<PAGE>
EXHIBIT 10.32
LEASE
from
MYNB, LLC , Landlord
to
YARDVILLE NATIONAL BANK, Tenant
RE:
301 W. TRENTON AVE.
MORRISVILLE, FALLS TOWNSHIP, PENNSYLVANIA
DATA & EXHIBITS
DATE OF LEASE:
December 1, 2005
LOCATION OF DEMISED PREMISES: 301 W.
Trenton Ave.
Morrisville, Falls Township, Pennsylvania
FIXED RENT SCHEDULE:
<TABLE>
<CAPTION>
Period
Annual Fixed Rent
Monthly Fixed Rent
------
-----------------
------------------
<S>
<C>
<C>
12/01/05 - - 11/30/10
$113,056.68
$9,421.39
12/01/10 - - 11/30/15
$124,362.36
$10,363.53
12/01/15 & Beyond
The fixed rent shall increase by the Consumer Price Index
(CPI) for the Northern New Jersey / New York region
every anniversary date of the lease with a minimum of
a three (3) percent and a maximum of a five (5)
percent fixed rental increase.
</TABLE>
LEASE TERM:
Ten (10) years.
RENT COMMENCEMENT:
December 1, 2005
RENEWAL PROVISION: The Term of the lease agreement between Landlord
and Tenant
shall be for ten (10) years. On December 1, 2006 and each and every
subsequent
annual anniversary date of the lease (The Anniversary Date), the
expiration date
shall, without further action of the parties, be extended for an
additional year
unless and until the Tenant shall have notified the Landlord of its
intention
not to extend the expiration date beyond the end of the then
current term. Said
notice shall be in writing and delivered to the Landlord not less
than six (6)
months prior to the next anniversary
NOTICES:
Landlord:
MYNB, LLC.
c/o Hofing Management
928 West State Street
Trenton, NJ 08618
Tenant:
YARDVILLE NATIONAL BANK
Box 8487
Trenton, New Jersey 08650
Attn.: Frank
Durand
with a copy to:
YARDVILLE NATIONAL BANK
2465 Kuser Road
Hamilton, New Jersey 08690
Attn.: Daniel J.
O'Donnell, Esq.
1
<PAGE>
EXHIBITS:
A:
Plan showing location of Demised Premises
B:
Landlord's Work
C:
Signs
D:
Exclusives
E:
Rules and Regulations
2
<PAGE>
INDEX TO LEASE
<TABLE>
<CAPTION>
Page
----
<S>
<C>
Article I
Definitions...............................................
2
Article II
Lease of Demised Premises.................................
3
Article III
Term......................................................
3
Article IV
Rent......................................................
4
Article V
Tenant Reimbursements.....................................
4
Article VI
Utilities.................................................
7
Article VII
Maintenance...............................................
7
Article VIII
Tenant's Insurance........................................
8
Article IX
Limitations on Use; Rules & Regulations; Trade Name.......
9
Article X
Compliance with Applicable Law............................
10
Article XI
Preparation of Demised Premises...........................
10
Article XII
Tenant's Work.............................................
10
Article XIII
Landlord's Entry on Demised Premises......................
11
Article XIV
Assignment and Subletting.................................
12
Article XV
Indemnification of Landlord...............................
12
Article XVI
Fire and Casualty.........................................
13
Article XVII
Condemnation..............................................
14
Article XVIII
Events of Default.........................................
15
Article XIX
Landlord's Remedies.......................................
16
Article XX
Surrender of Demised Premises.............................
18
Article XXI
Holding Over..............................................
18
Article XXII
INTENTIONALLY OMMITTED.................................
18
Article XXIII
Common Areas..............................................
18
Article XXIV
Signs.....................................................
19
Article XXV
Subordination.............................................
19
Article XXVI
Nature of Landlord's Liability............................
19
Article XXVII
Waiver....................................................
20
Article XXVIII
Quiet Enjoyment...........................................
20
Article XXIX
INTENTIONALLY OMMITTED ...................................
21
Article XXX
Waiver of Subrogation.....................................
21
Article XXXI
INTENTIONALLY OMMITTED ...................................
21
Article XXXII
Miscellaneous.............................................
21
Article XXXIII
Leasehold Mortgages.......................................
23
Article XXXIV
Tenant's Responsibility Regarding Hazardous Substances....
25
Article XXXV
ISRA Compliance ..........................................
26
Article XXXVI
Sorting and Separation of Refuse and Trash................
26
Article XXXVII
Removal of Garbage and Debris.............................
27
Article XXXVIII
Renewal Option............................................
27
</TABLE>
3
<PAGE>
THIS LEASE, dated the 1st day of December , 2005, between
MYNB, LLC., a New Jersey Limited Liability Company, with offices at
c/o Hofing
Management, 928 West State Street, Trenton, NJ 08618 (hereinafter
referred to as
the "Landlord"); and YARDVILLE NATIONAL BANK, Box 8487, Trenton,
New Jersey
08650 (hereinafter referred to as the "Tenant").
WITNESSETH:
In
consideration of the agreements contained in this Lease, and for
other
good and valuable consideration, Landlord and Tenant covenant and
agree as
follows:
ARTICLE I
DEFINITIONS
For
purposes of this Lease, the following terms shall have the
indicated
meanings:
SECTION
1.01. "ADDITIONAL RENT" shall mean any sums other than Fixed
Rent
which Tenant is required to pay to Landlord under this Lease.
SECTION
1.02. "APPLICABLE LAWS" shall mean all present and future laws,
ordinances, resolutions, regulations and orders of all governmental
entitles at
any time having jurisdiction over the building.
SECTION
1.03. "COMMENCEMENT DATE" shall mean the date of the issuance of
a
temporary or permanent Certificate of Occupancy for the Demised
Premises to be
used and occupied only for lawful purposes, more specifically bank
branch and
office use. Lease Commenced December 1, 2005.
