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(cb-warrington)
LEASE
from
to
COMMERCE BANK, PA
Article I
Reference Date and Exhibits
---------------------------
1.1 Data
DATE : November 27, 2001
LOCATION OF PREMISES : Route 611 and Street Road
Warrington, Pennsylvania
LANDLORD : Warrington Equities, LLC
ORIGINAL ADDRESS OF : 17000 Horizon Way
Suite 100
Mt. Laurel, NJ 08054
TENANT : Commerce Bank/Pennsylvania, N.A.
ORIGINAL ADDRESS OF : c/o Commerce Bancorp, Inc. 1701
Route 70 East Cherry Hill, NJ 08034
LEASE TERM : Twenty Years
ANNUAL FIXED RENT RATE : Year 1-5 $135,000.00
6-10 $148,500.00
11-15 $163,350.00
16-20 $179,685.00
INSURANCE LIMITS : $2,000,000 Single Action
$4,000,000 Aggregate
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1.2 Table of Contents
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ARTICLE I - Reference Data and Exhibits Page
- --------- --------------------------- ----
1.1 Data 1
1.2 Table of Contents 2
ARTICLE II - Premises and Term
- ------------ -----------------
2.1 Premises 4
2.2 Term 4
2.3 Option to Extend 4
ARTICLE Ill - Improvements
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3.1 Construction of Improvements 4
3.2 Contractor 4
3.3 Signs 5
ARTICLE IV - Rent
- ----------
4.1 The Rent, Minimum Fixed and Percentage 5
ARTICLE V - Real Estate Taxes
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5.1 Real EstateTaxes 5
5.2 Taxes 5
5.3 Method of Payment 6
ARTICLE VI - Utilities and Services
- ---------- ----------------------
6.1 Utilities and Charges Therefore 6
ARTICLE VII - TENANT'S Additional Covenants
- ----------- -----------------------------
7.1 Affirmative Covenants 6
7.1.1 Use 6
7.1.2 Compliance with Law 7
7.1.3 Payment of TENANT'S Work 7
7.1.4 Indemnity and Liability Insurance 7
7.1.5 LANDLORD'S Right to Enter 8
7.1.6 Personal Property at TENANT'S Risk 8
7.1.7 Payment of LANDLORD'S Cost of Enforcement 8
7.1.8 Yield Up 8
7.1.9 Maintenance 9
7.1.10 Insurance 9
7.2 Negative Comments 9
7.2.1 Overloading, Nuisance, etc. 9
7.2.2 Installation, Alteration or Additions 9
ARTICLE VIII - LANDLORD'S Additional Covenants
- ------------ -------------------------------
8.1 Warranty on Use 10
8.2 Competing Use 10
ARTICLE IX - Casualty or Taking
- ---------- ------------------
9.1 TENANT to Repair or Rebuild in the Event of Casualty 10
9.2 Right to Terminate in Event of Casualty 10
9.3 Eminent Domain 10
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Page
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ARTICLE X - Defaults
- --------- ---------
10.1 Events of Default . 11
10.2 Remedies 12
10.3 Remedies Cumulative 12
10.4 LANDLORD'S and TENANT'S Right to Cure Defaults 12
10.5 Effect of Waivers of Default 12
ARTICLE XI - Miscellaneous Provisions
- ---------- ----------------------
11.1 Assignment, Subletting, etc. 13
11.2 Notice from One Party to Other 13
11.3 Quiet Enjoyment 13
11.4 Recording 13
11.5 Acts of God 13
11.6 Waiver of Subrogation 14
11.7 Rights of Mortgagee and Subordination 14
11.7.1 14
11.7.2 No Accord and Satisfaction 14
11.8 Applicable Law and Construction 15
ARTICLE XII - Permits and Approvals
- ----------- ---------------------
12.1 Tenant Obligations 15
12.2 Approvals 15
12.3 Easements 15
ARTICLE XIII- Net, Net Lease
- ------------ --------------
13.1 Net, Net, Net Lease 15
ARTICLE XIV - Right of First Refusal
- ----------- ----------------------
14.1 Right of First Refusal to Lease 16
14.2 Right of First Refusal to Purchase 16
ARTICLE XV - Holdover
- ---------- --------
15.1 Holdover 16
ARTICLE XVI - Common Area
- ------------ ----------
16.1 Common Area 17
16.2 Common Area Charges 17
16.3 Determination and Payment of Common Area Charges 17
16.4 Construction Cost 17
ARTICLE XVII - Environmental
- ------------- -------------
17.1 Environmental Matters 17
ARTICLE XVIII
- -------------
18.1 Title 18
18.2 Ownership 18
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ARTICLE II
Premises and Term
-----------------
2.1 Premises - LANDLORD hereby leases to TENANT and TENANT hereby
leases from LANDLORD, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the premises shown on Exhibit "A" and
described in Exhibit "B", both annexed hereto and made a part hereof, together
with any and all improvements, appurtenances, rights, privileges and easements
befitting, belonging or pertaining thereto and a building no greater than 4,000
square feet, so long as such building is within the perimeter of the leased
premises as shown on Exhibit "A".
