EXHIBIT 10.13
LEASE AGREEMENT
BY AND BETWEEN
FPN PRIME, L.L.C., AS LANDLORD
AND
CENTRAL JERSEY BANK, N.A., AS TENANT
PREMISES:
1903 Highway 35
Oakhurst, New Jersey
1
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TABLE OF CONTENTS
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ARTICLE
DESCRIPTION
PAGE
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ARTICLE 1 - PREMISES
..............................................................
5
ARTICLE 2 - CONSTRUCTION AND PREPARATION;
CERTIFICATE OF OCCUPANCY RELOCATION ..... 5
2(a)
Landlord Representation
............................................... 5
2(b)
Landlord's Work
.......................................................
5
2(c)
Tenant's Work
.........................................................
5
2(d)
General Liability Insurance Policy
.................................... 6
2(e)
Tenant Contracts
...................................................... 6
2(f)
Initial Tenant Work
................................................... 6
2(g)
Certificate of Occupancy
.............................................. 6
2(h)
Commencement Date
..................................................... 7
2(i)
Performance of Tenant's Work
.......................................... 7
ARTICLE 3 - TERM
..................................................................
8
ARTICLE 4 - RENT
..................................................................
8
4(a)
Additional Rent
.......................................................
8
4(b)
Annual Adjustment of Net Basic Rental
................................. 8
4(c)
CPI
Example ...........................................................
8
ARTICLE 5 - OPTION TERM(S)
........................................................
9
ARTICLE 6 - REAL ESTATE AND OTHER GOVERNMENTAL
CHARGES ............................ 10
6(a)
Tenant's Tax Percentage
............................................... 10
6(b)
Other Taxes
...........................................................
10
6(c)
Estimated Tax Payments
................................................ 10
6(d)
Tax
Contest ...........................................................
11
6(e)
Tax
Dispute ...........................................................
11
ARTICLE 7 - COMMON AREA CHARGES
................................................... 11
7(a)
CAC
Percentage ........................................................
11
7(b)
Estimated Payment of CAC
.............................................. 12
ARTICLE 8 - ADDITIONAL RENT
.......................................................
12
ARTICLE 9 Security
..............................................................
13
ARTICELE 10 -
USE
...................................................................
13
10(a)
Tenant Use
............................................................
13
10(b)
Landlord Leasing Restriction
.......................................... 13
ARTICLE 11
- UTILITIES
.............................................................
14
ARTICLE 12
- INSURANCE; INDEMNIFICATION; WAIVER
OF SUBROGATION ..................... 14
12(a)
Commercial General Liability Insurance Policy
......................... 14
12(b)
Tenant Indemnity
...................................................... 15
12(c)
Landlord Insurance Requirements
....................................... 15
12(d)
Tenant Property/Casualty Insurance
.................................... 15
12(e)
Tenant Release
........................................................
15
12(f)
Landlord Release
...................................................... 16
12(g)
Insurance Surcharge
................................................... 16
ARTICLE 13
- NON-LIABILITY
.........................................................
16
13(a)
Landlord Responsibility
............................................... 16
13(b)
Landlord Compensation
................................................. 16
ARTICLE 14
- CLEANLINESS; DISPOSAL OF GARBAGE
...................................... 16
14(a)
Tenant Requirement
.................................................... 16
14(b)
Tenant Compliance with Law
............................................ 16
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ARTICLE 15
- BROKEN GLASS
..........................................................
16
ARTICLE 16
- REPAIRS; MAINTENANCE
.................................................. 17
16(a)
Landlord and Tenant Responsibilities
.................................. 17
16(b)
Failure to Make Repairs
............................................... 17
ARTICLE 17
- ALTERATIONS; TRADE FIXTURES
........................................... 17
ARTICLE 18
- CASUALTY DAMAGE
.......................................................
18
18(a)
Landlord Repairs
...................................................... 18
18(b)
Option to Terminate
................................................... 18
18(c)
Tenant Requirement to Repair
.......................................... 19
ARTICLE 19
- SUBORDINATION
.........................................................
19
ARTICLE 20
- QUIET ENJOYMENT
.......................................................
19
ARTICLE 21
- ACCESS TO PREMISES
.................................................... 19
ARTICLE 22
- CONDEMNATION
..........................................................
20
22(a)
Taking Rendering Premises Unusable
.................................... 20
22(b)
Tenant's Termination upon Taking
...................................... 20
22(c)
Taking Award
..........................................................
20
ARTICLE 23
- ASSIGNMENT AND SUBLETTING
............................................. 20
23(a)
Tenant Assignment/Subletting
.......................................... 20
23(b)
Assignment/Subletting Conditions
...................................... 21
23(c)
Assignment/Subletting Rent
............................................ 21
23(d)
Assignment/Subletting to Related Entity
............................... 21
ARTICLE 24
- SURRENDER; HOLDOVER
................................................... 22
24(a)
Tenant Holdover
.......................................................
22
24(b)
Tenant Holdover Tenancy
............................................... 22
24(c)
Non-Waiver of Rights
.................................................. 22
ARTICLE 25
- DEFAULT
...............................................................