SECTION
1.04. "COMMON AREAS" shall mean all areas of the building that
are
designated by Landlord from time to time for the general use and
convenience of
Tenant and other tenants of the Building and their respective
authorized
representatives and invitees. Common Areas include, without
limitation,
pedestrian walkways and patios, landscaped areas, sidewalks
(exclusive of
sidewalks in front of the Demised Premises), service corridors,
restrooms,
stairways, decorative walls, plazas, throughways, loading areas,
parking areas
and roads.
SECTION
1.05. "DEMISED PREMISES" shall mean those premises as outlined
or
designated on the plan attached hereto and marked as Exhibit A,
being a part of
the Building. Said Demised Premises containing approximately 2,650
square feet
SECTION
1.06. "EXCUSABLE DELAY" shall mean that any time limits
required
to be met by either party hereunder, whether specifically made
subject to
Excusable Delay or not, except those related to the payment of
Fixed Rent,
Percentage Rent, if any, or Additional Rent, shall, unless
specifically stated
to the contrary elsewhere in this Lease, be automatically extended
by the number
of days by which any performance called for is delayed due to
Excusable Delay.
Excusable Delay shall mean and include those situations beyond
Landlord's or
Tenant's control, including by way of example and not by way of
limitation, acts
of God; accidents, repairs, strikes, shortages of labor, supplies
or materials;
inclement weather or, where applicable, the passage of time while
waiting for an
adjustment of insurance proceeds.
SECTION
1.07. "FIXED RENT" shall mean the guaranteed fixed rent during
the
Term to accrue as follows:
<TABLE>
<CAPTION>
RENT:
Period
Annual Rent
Monthly Rent
------
-----------
------------
<S>
<C>
<C>
<C>
12/01/05 - - 11/30/10
$113,056.68
$9,421.39
12/01/10 - - 11/30/15
$124,362.36
$10,363.53
12/01/15 & Beyond
The fixed rent shall increase by the Consumer Price Index
(CPI) for the Northern New Jersey / New York region
every anniversary date of the lease with a minimum of
a three (3) percent and a maximum of a five (5)
percent fixed rental increase.
</TABLE>
all payable in the manner provided in Section 4.01.
SECTION
1.08. "LEASE YEAR" shall mean the period beginning on the
Commencement Date and ending one year thereafter.
SECTION
1.09. "PERMITTED TRADE NAME" shall mean Yardville National Bank
or
YNB.
SECTION
1.10. "PERMITTED USE" shall mean the use of the Demised
Premises
by Tenant for the following purposes only: as a financial
institution.
4
<PAGE>
SECTION
1.11. "RENT" shall mean and include Fixed Rent and Additional
Rent.
SECTION
1.12. "RENT COMMENCEMENT DATE": shall mean the Commencement
Date.
SECTION
1.13. "BUILDING" shall mean the building located at 301 W.
Trenton
Ave., Morrisville, Pennsylvania.
SECTION
1.14. "STATE" shall mean the Commonwealth of Pennsylvania.
SECTION
1.15. "TENANT'S SHARE" shall mean 100%.
SECTION
1.16. "TERM" shall mean ten (10) years.
ARTICLE II
LEASE OF DEMISED PREMISES
SECTION
2.01. Landlord agrees to lease the Demised Premises to Tenant,
and
Tenant agrees to rent the Demised Premises from Landlord, upon and
subject to
the conditions hereinafter contained.
ARTICLE III
TERM
SECTION
3.01. The Term of the lease agreement between Landlord and
Tenant
shall be for ten (10) years. On December 1, 2006 and each and every
subsequent
annual anniversary date of the lease (The Anniversary Date), the
expiration date
shall, without further action of the parties, be extended for an
additional year
unless and until the Tenant shall have notified the Landlord of its
intention
not to extend the expiration date beyond the end of the then
current term. Said
notice shall be in writing and delivered to the Landlord not less
than six (6)
months prior to the next anniversary date.
SECTION
3.02. All of the obligations of Landlord are expressly
conditioned
upon the ability of Landlord to give possession of the Demised
Premises to
Tenant. Landlord shall have no liability whatsoever by reason of
its inability
to complete Landlord's Work, as hereinafter defined.
SECTION
3.03. If requested by Landlord, Tenant will execute and return
within seven (7) days after presentation by Landlord an agreement
confirming the
Commencement Date, the Rent Commencement Date and the date
established for the
expiration of the Term.
ARTICLE IV
RENT
SECTION
4.01. Tenant agrees to pay to Landlord the Fixed Rent, without
notice or demand, in equal monthly installments, in advance, on or
before the
first day of each and every successive calendar month during the
Term hereof,
except the first month's Fixed Rent shall be paid upon the
execution of this
Lease. The Fixed Rent shall commence on the Rent Commencement Date.
The Fixed
Rent for any period which is for less than a full month shall be a
prorated
portion of the Fixed Rent based on a thirty (30) day month.
SECTION
4.02. The Fixed Rent shall be paid to Landlord by Tenant,
without
deduction, counterclaim or setoff, except as expressly provided
herein, and at
Landlord's address or at such place as Landlord may from time to
time designate
in writing.
SECTION
4.03. If any payment of Rent is not received by Landlord within
five (7) business days of the date when due, Tenant shall pay to
Landlord on
demand as a late charge, interest on the overdue Rent at the lesser
of the
maximum rate permitted by law or ten (10%) percent per month from
the due date.
Acceptance of any late charge shall not constitute a waiver of
Tenant's default
with respect to the overdue amount, or prevent Landlord from
exercising any of
the other rights and remedies available to Landlord.
SECTION
4.04. No abatement, diminution or reduction of the Basic Rent,
or
any additional rent or other charges required to be paid by Tenant
pursuant to
the terms of this Lease, shall be claimed by, or allowed to, Tenant
for any
inconvenience, interruption, cessation or loss of business or
otherwise, caused
directly or indirectly by any present or future laws, ordinances,
order, rules,
regulations or requirements of any Federal, State, County or
Municipal
governments, or by priorities, rationing or curtailment of labor or
material, or
by war, civil commotion strikes or riots, or any matter or thing
resulting there
from or by
5
<PAGE>
any other cause or causes beyond the control of Landlord,
including,
without limitations, casualty to the Demised Premises, nor shall
this Lease in
any way be affected by any such causes, except as expressly
provided in this
Lease.
