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LEASE

Lease Agreement

LEASE | Document Parties: CARROLLTON BANCORP | ARBUTUS SHOPPING CENTER LIMITED PARTNERSHIP You are currently viewing:
This Lease Agreement involves

CARROLLTON BANCORP | ARBUTUS SHOPPING CENTER LIMITED PARTNERSHIP

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Title: LEASE
Governing Law: Maryland     Date: 4/2/2007
Industry: Regional Banks     Sector: Financial

LEASE, Parties: carrollton bancorp , arbutus shopping center limited partnership
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Exhibit 10.21

LEASE

This Lease is made as of the 27 day of APRIL, 2006, by and between ARBUTUS SHOPPING CENTER LIMITED PARTNERSHIP, with an office c/o AmCap, Incorporated, 1281 E. Main Street, Stamford, CT 06902 (“Landlord”) and CARROLLTON BANK, a commercial banking institution organized and existing under the laws of the state of Maryland, having an address at 344 North Charles Street, Suite 300, Baltimore, MD 21201 (“Tenant”).

ARTICLE 1.   FUNDAMENTAL LEASE PROVISIONS

Section 1.1    Fundamental Lease Provisions.    The fundamental provisions of this Lease (the “Fundamental Lease Provisions”) are as follows:

Shopping Center:   The premises (including land and buildings thereon and any extensions thereof or additions thereto) generally known as the Arbutus Shopping Center on Maiden Choice Lane in Arbutus, Maryland.

Tenant’s Trade Name:         CARROLLTON BANK

Leased Premises:   Those premises located in the Shopping Center, currently consisting of the Ground Leased Premises together with Tenant’s improvements constructed thereon as well as the In-Line Leased Premises (collectively, the Leased Premises) crosshatched on Exhibit A attached hereto and made part hereof.

Square Footage:   Approximately 8,436 square feet total

Permitted Use:   Said Leased Premises are leased only for the conduct and operation of a commercial bank with drive-through facilities, and for no other uses or purposes.

Lease Commencement Date:              May 1, 2006

Rent Commencement Date:                May 1, 2006

Lease Term:           The Lease Commencement Date through the Lease Termination Date.

Extension Option:                Four (4) five-year periods (see Addendum)

Lease Termination Date:     April 30, 2011

Lease Year:            The first Lease Year shall commence on the Lease Commencement Date and shall end on April 30, 2007, and each succeeding Lease Year shall run concurrently with each succeeding period of twelve (12) months of the term of the Lease.

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Minimum Rent:

 

 

 

Monthly Installment

 

5/1/06-4/30/07:

 

$

210,900.00

 

$

17,575.00

 

5/1/07-4/30/08:

 

$

217,227.00

 

$

18,102.25

 

5/1/08-4/30/09:

 

$

223,743.81

 

$

18,645.32

 

5/1/09-4/30/10:

 

$

230,456.12

 

$

19,204.68

 

5/1/10-4/30/11:

 

$

237,369.81

 

$

19,780.82

 

 

Percentage Rent rate:          None

Security Deposit:                 None

Promotion Charge Rate:      None

Broker:   AmCap, Inc.

Section 1.2             Effect of Reference to Fundamental Lease Provisions.    Each reference in this Lease to any of the Fundamental Lease Provisions shall be construed to incorporate all of the terms provided under each such Fundamental Lease Provision.

ARTICLE 2.   PREMISES AND TERM

Section 2.1             Lease of Leased Premises .   Landlord hereby leases Tenant, and Tenant hereby leases from Landlord, the Leased Premises which shall include a non-exclusive license to use the common areas of the Shopping Center (the “Leased Premises”).

Section 2.2             Term .   The term of this Lease shall be the Lease Term.

ARTICLE 3.   RENT

Section 3.1             Minimum Rent .   Tenant shall pay to Landlord the Minimum Rent due for each Lease Year, without notice, demand, setoff or deduction, in equal monthly installments, in advance, on the first day of each and every month of the Lease Term commencing on the Rent Commencement Date.  If the Lease Term shall commence on a date other than the last day of the month, the Minimum Rent shall be prorated for such fraction of a month based on the actual number of days in such month.

Section 3.2             Additional Rent .   All payments and charges of any nature whatsoever due from Tenant under the terms of this Lease, including, without limitation, all payments to be considered to be additional rent due hereunder.

