premises, LANDLORD'S election to perform any obligations of the TENANT under
this provision on TENANTS failure or refusal to do so shall not constitute a
waiver of any right or remedy for TENANTS default and TENANT shall promptly
reimburse, defend and indemnify LANDLORD against all liability, loss, cost and
expense arising from it.
7.1.10 Insurance - TENANT shall maintain in full force and effect, at
its own cost, full replacement cost coverage insurance covering the demised
premises (and all improvements for the full insurable value) against loss or
damage by fire or casualty, with the usual extended coverage endorsements,
together will endorsements protecting against loss or damage resulting from
malicious mischief, sprinkler leakage and vandalism all in amounts not less than
replacement parts value above foundation walls. All insurance policies shall
name the LANDLORD as it interest may appear.
7.2 Negative Covenants - TENANT covenants at all times during the Lease
further times as TENANT occupies the premises or any part thereof:
7.2.1 Overloading Nuisance, etc. - Not to injure, overload, deface or
otherwise harm the premises; nor commit any nuisance; nor make any use of the
premises which is improper, offensive or contrary to any law or ordinance.
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7.2.2 Installation, Alteration or Additions - Not to make any
installations, alterations or additions (except only the installation of
fixtures necessary for the conduct of its business), without on each occasion
obtaining prior written consent of LANDLORD, LANDLORD'S consent not be
unreasonable withheld. No consent shall be required for nonstructural
alterations not exceeding $100,000 in cost. No addition will be allowed which
increases the building size to more than 4,000 square feet, or which violates
the terms of Paragraph 2.1 of this Lease.
ARTICLE VIII
LANDLORD'S Additional Covenants
8.1 Warranty on Use - LANDLORD warrants and represents that at the
commencement of construction it will be the Owner in Fee of the Land shown on
Exhibit "A" and described in Exhibit "B". LANDLORD has no knowledge of and
TENANT requires that there be no zoning regulations, restrictive agreements,
leases or other instruments which prevent the use of the premises for the
purpose intended herein, nor otherwise conflict with any of the provisions of
this Lease. TENANT'S sole and conclusive remedy for a breach of this warranty
shall be its right, at its election, to terminate the Lease prior to
commencement of construction.
8.2 Competing Us - During the term of this Lease, provided TENANT is not in
default, LANDLORD agrees not to lease or sell any portion of the project, of
which the leased premises is a part, to a commercial bank, savings bank, savings
and loan or credit union.
ARTICLE IX
Casualty or Taking
9.1 TENANT to Repair or Rebuild in the Event of Casualty - In case the
Premises or any part thereof shall be damaged or destroyed by fire other
casualty, taken (which term or reference to eminent domain action generally, for
the purposes of this Article shall include a sale in lieu of the exercise of the
right of eminent domain) or ordered to be demolished by the action of any public
authority in consequence of a fire or other casualty, this Lease shall, unless
it is terminated as provided below in Section 9.2 or 9.3, remain in full force
and effect and TENANT shall, at its expense, proceed with all reasonable
dispatch, to repair or rebuild the premises and the improvements, or what may
remain thereof, so as to restore them as nearly as practicable to the condition
they were in immediately prior to such damage or destruction.
9.2 Right to Terminate in Event of Casualty - In case of any damage or
destruction occurring in the last five years of the original term of this Lease
or during any extension of the term, to the extent of 50% or more of the
insurable value of the building, TENANT may at its option, to be evidenced by
notice in writing given to the LANDLORD within seven (7) days after the
occurrence of such damage or destruction, in lieu of repairing or replacing the
building, elect to terminate this Lease as of the date of said damage or
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destruction. In the event the TENANT shall so terminate the lease all insurance
proceeds shall become the property of the LANDLORD.
9.3 Eminent Domain - If the whole, or any part of the demised premises
shall be taken or condemned by any competent authority for any public use or
purpose during the term of this Lease. TENANT reserves the unto itself the right
to prosecute its claim for an award based upon its leasehold interest for such
taking, without impairing any rights of LANDLORD for the taking of or injury to
the reversion.