ARTICLE V
TENANT REIMBURSEMENTS
SECTION
5.01. In addition to the Fixed Rent and commencing on the
Commencement Date, Tenant shall pay to Landlord as Additional Rent,
Tenant's
Share of the following taxes, insurance premiums and Common Area
costs
(hereinafter called "Reimbursements"):
(A) All real property taxes and special assessments (the "Real
Estate Taxes") levied or assessed against the Building. Tenant
shall not be
required to pay any taxes imposed upon the net income of Landlord
or franchise
taxes of Landlord, or any estate, succession, inheritance or
transfer taxes
imposed upon Landlord. If, at any time during the Term, any lawful
governing
authority levies or assesses against Landlord any tax, fee, or
excise, however
described, as a direct substitution in whole or in part for, or in
addition to,
or as the substantial equivalent of any Real Estate Taxes, then
Tenant shall pay
as provided herein Tenant's Share of that tax, fee or excise.
Tenant shall pay
before delinquency all taxes, assessments, license fees, and other
charges that
are levied or assessed against Tenant's personal property located
on the Demised
Premises. On demand by Landlord, Tenant shall furnish Landlord with
satisfactory
evidence of these payments. If any taxes on Tenant's personal
property are
levied against Landlord or Landlord's property, or if the assessed
value of the
Building is increased by the inclusion of a value placed on
Tenant's personal
property or as a result of alterations, additions or improvements
made to the
Demised Premises by or for Tenant, Tenant, on demand, shall
immediately pay to
Landlord as Additional Rent the sum of the taxes levied against
Landlord, or the
proportion of the taxes resulting from such increase in Landlord's
assessment
caused thereby. Landlord shall be entitled to, in good faith using
its
reasonable determination, ascertain the value of the tax increase
attributable
to Tenant's personal property or alterations, additions or
improvements.
(1.) If permitted by the appropriate taxing authority without
the
necessity of a subdivision, Tenant shall make application for
the
Demised
Premises and the improvements erected thereon to be treated as
a
separate
tax lot and, if successful, shall pay real property taxes and
special
assessments directly to the taxing authority. In this event,
real
property
taxes and assessments will not be paid to Landlord as
additional
rent.
(2.) Nothing herein contained shall require Tenant to pay any
Federal or
State income taxes assessed against the Landlord, or any gift,
estate,
succession, inheritance or transfer taxes of Landlord imposed
as
owner of
the fee interest of the Demised Premises or any taxes imposed
upon rent
as such, payable by Tenant under this Lease; provided, however,
that if at
any time during the term of this Lease the methods of taxation
prevailing
at the Commencement Date shall be altered so that in lieu of or
as a
substitute for the whole or any part of the taxes, assessments,
levies,
impositions or charges now levied, assessed or imposed on real
estate and
improvements thereon there shall be levied, assessed and
imposed a
tax, assessment, levy, imposition or charge, wholly or
partially
as a
capital levy or otherwise, upon the rents received therefrom,
or
measured
by or based in whole or in part upon the Demised Premises and
imposed
upon Landlord, than all such taxes, assessments, levies
impositions, or charges or any part thereof so measured or based
shall be
deemed to
be included within the term "Impositions" for the purposes
hereof to
the extent that such imposition would be payable if the Demised
Premises
were the only property of Landlord subject to such Imposition,
and Tenant
shall pay and discharge the same as herein provided in respect
of the
payment of Impositions. Subject to the specific exclusions set
forth
above in this Section 5.01, Tenant shall in addition to the
foregoing,
pay any new taxes of a nature not presently in effect, but
which may be
hereafter levied against or imposed upon Landlord or the
Demised
Premises if such tax shall be based on or arise out of the
ownership,
use or operation of the Demised Premises.
(3.) If Tenant pays Real Estate Taxes separately, then Tenant,
upon
request of Landlord, shall furnish to Landlord, or if requested
by
Landlord
furnish to any fee mortgagee, within ten (10) days after the
date
when such
Imposition will become due, official receipts if available of
the
appropriate taxing authority, or other evidence satisfactory to
Landlord
or such mortgagee evidencing the payment thereof. The
certificate, receipt or bill of the appropriate official designated
by law
to make or
issue the same shall be prima facie evidence that such
Imposition
is due and unpaid, or has been paid at the time of the making
or
issuance of such certificate, receipt or bill.
(4.) Landlord appoints Tenant the attorney-in-fact of Landlord
for the
purpose of making all payments to be made by Tenant pursuant to
any of the
provisions of this Lease to persons or entities other than
Landlord.
In case any person or entity to whom any sum is
6
<PAGE>
directly
paid by Tenant under any of the provisions of this Lease shall
refuse to
accept payment of such sum from Tenant, Tenant shall thereupon
give
written notice of such fact to Landlord and shall pay such sum
to
Landlord
at the address specified herein and Landlord shall thereupon
pay
such sum
to such person or entity.
(5.) Notwithstanding any other provision herein set forth,
Tenant, in
addition to being responsible for taxes and insurance as herein
set forth,
shall be responsible for all fire insurance premiums on
buildings
and improvements situate on the Demised Premises from the dates
when
Impositions are first payable by Tenant pursuant to Section
5.01
above
through and inclusive of the dates when Basic Rent as herein
set
forth
shall be payable.
(6.) Tenant, at its own cost and expense, shall take good care
of the
Demised Premises, all exclusive rights of way, curbs and
appurtenances thereto and maintain and repair any easements used in
common
with
others in accordance with any maintenance and repair
obligations
relating
thereto, and shall keep the same in good order and condition,
and
reasonably
free of any dirt, rubbish, snow, ice and unlawful obstructions.