22
25(a)
Events of Default
..................................................... 22
25(b)
Uncured Defaults
...................................................... 23
ARTICLE 26
- JOINT AND SEVERAL LIABILITY
........................................... 23
ARTICLE 27
- NOTICE ON DEFAULT
..................................................... 23
ARTICLE 28
- REMEDIES ON DEFAULT
................................................... 24
28(a)
Remedies
..............................................................
24
28(b)
Remedies-Uncured Defaults
............................................. 24
28(c)
Termination Event
..................................................... 25
28(d)
Liquidated Damages
.................................................... 25
28(e)
Breach
................................................................
25
28(f)
Non-Waiver
............................................................
26
28(g)
Late
Fees .............................................................
26
28(h)
Personal Property
..................................................... 26
28(i)
Notice
................................................................
26
ARTICLE 29
- CERTIFICATE OF LEASE STATUS
........................................... 27
ARTICLE 30
- LANDLORD'S LIEN
.......................................................
27
ARTICLE 31
- SIGNS
.................................................................
27
ARTICLE 32
- DELIVERIES/PARKING AND MAINTENANCE
OF PARKING AREA .................... 28
32(a)
Parking Facilities
.................................................... 28
32(b)
Maintenance
...........................................................
28
32(c)
Costs
.................................................................
28
32(d)
Deliveries
............................................................
28
32(e)
Designated Parking Spaces
............................................. 28
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ARTICLE 33
- COMPLIANCE WITH MORTGAGE
REQUIREMENTS; REASONABLE MODIFICATIONS ....... 28
ARTICLE 34
- RULES AND REGULATIONS
................................................. 29
ARTICLE 35
- HEADINGS
..............................................................
29
ARTICLE 36
- COMPLIANCE WITH LAWS
.................................................. 29
36(a)
Tenant Compliance
..................................................... 29
36(b)
Right to Contest
...................................................... 29
ARTICLE 37
- FORCE MAJEURE
.........................................................
30
ARTICLE 38
- PERFORMANCE OF TENANT'S
OBLIGATIONS ................................... 30
ARTICLE 39
WAIVER
................................................................
30
ARTICLE 40
- EXECUTION; COMPLETE AGREEMENT;
COUNTERPARTS INTERPRETATION ............ 30
ARTICLE 41
- BROKERS
...............................................................
31
ARTICLE 42
- NOTICES; REGISTERED AGENT
............................................. 31
ARTICLE 43
- GUARANTEE OF LEASE
.................................................... 32
ARTICLE 44
- BINDING EFFECT
........................................................
32
ARTICLE 45
- SEVERABILITY
..........................................................
32
ARTICLE 46
- DEFINITION OF LANDLORD; LIABILITY
OF LANDLORD ......................... 32
ARTICLE 47
- ENVIRONMENTAL COMPLIANCE; ISRA
........................................ 33
47(a)
Tenant Compliance with Environmental Laws
............................. 33
47(b)
ISRA
..................................................................
33
47(c)
Lease Termination
..................................................... 34
47(d)
SIC
...................................................................
34
47(e)
Cleanup Rental Requirement
............................................ 34
ARTICLE 48
- WAIVER OF JURY TRIAL
.................................................. 35
ARTICLE 49
- EXHIBITS
..............................................................
35
ARTICLE 50
- REQUESTS AS TO CERTAIN ACTIONS
........................................ 35
ARTICLE 51
- OFFICE BUILDING LEASE
................................................. 35
ARTICLE 52
- INCOMPLETE INFORMATION OR
DOCUMENTATION ............................... 35
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Property: 1903
Highway 35, Oakhurst, New Jersey
4
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LEASE AGREEMENT
---------------
THIS
AGREEMENT,
made this 4th day of
October, 2007,
between FPN PRIME,
L.L.C., a New Jersey Limited Liability Company, with a principal office at
1903
Highway 35, Oakhurst,
New Jersey 07755 (hereinafter referred to as "Landlord"),
and CENTRAL JERSEY BANK, N.A., a banking corporation of the State
of New Jersey,
the principal
place of business
which is located at
627 Second Avenue,
Long
Branch, New Jersey 07740-0630 ("Tenant").
1.
PREMISES
--------
Landlord demises unto Tenant, and Tenant leases from Landlord,
for
the term and
upon the condition hereinafter set forth, certain premises
consisting of
approximately 9,200
square feet designated
on Exhibit A annexed
hereto. Such premises
(hereinafter referred to as the "Premises") are part of a
building (sometimes
herein called the "Building") within a development located
in the Township of
Ocean, New Jersey
(hereinafter
referred to as the
"Office
Building"). The Office
Building and Premises
are generally shown on Exhibit A.
Exhibit A, is a drawing of a proposed site plan.
2.
CONSTRUCTION AND PREPARATION: CERTIFICATE OF OCCUPANCY
RELOCATION.
