Exhibit 10.6
Washington Real Estate Investment
Trust
SHOPPING CENTER LEASE
BY AND BETWEEN
Washington Real Estate Investment
Trust
as Landlord
and
Sykesville Federal Savings
Association
as Tenant
TABLE OF CONTENTS
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ARTICLE I. PREMISES
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1
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ARTICLE II. TERM
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1
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ARTICLE III. RENT
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2
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ARTICLE IV. SECURITY DEPOSIT
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5
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ARTICLE V. USE OF THE PREMISES AND OPERATION OF
BUSINESS
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5
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ARTICLE VI. ENVIRONMENTAL COVENANTS
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6
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ARTICLE VII. LATE CHARGE
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8
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ARTICLE VIII. COMMON AREAS
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8
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ARTICLE IX. ASSIGNMENT &
SUBLETTING
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9
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ARTICLE X. REPAIRS
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10
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ARTICLE XI. REMOVAL OF DATA AND
TELECOMMUNICATIONS WIRES
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11
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ARTICLE XII. UTILITIES
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12
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ARTICLE XIII. TENANTS TAXES
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12
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ARTICLE XIV. COMPLIANCE WITH LAWS
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13
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ARTICLE XV. NUISANCES
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13
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ARTICLE XVI. REMODELING AND
ALTERATIONS
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13
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ARTICLE XVII. MECHANICS LIENS
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14
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ARTICLE XVIII. ROOF AND WALLS
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14
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ARTICLE XIX. INDEMNITY
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14
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ARTICLE XX. INSURANCE
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15
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ARTICLE XXI. TRASH
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16
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ARTICLE XXII. SIGNS
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16
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ARTICLE XXIII. PROMOTION FUND
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17
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ARTICLE XXIV. SUBORDINATION
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17
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ARTICLE XXV. DESTRUCTION
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18
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ARTICLE XXVI. CONDEMNATION
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18
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ARTICLE XXVII. BANKRUPTCY
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19
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ARTICLE XXVIII. DEFAULT
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19
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ARTICLE XXIX. WAIVER OF JURY TRIAL
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21
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ARTICLE XXX. LEGAL FEES
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21
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ARTICLE XXXI. LANDLORD’S LIEN
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21
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ARTICLE XXXII. ACCESS TO PREMISES
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21
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ARTICLE XXXIII. EXCAVATION
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22
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ARTICLE XXXIV. QUIET ENJOYMENT
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22
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ARTICLE XXXV. SURRENDER OF PREMISES
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22
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ARTICLE XXXVI. HOLDING OVER
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22
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ARTICLE XXXVII. NO WAIVER
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23
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ARTICLE XXXVIII. BROKER
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23
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ARTICLE XXXIX. ESTOPPEL CERTIFICATE
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23
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ARTICLE XL. RULES &
REGULATIONS
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23
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1
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ARTICLE XLI. LIMITATION OF LIABILITY OF
LANDLORD
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24
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ARTICLE XLII. NOTICES
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25
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ARTICLE XLIII. FINANCIAL STATEMENTS
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25
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ARTICLE XLIV. RADIUS RESTRICTION
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25
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ARTICLE XLV. MEDICAL WASTE
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ARTICLE XLVI. RENEWAL OPTION
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25
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ARTICLE XLVII. MISCELLANEOUS
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26
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ATTACHMENTS:
EXHIBIT A. SITE PLAN
EXHIBIT B. LANDLORD’S WORK-AS
IS
EXHIBIT C. MEMORANDUM OF LEASE
COMMENCEMENT DATE
2
WASHINGTON REAL ESTATE INVESTMENT
TRUST
SHOPPING CENTER
LEASE
THIS AGREEMENT OF LEASE is made this
6 day of April , 2010 by and between Washington Real
Estate Investment Trust, (“Landlord”), and Sykesville
Federal Savings Association (“Tenant”).
WITNESSETH:
ARTICLE I.
PREMISES
1.1. Landlord, for and in
consideration of the rents, covenants and agreements hereinafter
reserved, mentioned and contained on the part of Tenant, its
successors and assigns, to be paid, kept, observed and performed,
by these presents does hereby lease, rent, let and demise unto
Tenant, and Tenant does hereby take and hire, upon and subject to
the terms, provisions, covenants, conditions and limitations
hereof, the premises known as # 29, Route 140 and Englar Road,
Westminster, Maryland 21157, County of Carroll, State of Maryland,
and shown outlined in red on the plan attached hereto as Exhibit A
and made a part hereof, being a retail store hereby deemed to
contain approximately 1,537 square feet of gross leasable area
(“Premises”), and being a part of the Westminster
Shopping Center (“Shopping Center”). If Tenant fails to
notify Landlord, by September 1, 2010, of Tenant’s
architect’s certification of the total number of leasable
square feet in the Premises, then the leasable square feet shall be
as stated above. In the event Tenant’s architect and
Landlord’s architect disagree on the total number of leasable
square feet in the Premises, Landlord and Tenant shall designate a
third architect, acceptable to both Landlord and Tenant, to
determine the total number of leasable square feet in the Premises
and the determination of the third architect shall be binding on
both Landlord and Tenant. The cost of such third architect’s
services shall be borne equally by both Landlord and Tenant. Should
a variance be determined to exist between Landlord’s square
footage calculation for the Premises and the square footage
calculation determined by Tenant (or the third architect, as
applicable), then the Fixed Minimum Rent and Tenant’s Common
Area Costs Percentage and Tenant’s percentage share of real
estate taxes shall be adjusted to reflect such revised square
footage calculation, and Landlord and Tenant shall execute an
amendment to Lease to reflect all such revised
calculations.
1.2. Tenant’s use and
occupancy of the Premises shall include the non-exclusive right, in
common with Landlord and all others to whom Landlord has or may
hereafter grant rights, to use and permit its customers to use such
Common Areas (as defined in Section 8.1 hereof) within the
Shopping Center (including, but not limited to the parking areas,
driveways, truckways, delivery passages, truck loading areas,
access and egress roads, walkways, sidewalks and landscaped and
planted areas), as Landlord shall from time to time deem
appropriate, but such rights shall always be subject to the terms
and conditions of this Lease, to the rules and regulations for the
use thereof from time to time promulgated by Landlord pursuant to
ARTICLE XL hereof, and the rights of Landlord to designate and
change, modify or eliminate, from time to time, the Common Areas
and facilities so to be used pursuant to ARTICLE VIII hereof. The
Common Areas shall not be used for solicitation purposes,
distribution of handbills or other advertising material,
demonstrations, or any other activities that would, in
Landlord’s judgment, interfere with the use of such Common
Areas or with the conduct of business within the Shopping Center or
with the rights of any tenants of the Shopping Center. Landlord
may, from time to time, designate portions of the parking areas for
use by Tenant, its employees, agents, customers and guests so as to
effectively and efficiently allocate the parking spaces among all
users of the Shopping Center. Tenant, its employees, agents,
customers and guests shall use only those portions of the parking
areas so designated by Landlord and in accordance with the terms of
Section 40.1(e) hereof.
ARTICLE II.