Landlord
is responsible for snow removal from Tenant's drive-thru area
at
Tenant's
sole cost and expense.
(7.) Tenant has the right to seek a reduction in the valuation
of the
Demised Premises for tax purposes and to contest in good faith
by
appropriate proceedings, at Tenant's expense, the amount of
validity in
whole or
in part of any imposition, tax or assessment affecting the
Demised
Premises.
(8.) Landlord shall not be required to join in any proceedings
referred
to herein unless the provisions of any law, rule or regulation
at
the time
in effect shall require that such proceedings be brought by or
in
the name of
Landlord or any owner of the Demised Premises, in which event
Landlord
shall join in such proceedings or permit the same to be brought
in its
name. Landlord shall not ultimately be subjected to any
liability
for the
payment of any costs or expenses in connection with any such
proceedings, and Tenant shall indemnify and save harmless Landlord
from
any such
costs and expenses. Tenant shall be entitled to any refund of
any
imposition
and penalties or interest thereon received by Landlord which
have been
paid by Tenant or which have been paid by Landlord but
previously
reimbursed in full by Tenant.
(9.) Landlord, in the event Tenant has not filed an appeal,
reserves
unto itself the right to appeal and seek a reduction in the
valuation
of the Demised Premises for real estate tax purposes.
(10.) Tenant is only responsible for its share of
Reimbursements and Impositions which come due during Tenant's Term,
and
Landlord
agrees that any improvement assessments will be paid in the
maximum
number of permitted installments.
(B) All insurance premiums incurred by Landlord for policies of
insurance
maintained on or with respect to the Building, including but
not
limited to
fire and extended coverage insurance, liability insurance,
workmen's
compensation, rent interruption insurance and any other
insurance
that Landlord deems necessary to be carried on or with respect
to the
Building. If the rate of any insurance carried by Landlord is
increased
as a result of Tenant's use of the Demised Premises, then
Tenant
shall pay
to Landlord as Additional Rent, upon demand, the full amount of
any such
increase.
(C) All customary and reasonable sums expended by Landlord for
the
maintenance and operation of the Common Areas, and an allowance
to
Landlord
for Landlord's supervision of maintenance and operation of the
Common
Areas in an amount equal to 15% times the total Common Area
Expenses
of the Building (excluding Real Estate Taxes and insurance).
Costs for
maintenance and operation of the common areas shall include by
way of
example and not by way of limitation, the costs of the
following:
resurfacing, paving, repainting and restriping, roof repairs,
exterminating, cleaning, sweeping, and other maintenance and
repair
services
with respect to the Common Areas of the Building, or any part
thereof;;
policing and providing for security guards or security patrols;
costs for
local fire protection; purchasing and maintaining refuse
receptacles and costs of trash removal; planting and relandscaping;
snow
removal;
purchasing, constructing, maintaining or repairing car stops,
directional signs and other markers; lighting and other
utilities;
reasonable
depreciation allowance on improvements, machinery, and
equipment
used in connection with the
7
<PAGE>
Common
Areas; such fees as may be paid to any third party in
connection
with such
maintenance and operation or the management of the Building
(such
management fees are to be in lieu of the 5% Landlord's
supervision
fee set
forth above); and such other costs as the Landlord, in its
reasonable
discretion, shall deem necessary for the maintenance and
operation
of the Common Areas. All Capital Expenditures made to the
Building,
i.e., expenditures which, in accordance with generally accepted
accounting
principles, are not fully chargeable to current expense in the
year the
expenditure is incurred, shall be excluded from Common Area
Expenses
except the cost of repaving described above, which repaving
cost
will be
amortized over the useful life of the improvement.
SECTION
5.02. Landlord may submit to Tenant a statement of anticipated
monthly Reimbursements for the period between the Commencement Date
and the end
of the first Lease Year and for each subsequent Lease Year or
fraction thereof.
If so, Tenant shall pay such Reimbursements on a pro rata monthly
basis
concurrent with the payment of the Fixed Rent. Tenant shall
continue to make
said monthly payments until notified by Landlord of a change
thereof. Landlord
shall furnish to Tenant a statement showing the total
Reimbursements, Tenant's
Share of total Reimbursements for the prior Lease Year, and the
payments made by
Tenant with respect to such Lease Year, within sixty (60) days
after the end of
each Lease Year. However, Landlord's failure to provide such
statement of
Reimbursements by the date provided hereinabove shall in no way
excuse Tenant
from its obligation to pay its pro rata share of Reimbursements or
constitute a
waiver of Landlord's right to bill and collect such pro rata share
of
Reimbursements from Tenant in accordance with this Article,
provided that
Landlord submits a final statement of total reimbursements for a
particular
calendar year within one year after the end of such calendar year.
If Tenant's
Share of Reimbursements for the Lease Year exceeds the payments
made by Tenant,
Tenant shall pay Landlord the deficiency within ten (10) days after
receipt of
the statement. If Tenant's payments made during the Lease Year
exceed Tenant's
Share of Reimbursements, Landlord shall credit the sum of such
excess toward the
monthly Reimbursements next coming due or, if there are
insufficient installment
periods remaining in Tenant's term, pay same over to Tenant. The
actual
Reimbursements of the prior Lease Year may be used for the purpose
of
calculating the anticipated monthly Reimbursements for the then
current Lease
Year, subject to the right of Landlord to increase the monthly
Reimbursements
for anticipated increased costs. . Tenant shall have the right, on
an annual
basis and at Tenant's sole cost, to audit all Common Area costs
charged by the
Landlord.