------------------------------------------------------------------
(a) Landlord's
Representation. Landlord represents that it is the
owner of the land upon which the Office Building is to be constructed
and that
as of the date
hereof construction is not completed. Landlord has made no
representations,
covenants or warranties with respect to the Office Building or
Premises except as may be expressly set forth herein.
(b) Landlord's
Work. Landlord agrees to make the
improvements in
the Premises specified in Exhibit B attached hereto, if any, such
work specified
thereon and said work (herein called "Landlord's Work") shall be
completed prior
to the commencement of
the term of this Lease. Architecture and materials
used
in construction and structural details of Landlord's Work shall be
the choice of
Landlord, except as
may otherwise
be specifically provided in Exhibit B.
Landlord may substitute materials provided they are equal in
quality.
(c) Tenant's
Work. Tenant agrees, at its own cost and expense, to
perform all fixturing
and other work required for the operation of its business
(hereinafter called "Tenant's Work"). Within sixty (60) days after
execution of
this Lease, Tenant shall furnish Landlord with plans and
specifications
showing
such fixturing,
interior finishes and other work or equipment to be done or
installed by Tenant as might affect any mechanical or electrical part of the
Demised Premises or the building containing it, all of which shall
be subject to
Landlord's approval,
which approval shall not be unreasonably withheld. If the
Landlord shall not approve Tenant's plans and specifications, it
shall so notify
Tenant and specify the work objected to, and Tenant agrees that it will cause
same to be revised so as to remove or correct the work objected to by Landlord
and resubmit revised
plans and
specifications. If
Tenant shall fail to submit
plans and
specifications within
the stated time period
or required
revisions
thereof, Landlord,
in addition to any
other remedy it may have, shall have the
right to proceed with Landlord's Work and perform
5
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any work which it has
agreed to do for
Tenant in accordance
with Landlord's
judgment and discretion and the same shall be binding on
Tenant.
(d) General
Liability Insurance Policy. Prior to the commencement
of Tenant's Work,
Tenant shall obtain at its own cost and expense, pay for and
deposit with Landlord
a premium paid policy for Commercial General Liability
insurance with an
insurance company
authorized and
licensed to do business in
the State of New Jersey indemnifying and protecting Landlord from any and all
claims for
damages to persons or property or for loss of life or
property
arising out of Tenant's Work, and from and against the cost of
defending any
suit or action upon any such claim, such insurance to be in an amount not
less
than One Million Dollars ($1,000,000.00) as to any one
occurrence. Two
Million
Dollars
($2,000,000.00)
aggregate, and
Ten Million Dollars $10,000,000.00
umbrella (subject to
increase in accordance
with paragraph (a) of Section 12
hereof), and to name Landlord and any persons or entities
designated by Landlord
as additional
named insureds. Tenant shall at its own cost and expense
also
carry or cause to be procured, and provide Landlord in advance
with evidence of
the existence of, adequate worker's compensation insurance, meeting all Legal
Requirements and covering all workers, employees, servants and
others engaged in
Tenant's Work.
(e) Tenant
Contracts. Any contracts between Tenant and contractors
shall not name or refer to Landlord, or imply that Landlord is or can at any
time be liable or
responsible
for the cost, in whole or in part, of any of
Tenant's Work. No work that Landlord permits Tenant to perform or
that Tenant is
obligated to perform pursuant to this Lease, whether in the nature of
erection,
construction,
alteration or repair, shall be deemed to be for the immediate
use
and benefit of Landlord, so that no construction
liens and/or notices
of liens
(sometimes herein
referred to collectively as "Liens") shall be allowed against
the estate of Landlord
by reason of any consent given by Landlord to Tenant to
alter or improve
the Premises. As to any Liens on the Premises or Office
Building property for
or purporting to be for labor or materials alleged to be
furnished for Tenant,
or for any contractor or subcontractor of Tenant, Tenant
shall, at its own cost and expense, cause such Liens to be paid and
satisfied of
record within twenty (20) days after Landlord shall notify Tenant of
the filing
of same or,
alternatively, Tenant
shall bond such Liens
or obtain a discharge
thereof by an order of a court of competent jurisdiction within
such twenty (20)
day period.
(f) Initial
Tenant's Work. The provisions of this Section 2,
except as such
provisions by their
very nature relate only to the initial
Tenant's Work, shall
apply to any
alterations,
improvements or work as may be
performed by Tenant or
proposed to be
performed by Tenant
with respect to the
Premises. It is
understood
that Tenant's Work shall also be subject to the
provisions of Section 17 of this Lease (relating to
Alterations).
(g) Certificate
of Occupancy. Tenant
agrees that upon
completion
of Tenant's Work,
the Premises
will comply with all
legal requirements,
and
Tenant shall
procure (with Landlord's assistance, if required) a permanent
certificate of occupancy ("C/O") and shall provide a copy of the
C/O to Landlord
within ten (10) days of Tenant's receipt thereof. If a temporary C/O is issued,
then Tenant
shall procure a permanent C/O prior to the expiration of the
temporary C/O. In the event Tenant is unable to obtain a C/O
through no fault of
its own, Landlord
shall have the right
to undertake the work and/or obtain the
C/O at the sole cost and expense of Tenant, in which event Tenant shall pay
for
the cost of same upon submission by
6
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Landlord of an invoice for the cost thereof, plus fifteen percent
(15%) to cover
Landlord's overhead and administrative costs.