TERM
2.1. The lease term
(“Term”) shall commence on the date Landlord delivers
possession of the Premises to Tenant (“Lease Commencement
Date”). The (“Term”) shall be for approximately
five (5) years and zero (0) months from the Rent
Commencement Date, as hereinafter defined. The date the Term
expires shall be August 31, 2015 (“Lease Expiration
Date”). It is presently anticipated the Premises will be
delivered to Tenant on or about March 15, 2010
(“Anticipated Possession Date”).
2.2. Regulatory Approval.
Notwithstanding anything to the contrary contained in this Lease,
this Lease is subject to receipt by Tenant of all required
regulatory approvals to establish a full service branch banking
office in the Premises; provided, however, that if such approval is
not obtained within six (6) months from the Lease Commencement
Date, and Tenant shall provide written notice to Landlord of its
inability to obtain such approval, the Term of this Lease shall
cease and determine and Landlord shall return all advanced rent or
security deposits required paid to Landlord by Tenant as
required
-1-
by this Lease, unless Tenant shall pay to
Landlord an amount equivalent to the Fixed Minimum Rent hereinafter
specified for the further period of six (6) months; and
provided, further, that if such approvals are not obtained within
said additional period of six (6) months, and Tenant shall
provide written notice to Landlord of its inability to obtain such
approvals, then and in such event this Lease shall absolutely cease
and determine and both Landlord and Tenant shall be released and
discharged of any and all liability to each other, except that
Tenant shall reimburse Landlord for all unamortized transaction
costs including, but not limited to, brokers’ commissions and
rental abatement. Tenant agrees to use all commercially reasonable
efforts to obtain such approval. This provision shall in no way
affect the Rent Commencement Date as defined hereinabove. Tenant
agrees to file application with the appropriate regulatory agencies
on or before April 1, 2010.
2.3. If Landlord is unable to give
possession of the Premises on or about the Anticipated Possession
Date by reason of the holding over or retention of possession of
any tenant or occupant, or if repairs, improvements or decorations
to the Premises, or to the building of which the Premises form a
part (“Building”) are not completed, or for any other
reason, Landlord shall not be subject to any liability for the
failure to give possession on the Anticipated Possession Date and
no such failure to give possession on the Anticipated Occupancy
Date shall in any other respect affect the validity of this Lease
or the obligations of Tenant hereunder, nor shall the same be
construed in any way to extend the Term of this Lease. If
permission is given to Tenant to possess the Premises prior to the
Lease Commencement Date, Tenant covenants and agrees mat such
occupancy shall be deemed to be under all the terms, covenants,
conditions and provisions of this Lease.
2.4. Promptly after the Lease
Commencement Date and the Rent Commencement Date are ascertained,
Landlord and Tenant shall execute a certificate substantially in
the form of Exhibit C attached hereto and incorporated herein for
all purposes affirming the Lease Commencement Date, the Rent
Commencement Date and the Lease Expiration Date.
ARTICLE III.
RENT
3.1. Tenant covenants and agrees to
pay to Landlord, or its designee, at Washington Real Estate
Investment Trust. P.O. Box 79555, Baltimore, Maryland, 21279-0555
without notice or demand and without abatement, deduction or
setoff, in funds drawn on a member bank of the Federal Reserve
System, Fifth District. In the event any check is returned by
Tenant’s bank, or in the event Tenant fails to make any
payment of rent on such payment’s due date, Landlord shall
have the right, at Landlord’s option, to require any or all
subsequent payments be made by certified funds or cashier’s
check.
3.2. Fixed Minimum Rent:
Tenant shall pay in advance, on the first day of each calendar
month, annual fixed minimum rent of Forty-Two Thousand Two Hundred
Sixty-Seven and 50/100 Dollars ($42,267.50) (“Fixed Minimum
Rent”) for the first Lease Year in equal monthly installments
in the amount of Three Thousand Five Hundred Twenty-Two and 29/100
Dollars ($3,522.29). Such Fixed Minimum Rent (and the monthly
installments thereof) shall be adjusted annually pursuant to
Section 3.3 hereof. The first payment shall be made upon the
execution of this Lease by Tenant, and the second and subsequent
monthly payments shall be made on the first day of each and every
calendar month (beginning with the second month) from and after the
Rent Commencement Date. The date (“Rent Commencement
Date”) upon which Tenant shall commence the payment of Fixed
Minimum Rent shall be the earlier of: (1) September 1,
2010 or (2) upon substantial completion of the Premises. If
the Rent Commencement Date begins on a day other than the first day
of a month, the Fixed Minimum Rent from such date until the first
day of the next month shall be prorated on the basis of the actual
number of days in such month and shall be payable in
advance.
3.3. Rent Escalation : On the
first day of the second Lease Year and on the first day of every
Lease Year thereafter during the Term, the Fixed Minimum Rent shall
be increased by two and 00/100 percent (2 %) of the preceding Lease
Year’s Fixed Minimum Rent.
3.4. The term “Lease
Year” shall mean each period of twelve (12) consecutive
calendar months commencing on the Lease Commencement Date, except
that if the Lease Commencement Date is not the first day of a
month, then the first Lease Year shall commence on the Lease
Commencement Date and shall continue for the balance of the month
in which the Lease Commencement Date occurs, and for a period of
twelve (12) calendar months thereafter and subsequent Lease
Years shall commence on the day following the last day of the
preceding Lease Year. The term “Partial Lease Year”
shall mean any period of less than twelve (12) calendar months
during the last Lease Year of the Lease if the Lease Expiration
Date occurs prior to the end of a full Lease Year.
3.5. Common Area Costs:
(a) During each calendar year or
portion thereof included in the Term and any renewal thereof,
commencing on the Rent Commencement Date, Tenant shall pay to
Landlord, as additional rent, Tenant’s Proportionate Share of
Common Area Costs. Tenant’s Proportionate Share of Common
Area Costs (“Tenant’s Proportionate Share”) shall
equal Tenant’s Common Area Costs Percentage times the annual
Common Area Costs of the Shopping Center. Tenant’s Common
Area Costs Percentage is one and
-2-
07/100 percent (1.07%) which percentage
represents the ratio of the approximate gross leasable area of the
Premises to the total approximate gross leasable area of the
Shopping Center. In the event that the gross leasable area of the
Shopping Center or the Premises is increased or decreased, the
Tenant’s Common Area Costs Percentage shall be recalculated
and adjusted. Tenant’s percentage share of Common Area Costs
shall be the percentage set forth above, except as follows: If any
space in the Shopping Center is leased to a tenant who is
separately responsible for paying the cost of a service that would
otherwise be included in Common Area Costs, the leasable area of
such tenant’s space shall be excluded from the leasable area
of the Shopping Center for the purpose of determining
Tenant’s percentage share of the balance of the cost of such
services. Additionally, if any space in the Shopping Center is
leased to a tenant who creates an exemption from any category of
Common Area Costs so as to reduce the Shopping Center’s total
cost of the same proportion to that tenant’s leasable area,
then the leasable area of such tenant’s space shall be
excluded from the leasable area of the Shopping Center for the
purpose of determining Tenant’s percentage share of such
category of Common Area Costs.