SECTION
5.03. Landlord shall keep full, complete and proper books,
records
and accounts of Common Area Expenses. No more than once per annum
and upon
reasonable written notice, Tenant and its agents and employees
shall have the
right at any time and at all times during regular business hours to
examine and
inspect all books and records of Landlord pertaining to Common Area
Expenses for
the purpose of investigating and verifying the accuracy of any
statement of
Common Area Expenses. Once in any calendar year, Tenant may cause
an audit of
Common Area Expenses to be made by an independent certified
accountant of
Tenant's selection and, if the Common Area Expenses for the
accounting period
covered by the statement which is the subject of the audit are
found to be
overstated by more than five percent (5%), Landlord shall
immediately pay to
Tenant the cost of such audit, not to exceed the lesser of the
amount of the
discrepancy or One Thousand Dollars ($1,000.00), plus the amount of
any
overpayment made by Tenant to Landlord, otherwise the cost of such
audit shall
be paid by Tenant. If the statement of Common Area Expenses which
is the subject
of the audit is otherwise found to be incorrect, the party found to
be owing
money shall promptly pay an offsetting sum to the other party.
ARTICLE VI
UTILITIES
SECTION
6.01. Tenant shall pay promptly for all water, gas, heat,
light,
power, sewer charges, telephone installation utility hookup,
connection and
service charges, sprinkler standby charges, and for all other
services and
utilities supplied to the Demised Premises on and after the
Commencement Date,
together with any tax, excise or surcharge thereon. Within ten (10)
days after
the expiration or termination of the Term of this Lease, Tenant
shall provide
Landlord with satisfactory evidence that all such utility charges
have been paid
through the last day of the Term. Tenant agrees to immediately
apply for all
applicable utilities to be separately metered and billed to Tenant.
If any such
services are not separately metered to and paid by Tenant, or if
any such
services are furnished and paid for by Landlord, Tenant shall pay
to Landlord as
Additional Rent a reasonable proportion to be determined by
Landlord of all
charges jointly metered with other premises and all services which
are furnished
and paid for by Landlord. If Landlord is required to construct new
or additional
utility installations, including, without limitation, wiring,
plumbing,
conduits, and mains, resulting from Tenant's changed or increased
requirements,
Tenant shall on demand pay to Landlord, in advance of installation,
the total
cost of such installation. Landlord reserves the right to interrupt
the supply
of water, gas, electric and also sewer service and any other
similar utilities
for the Demised Premises when required by reason of accident or of
repairs,
alterations
8
<PAGE>
or improvements, until such repairs, alterations or improvements
shall have been
completed. Landlord agrees to use its best efforts to limit such
interruptions
to non-business hours.
SECTION
6.02. Landlord can discontinue, without notice to Tenant, any
of
the utilities or services furnished to the Demised Premises for
which Tenant
fails to pay and no such discontinuance shall be deemed an actual
or
constructive eviction.
SECTION
6.03. Under no circumstances shall Landlord be liable to Tenant
on
account of the failure, discontinuance, interruption or quality of
the utilities
or services furnished to the Demised Premises, regardless of
whether such
utilities or services are furnished by Landlord or by third
parties, nor shall
any of the foregoing excuse any payment or performance by Tenant,
unless caused
by the gross negligence of Landlord, provided, however, if said
utilities are
discontinued, at no fault of the Tenant, for a consecutive period
of 180 days or
more, the Tenant shall have the right to terminate this Lease.
ARTICLE VII
MAINTENANCE
SECTION
7.01. Tenant, at its sole expense, shall maintain, in good
condition and repair, the Demised Premises and every part thereof
(except those
portions required to be maintained by Landlord as hereinafter
provided)
including by way of example and not by way of limitation, the
maintenance,
replacement and repair of all of Tenant's building, Tenant's
personal property,
Tenant's signs as permitted by the provisions of this Lease,
storefronts, doors,
window treatments, plate glass and show windows, door and window
frames and
moldings,, plumbing and pipes (including any damage to plumbing and
pipes caused
by the introduction of any foreign matter into the plumbing system
by Tenant or
Tenant's employees or customers), electrical wiring and conduits,
and the roof,
to the extent of any installations for vents, skylights or other
installations
made by Tenant. Tenant shall be liable for any damage to the
building on the
Demised Premises and other buildings in the Building, resulting
from the acts or
omissions of Tenant or its representatives, employees or customers.
Tenant shall
maintain its store windows in a clean and neat condition and shall
keep the
sidewalks adjoining the Demised Premises free from ice, snow and
rubbish.
SECTION
7.02. Should Tenant fail to maintain, replace or repair the
Demised Premises pursuant to Section 7.01, Landlord shall give
Tenant specific,
written notice thereof, and Tenant shall have thirty (30) days
thereafter to
cure such failure, or such longer period as is reasonably
necessary. If such
failure is not cured within said thirty (30) days, Landlord, at its
option, may
perform the necessary maintenance, replacement or repair. Should
Landlord opt
not to perform the foregoing work, it shall not in any way be
liable for any
damages sustained by Tenant, or any of Tenant's employees,
invitees, licensees
etc. Landlord shall bill Tenant directly for all costs associated
with the
necessary maintenance, replacement or repair including, but not
limited to any
damage to third parties affected by Tenant's failure to perform
said work, and
said amount shall be deemed Additional Rent and due Landlord with
the next
monthly payment of fixed rent. Failure of Tenant to comply with
this Section
7.01 (B) shall be deemed an Event of Default under this lease, but
only if
Tenant fails to cure such default prior to the expiration of the
applicable
grace period provided in Article XVIII.
SECTION
7.03. Landlord shall maintain in good condition the following
with
the cost for same to be deemed Reimbursements and the Tenant shall
be
responsible for Tenant's Share of such costs in accordance with
Article V: The
roof and structural parts of the building and other improvements in
which the
Demised Premises are located, which structural parts include the
foundations,
bearing and exterior and exterior walls (excluding glass and doors
and the
frames and molding thereof), and the electrical, plumbing and
sewage systems
lying outside the Demised Premises. Notwithstanding the foregoing,
any damage to
the roof or structure caused by (i) any negligent act or omission
by Tenant, its
agents, employees or invitees, (ii) any work done on the roof of
the Demised
Premises by Tenant, its agents or employees, or (iii) vandalism or
theft by
Tenant, its agents, employees or invitees shall be paid for in full
by Tenant.