(h) Commencement
Date. Landlord shall give Tenant no less than
forty-five (45) days prior notice of the date on which the Demised
Premises will
be ready for delivery
to Tenant and for the commencement of Tenant's Work
(herein called "Tenant Work Date"). The Commencement Date for the term of this
Lease shall be the earlier of (1) sixty (60) days after
Tenant's Work Date; or
(2) the day on which Tenant opens the Premises for business. Rent
and additional
charges will commence to accrue on such Commencement Date. Within ten (10) days
following request therefore by Landlord or Tenant, the parties shall execute an
agreement on Landlord's form setting forth the commencement and
expiration dates
of this Lease in the form annexed hereto as Exhibit C ("CDA"),
provided, that it
is understood
that the purpose of the CDA is solely to
have a formal
written
confirmation of the
Commencement
Date as shall be determined based on the
criteria set forth above; and, accordingly, the signing and delivery of a
CDA
shall not be a pre-condition to Tenant's obligation to commence payment of
the
fixed monthly rent as of the date that in fact shall constitute the
Commencement
Date based on the applicable criteria. Upon Tenant's entry into
possession of
the Premises for commencement of Tenant's Work or for any other
purpose prior to
the Commencement
Date, Tenant shall become subject to all
terms, provisions,
covenants, conditions
and/or obligations of this Lease imposed upon Tenant
(sometimes herein
referred to collectively as "Obligations") as if the Term has
commenced, except
for the obligation to pay the fixed monthly rent for any
period prior to the Commencement Date.
(i) Performance
of Tenant's Work. On the Tenant's Work Date,
Tenant shall,
with due diligence, commence Tenant's Work and install its
fixtures in accordance with the plans and specifications
theretofore
submitted
to and approved by Landlord, in accordance with the laws, rules,
regulations and
orders of all governmental authorities having jurisdiction
thereof and
without
interferences with
other work being done in the building and in compliance with
all reasonable
rules which Landlord
and its contractors
may make, and
employ
only the appropriate labor and not cause any conflict with any
union contract to
which Landlord or its
contractor or
subcontractors
may be a party.
Landlord
shall permit Tenant to do Tenant's Work and install Tenant's fixtures prior to
Tenant's Work Date,
provided same does not interfere with Landlord's Work, or
with the rights of any person or entity then occupying the Demised Premises.
Landlord shall
have no responsibility for any loss of or damage to any of
Tenant's fixtures or
property so installed or left in the Demised Premises and
Tenant's entry
prior to the
Commencement
Date shall be subject
to all of the
provisions of this
Lease, other than the
requirements
for payment of rent
or
additional charges
(which shall not
commence until the Commencement Date).
Tenant shall furnish Landlord with all certificates and approvals relating to
Tenant's Work
which may be
required by any governmental authority for the
issuance of a
certificate of
occupancy or other approval of the building in
which the Demised Premises are located, or by the Board of Fire
Underwriters of
the State of New
Jersey or the National
Board of Fire
Underwriters
or other
similar body or bodies having jurisdiction, and Landlord shall then procure a
certificate of occupancy. Tenant's taking possession of the Demised
Premises
shall be conclusive
evidence that the Demised Premises were then in good and
satisfactory condition.
7
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3.
TERM.
-----
The term of this Lease (sometimes herein referred to as the
"Term")
and all obligation for Tenant's payment of the fixed monthly rent
and additional
rent shall commence on the Commencement Date. The Term shall end (unless
sooner
terminated as hereinafter provided) at midnight on the date of the
expiration of
five (5) years from
the first day of the
calendar month next
succeeding
the
Commencement Date (or from the Commencement Date, if such be the first day of
a
calendar month) unless Tenant has exercised its rights to any
option term(s), if
any, as provided for herein. Upon request of either
party, both Landlord and
Tenant shall execute and deliver to one another a CDA,
appropriately
completed,
in form of Exhibit C.
4.
RENT.
-----
NET BASIC RENTAL. As
net basic rental, the
Tenant shall pay to the
Landlord at Landlord's
address set forth
above, or to such
other place as the
Landlord may from time to time designate, without previous demand therefore
and
without counterclaim,
deduction or set-off, the annual sum of Two Hundred
Thirteen Thousand
($213,000.00)
Dollars (plus the cost of living increase
referred to below),
which sum shall be
payable in equal
monthly
installments
commencing June 1, 2008 in advance on the first day of the month
during the term
of the Lease, except
the first month's
rent which
shall be payable
upon the
Commencement Date.
Notwithstanding
anything to the
contrary contained herein,
the net basic rent shall remain the same and be constant for the
initial 3 years
of the term of this Agreement.
(a) Additional
Rent. In addition to the net rental
provided for
herein, the Tenant shall pay the additional rent as is provided for
in Paragraph
6 hereinafter set forth.