2.2 Term - TO HAVE AND TO HOLD for a term beginning Ninety (90) days
(inclusive of the time for objectors to appeal for any approval) after LANDLORD
has obtained approval for the construction of the branch bank as set forth in
Article 12 (notwithstanding TENANT may not have commenced construction) and
continuing for the Lease term of twenty (20) years unless sooner terminated as
hereinafter provided. When dates of the beginning and end of the Lease term
~iave been determined, such dates shall be evidenced by a document in form for
recording, executed by LANDLORD and TENANT and delivered each to the other. 2.3
Option to Extend - So long as TENANT is not in default hereunder, TENANT shall
have the right to extend this Lease for three (3) five (5) year terms and one (I
) four (4) year eleven (1 1 ) month term under the same terms, conditions and
provisions as in the original term, at the following rentals:
Option Years 1-5 $197,653.00
6-10 $217,418.00
11-15 $239,160.00
16-20 $263,076.00
TENANT shall give written notice of its intention to exercise each
extension option not less than Ninety (90) days prior to the expiration of the
then current term. Lack of written notice by TENANT of its intention to exercise
any option prior to ninety (90) days before the expiration of the then current
term shall be deemed to constitute exercise of that option by the TENANT.
ARTICLE III
Improvements
------------
3.1 Construction of Improvements - TENANT agrees to construct, at its
sole cost, a branch banking facility, pursuant to the attached Site Plan,
subject to reasonable approval by the LANDLORD of the building plans and
specifications.
3.2 Contractor - TENANT shall have the right to select and approve the
contractor to complete the construction, which shall be subject to the approval
of the LANDLORD. Approval by LANDLORD shall not be unreasonably withheld.
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3.3 Signs - TENANT shall have the right to erect such signs as
permitted by applicable zoning ordinances within the leased area, provided it
does not preclude LANDLORD from erecting signs for tenants for the balance of
the shopping center.
ARTICLE IV
Rent
----
4.1 The Rent, Minimum Fixed - TENANT covenants and agrees to pay rent
to LANDLORD at the original address of LANDLORD or such other place as LANDLORD
may by notice in writing to TENANT from time to time direct, at the following
rates and times.
(a) TENANT agrees to pay to LANDLORD base annual fixed rent for the
Premises in accordance with and in the amount set forth in Paragraph 1.1 "Data".
The base annual fixed rent shall be paid in equal monthly installments in
advance on the first (1st) day of each month beginning on the Commencement Date.
In addition to the base annual fixed rent, TENANT sha9 pay as and when the same
become due and owing as additional rents, all other monies provided for in the
Lease. It is the parties intention that all charges and assessments charged to
or assessed against the Premises shall be the responsibility of the TENANT, such
that the Lease shall be "net, net, net" to the LANDLORD, excepting only interest
and principal on any mortgage made by the LANDLORD and affecting the Premises.
(b) For purposes of this Lease, the scheduled increases in the base
annual fixed rate shall occur on the first day of the sixth (6th), eleventh
(11th) and sixteenth (16th) years of the Initial Term as same is determined
pursuant to Paragraph 2.2 and on the first day of the first (1st), sixth (6th),
eleventh (11th) and sixteenth (16th), years of the Option Terms.
(c) If any installment under this Lease is not paid within fifteen (15)
days of the time and at the place and in the manner specified, then LANDLORD
may, at its option, declare TENANT in default.
ARTICLE V
Real Estate Taxes
-----------------
5.1 Real Estate Taxes - As additional rent, TENANT agrees to pay all
real estate taxes levied upon the Premises, improvements located on the
Premises, the leasehold estate, or any subleasehold estate of any nature
including special assessments. The obligation for payment by TENANT of all real
estate taxes shall commence simultaneously with the payment of rent hereunder.