SECTION
7.04. If Landlord fails to perform any of its obligations under
Section 7.02, Tenant shall give Landlord specific, written notice
thereof, and
Landlord shall have thirty (30) days thereafter to cure such
failure; provided,
however, that if such cure cannot reasonably be completed within
such thirty
(30) day period, then Landlord shall, subject to Excusable Delays,
commence to
cure same within thirty (30) days and diligently and in good faith
continue to
cure such failure to completion. The failure of Landlord to perform
any such
repairs shall not impose any liability on Landlord nor excuse any
performance or
payment by Tenant required by this Lease
9
<PAGE>
ARTICLE VIII
TENANT'S INSURANCE
SECTION
8.01. Tenant, at its sole expense, shall maintain liability
insurance with liability limits for injury to persons of not less
than Two
Million and 00/100 ($2,000,000.00) Dollars per person and Two
Million and 00/100
($2,000,000.00) Dollars per occurrence, and for injury to property
of not less
than One Million and 00/100 ($1,000,000.00) Dollars per occurrence,
insuring
against all liability arising out of the use or occupancy of the
Demised
Premises. All such insurance shall insure performance by Tenant of
the indemnity
provisions of Article XV and shall name Landlord, Tenant and such
other persons
with an interest in the Building as Landlord shall designate as the
insureds.
SECTION
8.02. Tenant covenants and represents, said representation
being
specifically designed to induce Landlord to execute this Lease,
that Tenant's
personal property and fixtures and any other items which Tenant may
bring to the
Premises which may be subject to any claim for damages or
destruction due to
Landlord's negligence shall be fully insured by a policy of
insurance covering
all risks with no deductible which policy shall specifically
provide for a
waiver of subrogation for Landlord and all Building tenants without
regard as to
whether or not same shall cost an additional premium and
notwithstanding
anything to the contrary contained in this Lease. Should Tenant
fail to maintain
said all risk insurance with the required waiver of subrogation, or
fail to
maintain the liability insurance, naming Landlord as an additional
named
insured, then Tenant shall be in default hereunder and shall be
deemed to have
breached its covenants as set forth herein, and such breach shall
constitute an
Event of Default, unless Tenant cures such breach within the
applicable grace
period provided in Article XVIII.
SECTION
8.03. Tenant shall insure the improvements on the property in
an
amount equal to the full replacement value of the improvements.
Such replacement
value shall be determined from time to time but not more frequently
than once in
any one sixty (60) consecutive calendar months at the request of
Landlord by an
appraiser, architect or contractor who shall be mutually and
reasonably
acceptable to Landlord and Tenant.
A. Insurance proceeds shall be held in an interest bearing
account maintained by the attorneys for Landlord and Tenant or if
Tenant's
Mortgagee so requires, then such insurance proceeds shall be held
by Tenant's
Mortgagee, The proceeds shall first be used to pay Tenant's
mortgage, if
Tenant's Mortgagee so elects, and the balance shall be used to
construct or
reconstruct buildings or improvements having value substantially
equivalent to
or greater than the value of the building(s) or improvement(s)
damaged or
destroyed. Tenant shall be responsible to provide any additional
funds above
available insurance proceeds to complete the reconstruction.
Progress payments
for reconstruction shall be paid to Tenant upon the written request
of Tenant
which shall be accompanied by reasonable evidence signed by Tenant,
or the
executive officer of Tenant, or by the architect or engineer in
charge of such
construction, dated not more than thirty (30) days prior to such
request,
setting forth the following:
B. That the sum then requested either has been paid by Tenant,
or is justly due to contractors, subcontractors, material men,
engineers,
architects or other persons who have rendered services or furnished
materials
for the restoration therein specified, and giving a brief
description of such
services and materials and the several amounts so paid or due to
each of said
persons in respect thereof, and stating that no part of such
expenditures has
been or is being made the basis, in any previous or then pending
request, for
the payment of such monies or has been made out of the proceeds of
such monies
received by Tenant, and that the sum then requested does not exceed
the value of
the services and materials described in the certificate.
C. That except for the amount, if any, stated pursuant to the
foregoing sub clause A in such certificate to be due for services
and materials,
there is no outstanding indebtedness shown on Tenant's books or
known to the
person signing such certificate, after due inquiry, for which
payment was made
under any prior requisition for labor, wages, materials, supplies
or services in
connection with such construction work, which if unpaid, might
become the basis
of a vendor's, mechanics, laborer's or material men's statutory or
similar lien
upon such construction or upon the Demised Premises or any part
thereof.
D. An official search of the public records or a search of a
title insurance company doing business in the State of New Jersey
showing that
there has not been filed with respect to the Demised Premises, or
any part
thereof, any vendor's mechanic's, laborer's, material men's or like
lien, which
has not been discharged or record, except such as will be
discharged by payment
of the amount then requested.
E. If the net money as aforesaid at the time held by the
attorneys for Landlord and Tenant, or Tenant's mortgagee, as the
case may be,
shall be insufficient to pay the entire cost of such construction,
Tenant shall
pay the deficiency. If, on the other hand, there are any surplus
funds held by
such attorneys or mortgagee, as the case may be, after payment of
all costs of
restoration, such funds shall be paid over to Tenant.
10
<PAGE>
SECTION
8.04. All insurance required under this Lease shall be issued
by
insurance companies of recognized responsibility which are
authorized to do
business in the State, having a Best Rating of B+ or better.
Tenant, prior to
entering on the Demised Premises, shall deliver to Landlord each
policy or a
certificate evidencing such policy, together with evidence of
payment of
premiums for all policies of insurance required to be maintained by
Tenant
pursuant to the terms of this Lease. Within thirty (30) days prior
to the
anniversary date of each policy of insurance required to be
maintained by Tenant
pursuant to the terms of this Lease, Tenant shall deliver to
Landlord evidence
of renewal of such policies, together with evidence of payment of
premiums for
all such policies. Each policy shall be issued as a primary policy
not
contributing with and not in excess of coverage of any insurance
which Landlord
may carry, and shall contain an endorsement requiring thirty (30)
days' written
notice from the insurance company to Landlord before cancellation
or change in
the coverage, scope or amount of any policy.