ARTICLE 4.   NET LEASE

Section 4.1             Net Lease .   This is intended to be a net lease, so that all Minimum Rent and additional rent provided for herein shall be received by Landlord free and clear of any offsetting costs or expenses relating to the Shopping Center, whether capital in nature or not, except as set forth in Section 4.2.  Accordingly, Tenant shall be responsible for and obligated to pay Tenant’s Share of all costs and expenses incurred by or

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on behalf of Landlord in connection with the ownership and operation of the Shopping Center, excluding only those costs set forth in Section 4.2.

Section 4.2             Landlord’s Cost .   Tenant shall not be responsible for certain income taxes expressly excluded from Tenant’s responsibility in Section 5.2, the cost of construction of new building areas, the cost of initial improvements to premises leased to tenants of the Shopping Center other than Tenant, leasing commissions, ground rent and debt service payable under any Mortgage (as hereinafter defined).

ARTICLE 5.   REAL ESTATE TAXES

Section 5.1             Tenant’s Payments .   Tenant shall pay to Landlord, as additional rent, Tenant’s Share (as defined in Section 6.1) of all Real Estate Taxes (as defined below).

Section 5.2             Definition of Real Estate Taxes .   “Real Estate Taxes” shall mean all real estate taxes, assessments, water and sewer rents (except water meter charges and sewage charges based on usage) and other governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as ordinary, general and special, foreseen and unforeseen, including those for public improvements or otherwise, which shall or may, during the Lease Term, be assessed against, levied or imposed upon, become a lien upon, or become due and payable in connection with the ownership, use, occupancy or possession of the Shopping Center or any part thereof and any expenditure incurred by Landlord in the contest or protest of any Real Estate Tax or assessed valuation, when incurred.  Real Estate Taxes shall not include any inheritance, estate, succession, transfer, gift, franchise, corporation, or income or profit tax that is or may be imposed upon Landlord; provided, however, that if, at any time after the date hereof, the methods of taxation shall be altered so that, in lieu of, or as a substitute for, or in addition to, the whole or any part of the taxes now levied, assessed or imposed on real estate as such, there shall be levied, assessed or imposed (i) a tax on the rents received from such real estate, or (ii) a license fee measured by the rents receivable by Landlord from the Shopping Center or any portion thereof, or (iii) a tax, license fee or other charge imposed upon Landlord which is otherwise measured by or based in whole or in part upon the Shopping Center or any portion thereof, or (iv) if an income or franchise tax is imposed upon Landlord in addition to the taxes now levied, assessed or imposed on real estate, then the same shall be included in the computation of Real Estate Taxes, provided the Shopping Center is the only property of Landlord subject to such tax or fee.

Section 5.3             Estimated Tax Payments .   On each date that an installment of Minimum Rent is due, Tenant shall pay to Landlord an amount equal to 1/12 of Tenant’s Share of the estimated Real Estate Taxes (as determined by Landlord) next due for the Shopping Center (or such other fraction as Landlord determines to be needed) to assure that prior to the due date of Real Estate Taxes due for the Shopping Center Landlord shall have received from Tenant funds sufficient to pay Tenant’s Share in full.  Landlord shall provide Tenant with a copy of each tax bill for the Shopping Center and a statement setting forth the amount due from Tenant as Tenant’s Share.  If the amount due from Tenant exceeds the amount of the estimated payments collected from Tenant, Tenant shall pay the difference to

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Landlord within ten (10) days of the receipt of such statement.  If the amount of estimated payments exceeds the amount due, Landlord shall credit such difference to the next installment or installments or estimated payments due under this Section.  If the Lease Term shall commence or expire on a date other than the fiscal year end for any such tax, Tenant’s Share for each fraction of a fiscal year shall be prorated.

Section 5.4             Right to Contest Real Estate Taxes .   Landlord shall be under no duty or obligation whatsoever to protest or contest any assessed valuation or Real Estate Tax assessed against the Shopping Center or the Leased Premises.  If Landlord shall elect to contest any assessed valuation or Real Estate Tax, no such contest by Landlord shall give Tenant the right to withhold or reduce any payment or estimated payment of Real Estate Taxes due under this Lease.  If Landlord shall receive a refund of Real Estate Taxes for which Tenant has paid Tenant’s Tax Payment, Tenant shall receive its prorate share thereof after deducting all costs, fees and expenses incurred by Landlord in connection with obtaining such refund, and not previously charged to Tenant.  Tenant shall have no right whatsoever to protest or contest any assessed valuation or Real Estate Tax assessed against the Shopping Center or the Leased Premises.

ARTICLE 6.   COMMON CHARGES

Section 6.1             Tenant’s Payments .   Tenant shall pay to Landlord as additional rent the fraction represented by Square Footage of the Leased Premises (8,436 square feet on the Rent Commencement Date) divided by the total first floor leasable square footage in the Shopping Center (91,434 square feet as of the Rent Commencement Date) as determined by Landlord from time to time (“Tenant’s Share”) of all Common Charges (as defined below).