(b) As used in Section 3.5(a)
above, the term “Common Area Costs” shall mean all the
costs and expenses of every kind and nature paid or incurred by
Landlord in each calendar year in operating, managing, cleaning,
protecting, equipping, lighting, repairing, replacing and
maintaining all Common Areas in the Shopping Center. Such costs and
expenses shall include, without limitation (including appropriate
reserves), (1) the cost of maintaining, repairing or replacing
all service pipes, electric, gas, and water lines and sewer mains
leading to and from the Premises and other premises in the Shopping
Center; (2) gas, electricity, water, sanitary sewer, storm
sewer and other utility charges (including surcharges of every type
and nature for services provided to the Common Areas incurred in
operating the Shopping Center); (3) all costs incurred in
painting (including painting of exterior walls), gardening,
landscaping, and for traffic control; (4) the cost of public
liability insurance, property damage insurance, and all other
insurance coverage carried by Landlord for all land and
improvements comprising the Shopping Center (including
worker’s compensation and fidelity bonds); (5) all costs
for repairs, maintenance and improvements including but not limited
to, roof repairs, maintenance and replacement; sidewalk and street
repair, maintenance and replacement; sign repair and maintenance;
line painting and striping; lighting; decorations; sanitary and
drainage control; public address system; security systems;
cleaning; removal of snow, trash and rubbish; and depreciation on
machinery and equipment used in such improvements, maintenance or
repair; (6) costs of personnel, if any, to direct parking and
to provide security for the Common Areas and facilities, management
fees and personnel costs, including, but not limited to salaries,
wages, fringe benefits and other direct or indirect costs of
engineers, superintendents, watchmen, security, porters and other
Shopping Center personnel, costs of service and maintenance
contracts; (7) depreciation (on a straight line basis) of all
capital expenditures made by Landlord to the extent such capital
expenditures are made with the intention to reduce Common Area
Costs or comply with any governmental law, order, requirement or
regulation; and (8) Landlord’s administrative costs and
overhead costs in an amount, in the aggregate, equal to five
percent (5 %) of the total of all other Common Area Costs. For
purposes of this Section 3.5, the term “Shopping
Center” shall include the Land (as defined in
Section 3.6).
(c) Upon the Lease Commencement Date
and thereafter at the beginning of each calendar year, Landlord
shall submit to Tenant a statement of Landlord’s estimate on
an annual basis of the Common Area Costs. Within thirty
(30) days after delivery of such statement, Tenant shall pay
to Landlord, as additional rent, an amount equal to one-twelfth
(l/12th) of the amount determined to be Tenant’s
Proportionate Share. In case such estimate is submitted during the
calendar year, Tenant shall (i) include with the next monthly
installment of Fixed Minimum Rent a lump sum payment to Landlord
equal to one-twelfth (l/12th) of Tenant’s Proportionate Share
multiplied by the number of months in such calendar year that will
have elapsed prior to the first month the payment required by
clause (ii) hereof is due and (ii) begin paying to
Landlord monthly, as additional rent, due and payable on the first
day of each month, an amount equal to one-twelfth (1/12th) of
Tenant’s Proportionate Share. As soon as practicable after
the expiration of each calendar year, Landlord shall submit to
Tenant a statement showing the determination of the total Common
Area Costs and Tenant’s Proportionate Share. However,
Landlord’s failure to provide any statement within the time
specified shall in no way excuse Tenant from its obligation to pay
its proportionate share or constitute a waiver of Landlord’s
right to bill and collect such proportionate share. If such
statement shows that Tenant’s monthly payments pursuant to
this Section exceeded Tenant’s Proportionate Share of the
actual expenses incurred for the preceding calendar year, then the
excess shall be credited towards any amounts then due Landlord or
accruing thereafter and if no amounts are due Landlord or will
accrue thereafter, then such excess shall be refunded to Tenant. If
such statement shows that Tenant’s Proportionate Share of
Landlord’s actual Common Area Costs exceeded Tenant’s
monthly payments for the preceding calendar year, the deficiency
shall be paid by Tenant within fifteen (15) days after the
submission of such statement.
(d) If the Lease Commencement Date
or the Lease Expiration Date is a day other than the first day or
last day of a calendar year, respectively, then Tenant’s
liability for its Proportionate Share of Common Area Costs incurred
during such calendar year shall be apportioned by multiplying the
amount of Tenant’s liability therefor for the full calendar
year by a fraction, the numerator of which is the number of days
during such calendar year falling within the Term, and the
denominator of which is 365. Tenant’s liability for payment
of its Proportionate Share of Common Area Costs as aforesaid shall
survive expiration or termination of this Lease.
-3-
3.6. Real Estate Taxes
(a) Commencing on the Rent
Commencement Date, Tenant shall reimburse Landlord, as additional
rent, and in the manner hereinafter provided, that portion of all
real estate taxes equal to the product obtained by multiplying such
real estate taxes by the Tenant’s Common Area Costs
Percentage. Tenant’s percentage share of real estate taxes
shall be deemed to be one and 07/100 percent (1.07%), being the
ratio of the approximate gross leasable area of the Premises to the
approximate gross leasable area of the Shopping Center, except as
follows: In the event the leasable area of the Shopping Center is
increased or decreased, the Tenant’s percentage share of real
estate taxes should be recalculated and adjusted. If any space in
the Shopping Center is leased to a tenant who creates an exemption
from real estate taxes so as to reduce the Shopping Center’s
total cost of the same in proportion to that tenant’s
leasable area, then the leasable area of such tenant’s space
shall be excluded from the leasable area of the Shopping Center for
the purpose of determining Tenant’s percentage share of real
property taxes. Tenant shall pay to Landlord monthly, in advance,
on the first day of each calendar month, one-twelfth
(1/12th) of the estimated charge for its proportionate share
of real estate taxes. Such monthly estimated charge may be adjusted
and revised by Landlord as of the end of each calendar year or
partial calendar year included in the Term. The term “real
estate taxes” shall mean (i) all real estate taxes,
including general and special assessments, if any, which are
imposed upon Landlord or assessed against the Shopping Center
and/or the land on which the Shopping Center is located
(“Land”) during any calendar year, and (ii) any
other present or future taxes or governmental charges that are
imposed upon Landlord or assessed against the Shopping Center
and/or the Land during any calendar year which are in the nature
of, in addition to or in substitution for real estate taxes,
including, without limitation, any license fees, tax measured by or
imposed upon rents, or other tax or charge upon Landlord’s
business of leasing the Shopping Center, but shall not include any
federal, state or local income tax. Any reasonable expense incurred
by Landlord (including attorneys’ fees) in contesting any
real estate tax increase shall be included as an item of real
estate taxes for the purpose of computing additional rent due
Landlord. Landlord, however, shall have no obligation to contest
any real estate tax increase. If Landlord takes advantage of any
provisions allowing any assessment to be paid in installments,
Tenant shall be obligated to pay only its proportionate share of
each such installment.
