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LEASE AGREEMENT
LANDLORD: B. K. CAMPBELL, INC.
TENANT: FIRST NATIONAL BANK OF CHESTER COUNTY
SHOPPING CENTER: Name to be determined
ARTICLE I: GRANT AND BASIC TERMS
1.00 Basic Terms and Definitions
1.01 Grant of Leasehold
1.02 Commencement of Lease
1.03 Use of Common Areas
1.04 Commencement of Minimum Rent and Additional Rent
1.05 Lease Term
1.06 Condition of Leased Premises
1.07 Tenant's Work
1.08 Shopping Center Provisions
1.09 Option To Renew
ARTICLE II: RENT
2.01 Minimum Rent
2.02 Percentage Rent
2.03 Gross Receipts Defined
2.04 Tenant's Records
2.05 Audit
2.06 Taxes and Insurance
2.07 Interest on Delinquent Rent
2.08 Late Fee
2.09 Returned Checks
ARTICLE III: CONDITION OF LEASED PREMISES
3.01 Landlord's Obligations
ARTICLE IV: CONDUCT OF BUSINESS
4.01 Use of Leased Premises
4.02 Operation of Business
ARTICLE V: COMMON AREAS
5.01 Control of Common Areas by Landlord
5.02 Common Area Maintenance Contribution
5.03 Definitions
ARTICLE VI: ALTERATIONS, LIENS AND SIGNS
6.01 Alterations
6.02 Tenant Shall Discharge All Liens
6.03 Signs, Awnings and Canopies
ARTICLE VII: MAINTENANCE OF LEASED PREMISES, SURRENDER AND
RULES
7.01 Maintenance, Repair, and Replacement by Tenant
7.02 Maintenance by Landlord
7.03 Surrender of Leased Premises
7.04 Rules and Regulations
ARTICLE VIII: INSURANCE AND INDEMNITY
8.01 Casualty Insurance
8.02 Waiver of Subrogation
8.03 Increase in Fire Insurance Premiums
8.04 Liability Insurance
8.05 Indemnification of Landlord
8.06 Plate Glass Insurance
8.07 Liquor Liability Insurance
8.08 Insurance Policy
ARTICLE IX: UTILITIES
9.01 Utility Charges
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ARTICLE X: PRIORITY OF LEASE
10.01 Subordination
10.02 Notice to Landlord of Default
10.03 Estoppel Certificate
10.04 Attornment
ARTICLE XI: ASSIGNMENT AND SUBLETTING
11.01 Consent Required
ARTICLE XII: WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS,
AND HAZARDOUS SUBSTANCES
12.01 Waste or Nuisance
12.02 Governmental and Insurance Requirements
12.03 Hazardous Substances
ARTICLE XIII: PROMOTION FUND
ARTICLE XIV: DESTRUCTION OF LEASED PREMISES
14.01 Partial Destruction
14.02 Substantial Destruction
14.03 Destruction of Shopping Center
ARTICLE XV: EMINENT DOMAIN
15.01 Condemnation
ARTICLE XVI: DEFAULT OF TENANT
16.01 Tenant's Default
16.02 Remedies
16.03 Further Remedies of Landlord
16.04 Legal Expenses
16.05 Failure to Pay; Interest
ARTICLE XVII: ACCESS BY LANDLORD
17.01 Right of Entry
ARTICLE XVIII: TENANT'S PROPERTY
18.01 Taxes on Leasehold
18.02 Loss and Damage
18.03 Notice by Tenant
ARTICLE XIX: HOLDING OVER; SUCCESSORS
19.01 Holding Over
19.02 Successors and Assigns
ARTICLE XX: QUIET ENJOYMENT
20.01 Landlord's Covenant
ARTICLE XXI: MISCELLANEOUS
21.01 Waiver
21.02 Accord and Satisfaction
21.03 No Partnership
21.04 Force Majeure
21.05 Landlord's Liability
21.06 Notices and Payments
21.07 Financial Statements
21.08 Captions and Section Numbers
21.09 Definitions
21.10 Partial Invalidity
21.11 Recording
21.12 Entire Agreement
21.13 Jury Trial; Claims; Survival
21.14 Applicable Law
21.15 Consents and Approvals
21.16 Authority
21.17 Interpretation
21.18 Brokers
ARTICLE XXII: SECURITY AND RENT DEPOSITS
22.01 Amount of Security Deposit
22.02 Use and Return of Security Deposit
22.03 Rent Deposit
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ARTICLE XXIII: TENANT AND COVENANTS; EASEMENTS
23.01 Tenant Covenants
23.02 Easements
EXHIBITS
Leased Area and Development Plan for Shopping
Center.........Exhibit A
Tenant's Construction
Agreement..............................Exhibit B
Disclosure For Confession of
Judgment........................Exhibit C
Estoppel
Certificate.........................................Exhibit D
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is entered into pursuant to the
following
terms and conditions:
ARTICLE I: GRANT AND BASIC TERMS
--------- ---------------------
1.00 Basic Terms and Definitions. This Lease is subject to the
following basic
---------------------------
terms and definitions:
(a) Date of Lease: March 28, 2005
(b) "Landlord": B. K. Campbell, Inc.