(b) Annual
Adjustment of Net Basic Rental. On the first day of the
month after which the
3rd anniversary
of the Commencement Date of the Lease
occurs, the Net Basic
Rental shall increase.
The increase shall be computed by
multiplying the net
basic rental paid during the immediately proceeding lease
year of the term of
the Lease by a
fraction of which the numerator is the
Consumer Price
Index figure in effect on said anniversary date and the
denominator is the
Consumer Price Index
figure in effect on the one year prior
to the 3rd anniversary of the Commencement Date. The resultant number shall
be
the net basic rental for the year next following if same is higher than
the net
basic rental immediately prior to this adjustment, and same shall
be payable for
the year of the term for which such calculation is done. A like calculation
shall be made on the anniversary of the commencement date of each year
thereafter.
(c) CPI Example.
By way of example,
if the Consumer
Price Index
for the Second
Anniversary is 160 and further assuming that the Consumer
Price
Index for the Third
anniversary is 166.3, the Net Basic Renal commencing on the
fourth Anniversary shall be calculated as follows:
166.3 CPI
for Anniversary x Net Basic Rent for First Year =
$_____________
_________________________
160 CPI
for Commencement Date
8
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which shall be payable in equal monthly installments during the fourth year of
the lease term.
The Consumer
Price Index as used
herein shall be defined to be the
Consumer Price Index for all Urban Consumers (New York, New
York-Northeastern,
New Jersey),
published by the Bureau of Labor Statistics, United States
Department of Labor or Successor, or substitute index appropriately
adjusted. In
the event that the Consumer Price Index (or successor or
substitute
index) is
not available,
a reliable governmental or other non-partisan publication
evaluating the
information
theretofore used in
determining the Consumer Price
Index shall be used for the computation set forth above.
In no event shall the adjustment calculation set forth above
result
in a rent greater than 10% percent more than the prior year's
rent.
5.
OPTION
TERM(S).
---------------
(a) Tenant
shall have the right
to be exercised
as hereinafter
provided, to extend
the Term for three (3) periods of five (5) years (sometimes
herein called the "Option Term(s)"), upon the following terms and
conditions:
(i) At the time
of the exercise of
such right, there
shall
not exist an Uncured
Default (as defined in
Section 25
hereof), and,
notwithstanding that
the extension right
shall have been
exercised by Tenant,
Tenant's right to
have the Option
Term come into existence shall, at
Landlord's option, be conditioned upon Tenant not having
committed an Uncured
Default as of the
commencement of
such Option Term.
(ii) Any extension shall be upon the same terms,
covenants
and conditions as in this Lease provided, except that:
(1) there shall
be no further
privilege of
extension
of the Term beyond the Option Term(s) referred to
above; and
(2) during any
Option Term(s), the
Basic Rent payable
by Tenant to Landlord shall be as shown on the
Rent Schedule
as being applicable during that
Option Term.
(iii) Landlord
shall have
no obligation to make any
construction contributions or do any work or perform any
services for
any Option Term with respect to the
Premises, which
Tenant agrees to accept in "as is"
condition.
(iv) Tenant
shall have timely exercised all of the prior
extension options and
shall have remained in possession
of and be then conducting business at the Premises.
(v) Tenant shall
have provided Landlord
with written notice
at least six (6) months prior to the expiration of the
initial Term or prior
9
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Option Term,
as the case may be, of
its intention
to
extend; it being
understood
that TIME OF THE
ESSENCE
with respect to the foregoing notice requirements and
that failure
to give the notice as of the stated
deadline shall
constitute a waiver of Tenant's right to
extend the Term or prior Option Term, as the case may
be.
(b) The word
"Term" or any other word or expression used in this
Lease to have
reference to the term of this Lease shall include the applicable
Option Term(s),
unless the context of the use of such word or expression
indicates otherwise.
6.
REAL
ESTATE TAXES AND OTHER GOVERNMENTAL CHARGES.
-------------------------------------------------
(a) Tenant's Tax
Percentage.
Tenant shall pay as
additional rent
Tenant's Tax
Percentage
(as hereinafter defined) of any and all real
estate
taxes and assessments,
municipal water and sewer charges and other governmental
levies and charges,
general and special,
ordinary and extraordinary, foreseen
and unforeseen, of any kind (sometimes herein collectively called
"Taxes"), that
during the term are assessed or imposed upon or become payable with respect to
the tax parcel of which the Premises are part (the "Tax Parcel").
"Tenant's Tax
Percentage" shall mean that fraction the numerator of which is the
leasable area
of the Premises
and the denominator of which is the total square foot of
leasable space in the
Tax Parcel;
provided, however, that for purposes of
determining Tenant's
Tax Percentage there hsall in no event be
included for
purposes of establishing the denominator, any space within the Tax Parcel
that
shall not have been
assessed for
purposes of Taxes or
utilized by Landlord in
connection with the
maintenance
and operation of the
premises. Tenant's tax
percentage shall initially be 51% (9,200/18,200).