(b) Following the end of each
calendar year or partial calendar year included in the Term,
Landlord shall submit to Tenant a statement in reasonable detail of
the actual real estate taxes for the immediately preceding fiscal
tax year or partial calendar year on an accrual basis and the
figures used for computing Tenant’s proportionate share of
real estate taxes. However, Landlord’s failure to provide any
statement within the time specified shall in no way excuse Tenant
from its obligation to pay its proportionate share or constitute a
waiver of Landlord’s right to bill and collect such
proportionate share. If Tenant’s proportionate share of real
estate taxes is less than the amount paid by Tenant for such
period, the excess deficiency shall be credited towards any amounts
then due Landlord or accruing thereafter and if no amounts are due
Landlord or will accrue thereafter, then such balance owed shall be
refunded to Tenant. If Tenant’s proportionate share of real
estate taxes is more than the amount paid by Tenant for such
period, then Tenant shall pay the balance due within fifteen
(15) days after the submission of such statement. Any real
estate taxes for a real estate calendar year, a part of which is
included within the period in question for the above computation
and a part of which is not so included, shall be apportioned on the
basis of the number of days in the real estate calendar year
included in the period in question for the purpose of making the
above computation, and the real estate calendar year for any
improvement assessment will be deemed to be the one-year period
commencing on the date when such assessment is due, except that if
any improvement assessment is payable in installments, the real
estate calendar year for each installment will be deemed to be the
one-year period commencing on the date when such installment is
due.
(c) If the Term commences or expires
on a day other than the first day or last day of a calendar year,
respectively, then Tenant’s liability for its proportionate
share of real estate taxes incurred during such calendar year shall
be apportioned by multiplying the amount of Tenant’s
liability therefor for the full calendar year by a fraction, the
numerator of which is the number of days during such calendar year
falling within the Term, and the denominator of which is 365.
Tenant’s liability for payment of its proportionate share of
real estate taxes shall survive expiration or termination of this
Lease.
(d) If some method or type of
taxation shall replace the current method of assessment of real
estate taxes, or the type thereof. Tenant agrees that Tenant shall
pay an equitable share of the same computed in the fashion
consistent with the method of computation provided in this ARTICLE
III to the end that Tenant’s cost on account thereof shall
be, to the maximum extent possible, the same as Tenant would bear
under the foregoing Sections of this ARTICLE III.
3.7. All costs and expenses other
than Fixed Minimum Rent which Tenant assumes or agrees to pay to
Landlord pursuant to this Lease shall be deemed to be
“additional rent” and, in the event of nonpayment
thereof. Landlord shall have all the rights and remedies provided
for in the case of nonpayment of rent, including assessment of
interest and late fees. Fixed Minimum Rent and additional rent are
sometimes referred to collectively herein as
“rent”.
-4-
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ARTICLE
IV. SECURITY DEPOSIT
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4.1.
Tenant agrees to pay Landlord at the signing of this Lease Three
Thousand Five Hundred Twenty-Two and 29/100 Dollars ($3,522.29)
(“Security Deposit”) as security for compliance with
the terms of this Lease. Upon the occurrence of any Event of
Default by Tenant, Landlord may, from time to time in its sole
discretion, without prejudice to any other remedy, use and apply
the Security Deposit to the extent necessary to make good, any
arrearages of rent and any other damage, injury, expense or
liability suffered by Landlord by such Event of Default Following
any such application of the Security Deposit, Tenant shall pay to
Landlord on demand as additional rent the amount so applied in
order to restore the Security Deposit to its original amount.
Within approximately forty-five (45) days after the Lease
Expiration Date and after the Premises have been properly vacated
and inspected and the keys returned to Landlord, then Landlord
shall return said Security Deposit to Tenant, without interest,
less such portion of the Security Deposit as Landlord shall have
used to satisfy Tenant’s obligations under this Lease. If
Landlord transfers the Security Deposit to any transferee of the
Shopping Center or Landlord’s interest therein, then said
transferee shall be liable to Tenant for the return of the Security
Deposit, and Landlord shall be released from all liability for the
return of the Security Deposit. The holder of any mortgage shall
not be liable for the return of the Security Deposit unless such
holder actually receives the Security Deposit If an Event of
Default under this Lease shall occur more than two (2) times
within any twelve month period, irrespective of whether or not such
Event of Default is cured, then, without limiting Landlord’s
other rights and remedies provided for in this Lease or at law or
equity, the Security Deposit shall automatically be increased by an
amount equal to the greater of: (a) three (3) times the
original Security Deposit, or (b) three (3) months’
Fixed Minimum Rent, at the then current amount, which shall be paid
by Tenant to Landlord within ten (10) days of Landlord’s
demand therefor.
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ARTICLE
V. USE OF THE PREMISES AND OPERATION OF BUSINESS
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5.1. Permitted Use: Tenant will use
and occupy the Premises solely for the following express use(s) and
purpose(s) and for no other use or purpose: the operation of a
retail branch banking office consistent with the majority of
Tenant’s other offices in the Baltimore Metropolitan Region
(“Permitted Use”). Tenant shall not change or modify
such Permitted Use in any manner whatsoever and shall not make any
substantial change or modification in the method by, or in the
manner in which Tenant conducts his business in the Premises
without the prior written approval of Landlord which shall not be
unreasonably withheld, conditioned or delayed. Tenant acknowledges
and agrees that the Permitted Use of the Premises has been
precisely defined to achieve a balanced and diversified group of
tenants, merchandise and services at the Shopping Center.
Accordingly, it is understood and agreed that without
Landlord’s prior written consent, which shall not be
unreasonably withheld, conditioned or delayed. Tenant shall not
sell any products, offer any services or undertake any line of
business that in each case is not in conformity with the Permitted
Use of the Premises. Tenant shall pay to Landlord, as additional
rent any additional costs incurred by Landlord as a result of
Tenant’s Permitted Use or any other use or purpose of the
Premises. Landlord acknowledges that operation of a retail bank
branch by Tenant will not directly or materially compete with the
use of any other tenant in the Shopping Center. Tenant will not use
or occupy the Premises for any unlawful purpose or that would
violate Tenant’s certificate of occupancy, or for any purpose
that would constitute a nuisance or unreasonable annoyance to
Landlord or any other tenants of the Shopping Center, and Tenant
will comply with all present and future laws, ordinances,
regulations, and orders of the United States of America, the state
the Shopping Center is located, and any other public or
quasi-public authority having jurisdiction over the Shopping
Center. If required, and Landlord performs Alterations pursuant to
Exhibit B of the Lease, Landlord shall obtain, at Tenant’s
sole expense, any initial certificate of occupancy and/or any other
permits, approvals, and licenses required at the time of the
commencement of the Term. Otherwise, Tenant shall obtain, at
Tenant’s sole expense, any initial certificate of occupancy
and/or any other permits, approvals, and licenses required at the
time of the commencement of the Term. Any amended or substitute
certificate of occupancy necessitated by Tenant’s particular
use of the Premises or any alterations made by Tenant in the
Premises shall be obtained by Tenant at Tenant’s sole
expense. Tenant shall keep current such certificates, permits,
approvals, and licenses at Tenant’s own expense and shall
promptly deliver a copy thereof to Landlord.
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5.2.