5.2 Taxes - TENANT agrees to pay all taxes levied upon rents ~and
personal property, including trade fixtures and inventory, kept on the demised
Premises, covered by Section 5.1 after presentation to TENANT by LANDLORD of
statements from the taxing jurisdiction in which said property is located.
TENANT, however, will pay only the lowest discounted amount and will not be
required to pay
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any penalty, interest or cost occurring by reason of LANDLORD'S failure to
secure said tax statements in a timely fashion from the taxing authorities for
any tax required to be paid by TENANT. LANDLORD may, however, direct the taxing
authorities to send the statements directly to TENANT. In the event LANDLORD
directs the taxing authorities to send a statement directly to TENANT, TENANT
shall make all such payments directly to the taxing authority at least ten (10)
days before any delinquency and before any fine, interest or penalty shall
become due or imposed by operation of law for their non-payment. Further, TENANT
shall furnish to LANDLORD within ten (10) days of the date when any tax,
assessment or charge would become delinquent, receipts or other satisfactory
evidence establishing the timely payment of said taxes or charges. LANDLORD
further agrees that TENANT, in the name of LANDLORD, but at TENANT'S sole
expense, may protest any assessment before any taxing authority or board or
maintain any necessary legal action in reference to said assessment or for the
recovery of any taxes paid thereon. Nothing herein contained shall require
TENANT to pay any income or excess profits, taxes assessed against LANDLORD or
any corporation, capital stock, or franchise tax imposed upon LANDLORD.
5.3 Method of Payment - LANDLORD shall give written notice advising
TENANT of the amount of real estate taxes, together with a copy of the tax bill,
and TENANT shall pay such amount to LANDLORD within thirty (30) days after
receipt of such notice. If this Lease shall terminate during a tax year, TENANT
shall pay to LANDLORD; a prorated portion of the amount that would have been due
for the full tax year based on the number of days of said tax year expired on
the date of termination.
ARTICLE VI
Utilities and Services
----------------------
6.1 Utilities and Charges Therefore - TENANT agrees to pay directly to
the authority charged with the collection thereof, all charges for water, gas,
electricity, sanitary sewer and sprinkler changes, telephone connection and
standby fees and other utilities used or consumed in the Premises and shall make
its own arrangements for such utilities. In the event any such services cannot
be reasonably procured from any public agency, and LANDLORD provides any such
services, TENANT shall reimburse LANDLORD for its proportionate share of any
such services used or consumed in the demised premises as additional rental.
ARTICLE VII
TENANT'S Additional Covenants
-----------------------------
7.1 Affirmative Covenants - TENANT covenants at its expense at all
times during the Lease term and such further time as TENANT occupies the
Premises or any part thereof.
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7.1.1 Use - TENANT shall use and permit the use of the Premises and the
improvements to be constructed thereon primarily for the operation of a branch
bank, provided that (subject to the other terms and conditions of this Lease),
TENANT may at any time use the Premises and the building and other improvements
to be constructed thereon, for any other lawful commercial purposes which do not
conflict with existing primary uses in the Shopping Center which forms part of
the common area, with such uses to be approved by the LANDLORD, which approval
shall not be unreasonably withheld. Neither TENANT nor its subtenants, if any,
shall commit any nuisance, nor permit the emission of any objectionable noise or
odor, nor bring on, deposit or allow to be brought on or deposited on the
Premises any asbestos materials or any other Hazardous Substance or materials as
the same may be defined by Federal, State or local laws, rules, statutes or
regulations or in the Environmental Rider annexed hereto, nor use the property
in such a manner which negatively effects the reversion.
7.1.2 Compliance with Law - To make all repairs, alterations, additions
or replacements to the Premises required by any law or ordinance or any order or
regulation of any public authority because of TENANT'S use of the Premises, to
keep the Premises equipped with all safety appliances so required because of
such use; to pay all municipal, county or state taxes assessed against the
personal property of any kind owned by or placed in, upon or about the premises
by TENANT; and to comply with the orders and regulations of all governmental
authorities, as well as all Insurance Carriers and Underwriters.