In the event any
assessment at the
election of Landlord
shall be
payable in
installments, Landlord
agrees to elect the
installment method
and
only those installments including applicable interest applicable to
each lease
year shall be utilized when calculating Tenant's tax
percentage.
(b) Other Taxes.
Nothing contained in this Lease shall require
Tenant to pay any franchise, corporate, estate, inheritance,
succession, capital
levy or transfer tax of Landlord, or any income, profits or revenue tax or any
other tax, assessment, charge or levy upon the rent payable by
Tenant hereunder;
provided, however,
that if at any time
during the Term, a tax in lieu of or in
total or partial
substitution for real estate taxes, whether a tax on rents or
otherwise, shall be assessed against Landlord or upon the rent as a
substitution
in whole or in part for Taxes assessed on the Tax Parcel,
such substituted tax
shall be deemed to be included in the calculation of the amount
required to be
paid by Tenant hereunder.
(c) Estimated
Tax Payments. Landlord
shall estimate on an
annual
basis the amount of Taxes payable by Tenant on account of Tenant's Tax
Percentage, and one-twelfth (1/12th) of the amount so estimated
shall be paid on
the first day of each calendar month in advance, which estimate may be
reasonably revised
during the annual period in order to reflect more accurately
the then actual Taxes.
After the end of each tax year, Landlord shall furnish
Tenant with a statement in reasonable detail of the actual Taxes, and there
shall be an adjustment between Landlord and Tenant, with payment to
or repayment
by Landlord, as the case may
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require, to the end
that Landlord
shall receive the entire amount of Taxes
payable by Tenant on account of Tenant's Tax Percentage for the applicable
period. Any sum owed
by Landlord to Tenant shall be credited towards Tenant's
upcoming Tenant's tax percentage payment(s).
(d) Tax
Contest. Landlord shall have the sole, absolute and
unrestricted right, but not the obligation, to contest the validity
or amount of
any tax by appropriate proceedings, and if Landlord shall voluntarily
institute
any such contest it
shall have the sole,
absolute and
unrestricted
right to
settle any
negotiation, contest,
proceeding or action
upon whatsoever
terms
Landlord may, in its sole discretion, determine. In the event Landlord
receives
any refund of such Taxes (and provided Tenant is not then in default
under this
Lease) Landlord shall credit such proportion of the refund as shall
be allocable
to Tenant's tax percentage due form Tenant.
(e) Tax Dispute.
In the event of any
dispute under this
Article,
Tenant shall pay Tenant's Tax Percentage in accordance with the applicable bill
or statement, and such
payment shall be without prejudice to Tenant's position.
If the dispute shall be determined in Tenant's favor, by agreement
or otherwise,
Landlord shall pay to Tenant the amount of Tenant's overpayment resulting from
compliance with such
bill or statement.
Any such bill or
statement shall be
deemed binding and
conclusive if Tenant
fails to object
thereto within thirty
(30) days after receipt thereof.
7.
COMMON
AREA CHARGES.
--------------------
(a) CAC
Percentage.
Tenant shall pay to
Landlord, as
additional
rent, Tenant's
CAC Percentage (as hereinafter defined) of the common Area
Charges (as hereinafter defined) pertaining to the common areas and
facilities
in the Office Building including (1) the parking areas, landscaped
areas and all
other portions of the Office Building outside of any building(s)
thereon, and
(ii) the areas of any
building(s) in the Office Building, including exterior
walls, roofs,
gutters and downspouts, that are outside the leased or
leased
space (such common areas and facilities being sometimes herein collectively
called "Common
Areas"). "Common Area Charges" as used herein shall mean
the
total costs, fees and expenses incurred by Landlord, its agents
and/or designees
for operating,
maintaining, managing,
repairing,
and/or replacing all
or any
part of the Common Areas (and any installation therein,
thereon, thereunder or
thereover), which
shall include,
but shall not be
limited to, the total costs
and expenses incurred
for the following:
cleaning, planting, replanting and
maintaining the landscaping: Landlord's insurance with respect
to Common Areas,
in limits selected
by Landlord, including but not limited to fire and
other
casualty, liability
for personal injury and property damage, automobile parking
lot liability, loss of
rent, and sign insurance; repaving and line repainting;
exterior repainting,
washing and graffiti
removal, including power washing;
rental and maintenance
of signs and
equipment;
lighting; sanitary control,
including; if
applicable,
maintenance of removal
and disposition of
garbage,
washes and refuse;
repair and/or replacement of Common Area utilities including
on-site water lines, electrical lines, gas lines, sanitary sewer
lines and storm
water lines; utilities for serving the Common Areas including
electrical, water,
gas and sewer;
personnel to implement
services as provided for the parking and
the policing
of the Common
Areas; required licenses and permits; private
security and
private police; fire protection; and health, sanitary or
safety-related
facilities such as
public toilets.