Address: 402 Bayard Road,
Kennett Square, PA 19348
Attn: Brian Campbell, 610-444-7600
(c) "Tenant": First National Bank of Chester County Branch
Address: 275 Limestone Road, Oxford, PA 19363
Billing and Notices Address: 202 Carter Drive, West Chester, PA
19382
Attn: Carlos Questell
Owners/Corporate Phone Number:
Tax I.D. Number: 23-1209886
(d) "Shopping Center":
Address:
(e) Tenant's "Leased Premises": Bank Branch site highlighted and
identified
on Exhibit "A."
The Gross Leasable Area of the Leased Premises shall be measured
from
the center of all interior demising walls and the outside of
all
exterior walls.
(f) Rental Term: 10 years, subject to adjustment pursuant to
Section 1.05
and subject to validly exercised Renewal Term(s).
(g) Construction Commencement Date: subject to Section 1.06
Lease
Commencement Date: subject to Sections 1.02 and 1.05
Lease Expiration Date: subject to Sections 1.02 and 1.05
Rent Commencement Date: subject to Section 1.04
Once actual dates are known, these dates shall be confirmed in
writing
by both parties as required by Section 1.02.
(h) Minimum Rent: (see Section 2.01) Due 1st day of each month: See
Rent
Schedule attached as APPENDIX 1.
(i) Option(s) to Renew: One ten (10) year period ("First Renewal
Term")
and one nine (9) year period ("Second Renewal Term"), with 180
days
notice (see Section 1.09)
Minimum Annual Rent - Due 1st day of each month:
(j) Use of Leased Premises (see Section 4.01): Retail Bank Branch
or other
commercial uses consistent with the operation or administration of
a
state or federally chartered bank.
(k) Trade Name of Tenant (see Section 4.01): First National Bank
of
Chester County, or FNB
(l) "Broker": B.K. Campbell, Inc. (see Section 21.18)
(m) Security Deposit: n/a (see Section 22.01)
(n) Rent Deposit: n/a (see Section 22.03)
(o) "Additional Rent": Landlord will provide estimates of
Tenant's
proportionate contributions for Common Area Operating Costs,
Insurance, Taxes, and other common charges no later than thirty
(30)
days before the Lease Commencement Date.
Check to be made payable to:
(p) Late Fee on Rent and Other Charges (See Section 2.08): 5% after
10
days late
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(q) Returned Check Fee (See Section 2.09): $50.00
(r) CAM Admin Fee (See Section 5.03): 7.5% of Total CAM Costs
(s) Condition of Leased Premises (See Section 1.06): Upon
substantial
completion of Landlord's Work described on Exhibit "B," Property
will
be delivered to Tenant in a clean, broom-swept condition.
1.01 Grant of Leasehold. Landlord hereby demises and leases to
Tenant, and
------------------
Tenant rents from Landlord, the Leased Premises and building to be
constructed
thereon (the "Building") as depicted on Landlord's proposed
Development Plan for
the Shopping Center, Exhibit "A," subject to all of the terms and
conditions of
this Lease.
1.02 Commencement of Lease. The Lease Term shall commence on the
date that
---------------------
Landlord substantially completes Landlord's Work (hereinafter
"Lease
Commencement Date"). As used in this Lease, the terms (i)
"Landlord's Work"
shall mean the exterior construction of the Building and all
utilities and
internal systems as contemplated by Landlord's Final Land
Development Plan for
the Leased Premises and Building attached to this Lease as Exhibit
"A" and (ii)
"substantially complete" and "substantial completion" shall mean
the date that
the Landlord's Work has been completed in compliance with all
applicable
Township regulations, ordinances, and laws, with the exception of
minor items
which can be completed without material interference of the
installation of
fixtures or improvements for Tenant's business. Upon substantial
completion, the
parties shall sign a memorandum or similar letter that establishes
the Lease
Commencement Date, Rent Commencement Date, and expiration of the
Term and
Renewal Periods.
1.03 Use of Common Areas. The use and occupation by Tenant of the
Leased
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Premises shall include the use, in common with others entitled
thereto, of the
Common Areas, employees' parking areas, service roads, loading
facilities,
sidewalks and customer car parking areas of the Shopping Center,
and such other
facilities as may be designated from time to time by Landlord,
subject, however,
to the terms and conditions of this Lease. Landlord may designate
certain
portions of the parking areas as reserved for use of certain
tenants or
customers of certain tenants. All parking rights are also subject
to ordinances
of the Municipality, County, or State in which the Shopping Center
is located.
Landlord shall not permit any construction, plantings, or truck or
delivery
parking within the cross-hatched areas on Exhibit "A" that will
impede or
obstruct any site lines or vehicles or pedestrian vision of the
Building or
Tenant's approved signage.
1.04 Commencement of Minimum Rent and Additional Rent. Tenant's
obligation
to pay Minimum Rent shall commence on the date which is thirty (30)
days after
the Lease Commencement Date (hereinafter the "Rent Commencement
Date"). Tenant's
obligation to pay Additional Rent shall also commence on the Rent
Commencement
Date.
1.05 Lease Term. The term of this Lease shall commence on the
Lease
-----------
Commencement Date, continue for ten (10) years beginning on the
Rent
Commencement Date (subject to validly exercised First or Second
Renewal Terms).