7.1.2 (A) TENANT has the right to contest by appropriate judicial or
administrative proceeding, without cost or expense to the LANDLORD, the validity
or application of any law, ordinance, order, rule, regulation or requirement
("law") which the TENANT legitimately deems unduly burdensome or inappropriate
and TENANT shall not be in default for failure to comply with such law until the
legally permitted time following final determination of TENANT'S contest
expires; provided, however, if LANDLORD gives notice of request, TENANT shall
first furnish LANDLORD with a bond, satisfactory to LANDLORD in form and
insurer, guaranteeing compliance by TENANT with the contested law and
indemnifying LANDLORD against all liability that LANDLORD may sustain by reason
of TENANT'S failure or delay in complying with the law. LANDLORD may, but is not
required to, contest any such law independent of TENANT. On TENANT'S notice of
request, LANDLORD may join in TENANT'S contest.
7.1.3 Payment for TENANT'S Work - To pay promptly when due the entire
cost of any work to the Premises undertaken by TENANT and to bond against or
discharge any liens for labor or materials within ten (10) days after written
request by LANDLORD; to procure all necessary permits before undertaking such
work; and to do all of such work in a good and workmanlike manner, employing new
materials of good quality and complying with all governmental requirements.
7.1.4 Indemnity and Liability Insurance - To defend with counsel, save
harmless and indemnify LANDLORD from all claims or damage to or of any person or
property while on the premises
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unless arising from any omission, fault, negligence or other misconduct of
LANDLORD, and from all claims or damage to or of any person or property
occasioned by any omission, fault, neglect or other misconduct of TENANT; to
maintain in responsible companies qualified to do business in the state in which
the premises is located and in good standing therein, public liability insurance
covering the premises insuring LANDLORD, as well as TENANT, with limits at least
equal to those stated in Section 1.1, workmen's compensation insurance with
statutory limits, covering all of TENANT'S employees working in the premises,
and to deposit promptly with LANDLORD certificates for such insurance and all
renewals thereof, bearing the endorsement that the policies will not be canceled
until after ten (10) days written notice to LANDLORD. TENANT'S obligations
hereunder may be satisfied through a blanket insurance policy covering other
interests of the TENANT.
7.1.5 LANDLORD'S Right to Enter - To permit LANDLORD and its agents to
examine the premises at reasonable times and to show the premises to prospective
purchasers and lenders, provided such entry shall not unreasonably interfere
with TENANT'S operation and conduct of its business in the demised premises or
compromise security.
7.1.6 Personal Property at TENANT'S Risk - That all of the furnishings,
fixtures, equipment, effects and property of every kind, nature and description
of TENANT and of all persons claiming under TENANT, that may be on the premises,
shall be at the sole risk and hazard of TENANT, and if the whole or any part
thereof shall be destroyed or damaged by fire, water, or otherwise, or by the
leakage or bursting of water pipes, steam pipes or other pipes, by theft or from
any other cause, no part of said loss or damage is to charged to or be borne by
LANDLORD, except that LANDLORD shall in no event be indemnified or held harmless
or exonerated from any liability resulting from its sole negligence, failure to
perform any of its obligations under this Lease or to any extent prohibited by
law.
7.1.7 Payment of LANDLORD'S Cost of Enforcement - To pay on demand
LANDLORD'S expenses, including reasonable attorney's fees, incurred in enforcing
any obligation of TENANT under this Lease or in curing any default by TENANT
under this Lease as provided in Section 10.4, provided LANDLORD shall prevail in
any judicial proceedings in respect to such enforcement.
7.1.8 Yield Up - At the expiration of the Lease term or earlier
termination of this Lease, TENANT shall remove all trade fixtures and personal
property, to repair any damage caused by such removal, to remove all TENANT'S
signs wherever located and to surrender all keys to the premises and yield up
the premises, broom clean and in the same good order and repair in which TENANT
is obligated to keep and maintain the premises by the provisions of this Lease,
reasonable wear and tear and insured damage by fire, casualty or taking
excepted. Any property not so removed shall be deemed abandoned and may be
removed and disposed of by LANDLORD in such manner as LANDLORD shall determine,
without any obligation on the part of LANDLORD to account to TENANT for any
proceeds therefrom, all of which shall become the property of LANDLORD. Any
holdover by TENANT will not be deemed an
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extension of this Lease, and TENANT shall indemnify LANDLORD against all losses
and damages from a failure to surrender.