"Tenant's CAC
Percentage"
shall mean that
fraction the numerator
of which is the
leasable area of the
Premises and the denominator of which is the total square feet of
leasable space
in the
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Office Building
which as of the date
hereof is 18,200
SF, as such
numerator
and/or denominator may
change from time to time. Tenant's CAC Percentage shall
initially be 51% (9,200/18,200). Anything above to the contrary
notwithstanding,
if any other tenant in
the Office Building
performs or provides at its own
expense any
item(s) that would otherwise be provided by Landlord at its
own
initial expense and
the cost for which would be included in common Area Charges
pursuant to this Section 7, then the square footage of such other
tenant's space
shall not be included in the denominator for purposes of determining
Tenant's
CAC Percentage as to Landlord's costs for the applicable purposes
of determining
Tenant's CAC Percentage as to Landlord's costs for the applicable such
item(s).
(For example, if one
particular tenant
occupying 10,000 square feet of space
were to maintain the
exterior of its building at the tenant's own expense, the
costs billed by Landlord, as part of Common Area Charges,
for building exterior
maintenance would be allocated as to the space in the Office
Building other than
the foregoing
10,000 square feet, to the effect that the denominator for
purposes of establishing Tenant's CAC Percentage
hereunder would be
reduced by
10,000 square feet
from the total square
feet of leasable space
in the Office
Building).
(b) Estimated
Payment of CAC. Landlord shall estimate on an annual
basis the amount of Common Area Charges payable by Tenant on
account of Tenant's
CAC Percentage,
and one-twelfth (1/12th) of the amount so
estimated shall be
paid on the first day of each calendar month in advance, which estimate may be
reasonably revised
during the annual period to reflect more accurately the then
actual Common Area Charges. After the end of each calendar
year, Landlord shall
furnish Tenant with a
statement in reasonable detail of the actual Common
Area
Charges, and there
shall be an
adjustment
between Landlord and Tenant with
payment to or repayment by Landlord, as the case may require,
to the end that
Landlord shall
receive the entire amount of Common Area Charges payable by
Tenant on account of Tenant's CAC Percentage for the applicable
period. Tenant
at its own expense shall be permitted to conduct an audit of Common
Area Charges
payable by Tenant on account of Tenant's CAC Percentage for the applicable
period. Tenant at its
own expense
shall be permitted to conduct an audit of
Common Charges for any particular year of the Term, provided that (i) the audit
is not conducted on a contingent fee basis, (ii) Tenant affords to Landlord
at
least forty-five
(45) days advance
notice of Tenant's
intent to undertake the
audit on a particular date; (iii) the audit is conducted at
Landlord's office,
and (iv) the audit is
undertaken not later
than six (6) months after Landlord
shall have provided a
statement as
aforesaid with respect to the Common
Area
Charges for
the year in question. Anything herein to the contrary
notwithstanding, Landlord may from time to time bill Tenant a
special assessment
of the actual Common
Area Charges
incurred by Landlord
such as, for
example,
extraordinary
charges for
snowplowing
due to unusually severe weather
conditions.
8.
ADDITIONAL
RENT.
----------------
Any and all sums required to be paid by Tenant hereunder, whether
to
Landlord or to any third party, shall for purposes of Landlord's
rights upon the
non-payment thereof
and for all other
purposes for which the same shall be
relevant, be deemed in
all respects to be additional rent. The Basic Rent and
additional rent are
sometimes herein
referred to
collectively as
"Rent." All
rent shall be payable without offset or deductions of any
nature.
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<PAGE>
9.
SECURITY.
---------
Upon Tenant's
execution hereof,
Tenant shall, as a precondition to
Tenant deriving any
rights under this Lease, deposit with Landlord the sum of
$35,500.00 (the
"Security Deposit") as security for the payment of the rent
hereunder and the full and faithful performance by Tenant of its Obligations.
The Security
Deposit shall be returned to Tenant,
without interest, within
thirty (30) days after
the expiration
of the Term,
provided that Tenant has
fully and faithfully
performed all its Obligations. During the Term, Landlord
may, if Landlord so elects, have recourse to the Security
Deposit to make
good
any default by Tenant, in which event Tenant shall, on demand,
promptly restore
the Security
Deposit to its
original amount.
Liability to repay the
Security
Deposit to Tenant shall run with the title to the Premises, to the effect that
any assignee shall become labile for the repayment thereof as herein provided,
and the assignor
shall be deemed to be
released by Tenant
from liability
to
return the Security
Deposit. Landlord shall have the right to
increase the
Security Deposit such that at all times it shall equal two months'
fixed rent.
10.
USE.
----
(a) Tenant
Use. Tenant shall use the Premises solely for the
following purpose(s)
and for no other purpose: The Demised Premises may be used
by the Tenant for
offices, brokerage
business and/or any other lawful use in
connection with the
operation of the bank. During the Term (including any
applicable Option Term(s), Tenant shall, subject to the provisions
of Section 18
and 22 hereof,
continuously conduct
business at the Premises in a customary
manner for the above-described purpose during its normal operating
hours. Tenant
shall not use the Premises, conduct its business or otherwise act
or fail to act
in such fashion as to
cause or constitute
a public or private
nuisance or to
interfere with the quiet enjoyment of any other
tenant(s),
and shall keep the
Premises free from rodents and other pests. Tenant shall not conduct, or
suffer
to permit to occur,
any fire, auction,
going-out-of-business,
bankruptcy
or
auction sale in the
Premises or Office Building without the prior written
consent of Landlord.