In the event that a part of the demised premises shall be taken or
condemned that (a) the part so taken includes the building on the demised
premises or any part thereof or (b) the part so taken shall remove from the
premises 20% or more of the front depth of the parking areas thereof, or (c) the
part so taken shall consist of 25% or more of the total parking area, or (d)
such partial taking shall result in cutting off direct access from the demised
premises to any adjacent public street or highway, then and in any such event,
the TENANT may at any time either prior to or within a period of sixty (60) days
after the date when possession of the premises shall be required by the
condemning authority elect to terminate this Lease, or if any option to purchase
the premises is conferred upon the TENANT by any other provision of this Lease,
may as an alternative to such termination of this Lease elect to purchase the
demised premises in accordance with such purpose option. In the event that
TENANT shall fail to exercise any such option to terminate this Lease or to
purchase the premises or in the event that a part of the demised premises shall
be taken or condemned under circumstances under which the TENANT will have no
such option, then and in either such event the LANDLORD shall, with reasonable
promptness, make necessary repairs to and alterations of the improvements on the
demised premises for the purpose of restoring the same to an economic
architectural unit, susceptible to the same use as that which was in effect
immediately prior to such taking, to the extent that may have been necessary by
such condemnation, subject to a pro-rata reduction in rental. Any dispute
resulting from Section 9.3 of this Lease shall be submitted to the American
Arbitration Society, whose decision shall be binding on the parties hereto.
ARTICLE X
Defaults
10.1 Events of Default - If (a) Tenant shall default in the performance of
any of its obligations to pay rent or additional rent hereunder and if such
default shall continue for ten (10) days after written notice from LANDLORD
designating such default or if within thirty (30) days after written notice from
LANDLORD to TENANT specifying any other non-monetary default or defaults, TENANT
has not commenced diligently to correct the default or defaults so specified or
has not thereafter diligently pursued such corrective action to completion, or
(b) any assignment shall be made by TENANT for the benefit of credits, or (c) if
TENANT'S leasehold interest shall be taken on execution, attached, levied upon
or (d) if a petition is filed
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by TENANT for adjudication as a bankrupt, or for reorganization or an
arrangement under any provision of the Bankruptcy Act as then in force and
effect, or (e) if an involuntary petition under any of the provisions of said
Bankruptcy Act is filed against TENANT and such involuntary petition is not
dismissed within sixty (60) days thereafter, then, and in any of such cases,
LANDLORD lawfully may exercise all defaults rights available to it under law,
including repossession of the leased property, termination of the lease,
acceleration of all future rental payments, and such other rights as may be
lawfully permitted.
10.2 Remedies - In the event that this Lease is terminated under any of the
provisions contained in Section 10.1 or shall be otherwise terminated for breach
of any obligation of TENANT, TENANT covenants to pay punctually to LANDLORD all
the sums and perform all the obligations which TENANT covenants in this Lease to
pay and to perform in the same manner and to the same extent and at the same
time as if this Lease had not been terminated so long as such obligations shall
have not been rendered unnecessary or impossible of performance by the
subsequent re-letting or other occupancy permitted by LANDLORD. In calculating
the amounts to be paid by TENANT under the foregoing covenant, TENANT shall be
credited with the net proceeds of any rent or the value of other considerations
obtained by LANDLORD by re-letting the premises, after deducting all LANDLORD'S
expenses in connection with such re-letting, including, without limitation, all
repossession costs, brokerage commissions, reasonable fees for legal services
and expenses of preparing the premises for such reletting, it being agreed by
TENANT that LANDLORD may (i) re-let the premises or any part or parts thereof,
for a term or terms which may at LANDLORD'S option be equal to or less than or
exceed the period which would otherwise have constituted the balance of the
Lease term, and (ii) make such alterations, repairs and decorations in the
premises as LANDLORD in its sole judgment considers advisable or necessary to
re-let the same.
Nothing contained in this Lease shall, however, limit or prejudice the
right of LANDLORD to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amounts of the loss or damages
referred to above.
10.3 Remedies Cumulative - Any and all rights and remedies which LANDLORD
may have under this Lease, and at law and equity, shall be cumulative and shall
not be deemed inconsistent with each other, and any two or more of all such
rights and remedies may be exercised at the same time insofar as permitted by
law.