7.1.9 Maintenance - Throughout the term, TENANT shall, at TENANT'S sole
cost and expense maintain the premises and all improvements thereon in good
condition and repair, ordinary wear and tear excepted, and in accordance with
all applicable laws, rules, ordinances, orders and regulations of (1) federal,
state, county, municipal and other governmental agencies and bodies having or
claiming jurisdiction and all of their respective departments, bureaus and
officials; (2) the insurance underwriting board or insurance inspection bureau
having or claiming jurisdiction; and (3) all insurance companies insuring all or
any part of the premises of the improvements located thereon, or both except as
provided below and subject only to the provisions of Paragraph 9.2, TENANT shall
promptly and diligently repair, restore and replace as required to maintain the
premises and the improvements in the condition set forth above, or to remedy all
damage to or destruction of all or any part of the improvements.
(A) The completed work of maintenance, compliance, repair, restoration
or replacement shall be equal in value, quality and use to the condition of the
improvements before the event giving rise to the work, unless otherwise provided
for in this Lease. LANDLORD shall not be required to furnish any services or
facilities or to make any repairs or alterations of any kind in or upon or on
the premises, LANDLORD'S election to perform any obligations of the TENANT under
this provision on TENANT'S failure or refusal to do so shall not constitute a
waiver of any right or remedy for TENANT'S default and TENANT shall promptly
reimburse, defend and indemnify LANDLORD against all liability, loss, cost and
expense arising from it.
7.1.10 Insurance - TENANT shall maintain in full force and effect, at
its own cost, full replacement cost coverage insurance covering the demised
premises (and all improvements for the full insurable value) against loss or
damage by fire or casualty, with the usual extended coverage endorsements,
together will endorsements protecting against loss or damage resulting from
malicious mischief, sprinkler leakage and vandalism all in amounts not less than
replacement parts value above foundation walls. All insurance policies shall
name the LANDLORD as its interest may appear.
7.2 Negative Covenants - TENANT covenants at all times during the Lease
term and such further times as TENANT occupies the premises or any part thereof:
7.2.1 Overloading Nuisance. etc. - Not to injure, overload, deface
or otherwise harm the premises; nor commit any nuisance; nor make any use of the
premises which is improper, offensive or contrary to any law or ordinance.
7.2.2 Installation, Alteration or Additions - Not to make any
installations, alterations or additions (except only the installation of
fixtures necessary for the conduct of its business), without on each occasion
obtaining prior written consent of LANDLORD, LANDLORD'S consent not be
unreasonable withheld. No consent shall be required for nonstructural
alterations not exceeding $100,000 in cost. No
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addition will be allowed which increases the building size to more than 4,000
square feet, or which violates the terms of Paragraph 2.1 of this Lease.
ARTICLE VIII
LANDLORD'S Additional Covenants
-------------------------------
8.1 Warranty on Use - LANDLORD warrants and represents that at the
commencement of construction it will be the Owner in Fee of the Land shown on
Exhibit "A" and described in Exhibit "B". LANDLORD has no knowledge of and
TENANT requires that there be no zoning regulations, restrictive agreements,
leases or other instruments which prevent the use of the premises for the
purpose intended herein, nor otherwise conflict with any of the provisions of
this Lease. TENANT'S sole and conclusive remedy for a breach of this warranty
shall be its right, at its election, to terminate the Lease prior to
commencement of construction.
8.2 Competing Use - During the term of this Lease, provided TENANT is
not in default, LANDLORD agrees not to lease or sell any portion of the project,
of which the leased premises is a part, to a commercial bank, savings bank,
savings and loan or credit union.
ARTICLE IX
Casualty or Taking
------------------
9.1 TENANT to Repair or Rebuild in the Event of Casualty - In case the
Premises or any part thereof shall be damaged or destroyed by fire other
casualty, taken (which term or reference to eminent domain action generally, for
the purposes of this Article shall include a sale in lieu of the exercise of the
right of eminent domain) or ordered to be demolished by the action of any public
authority in consequence of a fire or other casualty, this Lease shall, unless
it is terminated as provided below in Section 9.2 or 9.3, remain in full force
and effect and TENANT shall, at its expense, proceed with all reasonable
dispatch, to repair or rebuild the premises and the improvements, or what may
remain thereof, so as to restore them as nearly as practicable to the condition
they were in immediately prior to such damage or destruction.