Section 6.2             Definition of Common Charges .   “Common Charges” shall mean all costs and expenses incurred by Landlord or Landlord’s employees, agents or contractors, either pursuant to this Lease or otherwise, arising from or in connection with or as a result of the operating, equipping, policing, protecting, lighting, providing sanitation, sewer and other services, insuring, maintaining, repairing and replacing the Common Areas (as hereinafter defined), all buildings and improvements within the Shopping Center and all other areas and facilities of the Shopping Center.  Common Charges shall include, but shall not be limited to:    (i) the maintenance, repair and replacement of all roofs, exterior walls and other structural and exterior portions of the Shopping Center, curbs, gutters, sidewalks, pylons and signs, drainage and irrigation ditches, conduits and pipes, utility systems (permanent and temporary), sewage disposal or treatment systems, public toilets and sound systems whether within or without the Shopping Center; (ii) the removal of trash, snow and ice; (iii) landscaping; (iv) supplies; (v) licensing, permits, service and usage charges; (vi) obtaining and maintaining the insurance policies described in Section 10.3 of this Lease and the cost of any insured event deductible amounts under such policies; (vii) the settlement or disposition of any claims against Landlord to the extent the same are not covered by insurance; (viii) all capital expenditures together with reserves for capital improvements required by the holder of any Mortgage; (ix) the repaving, restriping, regrading and general maintenance of parking areas;

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(x) compliance with all rules, regulations and orders of governmental authorities pertaining to the Shopping Center, including those pertaining to traffic control, engineering and environmental issues, air pollution control and the cost of monitoring air quality; (xi) (intentionally deleted); (xiii) licensing and permit fees and taxes; (xiv) audit fees and expenses and other costs and expenses of enforcing the rules and regulations established by Landlord for the Shopping Center; (xv) the cost, lease payment or depreciation of any equipment used in the operation or maintenance of the Shopping Center; (xvi) total compensation and benefits (including premiums for workers’ compensation or any other insurance or other retirement or employee benefits, and including all costs incurred in providing such benefits) paid to or on behalf of employees involved in the performance of the work specified in this Section or employees otherwise providing services to tenants or customers of the Shopping Center whether on or off site; (xvii) the maintenance, repair and operation of any mall or enclosed common area; (xviii) the costs of performance of all of Landlord’s obligations pursuant to this Lease or as contemplated herein except those costs set forth in Section 4.2; (xix) other costs and expenses incurred in connection with the operation and management of the Shopping Center;  plus (xx) an amount equal to fifteen  percent (15%) of all of the foregoing costs and expenses to compensate Landlord for administrative and overhead expenses.  Common Charges shall include costs and expenses for services, equipment or materials furnished by Landlord or its affiliates, including management fees, provided the same are furnished at rates similar to those generally paid.

Section 6.3             Estimated Payments .   On each date that an installment of Minimum Rent is due, Tenant shall pay to Landlord an amount equal to 1/12 of the estimated Common Charges (as determined by Landlord) for the calendar year in which such payment is made.  On or before March 1 of each year, Landlord shall provide Tenant with a statement setting forth Tenant’s Share for the preceding calendar year and the amount of estimated Common Charges paid by tenant during such year.  If the amount due from Tenant exceeds the amount of the estimated payments, Tenant shall pay the difference to Landlord within ten (10) days of the receipt of such statement.  If the amount of estimated payments exceeds the amount due, Landlord shall credit such difference to the next installment or installments of estimated payments due under this Section.  Landlord’s failure to provide such statement by the date provided under this Section shall in no way excuse Tenant from its obligation to pay Tenant’s Share of the Common Charges or constitute a waiver of Landlord’s right to bill and collect Tenant’s Share of Common Charges from Tenant in accordance with this Section.  If the term of the Lease shall commence on a day other than January 1 or expire on a day other than December 31, Common Charges due from Tenant for such fraction of a calendar year shall be prorated.  During any year, Landlord, from time to time, may revise its estimate of the Common Charges which will be due for that year and the monthly payments to be made by Tenant on account thereof.

ARTICLE 7.   USE OF PREMISES

Section 7.1             Permitted Use .   The Leased Premises shall be occupied and used by Tenant solely for the Permitted Use and for no other use or purpose.