Provided this Lease is in full force and effect, there exists no
Event of Default hereunder and Tenant is using and occupying the
Premises for the Permitted Use under Tenant’s Trade Name,
Landlord shall not permit any portion of the Shopping Center, other
than the Premises, to be used by a bank or credit union (other than
(i) pursuant to Landlord’s lease dated May 15, 2007
with Susquehanna Bank or any subsequent lease for such parcel or
(ii) automatic teller machines located at a grocery store in
the Shopping Center) Should Landlord permit any portion of the
Shopping Center, other than the Premises, to be used by a bank or
credit union in breach of the foregoing sentence. Tenant as its
sole and exclusive remedy shall have the one-time right to
terminate this Lease provided that Tenant first shall have sent
Landlord written notice of the violation and Landlord shall have
failed to cure such violation within sixty (60) days (“Cure
Deadline”). If Landlord fails to cure such violation within
the Cure Deadline, Tenant must elect to either (i) terminate
this Lease, which shall be effective sixty (60) days from the
date of Landlord’s receipt of the Election Notice (as defined
below) or (ii) waive any claim of default against Landlord on
account of this violation. Such election by Tenant must be made in
writing (“Election Notice”) so long as the violation
exists, and shall be delivered to Landlord within thirty
(30) days after the Cure Deadline. If Tenant fails to timely
make such election. Tenant shall be deemed to have elected to waive
any claim of default against Landlord on account of this violation.
Anything to the contrary notwithstanding, Tenant shall have no
remedy for a violation of if (a) another
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tenant or occupant in the Shopping Center
violates a provision of its lease or license agreement regarding
its premises, which either does not permit or specifically
prohibits a use that violates this provision; (b) Landlord
provides notice of the lease or license agreement violation to such
other tenant or occupant; and (c) Landlord commences an action
(or arbitration, if required by such lease or license agreement)
against such other tenant or occupant, and thereafter uses
commercially reasonable efforts to enforce its rights under such
lease or license agreement. Nothing contained herein shall require
Landlord to appeal any adverse decision denying relief to
Landlord.
5.3. Trade Name : Tenant will
conduct business in the Premises in the trade name of Sykesville
Federal Savings Association and has the right to change its trade
or corporate name with notice to Landlord. Tenant has the right to
convert to a state bank and/or convert to a capital stock
organization with prior written notice to Landlord and such action
shall not constitute an event of default hereunder.
5.4. Operation of Business :
Tenant agrees (1) except as herein otherwise provided, to
continuously and uninterruptedly occupy and use the entire Premises
during the entire Term and any Renewal Term(s) for the uses herein
specified (without consideration of the profitability of the
business) and to conduct Tenant’s business therein in a
reputable manner; (2) to remain open for business during all
business days permissible for a bank to be open under applicable
laws and regulations and during normal business hours, which will
be determined by Tenant and may be modified from time to time by
Tenant, however, Tenant hereby acknowledges, consents and agrees
that any and/or all services, facilities and access by the public
to the Premises and/or to the Shopping Center may be suspended in
whole or in part during such times as such businesses are not
customarily open for business, on legal holidays, on such other
days as may be declared by local, state or federal authorities as
days of observance, or during any periods of actual or threatened
civil commotion, insurrection or other circumstances beyond
Landlord’s control, when Landlord, in Landlord’s
reasonable judgment, shall deem the suspension of such services,
facilities and access necessary for the protection and/or
preservation of persons and/or property; (3) to keep the
display windows and signs, if any, well lighted during such hours
and days as the Shopping Center is lighted by Landlord, including
periods in addition to the business hours of Tenant, if in
Landlord’s judgment such lighting is necessary or desirable;
(4) to keep and maintain the Premises and Tenant’s
personal property and signs therein or thereon and the exterior and
interior portions of all windows, doors and all other glass or
plate glass in a neat, clean, sanitary and safe condition and good
repair, promptly replacing any glass that is broken or cracked;
(5) to warehouse, store or stock in the Premises only such
goods, wares and merchandise as Tenant intends to offer for sale at
retail; (6) to apply for, secure, maintain and comply with all
licenses or permits which may be required for the conduct by Tenant
of the business herein permitted to be conducted in the Premises
and to pay, if, as and when due, all license and permit fees and
charges of a similar nature in connection therewith; (7) to
use for office or other non-selling purposes only such space as is
reasonably required for the conduct of Tenant’s business in
the Premises and such office or other non-selling space shall not
be used to perform any functions for any other store or business
conducted by Tenant or by any other person or firm;
(8) neither to solicit business nor to distribute advertising
matter in the parking or other Common Areas or facilities of the
Shopping Center except as permitted in writing by Landlord;
(9) not to conduct any auction, distress, fire or bankruptcy
sale or any going-out-of-business sale (whether real or
fictitious); (10) not to represent or advertise that it
regularly or customarily sells merchandise at manufacturer’s,
distributor’s, wholesale, warehouse, discount, fire sale,
bankruptcy sale or similar prices other than at retail, but nothing
contained herein shall restrict Tenant from determining the selling
price of its own merchandise or preclude the conducting of periodic
seasonal, promotional or clearance sales; (11) not to conduct
any catalogue, telephone or mail-order sales in or from the
Premises except of merchandise permitted pursuant to Article V of
this Lease; and (12) not to park or permit to be parked any of
Tenant’s trucks, employee vehicles or any of Tenant’s
delivery vehicles in the parking areas and not to load or unload,
or permit to be loaded or unloaded, any trucks or delivery vehicles
in any portion of the Shopping Center other than in places
designated for such purposes by Landlord.
ARTICLE VI. ENVIRONMENTAL
COVENANTS
6.1. The following environmental
covenants shall apply:
(a) Tenant, its employees, agents,
contractors and invitees shall, at Tenant’s own expense,
comply with all Environmental Laws, as herein defined, in
connection with its use and occupancy of the Premises or the
Shopping Center and shall obtain, maintain and comply with all
necessary environmental permits, approvals, registrations and
licenses.
(b) Tenant, its employees, agents,
contractors and invitees shall not use, generate, release,
manufacture, treat, refine, produce, process, store, dump or
dispose of any Hazardous Substance, as herein defined, on, under,
or about the Premises, or any other portion of the Shopping Center,
or transport to or from the Premises or any other portion of the
Shopping Center any Hazardous Substances. Notwithstanding anything
to the contrary contained in this ARTICLE VI, Tenant may use and
store within the Premises such reasonable quantities of normal
office products as are used by Tenant in the ordinary course of its
business operations and which are customarily found in first-class
offices; provided such reasonable quantities and use do not
constitute a danger to the health of individuals or a danger to the
environment and which are used, stored and disposed of in
accordance with all applicable Environmental Laws.
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(c) Tenant shall, at Tenant’s
own expense, make all submissions to, provide all information
required by and comply with all requirements of all governmental
authorities (the “Authorities or Authority”) under the
Environmental Laws. Tenant shall provide Landlord with copies of
any environmental audit prepared by or for Tenant with respect to
the Premises and any report(s) or filing(s) made by Tenant with any
Authority.
(d) Should Landlord, any Authority
or any third party demand that a clean-up plan be prepared or that
a clean-up be undertaken because of any deposit, spill, discharge,
or other release of Hazardous Substances that occurs as a result of
Tenant’s use or occupancy of the Premises or the Shopping
Center, then Tenant shall, at Tenant’s own expense, prepare
and submit to Landlord and any applicable Authority the required
plans and all related bonds and other financial assurances, and
Tenant shall carry out all such clean-up plans following their
approval by Landlord and all applicable Authorities.