In the event the Rent Commencement Date is other than the first day
of the
month, the period between the Rent Commencement Date and the first
full day of
the first full month next succeeding shall be added to the Rental
Term, and
therefore, the first year of the Rental Term shall be deemed to be
extended to
include such partial month and the following twelve (12) months so
as to end on
the last day of the month.
1.06 Condition of Leased Premises. Landlord agrees at its cost and
expense
----------------------------
to complete Landlord's Work and to deliver possession of the Leased
Premises to
Tenant in a substantially completed condition (as defined in
Section 1.02) on or
before six (6) months from the date of issuance of a building
permit applicable
to the Leased Premises. For each day beyond the six-month period
that the Leased
Premises is not substantially complete, Landlord shall pay to
Tenant, as
liquidated damages (representing an estimate of Tenant's loss of
business
opportunity), the sum of One Thousand Seven Hundred Dollars
($1,700.00) which
may, at Tenant's option, be either demanded by Tenant in cash or
offset against
future installments of Minimum Rent. Landlord further agrees and
covenants to
use its best efforts to obtain a building permit by April 30, 2005,
but Tenant
acknowledges that there shall be no penalty for Landlord's failure
to obtain the
permit as long as Landlord uses, and continues to use, its best
efforts to
obtain the permit. If Landlord's Work is delayed or hindered by
strike,
casualty, fire, injunction, inability to secure materials, or
restraint of law,
unusual action of the elements, or any other cause beyond the
control of
Landlord, then the said period shall be extended to the extent of
such delays.
Landlord shall furthermore make all commercially reasonable efforts
to complete
the Shopping Center within eighteen (18) months from the date that
adequate
public sewage capacity is available for the Shopping Center. If
Landlord does
not complete the Shopping Center pursuant to the Land Development
Plan attached
as Exhibit "A" and make its pad sites available for leasing within
such 18-month
period, Tenant shall receive an abatement of twenty-five percent
(25%) of the
Minimum Rent until such time as the Shopping Center is complete and
Tenant
spaces are available for leasing. Landlord warrants that the Leased
Premises and
Building, including the HVAC system, plumbing, hot water heater and
electrical
systems on the Leased Premises will be in compliance with all
building codes and
for a period of one (1) year after the Rent Commencement Date: (i)
all such
systems will be in good working order and (ii) that the roof will
be free of
leaks.
1.07 Tenant's Work. Other than Landlord's Work, Tenant shall make
all other
-------------
necessary improvements to the Leased Premises and Building to
operate Tenant's
business ("Tenant's Work"). Tenant's Work shall comply with all
applicable
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statutes, ordinances, regulations, and codes and shall strictly
comply with the
requirements of Article VI hereof. Tenant may not puncture the roof
or interfere
with the sprinkler system without specific written permission from
Landlord.
Tenant prior to the Lease Commencement Date, shall with the prior
consent of
Landlord (which consent may be withheld or delayed by Landlord due
to
requirements of Landlord's Work), be permitted to install its
fixtures and
equipment provided it first delivers to Landlord a copy of its
liability
insurance certificate in accordance with Section 8.04. Any work
done by Tenant
prior to completion of the Leased Premises shall be performed in a
manner as
will not interfere with the progress of the work by Landlord of
substantially
completing construction of Landlord's Work and Landlord shall have
no liability
or responsibility for loss of or any damage to fixtures, equipment
or other
property of Tenant so installed or placed on the Leased
Premises.
1.08 Shopping Center Provisions. Except as otherwise provided
herein, no
---------------------------
rights or remedies shall accrue to Tenant arising out of the
failure of Landlord
to construct or lease any other parts of the Shopping Center or
from any changes
in occupancy by tenants in the Shopping Center. It is understood
that said
Exhibit "A" sets forth the general layout of the Shopping Center
but shall not
be deemed as a warranty, representation or agreement on the part of
Landlord
that the Shopping Center layout will be exactly as depicted on said
Exhibit, and
Landlord specifically reserves the right from time to time and
without the
consent of Tenant: (i) to change the number, size, height
(including additional
stories) or locations of the buildings or common areas in the
Shopping Center as
Landlord may deem proper; (ii) to change or modify any means of
ingress or
egress, provided that any change that affects Tenant shall be
approved in
advance by Tenant; (iii) construct building(s) and/or kiosk(s) on
or in the
common area; or (iv) to add additional land or buildings or both to
the Shopping
Center. The Landlord states and Tenant acknowledges that from time
to time
circumstances may arise under which it would be beneficial to the
Shopping
Center to relocate one or more tenants (other than Tenant) within
the Shopping
Center.
1.09 Option To Renew. Provided Tenant is not in default of any
material
---------------
term, condition or covenant contained in this Lease beyond any
applicable cure
period, Tenant shall have the option of renewing this Lease for the
First and
Second Renewal Terms on the same terms and conditions as provided
herein. The
option for the Second Renewal Term shall only be capable of
exercise in the
event that the option for the preceding Renewal Term has been
validly exercised.
Notice of the exercise of such Option to Renew shall be given by
Tenant to
Landlord in writing no later than one hundred eighty (180) days
prior to
expiration of the Original Term or the previous Renewal Term.