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Section 7.2             Operation of the Leased Premises .   Tenant shall use, occupy and operate the entire Leased Premises continuously and without interruption during the Lease Term, shall not abandon or vacate the Leased Premises, shall not permit, license, or suffer the occupancy of any other party in the Leased Premises and shall:

a.   Keep the Leased Premises open for business continuously and without interruption at least from 9:00 a.m. to 5:00 p.m. Monday through Friday and 9:00 a.m. to 12:00 p.m. Saturday, or such other hours as Landlord may reasonably designate, unless prohibited by applicable laws or regulations;

b.   Operate its business as a financial institution in a manner as will enhance the Shopping Center;

c.   (intentionally deleted);

d.   Erect no displays outside the Leased Premises or in any way obstruct the Common Areas;

e.   Load or unload all supplies, fixtures, equipment and furniture and cause the collection of rubbish only through the rear service door or doors of the Leased Premises;

f.   Keep the Leased Premises in a safe, clean and proper manner; and not permit any rubbish or refuse of any nature to accumulate in the Common Areas;

g.   Keep the Leased Premises free from vermin;

h.   Prevent the Leased Premises from being used in any way which will injure the reputation of the same or of the Shopping Center or from being used in any way which may be a nuisance, annoyance, inconvenience or damage to the other tenants or occupants of the Shopping Center, including, without limitation, noise by the playing of any musical instrument or radio or television or the use of a microphone, loud speaker, electrical equipment or other equipment which may be heard outside the Leased Premises;

i.   Not violate the exclusive covenants of any other tenant in the Shopping Center; and

j.   Abide by all rules and regulations established by Landlord, from time to time, with respect to the Common Areas, the Shopping Center, and the operation of the Leased Premises.

Section 7.3             Radius Restriction .   (intentionally deleted).

Section 7.4             Compliance with Laws .   Tenant shall not use or occupy or suffer or permit the Leased Premises or any part thereof to be used or occupied for any purpose contrary to law or the rules or regulations of any public authority or the requirements of any insurance underwriters or rating bureaus or in any manner so as to increase the cost of insurance over and above the normal cost of such insurance for the Permitted Use for the type and location of the building of which the Leased Premises are a part.  Tenant shall promptly obtain all permits and licenses required by and otherwise comply with all present and future laws (including Environmental Laws as defined in Section 32.4), regulations or rules of any local, county, state,

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federal and other governmental authority and any bureau or department thereof, and of the National Board of Fire Underwriters or any other body exercising a similar function which may be applicable to the Leased Premises or Shopping Center, including the maintenance, service, repair, replacement and disposal of any structure, equipment or system thereon.  If Tenant shall install any electrical equipment that overloads the lines in the Leased Premises, or handle any Hazardous Substances (as defined in Section 32.4), Tenant shall, at Landlord’s option, immediately terminate the use of such electrical equipment or Hazardous Substances or, at Tenant’s expense, make such changes as Landlord may request to prevent such overload or hazard or otherwise and as may be necessary to comply with the requirements of any insurance underwriters and governmental authorities having jurisdiction.

ARTICLE 8.   ALTERATIONS

Section 8.1             Landlord’s Consent Required .   Tenant shall not make or permit to be made any alterations, improvements or additions of any kind or nature (excluding interior repainting, recarpeting or other normal interior decorative changes) to the Leased Premises or any part thereof except by and with the prior written consent of Landlord.  Plans and specifications for all desired work, (including Tenant’s Construction associated with Tenant’s downsizing), shall be submitted by Tenant to Landlord for Landlord’s approval prior to the commencement of any work.  The actual out-of-pocket cost of Landlord’s review shall be paid by Tenant within ten (10) days of receipt of Landlord’s statement therefor.  Landlord’s approval of the plans, specifications and/or working drawings for Tenant’s alterations or improvements shall create no responsibility or liability on the part of Landlord for their completeness, design sufficiency, or compliance with all laws, rules and regulations of governmental agencies or authorities.

Section 8.2             Compliance with Law, Ownership and Indemnification .   All alterations, improvements and additions to the Leased Premises shall be made in compliance with all applicable laws (including Environmental Laws) and governmental requirements and when made or installed shall be deemed to have attached to the real property and to have become the property of the Lease Term, or other expiration of this Lease, in as good order and condition as they were when installed, reasonable wear and tear excepted; provided, however, that if, prior to the termination of this Lease, or within fifteen (15) days thereafter, Landlord so directs, Tenant shall promptly and in compliance with all applicable laws (including Environmental Laws), remove, and if necessary dispose of, the additions, improvements, fixtures and installations which were placed in the Leased Premises by Tenant including Tenant’s vault and which are designated in such notice, and repair any damage occasioned by such removal, and, in default thereof, Landlord may effect such removals and repairs at Tenant’s expense.  In the event Tenant undertakes any alterations, improvements or additions as herein provided, Tenant shall indemnify and save Landlord harmless from and against all costs, expenses, liens, claims or damages (including attorneys’ fees) to either persons or property arising out of or resulting from the undertaking or making of such alterations, additions and improvements, including without limitation any costs or expenses to comply with The Americans With Disabilities Act and the Regulations

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thereunder, and Tenant shall provide Landlord with evidence of workmen’s compensation insurance and such other insurance as Landlord may reasonably request.