(e) Tenant shall promptly provide
all information regarding the use, generation, storage,
transportation, or disposal of Hazardous Substances that is
requested by Landlord. If Tenant fails to fulfill any duty imposed
under this ARTICLE VI within ten (10) days, Landlord may
fulfill such duty on behalf of Tenant, at Tenant’s cost and
expense; and in such case, Tenant shall cooperate with Landlord in
order to prepare all documents Landlord deems necessary or
appropriate to determine the applicability of the Environmental
Laws to the Premises and Tenant’s use thereof, and for
compliance therewith, and Tenant shall execute all documents
promptly upon Landlord’s request. No such action by Landlord
and no attempt made by Landlord to mitigate damages under any
Environmental Law shall constitute a waiver of any of
Tenant’s obligations under this ARTICLE VI.
(f) Tenant shall immediately notify
Landlord in writing of any release or discharge of any Hazardous
Substance, whether or not the release is in quantities that would
require under law the reporting of such release to a governmental
or regulatory agency.
(g) Tenant shall also immediately
notify Landlord in writing of, and shall contemporaneously provide
Landlord with a copy of:
(i) Any written notice of release of
Hazardous Substances in the Premises that is provided by Tenant or
any subtenant or other occupant of the Premises to a governmental
or regulatory agency;
(ii) Any notice of a violation, or a
potential or alleged violation, of any Environmental Law that is
received by Tenant or any subtenant or other occupant of the
Premises from any governmental or regulatory agency;
(iii) Any inquiry, investigation,
enforcement, cleanup, removal, or other action that is instituted
or threatened by a governmental or regulatory agency against Tenant
or any subtenant or other occupant of the Premises and that relates
to the release or discharge of Hazardous Substances on or from the
Premises;
(iv) Any claim that is instituted or
threatened by any third party against Tenant or any subtenant or
other occupant of the Premises and that relates to any release or
discharge of Hazardous Substance on or from the Premises;
and
(v) Any notice of the loss of any
environmental operating permit by Tenant or any subtenant or other
occupant of the Premises.
(h) Landlord shall have the right,
but not the obligation, with forty-eight (48) hours prior
written notice, except in an emergency when no notice shall be
required, at all reasonable times during the Term to
(1) inspect the Premises, (2) enter upon the Premises to
conduct tests and investigations and take samples to determine
whether Tenant is in compliance with the provisions of this ARTICLE
VI, or as otherwise necessary and (3) request lists of all
Hazardous Substances used, stored or located on the Premises. The
cost of all such inspections, tests and investigations shall be
borne by Tenant.
(i) Tenant’s obligations and
liabilities under this ARTICLE VI shall survive the expiration or
early termination of the Lease. For purposes of this ARTICLE VI,
the term “Shopping Center” shall include the
Land.
6.2. Tenant shall indemnify, defend,
protect and hold harmless Landlord, the manager of the Shopping
Center, and their respective officers, directors, trustees,
beneficiaries, shareholders, partners, agents and employees from
all fines, suits, procedures, claims, and actions of every kind,
and all costs associated therewith (including, without limitation,
attorneys’ and consultants’ fees and the costs of
investigation and settlement of any claims) arising out of or in
any way connected with (1) any deposit, spill, discharge, or
other release of Hazardous Substances which arises at any time from
Tenant’s, its employees’, agents’,
contractors’, or invitees’ use or occupancy of the
Premises or any other portion of the Shopping Center, or
(2) from its failure to provide all information, make all
submissions and take all steps required by all Authorities under
the Environmental Laws and (3) Tenant’s, its
employees’, agents’, contractors’ or
invitees’ breach of this ARTICLE VI, whether or not Tenant
has acted negligently with respect to such Hazardous
Substances.
6.3. As used in this ARTICLE VI, the
term “Hazardous Substances” means:
(a) any substance designated
pursuant to Section 311 (b)(2)(A) of the Federal Water
Pollution Control Act;
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(b) any element, compound, mixture
solution or substance designated pursuant to Section 102 of
the Comprehensive Environmental Response, Compensation and
Liability Act;
(c) any hazardous waste having the
characteristics identified under or listed pursuant to
Section 3001 of the Solid Waste Disposal Act;
(d) any toxic pollutant listed under
Section 307(a) of the Federal Water Pollution Control
Act;
(e) any hazardous air pollutant
listed under Section 112 of the Clean Air Act;
(f) any imminently hazardous
chemical substance or mixture with respect of which the
Administrator of the United States Environmental Protection Agency
has taken action pursuant to Section 7 of the Toxic Substances
Control Act; and
(g) any substance, waste or other
material considered hazardous, dangerous or toxic under any state,
local or federal law, code, ordinance or regulation.
(h) petroleum and petroleum
products, including crude oil or any fraction thereof, which is not
specifically listed or designated as a Hazardous Substance under
Section 6.3(a) through (g) of this ARTICLE VI, as well as
natural gas, natural gas liquids, liquefied natural gas and
synthetic gas usable for fuel and mixtures of natural gas and such
synthetic gas.
6.4. As used in this ARTICLE VI, the
term “Environmental Laws” shall mean and refer to the
entirety of the federal acts, portions of which are referenced in
Section 6.3, and all other federal and all state and local
laws, codes, ordinances, rules regulations, and directives
governing the discharge, emission or disposal of any pollutant in,
to or from the Premises or any other portion of the Shopping Center
or other premises or the environment and prescribing methods for
storing, handling or otherwise managing Hazardous Substances and
wastes including, but not limited to, the then current versions of
the following federal statutes, their state analogs, and the
regulations implementing them: The Resource Conservation and
Recovery Act (42 U.S.C. 6901 et seq .), the
Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. 9601 et seq .), the Clean Water Act
(33 U.S.C. 1251 et seq .), the Clean Air Act (42
U.S.C, 7401 et seq .), and the Toxic Substances
Control Act (15 U.S.C. 2601 et seq .).
ARTICLE VII. LATE
CHARGE
7.1. Tenant agrees to pay to
Landlord, as additional rent, a late fee equal to five percent
(5%) of any amount due for monthly Fixed Minimum Rent or other
payments due hereunder if said payments have not been received by
Landlord within five (5) days of the due date. In addition, if
Landlord does not receive such payment within thirty (30) days
of such payment’s due date, then such payment and late charge
shall bear interest at the rate per annum equal to the greater of
(i) eighteen percent (18%) per annum; provided, however,
such rate is not usurious or (ii) the highest non-usurious
rate permitted under the laws of the jurisdiction where the
Shopping Center is located from the date such payment was due to
the date of payment thereof. Such late charge and interest shall
constitute additional rent due hereunder, shall be paid with the
next monthly installment of Fixed Minimum Rent coming due
hereunder, and shall be in addition to, and not in lieu of, all
other rights and remedies provided to Landlord in this Lease, at
law, or in equity.