ARTICLE II: RENT
---------- ----
2.01 Minimum Rent. Minimum Rent hereunder shall be as set forth in
Section
------------
1.00(h) and shall be payable in monthly installments in advance,
without set
off, on the first day of each and every month throughout the Lease
Term from the
Rent Commencement Date at the office of Landlord or at such other
place
designated by Landlord, without any prior demand. Minimum Rent for
any
fractional month shall be prorated and payable in advance. The
parties agree
that the Minimum Rent is based on the cost to Landlord of
completing and
financing the Landlor's Work, and as such the Landlord shall
disclose to Tenant
the total costs to Landlord relating to the same. For purposes of
this Lease,
the Gross Leasable Area of the Leased Premises shall be deemed to
be that set
forth in Section 1.00(e).
2.02 Percentage Rent. [Intentionally Omitted]
2.03 Gross Receipts Defined. [Intentionally Omitted]
2.04 Tenant's Records. [Intentionally Omitted]
2.05 Audit. [Intentionally Omitted]
2.06 Taxes and Insurance. Tenant shall pay to Landlord as
Additional
--------------------
Rent (i) its proportionate share of real estate taxes, special
taxes and
assessments and all insurance for the Shopping Center (excluding
any
tenants separately taxed or charged for insurance or insurance
paid
pursuant to Section 5.03) and (ii) any separate or special
assessment
related to the Building. Insurance shall include all risk coverage,
fire
insurance for the full replacement value of the improvements,
extended
coverage and all other perils coverage, loss of rents coverage,
plus all
endorsements and other coverages required as the result of
Tenant's
business being conducted on the Leased Premises. Landlord shall
notify
Tenant of the amount of such charges, and Tenant shall pay Landlord
such
amounts within fifteen (15) days from the date of notice to it by
Landlord.
Tenant's proportionate share is the fraction, the numerator of
which is the
Gross Leasable Area in the Leased Premises and the denominator of
which is
the total Gross Leasable Area of the Shopping Center (excluding any
tenants
separately taxed or charged for insurance), provided that if the
taxes for
the Shopping Center are increased materially because of assessment
of
Tenant's improvements at a higher rate than other tenants in the
Shopping
Center, Tenant agrees to pay any such excess taxes and provided
further
that Tenant shall be responsible for all additional fire insurance
premiums
as set forth in Section 8.03. Landlord, at Landlord's option, may
bill
Tenant on a monthly basis based on one-twelfth (1/12) of the
estimated
annual amount for taxes and insurance as estimated by Landlord, and
Tenant
shall pay said cost for tax and insurance with monthly Minimum Rent
on the
first day of each month in advance. The initial estimate shall be
as set
forth in Section 1.00(q). In the event that Tenant's payments in
such year
exceed Tenant's proportionate share of the actual tax and insurance
costs,
Tenant shall be credited the amount of the overpayment. If
Tenant's
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proportionate share of the actual tax and insurance costs exceeds
the
payments made in such year by Tenant, Tenant shall pay the
difference to
Landlord within thirty (30) days of receiving a detailed statement
therefor
from Landlord or Tenant shall be in default of the Lease. In the
event
Tenant does not make said payment monthly, Tenant shall be in
default of
this Lease. Landlord, at Landlord's option, may obtain separate
taxable
status for the Leased Premises, and in such event, Tenant's tax
contribution shall be based thereon. Additionally, with respect to
taxes:
(a) Right to Contest Assessments. Landlord may contest any and
all
such real estate taxes. If the result of any such contest shall be
a
reduction in the amount of the real estate taxes so contested, that
portion
of any refund, reduction, credit or recovery from the taxing
authorities
with respect to such real estate taxes which is in the same
proportion of
the total refund or recovery as Tenant's share of taxes, shall
belong to
Tenant, and the balance shall belong to Landlord. The cost of any
such
contest shall be paid as Additional Rent in the same proportionate
share as
the real estate taxes are paid.
(b) Real Estate Tax. Real estate tax means: (i) any fee, license
fee,
license tax, business license fee, commercial rental tax, levy,
charge,
assessment, penalty or tax imposed by any taxing or judicial
authority
against the Shopping Center or land upon which the Shopping Center
is
located; (ii) any tax or charge for fire protection, streets,
sidewalks,
road maintenance, refuse or other services provided to the Shopping
Center
by any governmental agency; (iv) any tax imposed upon this
transaction, or
based upon a re-assessment of the Shopping Center due to a change
in
ownership or transfer of all or part of Landlord's interest in the
Shopping
Center; and (v) any charge or fee replacing any tax previously
included
within the definition of real property tax.
2.07 Interest on Delinquent Rent. All delinquent Minimum Rent
and
------------------------------
Additional Rent and all other charges due under this Lease shall
accrue interest
at a rate equal to the maximum amount permitted by law,
irrespective of and in
addition to any Late Fees charged pursuant to Article 2.08 of this
Lease, from
the due date of such payment and shall constitute other rent
payable by Tenant
under this Lease and shall be paid by Tenant to Landlord upon
demand. Payment
shall not be deemed received if Tenant's payment is not actually
collected (such
as charges for returned checks).