9.2 Right to Terminate in Event of Casualty - In case of any damage or
destruction occurring in the last five years of the original term of this Lease
or during any extension of the term, to the extent of 50% or more of the
insurable value of the building, TENANT may at its option, to be evidenced by
notice in writing given to the LANDLORD within seven (7) days after the
occurrence of such damage or destruction, in lieu of repairing or replacing the
building, elect to terminate this Lease as of the date of said damage or
destruction. In the event the TENANT shall so terminate the lease all insurance
proceeds shall become the property of the LANDLORD.
9.3 Eminent Domain - If the whole, or any part of the demised premises
shall be taken or condemned by any competent authority for any public use or
purpose during the term of this Lease,
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TENANT reserves unto itself the right to prosecute its claim for an award based
upon its leasehold interest for such taking, without impairing any rights of
LANDLORD for the taking of or injury to the reversion.
In the event that a part of the demised premises shall be taken or
condemned that (a) the part so taken includes the building on the demised
premises or any part thereof or (b) the part so taken shall remove from the
premises 20% or more of the front depth of the parking areas thereof, or (c) the
part so taken shall consist of 25% or more of the total parking area, or (d)
such partial taking shall result in cutting off direct access from the demised
premises to any adjacent public street or highway, then and in any such event,
the TENANT may at any time either prior to or within a period of sixty (60) days
after the date when possession of the premises shall be required by the
condemning authority elect to terminate this Lease, or if any option to purchase
the premises is conferred upon the TENANT by any other provision of this Lease,
may as an alternative to such termination of this Lease elect to purchase the
demised premises in accordance with such purpose option. In the event that
TENANT shall fail to exercise any such option to terminate this Lease or to
purchase the premises or in the event that a part of the demised premises shall
be taken or condemned under circumstances under which the TENANT will have no
such option, then and in either such event the LANDLORD shall, with reasonable
promptness, make necessary repairs to and alterations of the improvements on the
demised premises for the purpose of restoring the same to an economic
architectural unit, susceptible to the same use as that which was in effect
immediately prior to such taking, to the extent that may have been necessary by
such condemnation, subject to a pro-rata reduction in rental. Any dispute
resulting from Section 9.3 of this Lease shall be submitted to the American
Arbitration Society, whose decision shall be binding on the parties hereto.
ARTICLE X
Defaults
--------
10.1 Events of Default - If (a) Tenant shall default in the performance
of any of its obligations to pay rent or additional rent hereunder and if such
default shall continue for ten (10) days after written notice from LANDLORD
designating such default or if within thirty (30) days after written notice from
LANDLORD to TENANT specifying any other non-monetary default or defaults, TENANT
has not commenced diligently to correct the default or defaults so specified or
has not thereafter diligently pursued such corrective action to completion, or
(b) any assignment shall be made by TENANT for the benefit of creditors, or (c)
if TENANT'S leasehold interest shall be taken on execution, attached, levied
upon or (d) if a petition is filed by TENANT for adjudication as a bankrupt, or
for reorganization or an arrangement under any provision of the Bankruptcy Act
as then in force and effect, or (e) if an involuntary petition under any of the
provisions of said Bankruptcy Act is filed against TENANT and such involuntary
petition is not dismissed within sixty (60) days thereafter, then, and in any of
such cases, LANDLORD lawfully may exercise all defaults rights
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available to it under law, including repossession of the leased property,
termination of the lease, and such other rights as may be lawfully permitted.
10.2 Remedies - In the event that this Lease is terminated under any of
the provisions contained in Section 10.1 or shall be otherwise terminated for
breach of any obligation of TENANT, TENANT covenants to pay punctually to
LANDLORD all the sums and perform all the obligations which TENANT covenants in
this Lease to pay and to perform in the same manner and to the same extent at
the same time as if this Lease had not been terminated so long as such
obligations shall have not been rendered unnecessary or impossible of
performance by the subsequent re-letting or other occupancy permitted by
LANDLORD. In calculating the amounts to be paid by TENANT under the foregoing
covenant, TENANT shall be credited with the net proceeds of any rent or the
value of other considerations obtained by LANDLORD by re-letting the premises,
after deducting all LANDLORD'S expenses in connection with such re-letting,
including, without limitation, all repossession costs, brokerage commissions,
reasonable fees for legal services and expenses of preparing the premises for
re-letting, it being agreed by TENANT that LANDLORD may (i) re-let the premises
or any part or parts thereof, for a term or terms which may at LANDLORD'S option
be equal to or less than or exceed the period which would otherwise have
constituted the balance of the Lease term, and (ii) make such alterations,
repairs and decorations in the premises as LANDLORD in its sole judgment
considers advisable or necessary to re-let the same.