10.4 LANDLORD'S and TENANT'S Right to Cure Defaults - LANDLORD may, but
shall not be obligated to, cure at any time, following ten (10) days prior
written notice to TENANT, except in cases of emergency when no notice shall be
required, any default by TENANT under this Lease; and whenever LANDLORD so
elects, all costs and expenses incurred by LANDLORD, including reasonable
attorney's
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fees, in curing a default shall be paid by TENANT to LANDLORD as additional rent
on demand. TENANT shall have a like right to cure any default of LANDLORD, and
TENANT may reimburse itself for the cost thereof out of succeeding rental
payments.
10.5 Effect of Waivers on Default - No consent or waiver, expressed or
implied, by either party to or of any breach of any covenants, conditions or
duty of the other shall be construed as a consent or waiver to or of any other
breach of the same of any other covenant, condition or duty.
ARTICLE XI
Miscellaneous Provisions
11.1 Assignment, Subletting, etc. - LANDLORD'S written consent shall be
required for any assignment, transfer or subletting except to another financial
institution which consent shall not be unreasonably withheld.
11.2 Notice from One Party to the Other - Any notice from LANDLORD to
TENANT or from TENANT to LANDLORD shall be deemed duly served if mailed by
registered or certified mail, return receipt requested, postage pre-paid,
addressed, if to TENANT, at the original address of TENANT or such other
addresses as TENANT shall have last designated by notice in writing to LANDLORD,
and if to LANDLORD, at the original address of LANDLORD or such other address as
LANDLORD shall have last designated by notice in writing to TENANT.
11.3 Quiet Employment - LANDLORD agrees that upon TENANT'S paying the rent
and performing and observing the agreements, conditions and other provisions on
its part to be performed and observed, TENANT shall and may peaceably and
quietly have, hold and enjoy the demised premises during the Lease term without
any manner or hindrance or molestation from LANDLORD or anyone claiming under
LANDLORD, subject to the covenants and conditions of this Lease.
11.4 Recording - TENANT agrees not to record this Lease, but each party
hereto agrees on request of the other, to execute a Notice or Short Form of this
Lease in recordable form in compliance with applicable statutes, and reasonably
satisfactory to LANDLORD'S and TENANTS attorneys. In no event shall such
document set forth the rental or other charges payable by TENANT under this
Lease; and any such document shall expressly state that it is executed pursuant
to the provisions contained in this Lease, and is not intended to vary the terms
and conditions of this Lease. In the event LANDLORD and/or TENANT believe that
the Lease has been lawfully terminated, abandoned or otherwise of no force and
effect and the other party will not voluntarily execute a Discharge of
Memorandum of Lease, the party seeking the Discharge of Memorandum of Lease may
move summarily before the Superior Court of New Jersey for a determination of
whether or not the Memorandum of Lease should be discharged. The other party
consents to the jurisdiction of the Superior Court of New Jersey and agrees to
proceed in a summary manner. It is expressly understood and agreed that in
addition to the relief provided herein, the
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parties will have such additional cumulative remedies as are available to it at
law or in equity for damages suffered by reason of a wrongful refusal to execute
and deliver a Discharge of Memorandum of Lease.
11.5 Acts of God - In any case where either party hereto is required to do
any act, delays caused by or resulting from Acts of God, war, civil commotion,
fire or other casualty, labor difficulties, shortages of labor, materials or
equipment, government regulations, or other causes beyond such party's
reasonable control shall not be counted in determining the time during which
work shall be completed, whether or such time be designated by a fixed date, a
fixed time or "a reasonable time*.
11.6 Waiver of Subrogation - All insurance which is carried by either party
with respect to the demised premises, whether or not required, shall include
provisions which either designates the other party as one of the insured or deny
to the insurer acquisition by subrogation of rights of recovery against the
other party. Each party shall be entitled to have duplicates or certificates of
any policies containing such provisions. Each party hereby waives all rights of
recovery against the other for loss or injury against which the waiving party is
protected by insurance containing such provisions.