2.08 Late Fee. In the event that any monthly payment of rent
provided for
--------
in this Lease is received by Landlord on or after the sixth (6th)
day of the
month, or any other charge provided for in this Lease shall become
overdue for a
period in excess of five (5) days, Tenant shall pay to Landlord a
late charge of
five ($.05) cents for each dollar ($1.00) overdue, each month that
it remains
overdue, to cover the extra expense involved in handling delinquent
payments.
2.09 Returned Checks. In the event Landlord receives a check from
Tenant
----------------
written on insufficient funds, Landlord may charge Tenant a $50.00
fee to
reimburse Landlord for its costs and expenses. In the event Tenant
has two (2)
checks returned by the bank, for any reasons whatsoever, Landlord
has the right
to require all future payments from Tenant to be paid in either
certified funds,
a bank check or money order.
ARTICLE III: CONDITION OF LEASED PREMISES
----------- ----------------------------
3.01 Landlord's Obligations. As of the time Tenant takes possession
of the
----------------------
Leased Premises, Landlord, shall deliver the Leased Premises broom
clean and the
air conditioning, heating, plumbing, electrical systems and
equipment shall be
in good working condition and in compliance with all building
codes. Landlord
shall warrant proper operation of all systems installed by Landlord
for a period
of one year from the Lease Commencement Date provided Tenant shall
be
responsible for all repairs due to improper usage, improper
maintenance or
damage caused by the acts or omissions of the Tenant, its agents,
servants,
employees, contractors, and invitees. Landlord shall provide
Tenant, upon
written request, copies of all extended warranties applicable to
Leased
Premises. Except as above, the respective obligations of Landlord
and Tenant as
regards maintenance and repairs are governed by Article VII
hereinafter.
ARTICLE IV: CONDUCT OF BUSINESS
---------- -------------------
4.01 Use of Leased Premises. Subject to an assignment or sublease
that is
-----------------------
approved by Landlord or otherwise permitted by this Lease, Tenant
shall use the
Leased Premises solely for the purpose set forth in Section
1.00(j).
4.02 Operation of Business. Tenant shall use its best efforts to
open for
---------------------
business in accordance with Section 4.01 within ninety days (90)
after the
completion of Tenant's work as described in Tenant's Construction
Agreement
attached as part of Exhibit "B" to this Lease, and shall operate
the Leased
Premises in good faith during the Term hereof, provided that Tenant
may cease
operation at its discretion for a maximum continuous period not to
exceed six
(6) months without being in default of this Lease.
ARTICLE V: COMMON AREAS
--------- ------------
5.01 Control of Common Areas by Landlord. The Common Areas as
defined in
-------------------------------------
this Lease shall at all times be subject to the exclusive control
and management
of Landlord, and Landlord shall have the right from time to time to
establish,
revoke, modify and enforce reasonable rules and regulations with
respect to all
or any part of said facilities. Landlord shall also have the right
to close all
or any portion of said areas or facilities to such extent as may,
in the opinion
of Landlord's counsel, be legally sufficient to prevent a
dedication thereof or
the accrual of any rights to any person or the public therein; and
to do and
perform such other acts in and to said areas and improvements,
and/or revise and
develop the same, as Landlord shall determine to be advisable, with
a view to
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the improvement of the convenience and use thereof by the tenants
of the
Shopping Center and their customers, provided proper access to the
Leased
Premises is maintained.
5.02 Common Area Maintenance Contribution. During each calendar
year or any
------------------------------------
portion thereof during the lease term, Tenant will pay to Landlord
as Additional
Rent, subject to the limitations hereinafter set forth, a
proportion of the
common area maintenance costs hereinafter defined based upon the
ratio that the
square feet of Gross Leasable Area in Leased Premises leased to
Tenant herein
bears to the total square feet of all of the Gross Leasable Area
leased and
available for lease to all tenants in the Shopping Center,
excluding for any
item of costs the square footage of Gross Leasable Area allocated
to any tenant
responsible for directly paying such costs; provided, however, if
any item of
common area maintenance cost for the Shopping Center is increased
materially
because of Tenant's use, Tenant shall additionally pay for such
excess cost.
Tenant's share of such costs shall be estimated by Landlord on an
annual basis
for each calendar twelve (12) month period ending on December 31,
prorating
fractional years. The initial estimate shall be as set forth in
Section 1.00(o).
Tenant shall pay such estimated charge in monthly installments on
the first day
of each month in advance, and shall pay any excess charge within
thirty (30)
days of receiving a detailed statement therefor from Landlord or
Tenant shall be
in default of the Lease. In the event that Tenant's payments in
such year exceed
Tenant's proportionate share of the actual common area maintenance
costs, Tenant
will be credited the amount of the overpayment.