Nothing contained in this Lease shall, however, limit or prejudice the
right of LANDLORD to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amounts of the loss or damages
referred to above.
10.3 Remedies Cumulative - Any and all rights and remedies which
LANDLORD may have under this Lease, and at law and equity, shall be cumulative
and shall not be deemed inconsistent with each other, and any two or more of all
such rights and remedies may be exercised at the same time insofar as permitted
by law.
10.4 LANDLORD'S and TENANT'S Right to Cure Defaults - LANDLORD may, but
shall not be obligated to, cure at any time, following ten (10) days prior
written notice to TENANT, except in cases of emergency when no notice shall be
required, any default by TENANT under this Lease; and whenever LANDLORD so
elects, all costs and expenses incurred by LANDLORD, including reasonable
attorney's fees, in curing a default shall be paid by TENANT to LANDLORD as
additional rent on demand. TENANT shall have a like right to cure any default of
LANDLORD, and TENANT may reimburse itself for the cost thereof out of succeeding
rental payments.
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10.5 Effect of Waivers on Default - No consent or waiver, expressed or
implied, by either party to or of any breach of any covenants, conditions or
duty of the other shall be construed as a consent or waiver to or of any other
breach of the same of any other covenant, condition or duty.
ARTICLE Xl
Miscellaneous Provisions
------------------------
11.1 Assignment, Subletting, etc. - LANDLORD'S written consent shall be
required for any assignment, transfer or subletting except to another financial
institution which consent shall not be unreasonably withheld.
11.2 Notice from One Party to the Other - Any notice from LANDLORD to
TENANT or from TENANT to LANDLORD shall be deemed duly served if mailed by
registered or certified mail, return receipt requested, postage pre-paid,
addressed, if to TENANT, at the original address of TENANT or such other
addresses as TENANT shall have last designated by notice in writing to LANDLORD,
and if to LANDLORD, at the original address of LANDLORD or such other address as
LANDLORD shall have last designated by notice in writing to TENANT.
11.3 Quiet Enjoyment - LANDLORD agrees that upon TENANT'S paying the
rent and performing and observing the agreements, conditions and other
provisions on its part to be performed and observed, TENANT shall and may
peaceably and quietly have, hold and enjoy the demised premises during the Lease
term without any manner of hindrance, disturbance or molestation from LANDLORD
or anyone claiming under LANDLORD, subject to the covenants and conditions of
this Lease.
11.4 Recording - TENANT agrees not to record this Lease, but each party
hereto agrees on request of the other, to execute a Notice or Short Form of this
Lease in recordable form in compliance with applicable statutes, and reasonably
satisfactory to LANDLORD'S and TENANT'S attorneys. In no event shall such
document set forth the rental or other charges payable by TENANT under this
Lease; and any such document shall expressly state that it is executed pursuant
to the provisions contained in this Lease, and is not intended to vary the terms
and conditions of this Lease. In the event LANDLORD and/or TENANT believe that
the Lease has been lawfully terminated, abandoned or otherwise of no force and
effect and the other party will not voluntarily execute a Discharge of
Memorandum of Lease, the party seeking the Discharge of Memorandum of Lease may
move summarily before the Pennsylvania Court of Common Pleas for a determination
of whether or not the Memorandum of Lease should be discharged. The other party
consents to the jurisdiction of the Pennsylvania Court of Common Pleas and
agrees to proceed in a summary manner. It is expressly understood and agreed
that in addition to the relief provided herein, the parties will have such
additional cumulative remedies as are available to it at law or in equity for
damages suffered by reason of a wrongful refusal to execute and deliver a
Discharge of Memorandum of Lease.
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ARTICLE XV
Holdover
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15.1 Holdover - In the event that TENANT continues in use and occupancy
and holds over in possession of the premises after the expiration of the Initial
Term or, properly exercised, the Option Term, in addition to all other damages
to which LANDLORD may be entitled, the monthly rent during the period of
holdover shall be in a sum equal to double the amount of the monthly installment
of base annual fixed rent during the last month of the term which has just
expired. Said holdover rent shall be in addition to all additional rents for
which the TENANT shall be responsible during the holdover period.