11.7 Rights of Mortgagee and Subordination -
11.7.1 This Lease is subject and is hereby subordinated to all present
and future mortgages, deeds of trust, and other encumbrances affecting the
premises or the property of which said premises are a part; provided, however,
that an agreement or instrument affecting such subordination shall be executed
by the mortgagee or other Lender, be recorded with such mortgage or other
security agreement, and a copy delivered to the TENANT and contain provisions,
to the effect that (i) so long as TENANT observes the terms and provisions of
this Lease and notwithstanding the Lease may be foreclosed, TENANT will not be
effected or disturbed by the mortgagee in the exercise of any of its rights
under the mortgage or other security agreement, or the bond, note or debt
secured thereby, (ii) in the event the mortgagee comes into possession or
ownership of the premises by foreclosing or otherwise, TENANT'S use, occupancy
and quiet enjoyment of the premises shall not be disturbed by any such
proceedings; (iii) in the event the premises are sold or otherwise disposed of
pursuant to any right or power contained in the mortgage or other security
agreement, or the bond or note secured thereby, or as a result of proceedings
thereon, the purchaser shall take title subject to this Agreement of Non
Disturbance, and all of the rights of the TENANT hereunder; (iv) in the event
the buildings and Improvements upon the premises are damaged by fire and other
casualty, for which loss the proceeds payable under any insurance policy or
policies are payable to the mortgagee, such insurance funds, when paid, shall be
made available for the purpose of repair and restoration as provided in this
Lease; and (v) the agreement shall be binding upon the LANDLORD, mortgagee and
their respective heirs, executors, administrators, successors and assigns. The
TENANT agrees to execute, at no expense to the LANDLORD, any instrument which
may be deemed necessary or desirable by the LANDLORD to further effect the
subordination of this Lease to any such mortgage, deed of trust or encumbrance.
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11.7.2 No Accord and Satisfaction - No acceptance by LANDLORD of
lesser sum than the rent or any other charges then due shall be deemed to be
other than on account of the earliest installment of such rent or charge due,
nor shall any endorsement or statement on any check or any letter accompanying
any check or payment as rent or other charge be deemed an accord and
satisfaction, and LANDLORD may accept such check or payment without prejudice to
LANDLORD'S right to recover and balance of such installments or pursue any other
remedy in this Lease provided.
11.8 Applicable Law and Construction - This Lease shall be governed by and
construed in accordance with the laws of the State of New Jersey, and if any
provisions of this Lease shall to any extent be invalid, the remainder of this
Lease shall not be affected thereby. There are no oral or written agreements
between LANDLORD and TENANT affecting this Lease. This Lease may be amended only
by instruments in writing executed by LANDLORD and TENANT. LANDLORD shall not be
deemed in any way or for any purpose, to have become, by the execution of this
Lease or any action taken thereunder, a partner of TENANT in its business or
otherwise a joint venturer or member of any enterprises of TENANT. The titles of
the several Articles and Sections contained herein are for convenience only and
shall not be considered in construing this Lease. Unless repugnant to the
context, the words "LANDLORD and TENANT" appearing in this Lease shall be
construed to mean those names above and their respective heirs, administrators,
successors and assigns, and those claiming through or under them respectively.
ARTICLE XII
Permits and Approvals
12.1 TENANT'S Obligations - The obligations of TENANT hereunder are
contingent upon final approval by the bank's Board of Directors of this
transaction and upon TENANT securing on or before July 30, 1998 the following
unconditional and unappealable approvals:
A. All state and federal regulatory approvals for the construction and
operation of a branch bank on the leased premises.
B. All municipal and governmental approvals required for the construction
of TENANT'S proposed building including the issuance of a building
permit("Permit and Approvals") and approvals for a free standing sign
and other prototype signage as necessary to properly identify the
building.
12.2 Approvals - TENANT shall diligently pursue all required approvals.
12.3 Easements - TENANT shall have absolutely no right to grant any
easement with regard to the premises other than such easements to public
entities or public service corporations for the purpose of serving only the
premises, rights-of-way or easements on or over the premises for poles or
conduits, or both, for telephone, electricity, water, sanitary or storm sewers
or both and for other utilities and municipal or special district services.
LANDLORD shall cooperate with TENANT to permit the creation of all necessary
easements.
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ARTICLE XIII
Net, Net, Net Lease
13.1 Net, Net, Net Lease - It is the intention of LANDLORD and TENANT that
the rental herein specified shall be net to LANDLORD in each lease year, that
all costs, expenses, and obligations of every kind relating to the TENANT'S use
and occupancy of the premises which may arise during the term of this Lease
shall be paid by TENANT, and that LANDLORD shall be indemnified by TENANT
against any such costs, expenses and obligations.