5.03 Definitions. For the purpose of this paragraph, "Common
Area
-----------
Maintenance Costs" means the total costs and expense incurred in
operating,
managing, maintaining, repairing, relocating, modifying, renovating
and
replacing the Common Areas hereinafter defined, including without
limitation the
costs of maintaining flags, banners, retaining walls, fences, bird
houses,
bridges, equipment and fees for the operation of loud speakers and
other
equipment supplying music to Common Areas, detention ponds, fire
sprinkler
system, utility lines and resurfacing or patching the parking areas
and labor
associated with line painting, sidewalks and curbs, security and
traffic
control, security alarm systems, exterior building painting and
repairs, public
liability and umbrella insurance, gardening, watering and
landscaping, lighting,
maintenance of sanitary control, all costs for utilities to Common
Areas,
removal of snow (including removal of snow from roof and canopy),
ice, drainage,
rubbish, and other refuse, repair or installation of equipment for
energy-saving
or safety purposes, reserves for future maintenance and repair work
(which
Tenant hereby authorizes Landlord to use as necessary), any costs
associated
with any merchants' association for the Shopping Center, Christmas
and seasonal
decorations, depreciation on equipment and machinery used in
maintenance, cost
of personnel required to provide such services, including all
wages, workmen's
compensation insurance, employee benefits, unemployment insurance,
social
security insurance, medical insurance and all other taxes and costs
of
maintaining such employees, all costs and expenses associated with
Landlord's
obligation to repair and maintain the areas described in the
agreement (if any)
described in Section 23.02 hereof, and such other items of cost and
expense
which are relatable to proper maintenance of the Common Areas, plus
seven and
one-half percent (7-1/2%) of all of the foregoing costs to cover
the
administrative cost relative to the Common Areas.
"Common Areas" means all areas, space, equipment, and special
services
provided by Landlord for common or joint use and benefit of the
occupants of the
tracts shown on Exhibit "A", their employees, agents, servants,
customers and
invitees, including without limitation parking areas, access roads,
driveways,
retaining walls, fences, bird houses, bridges, landscaped and
vacant areas,
detention ponds, loading facilities, pedestrian malls, walkways,
ramps, wash
rooms, fountains, shelters, signs, security, lighting fixtures and
equipment,
cost of utility service, and the areas appurtenant to each of the
aforesaid, and
any other areas maintained for the benefit of the Shopping Center.
Landlord
shall have the right to modify the Common Areas from time to time
as deemed
reasonable by Landlord.
ARTICLE VI: ALTERATIONS, LIENS AND SIGNS
---------- ----------------------------
6.01 Alterations. The requirements of this Section 6.01 shall apply
to
-----------
Tenant's Work as described in Section 1.07 and any alterations
thereafter.
Tenant shall not make or cause to be made any alterations,
including additions
and improvements, to the Leased Premises or to any exterior signs,
shades or
awnings that are inconsistent with the style and features employed
within the
Shopping Center. Any alterations shall be made at Tenant's sole
expense. Any
roof penetrations necessitated by Tenant's use of Leased Premises
shall be
performed by Landlord's contractor at Tenant's expense only upon
receipt of
Landlord's written approval. Tenant shall provide its own trash
containers for
construction debris; use service entrances to the Leased Premises,
if any;
conduct no core drillings during business hours; and disrupt other
tenants as
little as possible. Tenant shall secure any and all governmental
permits,
approvals or authorizations required in connection with any such
work and shall
hold Landlord harmless from any and all liability, costs, damages,
expenses
(including attorney's fees) and liens resulting therefrom. All
alterations
(expressly including all light fixtures and floor coverings,
heating,
ventilating, air conditioning, plumbing, lighting, and electrical
systems,
except: trade fixtures, trade appliances and trade equipment that
do not become
a part of the Leased Premises), shall immediately become the
property of
Landlord. Tenant shall utilize only licensed contractors or
subcontractors.
6.02 Tenant Shall Discharge All Liens. Tenant shall promptly pay
its
-----------------------------------
contractors and materialmen for all work done and performed by
Tenant, so as to
prevent the assertion or imposition of liens upon or against the
Leased
Premises, and shall, upon request provide Landlord with lien
waivers, and should
any such lien be asserted or filed, Tenant shall bond against or
discharge the
same within ten (10) days after written request by Landlord. In the
event Tenant
fails to remove or bond said lien within said ten (10) days,
Landlord may, at
its sole option, elect to satisfy and remove the lien by paying the
full amount
claimed or otherwise, without investigating the validity thereof,
and Tenant
shall pay Landlord upon demand the amount paid out by Landlord in
Tenant's
8
<PAGE>
behalf, including Landlord's costs and expenses with interest or
Tenant shall be
in default hereunder. Landlord's election to discharge liens as
provided
hereunder shall not be construed to be a waiver or cure of Tenant's
default
hereunder.
6.03 Signs, Awnings and Canopies. Tenant will not, without
Landlord's prior
---------------------------
written consent (which consent shall not be unreasonably withheld,
delayed, or
conditioned), place or suffer to be placed or maintained upon the
roof or on any
exterior door, wall, window or sidewalk of the Leased Premises, any
sign, awning
or canopy, or advertising matter or other thing of any kind,
including satellite
dishes or other communications systems, and will not without such
consent place
or maintain any decoration, lettering or advertising matter on the
glass of any
window or door of the Leased Premises. All exterior signs shall be
approved in
advance by Landlord, which approval shall not be unreasonably
withheld, delayed,
or conditioned as long as such signage complies with all applicable
zoning and
municipal regulations applicable to such signage, and is consistent
with
Tenant's original designs (completed as part of Tenant's work
hereunder), or the
type of signs otherwise approved by Landlord within the Shopping
Center. All
signs, awnings, canopies, decorations, lettering, advertising
matter or other
thing so installed by Tenant shall be professionally made and
tasteful in design
and shall at all times be maintained by Tenant, at its expense, in
good
condition and repair.