ARTICLE VIII. COMMON
AREAS
8.1. Subject to Landlord’s
rights in this Section VIII during the Term, Landlord shall make
available from time to time in the Shopping Center such Common
Areas as Landlord shall deem appropriate. “Common
Areas” shall mean all areas and improvements now or hereafter
existing, made available by Landlord for the common and joint use
of Landlord, Tenant and other tenants and occupants of the Shopping
Center, and their respective employees, agents, customers and
invitees, which may include if provided, but shall not be limited
to driveways, footways, parking areas, walkways and all other areas
in the Shopping Center now or hereafter constructed to be used in
common by the tenants and/or customers of the Shopping Center. All
Common Areas shall at all times be subject to such rules and
regulations as Landlord may from time to time prescribe and
Landlord shall at all times have full and exclusive control,
management and direction of said Common Areas. Landlord further
shall have the right (but shall not be obligated) (a) to
police the Common Areas; (b) to restrict parking by tenants,
their officers, agents and employees; (c) to designate
employee parking areas; (d) to establish and enforce parking
charges, with appropriate provisions for free-parking ticket
validation by tenants; (e) to close temporarily all or any
portion of the Common Areas or any parts thereof, including the
parking areas or facilities for the purpose of maintenance,
repairs, and/or construction; (f) to discourage non-customer
parking; and (g) to do and perform such other acts in and to
such areas as Landlord, in the use of its business judgment, shall
determine to be advisable. Landlord further shall have the right,
without materially, adversely affecting access to or the use or
accessibility of the Premises or without materially, adversely
affecting the character of the Shopping Center as such exists on
the Lease Commencement Date, in its sole discretion, at all times,
and from time to time throughout the Term, without incurring any
liability to Tenant, including but not limited to loss of sales,
and without it constituting an eviction to: (i) change the
area, appearance, size, level, layout, location, and/or arrangement
of the Shopping Center or any part thereof (including, without
limitation, the Common Areas and the entrances to and exits from
the Common Areas); (ii) construct other
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buildings, structures or improvements in the
Common Areas and elsewhere in the Shopping Center (including,
without limitation, construction of kiosks in the Common Areas),
and make alterations and additions thereto, or rearrangements
thereof, demolish parts thereof, build additional stories on any
building in the Shopping Center (and for such purposes to construct
and erect columns and support facilities in any building), and
construct additional buildings or facilities adjoining or proximate
to the Shopping Center; (iii) expand, reduce, or alter the
parking areas in any manner whatsoever including, without
limitation, the construction of multiple-deck, elevated, or
underground parking facilities; (iv) relocate or rearrange the
various buildings, parking areas, and other parts of the Shopping
Center; (v) make changes and additions to the pipes, conduits,
and ducts or other structural and nonstructural installations in
the Premises where desirable to serve the Common Areas and other
premises in the Shopping Center or to facilitate the expansion or
alteration of the Shopping Center (including, without limitation,
the construction and erection of columns and support facilities);
and (vi) add additional real property to the Shopping
Center.
ARTICLE IX.
ASSIGNMENT & SUBLETTING
9.1. Tenant shall not assign this
Lease or any of Tenant’s rights or obligations hereunder, or
sublet or permit anyone to occupy the Premises or any part thereof,
without the prior written consent of Landlord which may be withheld
in Landlord’s absolute sole discretion. No assignment or
transfer of this Lease may be effected by operation of law or
otherwise without Landlord’s prior written consent. The
consent of Landlord to any assignment or subletting shall not be
construed as a waiver or release of Tenant from liability for the
performance of all covenants and obligations to be performed by
Tenant under this Lease. The transfer, whether a single transfer or
multiple transfers, of fifty percent (50%) or more of the
ownership interests of Tenant within a twelve (12) month
period shall be deemed equivalent to an assignment or subletting
requiring consent of Landlord. Any attempted assignment or
subletting made without Landlord’s consent shall, at the
option of Landlord, be deemed an Event of Default under this Lease.
Landlord’s acceptance or collection of rent from any
assignee, subtenant or occupant shall not be construed (a) as
a consent to or acceptance of such assignee, subtenant or occupant
as a tenant, (b) as a waiver by Landlord of any provision
hereof, (c) as a waiver or release of Tenant from liability
for the performance of any obligation to be performed under this
Lease by Tenant, or (d) as relieving Tenant or any assignee,
subtenant or occupant from the obligation of obtaining
Landlord’s prior written consent to any subsequent
assignment, subletting or occupancy. Tenant hereby assigns to
Landlord any rent due from any assignee, subtenant or occupant of
Tenant as security for Tenant’s performance of its
obligations pursuant to this Lease; provided, however, that Tenant
shall have the right to collect such rent as long as Tenant is not
in Event of Default under the terms of this Lease. Tenant
authorizes each such assignee, subtenant or occupant to pay such
rent directly to Landlord if such assignee, subtenant or occupant
receives written notice from Landlord specifying that such rent
shall be paid directly to Landlord. In the event of Event of
Default by any assignee of Tenant or any successor of Tenant in the
performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting
remedies against such assignee or successor. Landlord may consent
to subsequent assignments or subletting of this Lease or amendments
or modifications to this Lease with assignees of Tenant, without
notifying Tenant, or any successor of Tenant, and without obtaining
its or their consent thereto and such action shall not relieve
Tenant of liability under this Lease. Tenant shall not mortgage
this Lease without Landlord’s consent, which consent may be
granted or withheld in Landlord’s reasonable discretion. All
restrictions and obligations imposed pursuant to this Lease on
Tenant shall be deemed to extend to any subtenant, assignee or
occupant of Tenant, and Tenant shall cause such persons to comply
with all such restrictions and obligations. Tenant shall pay to
Landlord a Seven Hundred Fifty and 00/100 Dollar ($750.00)
processing fee as well as expenses (including reasonable
attorneys’ fees) incurred by Landlord in connection with
Tenant’s request for Landlord to give its consent to any
assignment, subletting, occupancy or mortgage, whether or not
Landlord consents thereto.
9.2. Notwithstanding anything herein
to the contrary, Tenant shall have the right, without
Landlord’s consent, but upon prior written notice to Landlord
to assign this Lease to (i) any parent, subsidiary or
affiliate of Tenant, (ii) an entity which is the result of a
consolidation, merger or other reorganization of Tenant,
(iii) an entity acquiring all or substantially all of the
stock or assets of Tenant; (iv) a capital stock institution
which is the result of the conversion from a mutual institution to
a capital stock institution and the sale or transfer of stock
associated therewith, provided that as a result of such conversion
the former holders of the mutual institution become the beneficial
owners of the capital stock institution in the same pro-rata
ownership (collectively, “Permitted Transferee”),
provided such Permitted Transferee has a net worth and
creditworthiness which are at least equal to or greater than those
of Tenant on the date of execution of this Lease and provided that
such Permitted Transferee assumes, in full, the obligations of
Tenant under this Lease, and such assignment shall not relieve
Tenant of its obligations hereunder.
9.3. If at any time Tenant intends
to assign, sublet or otherwise transfer all or part of the Premises
or this Lease, then Tenant shall give written notice to Landlord
(“Sublease Proposal Notice”) of the area proposed to be
assigned or sublet (the “Proposed Sublet Space”) and
the term for which Tenant desires to sublet the Proposed Sublet
Space, the name of the proposed subtenant or assignee and such
other information as Landlord shall reasonably request.