ARTICLE IX
LIMITATIONS ON USE; RULES AND REGULATIONS; TRADE NAME
SECTION
9.01. Tenant shall use the Demised Premises for the Permitted
Use
only and shall not use or permit the Demised Premises to be used
for any other
purpose without the prior written consent of Landlord, which
consent will not be
unreasonably withheld or delayed. Tenant acknowledges that Landlord
may covenant
with other tenants of the Building to restrict specific uses
elsewhere in the
Building, and Tenant agrees, upon written notice from Landlord, to
thereafter
immediately refrain from any use of the Demised Premises which is
violative of
such covenant(s). Any breach of this Article shall constitute an
Event of
Default, but only if Tenant fails to cure such breach within the
applicable
grace period provided in Article XVIII. This Section shall not
prohibit Tenant
from operating a financial institution or other lawful use
permitted under this
Lease.
SECTION
9.02. Tenant shall not use or permit the Demised Premises to be
used in any manner that will constitute waste, nuisance, unlawful,
immoral or
objectionable activity, or unreasonable annoyance (including,
without limitation
the use of loudspeakers or sound or light apparatus that can be
heard or seen
outside the Demised Premises) to other tenants in the Building or
which will
cause an increase in rates or a cancellation of any insurance
policy covering
the Building. Tenant shall not use the Demised Premises for the
preparation,
manufacture or mixing of anything that might emit any objectionable
odor or
objectionable noises or lights into the Building. No secondhand
store, auction,
distress or fire sale, or bankruptcy or going-out-of-business sale
may be
conducted on the Demised Premises without Landlord's written
consent. Tenant
shall not sell or display merchandise outside the confines of the
Demised
Premises or within the Common Areas. Tenant shall not do anything
on the Demised
Premises that will in any manner injure, vibrate, or shake the
Demised Premises
or overload the electrical system.
SECTION
9.03. Tenant shall open the Demised Premises for the Permitted
Use
for at least one day. If the Demised Premises are destroyed or
partially
condemned, and this Lease remains in full force and effect, Tenant
shall
continue operation of its business at the Demised Premises to the
extent
reasonably practical from the standpoint of good business judgment
during any
period of reconstruction. While open, Tenant shall maintain
adequate personnel
for the efficient serving of its customers. Tenant agrees that
Landlord shall
have the right to prohibit the continued use by Tenant of any
method of business
operation, advertising or interior display if, in Landlord's
reasonable opinion,
the continued use thereof would impair the reputation of the
Building or is
otherwise out of harmony with the general character thereof, and
upon notice
from Landlord, Tenant shall immediately refrain from or discontinue
such
activities. Tenant shall employ its best efforts to operate the
business
conducted on the Demised Premises in a manner consistent with a
first class
building.
SECTION
9.04. Tenant shall comply with the rules and regulations
hereinafter set forth in Exhibit E attached hereto and made a part
hereof.
Landlord shall have the right from time to time to establish
reasonable
amendments and additional rules in relation thereto. On delivery of
a copy of
such rules and regulations to Tenant, Tenant shall comply with the
rules and
regulations and any subsequent amendments thereto. Landlord shall
make
reasonable efforts to enforce the rules and regulations uniformly
against all
tenants in the Building, provided, however, that Landlord shall not
be
responsible to Tenant for the nonperformance of any of said rules
and
regulations by any other tenant or occupant of the Building or for
any failure
on the part of Landlord to enforce the same.
SECTION
9.05. Tenant shall operate the Demised Premises under the
Permitted Trade Name and no other, so long as same shall not be
held to be in
violation of any applicable law; provided, however, that the
Permitted Trade
Name may be changed if Tenant changes its name, merges with another
company or
assigns or sublets the Demand Premises with Landlord's consent,
pursuant to
Article XIV.
11
<PAGE>
ARTICLE X
COMPLIANCE WITH APPLICABLE LAW
SECTION
10.01. Tenant shall not use the Demised Premises, or permit
anything to be done in or about the Demised Premises, which will in
any way
conflict with any applicable law. Tenant shall, at its sole
expense, promptly
comply with all applicable laws, including environmental laws,
relating to or
affecting the condition, use or occupancy of the Demised Premises.
Failure to
comply with any laws shall constitute an Event of Default, as
hereinafter
defined, but only if Tenant fails to cure such failure whether the
applicable
grace period provided in Article XVIII.
ARTICLE XI
PREPARATION OF DEMISED PREMISES
SECTION
11.01. Landlord, at its expense, shall perform the work set
forth
on Exhibit B (hereinafter referred to as "Landlord's Work"). All
other work done
by Landlord at Tenant's request shall be at Tenant's expense and
shall be paid
for within five (5) days after the presentation to Tenant of a bill
for such
work. Acceptance of possession by Tenant shall be conclusive
evidence that
Landlord's Work has been fully performed in the manner required.
Any items of
Landlord's Work which are not completed as of Commencement Date
shall be
identified by Tenant on a punchlist to be submitted to Landlord at
the
Commencement Date and Landlord shall thereafter complete the same.
Any items of
Landlord's Work which are not timely identified on such punchlist
shall be
deemed completed.
SECTION
11.02. The Landlord will make every effort to complete
Landlord's
Work on or before the anticipated Commencement Date of the Term,
provided that
if there shall be a delay in such completion beyond such date, the
Term of this
Lease shall be extended by an equal period of time so that this
Lease shall
continue for the Term of Ten (10) years after completion of
Landlord's Work. The
Landlord and the Tenant shall execute a written instrument to
confirm any
modification in the dates of the Term by reason of delay in
completing
Landlord's Work.
SECTION
11.03. The Landlord's Work shall be deemed completed and the
Term
of this Lease and Tenant's obligations hereunder shall commence on
the date when
the Landlord shall deliver to the Tenant a letter stating that
Landlord's Work
is substantially completed, subject only to normal punchlist
items.