ARTICLE VII: MAINTENANCE OF LEASED PREMISES, SURRENDER AND
RULES
----------- ---------------------------------------------------
7.01 Maintenance, Repair, and Replacement by Tenant. Tenant shall,
at its
-----------------------------------------------
expense, at all times repair, maintain, and replace (a) the
interior of the
Leased Premises, together with exterior entrances, all glass and
all window
moldings, (b) all fixtures, partitions, ceilings, floor coverings
and utility
lines in the Leased Premises, and all plumbing and sewage
facilities within the
Leased Premises including free flow up to utility owned sewer
lines, and (c) all
doors, door openers, equipment, machinery, appliances, signs and
appurtenances
thereof (including lighting, heating, air conditioning, and
plumbing equipment
and fixtures), in conformity with governmental regulations and all
rules and
regulations of the Board of Fire Underwriters, in good order,
condition,
maintenance and repair. If any item which Tenant is obligated to
repair cannot
be fully repaired and more than two (2) years are left in the Term,
Tenant shall
promptly replace such item. Tenant shall be responsible for any
structural,
interior and exterior alterations and/or repairs to the Leased
Premises required
by any governmental entity or insurance carrier because of Tenant's
specific use
of the Leased Premises or arising from damage caused by Tenant, its
employees,
servants or agents. If Tenant be required to make any alterations
or
improvements to the Leased Premises, Tenant shall proceed with same
at its own
cost. Tenant may contract with, at its sole cost, a reputable
service company to
perform routine seasonal preventive maintenance on the HVAC system.
Tenant shall
provide evidence of any such contract to Landlord within thirty
(30) days of its
effective and shall also deliver copies of all renewal contracts to
Landlord as
they occur. If Tenant refuses or neglects to commence or complete
repairs,
maintenance, preventive maintenance contract or replacements
promptly and
adequately, Landlord may make or complete said repairs, maintenance
or
replacements and Tenant shall pay the cost thereof to Landlord upon
demand.
7.02 Maintenance by Landlord. Subject to Articles XIV and XV,
the
-------------------------
structural portions of the Leased Premises, the roof, exterior
walls and the
foundations, shall be maintained by Landlord, except when the
condition
requiring such repairs shall result from Tenant's act or the fault
of Tenant,
its officers, agents, customers or employees. In the event Landlord
fails to
commence repairs it is obligated hereunder to make within thirty
(30) days after
written notice from Tenant specifying the necessary repairs, Tenant
may make
such repairs and bill the Landlord or offset against the Rent for
the reasonable
costs of said repairs. Landlord shall repair, maintain and replace
the sprinkler
system within the Leased Premises (if any) and Tenant shall pay the
cost thereof
to Landlord upon demand. Such costs shall include but not limited
to:
inspections, backflow tests, and routine maintenance. In addition,
if Tenant
makes any interior alterations to the Leased Premises which require
additional
sprinkler heads or other adjustments, Landlord shall have such
adjustments made
and Tenant shall pay the cost thereof to Landlord upon demand.
7.03 Surrender of Leased Premises. At the expiration of the tenancy
hereby
----------------------------
created, Tenant shall peaceably surrender the Leased Premises,
including all
alterations, additions, improvements and repairs made thereto; all
interior
partition walls; any power wiring or power panels; lighting or
lighting
fixtures; wall coverings; drapes, blinds or other window coverings;
carpets or
other floor coverings; or other similar building operating
equipment (unless
Landlord requests in writing that any or all of such items be
removed and the
Premises returned to the original condition that existed at the
time of the
Lease Commencement Date. The Leased Premises shall be left broom
clean and in
good condition and repair, reasonable wear and tear excepted.
Tenant shall
remove all its property not required to be surrendered to Landlord
before
surrendering the Leased Premises (including trade fixtures, trade
equipment,
signs, decorations and trade personal property) as aforesaid and
shall repair
any damage to the Leased Premises caused thereby. Any personal
property
remaining in the Leased Premises at the expiration of the lease
period shall be
deemed abandoned by Tenant, and Landlord may claim the same and
shall in no
circumstances have any liability to Tenant therefor. The cost of
removing such
items which are abandoned by Tenant shall be charged to Tenant.
Upon
termination, Tenant shall also surrender all keys for the Leased
Premises to
Landlord and, if applicable, inform Landlord of any combinations of
locks or
safes in the Leased Premises. All utilities are to be transferred
into
Landlord's name, effective the date of Surrender. In no event shall
the utility
service ever be turned off. If services are terminated, Tenant
shall be solely
responsible for any resulting damage to the Premises. If the Leased
Premises are
not surrendered at the end of the term as hereinabove set out,
Tenant shall
indemnify Landlord against loss or liability resulting from delay
by Tenant in
so surrendering the Leased Premises, including without limitation
claims made by
the succeeding tenant founded on such delay. Tenant's obligation to
observe or
perform this covenant shall survive the expiration or other
termination of the
Lease Term.
9
<PAGE>
7.04 Rules and Regulations. Tenant agrees as follows:
---------------------
(a) The delivery or shipping of goods, merchandise, supplies
and
fixtures to and from the Leased Premises shall be subject to such
rules and
regulations as in the judgment of Landlord are necessary for the
proper
operation of the Shopping Center.