ARTICLE 9.   REPAIRS AND MAINTENANCE

Section 9.1             Landlord’s Obligations . (a) In-Line Leased Premises: Landlord shall keep and maintain the structural portions of the Leased Premises and the exterior area, including, but not limited to, the roof, foundation and exterior walls of the Leased Premises, except with respect to any damage thereto caused by any alterations or installations by Tenant or any act or negligence of Tenant, its employees, agents, invitees, licensees, subtenants, assignees or contractors or otherwise arising out of Tenant’s use or occupancy of the Leased Premises, in which event such damage shall be promptly repaired by Tenant. Except as otherwise herein provided, Landlord shall not be responsible for maintenance, repairs or improvement of any kind in or upon the Leased Premises.

                (b) Ground Leased Premises: Landlord shall not be responsible for maintenance, repairs or improvements of any kind in or upon the Ground Leased Premises or improvements thereon.

Section 9.2             Tenant’s Obligations . (a) In-Line Leased Premises: Tenant accepts the Leased Premises “as is”. Landlord has made no representation, warranty or other assurance with respect to the Leased Premises or the Shopping Center. Tenant shall keep and maintain the Leased Premises and every part thereof (excluding only the structural elements and the roof unless repair of same arises out of Tenant’s use or occupancy of the Leased Premises or negligence as described in Section 9.1) in good order, condition and repair, in compliance with Environmental Laws, as defined in Section 32.4, including, without limitation, the exterior and interior portions of all doors, door checks, security gates, windows and glass, all utility, plumbing and sewage facilities within the Leased Premises or under the floor slab thereof, fixtures, heating and air-conditioning equipment, exterior mechanical equipment, exterior utility facilities and exterior electrical equipment serving the Leased Premises and interior walls, floors and ceilings, and including compliance with applicable building and fire codes relative to fire extinguishers, sprinkler systems and other preservative measures. Tenant shall conduct all such maintenance, service, repair, replacement and disposal activities, including those with respect to any structure, equipment or system, in compliance with applicable laws, including Environmental Laws. As part of its HVAC maintenance obligation, Tenant shall enter into an annual contract with an HVAC repair firm, fully licensed to repair HVAC units in the state in which the Shopping Center is located and approved by Landlord, which firm shall (a) regularly service the HVAC unit(s) on the Leased Premises on no less than a quarterly basis, changing belts, filters and other parts as required; (b) perform emergency and extraordinary repairs on the HVAC unit(s); and (c) keep a detailed record of all services performed on the Leased Premises and prepare a yearly service report to be furnished to the Tenant at the end of each calendar year. Tenant shall furnish to Landlord, at the end of each calendar year, a copy of the HVAC maintenance contract and report described above, and proof that the annual premium for the maintenance contract has been paid. Nothing stated herein shall

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limit Tenant’s obligation to maintain the HVAC unit(s) in good condition and repair throughout the term of this Lease. If Tenant fails or refuses to comply with its obligations in this Section 9.2, Landlord may (but shall not be required to) make or complete such repairs and Tenant shall pay the cost thereof to Landlord upon demand.

(b) Ground Leased Premises: Tenant shall keep and maintain its parking area, drive-through lanes and all other portions of the Leased Premises including all improvements constructed thereon and every part thereof in good order, condition and repair (normal wear and tear excepted), in compliance with “Environmental Laws”, as defined in Section 32.4, including, without limitation, the roof and structural portions of the building, sidewalks and passageways, exterior and interior portions of all doors, door checks, security gates, windows and glass, all utility, plumbing and sewage facilities within the Leased Premises or under the floor slab thereof, fixtures, heating and air-conditioning equipment, exterior mechanical equipment, exterior utility facilities and exterior electrical equipment serving the Leased Premises and interior walls, floors and ceilings, and including compliance with applicable building and fire codes relative to fire extinguishers, sprinkler systems and other preservative measures. Tenant shall conduct all such maintenance, service, repair, replacement and disposal activities, including those with respect to any structure, equipment or system, in compliance with applicable laws, including Environmental Laws.