ARTICLE XVI
Common Area
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16.1 Common Area - LANDLORD hereby grants to TENANT, in common with
LANDLORD and other tenants, with respective invitees and licensees, the right to
use the parking and public areas in the project of which the Leased Premises is
a part, subject to the conditions hereinafter provided. TENANT hereby agrees
that:
(a) LANDLORD may designate an area for TENANT'S employee
parking
(b) Said parking area will not be used for permanent
garaging or overnight parking
(c) TENANT will conform with the reasonable rules and
regulations of the Shopping Center common area
(d) LANDLORD agrees that it will permit construction of
the parking area in substantial conformance with the
attached plan.
16.2 Common Area Charges - As additional rental, TENANT agrees to pay
its pro rata share of the common area maintenance costs which shall include
maintenance, landscaping, illumination, cleaning, snow and ice removals, common
sewerage disposal costs, common signs, and all other common area costs.
16.3 Determination and Payment of Common Area Charges - All such common
area charges shall be deemed additional rental and shall be paid in monthly
installments equal to 1/12th of TENANT'S estimated common are contribution.
TENANT'S common area pro rata shall be determined pursuant to the following
formula:
Total Common Area Charges x TENANT Net Square Ft = TENANT Common Area
-------------------- Charges
Total Shopping Center Square Ft
16.4 Construction Cost - TENANT shall construct its own building at its
own costs and bear all construction within its demised premises, as identified
in Exhibit A.
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ARTICLE XVII
Environmental
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17.1 Environmental Matters -
---------------------
A. LANDLORD represents and warrants that any handling, transportation,
storage, treatment or usage of hazardous or toxic substances (as defined by any
applicant government authority and hereinafter being referred to as "Hazardous
Materials") that has occurred or will occur on the Demised Premises shall be in
compliance with all applicable federal, state and local laws, regulations and
ordinances. TENANT represents and warrants that any handling, transportation,
storage, treatment or usage of Hazardous Materials by TENANT at the Demised
Premises shall be in compliance with applicable federal, state and local laws.
LANDLORD further represents and warrants that no leak, spill, discharge,
emission or disposal of Hazardous Materials has occurred or will occur on the
Demised Premises and that the soil, groundwater, soil vapor on or under the
Demised Premises is or will be free of Hazardous Materials as of the date
hereof. LANDLORD agrees to indemnify, defend and hold TENANT and its officers,
from any claims, judgments, damages, fines, penalties, costs, Iiabilities
(including sums paid in settlement of claims) or loss including attorney's fees,
consultants fees, and expert fees which arise during or after the Primary Term
or any Renewal Term, or in connection with the presence of suspected presence of
Hazardous Materials in the soil, groundwater, or soil vapor on or under the
Demised Premises, unless such Hazardous Materials are present solely as the
result of the acts of TENANT, its officers, employees or agents. Without
limiting the generality of the foregoing, this indemnification shall survive the
expiration of this Lease and does specifically cover costs incurred in
connection with any investigation of site conditions or any cleanup, remedial,
removal or restoration work required by any federal, state or local governmental
agency or political subdivision because of the presence or suspected presence of
Hazardous Materials in the soil, groundwater or soil vapor odor under the
Demised Premises, unless the hazardous Materials are present solely as the
result of the acts of TENANT, its officers, agents or employees. Without
limiting the generality of the foregoing, this indemnification shall also
specifically cover costs in connection with:
1. Hazardous Materials present or suspected to
be present in the soil, groundwater or soil
vapor on or under the Demised Premises before
the date hereof; or
2. Hazardous Materials that migrate, flow,
percolate, diffuse or in any move onto or
under the Demised Premises after the date
hereof; or
3. Hazardous Materials present on or under the
Demised Premises as a result of any
discharge, dumping, spilling (accidental or
otherwise) onto the Demised Premises during
or after the Primary Term or any Renewal Term
by any person or entity.
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such liens where the holder of such liens has executed and delivered to TENANT
in the form attached hereto a Subordination and Non-Disturbance Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
this day and year first above written.
_______________________________ BY:_______________________________
Attest Thomas H. Arasz
Senior Vice President/ Real
Estate Officer
WARRINGTON EQUITIES, LLC
_______________________________ BY:_______________________________
Attest John P. Silvestri
Managing Member
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