(b) No loud speakers, televisions, phonographs, radios or other
devices shall be used in a manner so as to be heard or seen outside
the
Leased Premises without the prior written consent of Landlord.
(c) Tenant shall not place or permit any obstructions, signage
or
merchandise in the outside areas immediately adjoining the Leased
Premises
or other Common Areas and shall not use such areas for business
purposes
other than for ingress and egress. So called "Sidewalk Sales"
are
prohibited. Any unauthorized use of the sidewalk shall result in a
Two
Hundred Fifty ($250.00) Dollar per day penalty to Tenant for
each
infraction, in addition to any and all other rights afforded the
Landlord
pursuant to this Lease.
(d) Tenant and Tenant's employees shall park their cars only in
those
portions of the parking area designated for that purpose by
Landlord.
Tenant and Tenant's employee's cars not parked in the designated
areas may
be towed, at the owner's expense and/or Tenant shall be charged
$50.00 per
day for each and every day of the infraction.
(e) Tenant shall have full responsibility for protecting the
Leased
Premises and the property located therein from theft and
robbery.
(f) Tenant shall not permit on the Leased Premises any act or
practice
which is unlawful, immoral, or which might injure the reputation of
the
Shopping Center.
(g) Tenant and Tenant's employees and agents shall not solicit
business in the parking or other Common Areas, nor shall Tenant
distribute
or place handbills or other advertising matter in or on automobiles
parked
in the parking areas or in other Common Areas.
(h) Tenant shall not conduct any auction, fire, bankruptcy sales
or
close out sales in the Leased Premises.
(i) Tenant shall keep the Leased Premises free and clear of
rodents,
bugs and vermin, and Tenant shall use, at its cost and at such
intervals as
Landlord shall reasonably require, a reputable pest
extermination
contractor to provide extermination services in the Leased
Premises.
(j) Tenant shall keep the Leased Premises and adjacent Common
Areas
orderly, neat, clean and free from rubbish and trash at all times
and to
permit no refuse to accumulate around the exterior of the Leased
Premises.
Tenant shall not burn any trash, rubbish or garbage in or about the
Leased
Premises. Trash shall be stored in a sanitary and inoffensive
manner inside
the Leased Premises or in screened areas approved by Landlord, and
Tenant
shall cause the same to be removed at reasonable intervals unless
Landlord
initiates a shopping center-wide trash removal and recycling
program (which
may or may not include any or all of the anchor tenants) in which
case
Tenant shall participate fully and such cost shall be billed as
part of the
Common Area maintenance as described in Article V.
(k) The Leased Premises shall be open for business at Tenant's
discretion, provided that Tenant shall generally be open for
business
during the hours of 10:00 a.m. to 5:00 p.m. Monday through Friday,
and
Saturday, as deemed appropriate by Tenant. Tenant shall not be
required to
be open for business on legal holidays or Sundays.
(l) To use or permit the use of the Common Areas by others to
whom
Landlord may grant or may have granted such rights in such manner
as
Landlord may from time to time designate, including but not limited
to
truck and trailer sales and special promotional events.
(m) Tenant shall not use, nor permit any part of the Premises to
be
used, for any residential purposes whatsoever, for any period of
time, no
matter how brief.
Landlord reserves the right from time to time to amend or
supplement the
foregoing rules and regulations and to adopt and promulgate
reasonable
additional rules and regulations applicable to the Leased Premises.
Notice of
such rules and regulations and amendments and supplements thereto,
if any, shall
be given to Tenant in writing. Tenant agrees to comply with all
such rules and
regulations, and Tenant shall be responsible for the observance of
these rules
and regulations by Tenant's employees, agents and invitees. The
foregoing rules
are solely for the benefit of Landlord, and Landlord shall have no
obligation to
enforce such rules for the benefit of Tenant. Landlord, at its
option, may waive
certain rules with respect to individual tenants. If Tenant
violates any rule,
Landlord may notify Tenant that Tenant is in Default.
10
<PAGE>
ARTICLE VIII: INSURANCE AND INDEMNITY
------------ -----------------------
8.01 Casualty Insurance. Tenant shall at all times keep and
maintain in
-------------------
force and effect its own insurance coverage, protecting it from
loss, damage or
injury by whatever means, with respect to all furniture, fixtures,
machinery,
equipment, stock in trade, and all other items kept, used, or
maintained by
Tenant in, on, or about the Leased Premises.
8.02 Waiver of Subrogation. Each of the parties hereto does hereby
release
---------------------
the other party hereto from all liability for damage due to any act
or neglect
of the other party (except as hereinafter provided) occasioned to
property owned
by said parties which is or might be incident to or the result of a
fire or any
other casualty against loss from which either of the parties is now
carrying or
hereafter may carry insurance; provided, however, that the releases
herein
contained shall not apply to any loss or damage occasioned by the
willful acts
of either of the parties hereto. The parties further covenant that
any insurance
obtained on their respective properties shall contain an
appropriate provision
whereby the insurance company or companies consent(s) to the mutual
release of
liability contained in this paragraph.
8.03 Increase in Fire
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