ARTICLE 10.   INSURANCE

Section 10.1           Tenant’s Obligation .  During the Lease Term, Tenant, at its own expense, shall maintain the following:

(a) a commercial general liability insurance policy relating to the Leased Premises providing for coverage of at least Two Million Dollars ($2,000,000) with respect to injury or death and property damage combined;

(b) (i) In-Line Leased Premises: special form property insurance, including theft and, if applicable, boiler and machinery coverage, written at replacement cost value in an adequate amount to avoid coinsurance and a replacement cost endorsement insuring Tenant’s furnishings, equipment and all items of personal property of Tenant and including property of Tenant’s customers located in the Leased Premises;

(ii) Ground Leased Premises and the improvements thereon: “all risk” property insurance (with extended coverage and such other coverage as Landlord may reasonably designate) insuring the improvements constructed by Tenant upon the Leased Premises and all fixtures and equipment, including personal property, thereon to ninety percent (90%) of their actual replacement value without deduction for physical depreciation, having a deductible of not more than $10,000:

(c) workers’ compensation coverage as required by law;

(d) with respect to alterations, improvements and the like required or permitted to be made by Tenant hereunder, contingent liability and builder’s risk insurance, in amounts reasonably satisfactory to Landlord;

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(e) (intentionally deleted)

(f) plate glass insurance covering the glass in the Leased Premises for which Tenant shall be entitled to self-insure;

(g) flood insurance if applicable; and

(h) such other insurance covering such other insurable risks as Landlord deems reasonably necessary.

Section 10.2           Requirements of Policy .  The insurance policies required by Section 10.1 shall be issued by a company and in a form satisfactory to Landlord and may not be cancelable without thirty (30) days’ written notice to Landlord. Tenant shall deliver to Landlord the original of such policy, or a certificate evidencing such policy, prior to the commencement of the Lease Term and, thereafter, at least thirty (30) days prior to the expiration of each policy. Each policy or certificate shall be accompanied by proof of payment of such policy. Provided Landlord has furnished Tenant with names and addresses of the same, each policy required under this Article shall name Landlord, Landlord’s agents, the holder of any Mortgage and any other party with an interest in the Shopping center as an insured as their interests may appear. Any required insurance may be effected by a policy of blanket insurance covering additional items or locations provided however that (1) the coverage afforded Landlord and any other parties in interest will not be reduced or diminished by reason of the use of such blanket policy of insurance; (ii) any such policy shall specify therein (or Tenant shall furnish Landlord with a written statement from the insurer under such policy specifying) the amount of the insurance allocated to the Leased Premises; and (iii) all other requirements set forth herein are otherwise satisfied.

Section 10.3           Shopping Center Insurance .  Landlord shall maintain, if available at standard rates, such availability to be determined solely by Landlord, the following:

(a) fire insurance (with extended coverage and such other coverage as Landlord nay choose) insuring the Shopping Center and all fixtures and improvements thereon to their full insurable value;

(b) rent insurance covering the risks described in paragraph (a) above in an amount equal to all Minimum Rent, Percentage Rent (as estimated by Landlord) and additional rent due under all leases relating to the Shopping Center for a period of at least one year;

(c) comprehensive general public liability insurance against any claims upon Landlord arising from the ownership, operation or control of the Shopping Center with respect to bodily injury, death, property damage or other risks of similar nature with combined limits as Landlord deems appropriate, but in no event less than Five Million Dollars ($5,000,000); and

(d) any such insurance coverage, in addition to or in substitution for the coverage set forth above, as the holder of any Mortgage may require or as Landlord may otherwise determine.

 

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Section 10.4           Policy Limits . The coverage limits of all insurance policies referred to in this Lease, in the discretion of Landlord or the holder of any Mortgage, may be increased at any time during the Lease Term.

Section 10.5           Waiver of Subrogation . Landlord and Tenant hereby mutually waive any rights they may have against each other to recover for loss or damage to property arising from a casualty insured against hereunder or which is required to be insured against hereunder. In addition, all insurance policies carried by Landlord or Tenant covering the Leased Premises shall expressly waive any right on the part of the insurer against the other party for damage to or destruction of the Leased Premises resulting from the acts, omissions or negligence of the other party.

ARTICLE 11.   TENANTS’ ASSOCIATION AND PROMOTION

(intentionally deleted)

ARTICLE 12.   COMMON AREAS

Section 12.1           Definition . “Common Areas” shall mean all sidewalks, parking lots, driveways, landscaped areas, loading areas, service areas, pedestrian malls and other areas at the Shopping Center which may, from time to time, be provided by Landlord for general use.