SECTION
11.04. The Landlord has delivered Space in As-Is Condition.
ARTICLE XII
TENANT'S WORK
SECTION
12.01. Subject to Landlord's obligations under Article XI,
Tenant
agrees to accept the Demised Premises in an "AS IS" condition as of
the
Commencement Date without any representations or warranties on the
part of
Landlord. Except as otherwise specifically provided in this Lease,
Landlord has
not made any representations or warranties of any kind to Tenant.
No
representations or warranties of any kind made by anyone, including
without
limitation, any real estate broker or agent, shall be binding upon
Landlord
unless expressly set forth in this Lease. Tenant shall be
financially
responsible for the following construction activities. All work
shall be
performed in accordance to architectural plans prepared by Pazdera
and
Associates and tenant shall have the right to any and all
warranties provided by
sub-contractors and/or general contractors.
A. Architecture Fees (estimated at $25,000.00)
B. Building Shell including but not limited to exterior
renovations, HVAC, electrical service, bathrooms, windows,
partitions, ceiling and lighting, utility services,
drive-thru lanes and related equipment.
C. Interior fit out including but not limited to paint,
sheetrocking, carpentry, carpet/flooring, furniture,
fixtures, and equipment.
D. Site Work (as per plan dated 9/21/2004 prepared by JG Park
and
Associates) E. Off site work (as per plan dated
3/3/2005 prepared by JG Park and Associates) F. Any
interior or exterior signage
Tenant may, at any time and from time to time, alter, expand,
demolish, restore,
modify or change any such improvements in whole or in part provided
that Tenant
shall first obtain Landlord's written approval, which approval
shall not
unreasonably be withheld. Tenant's improvements on the Premises
must have a
value substantially equivalent to or greater than the improvements
which were
originally approved by
12
<PAGE>
Landlord. All work done which is required to be performed to permit
Tenant's
occupancy and use of the Demised Premises for the Permitted Use
shall be
performed by Tenant, at its sole expense, and Landlord shall not be
required to
perform or to bear any of the expenses for such work. All of such
work shall be
performed in a diligent manner.
SECTION
12.02. Any Tenant's Work made shall remain on and be
surrendered
with the Demised Premises on expiration or termination of the
Term.
SECTION
12.03. Tenant shall have no power to do any act or make any
contract which may create or be the foundation for any lien,
mortgage or other
encumbrance upon the estate of Landlord in the Building, or any
part thereof.
All Tenant's Work, repairs, materials and labor shall be done at
Tenant's sole
expense, and Tenant shall be solely and wholly responsible to
contractors,
laborers and materialmen and such contractors, laborers and
materialmen are
hereby charged with notice that they must look solely and wholly to
Tenant for
the payment of any bills for work done and materials furnished.
Landlord
reserves the right, before approving any Tenant's Work, to require
Tenant to
furnish it a good and sufficient bond to secure Tenant's liability
for payment,
for Tenant's Work.
SECTION
12.04. Tenant shall procure and maintain an adequate workmen's
compensation insurance policy and such additional insurance
policies as Landlord
shall reasonably request to insure against losses, damages or
claims arising out
of or from Tenant's Work. Prior to the commencement of such
Tenant's Work,
Tenant shall deliver to Landlord each policy, or a certificate
evidencing such
policy, together with evidence of payment of premiums for all
policies of
insurance required to be maintained by Tenant pursuant to this
Section 12.06.
SECTION
12.05. A. On and after the date of this Lease, Tenant may make,
from time to time, applications for Permits desired by Tenant;
provided,
however, (i) that Landlord shall incur no costs or expenses in
connection
therewith; and (ii) Tenant shall indemnify and save Landlord
harmless from any
and all expenses, charges, claims or liability with respect
thereof. As used
herein, Permits shall mean all permits and approvals (including,
without
limitation, zoning, use, building, site plan and curb cut permits
and approvals;
permits and approvals required by virtue of any of the federal or
state
environmental laws as now enacted or hereafter amended or any
similar statute,
regulation or requirement whether federal, state or local; and such
other
permits and approvals which may be required to be issued by any
local, state or
federal governmental body having jurisdiction over the Premises),
licenses
subdivision and other approvals, certificates, exceptions,
authorizations,
zoning changes, zoning variances and special exceptions, as may be
required or
desired by Tenant to permit the lawful construction, installation,
maintenance
and operation on the Demised Premises of such improvements as
Tenant shall from
time to time desire. Tenant shall have no obligation to appeal the
denial of any
Permits but may do so. The granting of any Permit shall not
preclude Tenant from
reapplying for a similar Permit based upon different plans for the
Demised
Premises.
B.
Landlord shall fully cooperate with Tenant in connection with
all
applications for Permits, including when required, the actual
signing or
submission of any application or consent thereto.
SECTION
12.06 Such improvements as may from time to time exist or be
constructed on the Demised Premises by Tenant shall be owned by
Tenant until the
Termination Date or the sooner termination of this Lease. Upon such
Termination
Date or sooner termination, Tenant shall automatically transfer
ownership of
such improvements to Landlord without further documentation. If
requested by
Landlord, Tenant shall execute to Landlord by bargain and sale deed
without
payment of any consideration there for.
ARTICLE XIII
LANDLORD'S ENTRY ON DEMISED PREMISES
SECTION
13.01. Landlord and its authorized representatives shall have
the
right to enter the Demised Premises at all reasonable times, upon
reasonable
notice, except in the case of an emergency, for any purpose
whatsoever,
including, without limitation, to post "for rent" or "for lease"
signs during
the last six (6) months of the Term.
SECTION
13.02. Landlord shall not be liable in any manner for any
inconvenience, disturbance, loss of business, nuisance, or other
damage arising
out of Landlord's entry on the Demised Premises as allowed in this
Article XIII.
Tenant shall not be entitled to any abatement or reduction of rent
if Landlord
exe