Such consent will not be unreasonably withheld by Landlord
provided that Tenant
submits to Landlord at
least twenty (20) days
in advance
the specific date(s)
of the material
details and plans
concerning
the sale,
including plans for
crowd and traffic
control and
safety, and plans for the
repair of any damage to the Premises as may be caused by the
conduct of the sale
and/or removal of
trade fixtures
or other items from
the Premises;
it being
understood and
acknowledged
that no such
sale shall be conducted without
Landlord being given the right and opportunity to be present at the
Premises at
all times when the sale is being conducted and the items are big removed
from
the Premises. Tenant acknowledges and understands that the
purposes, among other
things, of limiting
Tenant's use rights as
aforesaid are to allow for Landlord
to have a mix of tenants at the Office Building that Landlord deems
appropriate
for the successful
operation of the
Office Building as a
whole, and to
avoid
possible duplication
of uses or violations of restrictions or exclusive rights
as may from time to time apply to tenants of the Office
Building.
(b) Landlord
Leasing Restriction. Landlord agrees that, for so
long as (i) this Lease is in effect, (ii) Tenant is not in default
hereunder
beyond any
applicable
grace period for cure, and (iii) Tenant is using the
Premises for the above-stated purpose, Landlord shall not
13
<PAGE>
hereafter enter into any lease, with respect to the Office
Building, to a tenant
whose primary use would be a bank with offices, and/or brokerage
business.
11.
UTILITIES.
----------
Tenant shall pay for
all utilities
upon Landlord's delivery of
possession of the
Premises to Tenant, as recorded on separate meters if
previously or hereafter installed by Landlord, including water, electricity
and
fuel consumed for heating and air conditioning. If any utility or
service is not
separately metered,
Tenant shall pay its pro-rata share of such utility or
service as reasonably
determined
by Landlord.
Tenant shall have the
right to
review and/or audit
the utility bills
received by the
Landlord as well as the
amounts paid to the
Landlord by the other
tenants in the Office
Building for
their utilities. If
special or extraordinary use of the Premises shall
produce
any surcharge or
increase in utility costs generally applicable to the Office
Building, such surcharge or increase shall be paid for by the
tenant that causes
such surcharge or
increase in utility
costs, upon demand
from time to time by
Landlord.
12.
INSURANCE;
INDEMNIFICATION; WAIVER OF SUBROGATION.
--------------------------------------------------
(a) Commercial
General Liability
Insurance Policy.
Tenant shall,
during the entire Term, keep in full force and effect a
premium paid policy for
Commercial General Liability insurance, including plate glass insurance,
with
respect to the Premises and the business operated by Tenant in the
Premises, as
to which the coverage shall not be less than One Million Dollars
($1,000,000.00)
as to any one occurrence, Two Million Dollars ($2,000,000.00)
aggregate, and Ten
Million Dollars $10,000,000.00 umbrella. The policy shall name
Landlord and any
persons or entities
designated by Landlord as additional named insureds, and
shall contain clauses: (i) that all the provisions thereof, except
the limits of
liability, shall
operate in the same manner as if there were a separate policy
covering each
insured; and (ii) that the insurer will not
change or terminate
the insurance without first giving Landlord and Landlord's
designee thirty
(30)
days prior written
notice. A copy of the policy or
certificate
of insurance
shall be delivered
to Landlord on or before the date Tenant enters into
possession of the
Premises for any purpose. All insurance required to be
obtained by Tenant
under this Lease shall be written by a good and solvent
insurance company reasonably satisfactory to Landlord.
If Landlord
reasonably
determines that a significant number of tenants in Office
Buildings are now
or
hereafter required to
provide liability
insurance policies to
their landlords
with coverage limits
higher than as above
required, Tenant shall
be required,
upon demand by Landlord, to provide Landlord with liability
insurance bearing
limits at least equal to the generally prevailing limits specified by
Landlord.
Before Tenant shall be
required to increase its insurance coverage, Landlord
must provide Tenant with written proof of the "significant
number of tenants
in
Office Buildings" that are required to provide liability
insurance policies to
their landlords
with coverage limits higher than as required by this
lease.
Tenant shall also maintain insurance on its fixtures,
goods, equipment and/or
other personal
property (sometimes herein collectively called "Personal
Property") on a replacement cost basis, in accordance with and subject to all
provisions hereof relating to Tenant's insurance obligations,
except as same may
be inapplicable to property insurance (as opposed to liability
insurance). It is
understood and acknowledged that as to the foregoing insurance to
be obtained by
Tenant, and as to any other provisions of this Lease relating to
insurance to be
obtained by Tenant or its contractors, the intention is that
the
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<PAGE>
insurance so
obtained be the broadest form then commercially