Section 12.2           Tenant’s Use . Landlord hereby grants to Tenant during the Lease Term a nonexclusive license to use the Common Areas. The Common Areas shall be subject to the exclusive control and management of Landlord and to such rules and regulations as Landlord may, from time to time, establish, and Landlord reserves the right to make such changes, additions, deletions, alterations or improvements in and to such Common Areas, as Landlord deems desirable, provided that there shall be no permanent and material obstruction of Tenant’s right of ingress to or egress from the Leased Premises.

Section 12.3           Maintenance . Landlord shall maintain the Common Areas in good repair, reasonably clear of debris and lighted and open during business hours.

Section 12.4           Kiosks . Landlord reserves the right to construct and sublease non-financial kiosks and sales areas on any portion of the enclosed mall, if any, or other parts of the Common Area of the Shopping Center.

ARTICLE 13. DAMAGE OR DESTRUCTION

Section 13.1           Landlord’s Obligation . If all or any part of the Shopping Center is damaged or destroyed by fire or other casualty insured under the hazard policy maintained by Landlord, Landlord shall, to the extent that insurance proceeds are available therefor, and except as otherwise provided herein, repair or rebuild the structural portions of the Shopping Center with reasonable diligence. Landlord shall have no obligation to repair or rebuild any property belonging to Tenant.

Section 13.2           Abatement . If, as a result of the damage or destruction referred to in Section 13.1, there is a substantial interference with the operation of  Tenant’s business which requires Tenant to cease doing business at the In-Line Leased Premises, then the Minimum Rent and additional rent

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payable hereunder shall abate in accordance with the square footage of In-Line Leased Premises so affected. However, if Tenant has not been able to reopen for business after six (6) months from the date of the damage or destruction, Tenant may, upon thirty (30) days’ written notice, cancel this Lease and have no further obligations to Landlord hereunder.

Section 13.3           Tenant’s Obligations . (a) Unless this Lease is terminated as provided below, Tenant, upon any damage or destruction to the In-Line Leased Premises, and subject to Landlord’s requirement to rebuild as set forth in Section 13.1, promptly shall repair, rebuild and redecorate such Leased Premises in a manner at least equal in quality to that existing prior to such damage or destruction.

(b) Unless this Lease is terminated as provided below, Tenant, upon any damage or destruction to the Ground Leased Premises or the improvements thereon, promptly shall rebuild, repair, rebuild and redecorate such Leased Premises in a manner at least equal in quality to that existing prior to such damage or destruction. There shall no be abatement of Minimum Rent or additional rent while Tenant rebuilds or repairs the improvements on the Ground Leased Premises

Section 13.4           Termination . Notwithstanding anything which may be contained in this Article 13 to the contrary, Landlord, at its option, may terminate this Lease on thirty (30) days’ written notice to Tenant given within ninety (90) days after the occurrence of any damage or destruction to the Shopping Center or any portion thereof if (i) such damage or destruction resulted from a risk not covered by Landlord’s insurance or covered in a manner which fails to yield proceeds in an amount equal to Landlord’s estimated cost of repair, or (ii) the portion of the Leased Premises which Landlord is required to repair is damaged and the estimated cost to repair such damage is more than twenty-five (25%) percent of the replacement cost of the Leased Premises, or (iii) the Shopping Center is damaged and the cost to repair such damage is more than twenty-five (25%) percent of the replacement cost of the entire Shopping Center.

ARTICLE 14. EMINENT DOMAIN

Section 14.1           Condemnation of Entire Leased Premises . If all or substantially all of the In-Line Leased Premises or the Ground Leased Premises shall be taken by condemnation or by transfer in lieu thereof, then this Lease shall terminate as of the date title is vested in the condemning authority.

Section 14.2           Partial Condemnation of the Leased Premises . If less than all or substantially all of the Leased Premises is taken by condemnation or private purchase in lieu thereof, then, if the remainder of the Leased Premises not so taken is determined by Landlord to be unusable for the purposes for which such Premises were leased, either Landlord or Tenant may terminate this Lease upon thirty (30) days’ written notice to the other, which notice must be given within thirty (30) days after such taking.

Section 14.3           Condemnation of Shopping Center . If proceedings are commenced to take any portion of the Shopping Center by condemnation or by private transfer in lieu thereof, and Landlord, in its sole discretion, elects to discontinue the

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operation of the Shopping Center or the portion thereof in which the Leased Premises are located as a shopping center, then Landlord may terminate this Lease upon thirty (30) days’ notice to Tenant.