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9.4. After receipt of Tenant’s
Sublease Proposal Notice, Landlord shall also have the right in its
sole and absolute discretion, in addition to Landlord’s
rights in Section 9.1, to elect: (a) to consent to the
proposed sublease or assignment, (b) to reject the proposed
sublease or assignment, or (c) to terminate this Lease with
respect to the Proposed Sublet Space. Landlord shall exercise such
right by sending Tenant written notice within thirty (30) days
after Landlord’s receipt of the Sublease Proposal Notice. If
the Proposed Sublet Space does not constitute the entire Premises
and Landlord elects to terminate this Lease with respect to the
Proposed Sublet Space, then (1) Tenant shall tender the
Proposed Sublet Space to Landlord on a date specified in
Landlord’s notice (which date shall not be more than sixty
(60) days after the date of such notice) as if such specified
date had been originally set forth in this Lease as the Lease
Expiration Date with respect to the Proposed Sublet Space, and
(2) as to all portions of the Premises other than the Proposed
Sublet Space, this Lease shall remain in full force and effect
except that the additional rent payable pursuant to ARTICLE III and
the Fixed Minimum Rent payable pursuant to ARTICLE III shall be
reduced pro rata. If the Proposed Sublet Space constitutes the
entire Premises and Landlord elects to terminate this Lease, then
(1) Tenant shall tender the Premises to Landlord on a date
specified in Landlord’s notice (which date shall not be more
than sixty (60) days after the date of such notice), and
(2) the Term shall terminate on such specified date.
Notwithstanding anything to the contrary in the foregoing
provisions of this Section 9.4, Landlord shall not have the
right to terminate this Lease with respect to the Proposed Sublet
Space in the event Tenant proposes to assign this Lease to a
corporation or other business entity Tenant is merged or
consolidated into or to which substantially all of Tenant’s
assets may be transferred, provided such successor entity has
assumed in writing all of the obligations and liabilities of Tenant
under this Lease.
9.5. In the event Landlord does not
exercise its rights to sublet the Proposed Sublet Space from Tenant
or to terminate this Lease with respect thereto, Tenant shall be
entitled to seek Landlord’s consent to an acceptable assignee
or subtenant for the Proposed Sublet Space, for a sublease term no
longer than that set forth in the Sublease Proposal Notice, such
consent shall be in Landlord’s absolute sole discretion. Such
consent or permission pursuant to Section 9.1 may be withheld
if (a) the subtenant or assignee is of a character or engaged
in a business which is not in keeping with the standards of
Landlord for the Shopping Center, (b) Tenant is in Event of
Default under this Lease, (c) the Proposed Sublet Space is not
regular in shape with appropriate means of ingress and egress and
suitable for normal renting purposes, (d) in the reasonable
judgment of Landlord, the assignee or sublessee does not have the
financial capacity or experience to undertake the obligations of
this Lease or the sublease, (e) such a sublease or assignment
would violate any term or condition of any covenant or agreement of
Landlord involving the Shopping Center, or any other tenant lease
within the Shopping Center or (f) any other reason in
Landlord’s absolute sole discretion. In the event the
assignment or sublease for the assignee or subtenant designated in
Tenant’s Sublease Proposal Notice (which assignment/sublease
and assignee/subtenant are acceptable to and approved by Landlord)
has not been executed by Tenant within one hundred fifty
(150) days from the date of Tenant’s Sublease Proposal
Notice, Tenant shall not be entitled to enter into such assignment
or sublease without first submitting a new Sublease Proposal Notice
to Landlord and affording Landlord an opportunity to exercise its
rights as set forth in Section 9.4, including its subletting
or termination rights.
9.6. If any sublease, assignment or
other transfer (whether by operation of law or otherwise and
whether consented to or not) provides that the subtenant, assignee
or other transferee is to pay any amount in excess of the rent and
other charges due under this Lease (except rent or other payments
received which are attributable to the amortization of the cost of
leasehold improvements made to the sublet or assigned portion of
the Premises by Tenant for the subtenant or assignee, and other
reasonable expenses incident to the subletting or assignment,
including standard leasing commissions), then whether such excess
is in the form of an increased monthly or annual rent, a lump sum
payment, payment for the sale, transfer or lease of Tenant’s
fixtures, leasehold improvements, furniture and other personal
property, or any other form (and if the subleased or assigned space
does not constitute the entire Premises, the existence of such
excess shall be determined on a pro rata basis), then Tenant, after
all expenses associated with subleasing the Premises are deducted;
including but not limited to reasonable attorneys’ fees,
brokerage fees, marketing expenses, processing fees, shall pay to
Landlord fifty percent (50%) of any such excess as additional
rent upon such terms as shall be specified by Landlord and in no
event later than ten (10) days after Tenant’s receipt
thereof. Tenant expressly waives any right that it might have to
retain such fifty percent (50%) of the excess pursuant to the
provisions of section 365(f) of the Bankruptcy Code. Landlord shall
have the right to inspect and audit Tenant’s books and
records relating to any sublease, assignment or other transfer. Any
sublease, assignment or other transfer shall be affected on a form
approved by Landlord.
9.7. Any sublease or assignment
shall require Tenant and Sublessee/Assignee to execute
Landlord’s standard consent to Sublease or Consent to
Assignment document.
ARTICLE X.
REPAIRS
10.1. Exterior Repairs :
Landlord shall keep and maintain the roof and other exterior
portions of the Premises (exclusive of doors, windows, glass,
showcases and storefronts) in good repair, provided Tenant shall
give Landlord written notice of the necessity for such repairs, and
provided the damage thereto shall not have been caused by Tenant,
its agents, contractors, invitees or employees, in which event
Tenant shall be responsible therefore and shall promptly repair
such damage. The provisions of this Section 10.1 shall not
apply in the case of damage or destruction by fire or other
casualty or by eminent domain in which
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event the obligations of Landlord shall be as
set forth in ARTICLE XXV (labeled Destruction) and ARTICLE XXVI
(labeled Condemnation). Except as provided in this
Section 10.1, Landlord shall have no obligation or liability
for repair or maintenance of the Premises, or any part thereof, nor
shall Landlord be under any liability to repair, maintain or
replace any electrical, plumbing, heating, air conditioning or
other mechanical installation, nor shall Landlord be obligated to
make any improvements of any kind upon the Premises, or to make any
repairs, replacements or improvements to any equipment, facilities
or fixtures contained therein, all of which shall be the
responsibility of Tenant as provided in
Section 10.2.
10.2. Interior Repairs :
Tenant, at Tenant’s sole cost and expense, shall keep the
interior of the Premises, including but not limited to all doors,
windows and glass, electrical, plumbing, heating, air conditioning
and other mechanical installations and equipment used by or in
connection with the Premises in clean, safe and sanitary condition
and in good order and repair, including replacement thereof, and
promptly replace any plate glass which may be broken or damaged
with glass of like kind and quality, and will suffer no waste or
injury thereto, and quit and surrend