ARTICLE XIV
Right of First Refusal
14.1 Right of First Refusal to Lease - If within one hundred eighty (180)
days prior to the conclusion of this Lease and all options to extend the term
thereof, LANDLORD shall desire to accept a bona fide offer received by it to
lease any part of the Premises, LANDLORD shall notify TENANT of such a desire in
the manner provided in this Lease for the giving of notice, and TENANT shall
have the right of first refusal to lease said premises exercisable within ten
(10) days of said written notice upon the terms contained in the notice. This
provision shall only be effective after the termination, expiration or
conclusion of the original lease term and all options to extend the Lease, and
shall not affect the premises during the term of this Lease or any option to
extend the term thereof.
14.2 Right of First Refusal to Purchase - TENANT shall have the right of
first refusal to purchase the demised premises as hereinafter set forth. If at
any time during the term as extended, LANDLORD shall receive a bona fide offer
from a third person for the purchase of the demised premises, which offer
LANDLORD shall desire to accept, LANDLORD shall promptly deliver to TENANT a
copy of such offer, and TENANT may, within fifteen (15) days thereafter, elect
to purchase the demised premises on the same terms as those set forth in such
offer, excepting that TENANT shall be credited against the purchase price to be
paid by TENANT, with a sum equal to the amount of any brokerage commissions, if
any, which LANDLORD shall save by a sale to TENANT. If LANDLORD shall receive an
offer for the purchase of the demised premises, which is not consummated by
delivering a deed to the offerer, the TENANT'S right of first refusal to
purchase shall remain applicable to subsequent offers. If LANDLORD shall sell
the demised premises after a failure of TENANT to exercise its right of first
refusal, such shall be subject to the Lease and shall continue to be applicable
to subsequent sales of the demised premises. Notwithstanding the foregoing,
TENANT'S right of first refusal shall not apply or extend to any sales or
transfers between LANDLORD and any affiliates in which the principals of the
LANDLORD are the majority shareholders to any family trusts or to the heirs of
the principals of LANDLORD. LANDLORD shall be entitled to net the same amount
under any right of first refusal exercise.
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ARTICLE XV
Holdover
15.1 Holdover - In the event that TENANT continues in use and occupancy and
holds over in possession of the promises after the expiration of the Initial
Term or, properly exercised, the Option Term, in addition to all other damages
to which LANDLORD may be entitled, the monthly rent during the period of
holdover shall be in a sum equal to double the amount of the monthly installment
of base annual fixed rent during the last month of the term which has just
expired. Said holdover rent shall be in addition to all additional rents for
which the TENANT shall be responsible during the holdover period.
ARTICLE XVI
Construction Cost
16.1 Construction Cost - TENANT shall construct its own building at its own
costs and construction within its demised premises, as identified in Exhibit A.
ARTICLE XVII
Environmental
17.1 Environmental Matters -
A. LANDLORD represents and warrants that any handling, transportation,
storage, treatment or usage of hazardous or toxic substances (as defined by any
applicant government authority and hereinafter being referred to as "Hazardous
Materials") that has occurred or will occur on the Demised Premises shall be in
compliance with all applicable federal, state and local laws, regulations and
ordinances. TENANT represents and warrants that any handling, transportation,
storage, treatment or usage of Hazardous Materials by TENANT at the Demised
Premises shall be in compliance with applicable federal, state and local laws.