Section 14.4           Rentals Upon Condemnation . If this Lease is terminated pursuant to any provision of this Article, then the Minimum Rent and all additional rent and charges payable hereunder shall be prorated as of the date of such termination. If, upon partial condemnation as provided in Section 14.2, this Lease is not terminated, the Minimum Rent, additional rent and all other charges shall be equitably adjusted. Tenant shall continue to make all payments of Minimum Rent and additional rent, as heretofore provided, until the adjusted rent is agreed upon, whereupon Landlord and Tenant shall settle any excess rent or shortfall.

Section 14.5           Proceeds of Condemnation . Landlord shall be entitled to the entire proceeds of any and all awards made as a result of any condemnation affecting the Shopping Center and the proceeds of any private purchase or transfer in lieu of such condemnation. Tenant shall not be entitled to any award or proceeds as a result of any value attributable to Tenant’s interest in this Lease or the unexpired portion of the Lease Term. However, in the event that the condemning authority shall entertain such claim, Tenant shall have the right to prosecute a claim directly against the condemning authority for its trade fixtures and relocation costs, provided that no such claim shall diminish or otherwise adversely affect Landlord’s claims and the claims of any mortgagees, ground lessors or owners of any interest in the Shopping Center.

ARTICLE 15.   ASSIGNMENT AND SUBLETTING

Section 15.1           Consent Required . Tenant shall not, voluntarily, involuntarily or by operation of law, assign, pledge or encumber this Lease or any interest or Tenant herein, in whole or in part, or sublet the whole or any part of the Leased Premises, or permit any other persons to Occupy the Leased Premises, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Tenant may assign this Lease and the right to occupy the Leased Premises to any entity controlling, controlled by or under common control with Tenant or into which Tenant may be merged, without the prior written consent or Landlord. The acceptance of rent from any person other than Tenant shall not be deemed to be a waiver of any of the provisions of this Lease or to be a consent to the assignment of this Lease or subletting of the Leased Premises. The consent of Landlord in any instance to an assignment or subletting shall not be deemed to be a consent, or a waiver of the requirement for the Tenant to obtain consent, to any subsequent assignment or subletting.

Section 15.2           Corporation or Other Entity . Tenant may, at any time, without the consent of the Landlord, assign or otherwise transfer this Lease or any portion thereof to a parent, subsidiary, or affiliate corporation or entity; or any corporation or entity resulting from the consolidation or merger of Tenant into or with any other entity: or to any person, firm or corporation acquiring a majority of Tenant’s issued or outstanding capital stock or a substantial part of the Tenant’s physical assets: provided, however, that in the event of any

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such assignment or transfer, the assignee shall assume in writing the performance and observance of all the terms and conditions of this Lease.

Section 15.3           Creditors . An assignment for the benefit of creditors or by operation of law shall not be effective to transfer any rights to any assignee without the prior written consent of Landlord.

Section 15.4           Permitted Assignment . Any subletting or assignment consented to by Landlord pursuant to this Article 15 shall be subject to and conditioned upon the following: (i) at the time of any proposed subletting or assignment, Tenant shall not be in default under any of the terms, provisions or conditions of this Lease; (ii) the sublessee or assignee shall occupy only the Leased Premises and conduct its business in accordance with the Permitted Use; (iii) if the rents, charges or other sums required to be paid by any such sublessee or assignee exceed the rents, charges or other sums reserved hereunder, then Tenant shall pay to Landlord monthly the entire amount of such excess, which shall be deemed additional rent; (iv) prior to occupancy, Tenant and its assignee or sublessee shall execute, acknowledge and deliver to Landlord a fully executed counterpart of a written assignment of lease or sublease, as the case may be, by the terms of which: (x) in case of an assignment, Tenant will assign to the assignee Tenant’s entire interest in this Lease, together with all prepaid rents and security deposited hereunder, and the assignee will accept said assignment and assume and agree to perform, directly for the benefit of Landlord, all of the terms, covenants and conditions of this Lease on the Tenant’s part to be performed; or (y) in case of a subletting, the sublease in all respects will be subject and subordinate to all of the terms, covenants and conditions of this Lease and the sublessee thereunder will agree to be bound by and to perform all of the terms, covenants and conditions of this Lease on the Tenant’s part to be performed; (v) in the event of an assignment of this Lease or subletting of all or part of the Leased Premises, Tenant shall, at its expense, comply with all requirements of The Americans With Disabilities Act relating to the assignee or sublessee, as the case may be, and its business; (vi) notwithstanding any such assignment or subletting under the terms of this paragraph, Tenant will not be released or discharged from any liability whatsoever under this L


 
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