LANDLORD further represents and warrants that no leak, spill, discharge,
emission or disposal of Hazardous Materials has occurred or will occur on the
Demised Premises and that the soil, groundwater, soil vapor on or under the
Demised Premises is or will be free of Hazardous Materials as of the date
hereof. LANDLORD agrees to indemnify, defend and hold TENANT and its officers,
from any claims, judgments, damages, fines, penalties, costs, liabilities
(including sums paid in settlement of claims) or loss including attorney's fees,
consultants fees, and expert fees which arise during or after the Primary Term
or any Renewal Term, or in connection with the presence of suspected presence of
Hazardous Materials in the soil, groundwater, or soil vapor on or under the
Demised Premises, unless such Hazardous Materials are present solely as the
result of the acts of TENANT, its officers, employees or agents. Without
limiting the generality of the foregoing, this indemnification shall survive the
expiration of this Lease and does specifically cover costs incurred in
connection with any investigation of site conditions or any cleanup, remedial,
removal or restoration work
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required by any federal, state or local governmental agency or political
subdivision because of the presence or suspected presence of Hazardous Materials
in the soil, groundwater or soil vapor odor under the Demised Premises, unless
the hazardous Materials are present solely as the result of the acts of TENANT,
its officers, agents or employees. Without limiting the generality of the
foregoing, this indemnification shall also specifically cover costs in
connection with:
1. Hazardous Materials present or suspected to be present in the soil,
groundwater or soil vapor on or under the Demised Premises before the
date hereof; or
2. Hazardous Materials that migrate, flow, percolate, diffuse or in any
move onto or under the Demised Premises after the date hereof; or
3. Hazardous Materials present on or under the Demised Premises as a
result of any discharge, dumping, spilling (accidental or otherwise)
onto the Demised Premises during or after the Primary Term or any
Renewal Term by any person or entity.
B. TENANT agrees to indemnify LANDLORD and its officers, employees and
agents harmless from any claims, judgments, damages, fines, penalties, costs,
liabilities (including sums paid in settlement of claims) or loss including
attorney's fees, consultants fees and expert fees which arise during or after
the Primary Term or any Renewal Term in connection with the presence of toxic or
hazardous substances in the soil, groundwater, or soil vapor on or under the
Demised Premises to the extent such presence is caused by the acts of Tenant,
its officers, employees and agents.
C. A condition precedent to this Lease shall be TENANT's satisfactory
review of the report (the "Phase I Environmental Survey") on the environmental
condition of the land on which the Demised Premises is located. LANDLORD agrees
to provide TENANT with a Phase I Environmental Survey of the land on which the
Demised Premises is located. In the event that TENANT shall discover in its
review of the Phase I Environmental Survey that any Hazardous Materials may be
present in the soil. ground water or soil vapor on or under the Demised
Premises, TENANT may, upon written notice to LANDLORD within ten (10) days after
the date TENANT receives the Phase I Environmental Survey, terminate this Lease.
D. If during the term of this Lease any governmental authority requires the
remediation of Hazardous Materials from the Demised Premises or the Shopping
Center and such remediation materially affects TENANT's business operations or
poses a safety threat to TENANT's employees or customers, then TENANT shall be
entitled to an equitable abatement of rent from the date such interference or
safety hazard occurs to the date such interference and safety hazard are no
longer present.
ARTICLE XVIII
18.1 Title - This lease shall be subject and subordinate to the lien of any
bank or institution or other mortgage or mortgages now or hereafter in force
against LANDLORD'S property, and to all
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advances made upon the security thereof, provided the holder of any such
mortgage shall execute and deliver to TENANT an agreement, in the form of
Exhibit D attached hereto, or as otherwise agreed to by TENANT, LANDLORD and
such holder, providing that such holder will recognize this lease and not
disturb TENANT's possession of the promises in the event of foreclosure if
TENANT is not then in default hereunder beyond any applicable cure period.
TENANT agrees, upon receipt of such agreement, to execute such further
instrument(s) as may be necessary to subordinate this lease to the lien of any
such mortgage. The term "mortgage" shall include deeds of trust or any other
similar hypothecation's.
18.2 Ownership - LANDLORD warrants that it owns in fee the subject premises
subject only to the liens, mortgages and encumbrances listed on the attached
schedule, evidenced by a title report provided by LANDLORD to TENANT within
forty-five (45) days of the execution of this lease, which shall be subject to
TENANT's reasonable approval. TENANT's lease hereunder shall be subordinate only
to such liens where the holder of such liens has executed and delivered to
TENANT in the form attached hereto a Subordination and Non-Disturbance
Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
this day and year first above written.
COMMERCE BANK, N.A.
----------------------------- BY:
Attest -------------------------------
Xxxxxx X. Xxxxx
Senior Vice President/Real Estate Officer
ENGLISH CREEK PROPERTIES, L.L.C.
----------------------------- BY:
Attest -------------------------------
Xxxx X. Xxxxxxxxx
Managing Member
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