Exhibit 10.43
THIS LEASE
MADE AS OF THIS 28 day of January, 1999 between HUBCO, Inc., a New
Jersey Banking Corporation having its principal place of business at 1000
MacArthur Boulevard, Mahwah, N.J. 07430, hereinafter referred to as the
"LANDLORD", and NATIONAL INTEGRITY LIFE INSURANCE COMPANY, INC., a
corporation of the State of New York, located at 35 Matthews Avenue, Goshen,
New York, hereinafter referred to as the "TENANT",
WITNESSETH:
ARTICLE I - PREMISES
The LANDLORD, in consideration of the rents, covenants, agreements
and stipulations hereinafter set forth demises and leases to the TENANT and
TENANT hereby agrees to lease and take, upon the terms and conditions
hereinafter set forth, those certain premises existing and described on
Schedule A, commonly known as a portion of the second floor, 35 Matthews
Street, Goshen, New York. Said rental area shall consist of approximately
4,225 square feet and is hereinafter called the "Premises," or the "premises."
The use and occupation by the TENANT of the premises shall include
the use in common with others entitled thereto of the common areas (such as
lavatories, elevator, hallways, entryways, stairways), sidewalks, and other
facilities as may be designated from time to time by the Landlord, subject,
however, to the terms and conditions of this lease.
ARTICLE II - TERM
The term of this Lease and TENANT's obligation to pay rent
hereunder shall commence on or about January 1, 1999. Both parties will
execute a Commencement Letter verifying the actual commencement date of this
lease. The term of this Lease shall end on the last day of the fifth
consecutive full lease year as said term "lease year" is hereinafter defined,
on December 31, 2003.
The term "lease year" as used herein shall mean a period of twelve
(12) consecutive full calendar months. The first lease year shall begin on
the date of commencement of the term hereof if the date of commencement of
the term hereof shall occur on the first day of a calendar month; if not,
then the first lease year shall commence upon the first day of the calendar
month next following the date of commencement of the term hereof. Each
succeeding lease year shall commence upon the anniversary date of the first
lease year.
(1)
ARTICLE III - RENT
(A) LANDLORD reserves and TENANT covenants to pay to LANDLORD
without demand, at HUBCO, Inc., 1000 MacArthur Boulevard, Mahwah, New Jersey
07430, Attention: Facilities Manager, or at such other place as may hereafter
be designated in writing by LANDLORD, on the days and in the manner herein
prescribed for the payment thereof, rent for the Premises as follows:
During Years One and Two of the lease, a fixed guaranteed minimum
annual rent, herein called "Minimum ANNUAL Rent" of $65,487.50 ($15.50 psf)
is due and payable in equal monthly installments of $5,457.30 Dollars, on the
first day of each month. During Years Three, Four, and Five, the fixed
guaranteed Minimum Annual Rent will be $69,712.50, ($16.50 psf) due and
payable in equal monthly installments of $5,809.37, on the first day of each
month.
In addition to the fixed guaranteed Minimum Annual Rent, Tenant
shall pay to Landlord an amount equal to $1.50 psf annually for electricity,
as noted in Article V. For all other operating expenses and real estate
taxes, Tenant shall pay its proportionate share (10.3%) of the increase in
operating expenses and real estate taxes over the base year, the base year
being 1999. Tenant's proportionate share of operating expenses (including
electricity) and real estate taxes shall be deemed Additional Rent, and shall
also be due and payable on the first day of each month.
In the event the monthly Minimum Annual Rent payment, or additional
rent as hereinafter established, is not received by LANDLORD within five (5)
days of its due date, then a late charge shall be incurred by TENANT in the
amount of seven (7%) percent of the aggregate payment then due. Said late
charge shall be cumulative for each late payment, and shall be paid at the
next monthly payment.
ARTICLE IV - USE
The premises shall be used and occupied by TENANT as a sales
office, for the purpose of marketing life insurance, annuities, and other
financial products only, and for no other purpose, and such use and occupancy
shall be in compliance with all applicable laws, orders, ordinances,
requirements and regulations of any governmental authority having
jurisdiction. It shall be TENANT's responsibility to secure a certificate of
use from Municipality, if same be required, or any other required
governmental permits, at its sole cost and expense.
TENANT agrees to keep and maintain the Premises as an attractive
area both in its physical characteristics and appearance, subject only to
ordinary use, wear and tear and occupancy.
(2)
TENANT shall keep the area in front of and around the Premises free from
any unreasonable obstructions, dirt, refuse and debris of any kind and shall
keep the Premises and the exterior and interior of all windows, doors and all
other glass or plate glass fixtures in a neat and clear condition, reasonable
wear and tear excepted.
ARTICLE V - UTILITIES
TENANT shall be responsible for the payments to the Landlord for
electricity, in the amount of $1.50 psf annually, $528.12 monthly, payable as
Additional Rent, on the first day of each month. In no event shall LANDLORD
be liable for an interruption or failure in the supply of any utilities to
the Premises, unless caused by or resulting from Landlord's negligence or
willful misconduct.
It is expressly agreed that heating and cooling will only be provided
to the demised premises between the hours of 7:00 a.m. and 8:00 p.m. Monday
through Friday. No heating or cooling shall be provided on weekends, legal
holidays or during other weekend hours.
ARTICLE VI - REPAIRS
(A) LANDLORD:
Except as hereinafter provided to the contrary, LANDLORD shall attend to
all necessary repairs to the roof, to maintenance of the exterior of the
building and the Premises, to keep the plumbing and sewage system outside of
the Premises in good order, condition and repair and to make necessary
structural repairs. All other maintenance affecting the premises shall be the
responsibility and direct expense of TENANT, unless caused by or resulting
from Landlord's negligence of willful misconduct.
(B) TENANT
TENANT shall keep the Premises in good repair and in a clean and
sanitary condition, free from rubbish, inflammable or other objectionable
materials and shall repair, redecorate, paint and renovate the Premises
(including any exterior portions thereof installed and/or constructed by
TENANT) as may be necessary to keep the Premises in proper condition and good
repair, reasonable wear and tear excepted. TENANT, in addition, shall make
any and all other repairs to the Building, the Premises and facilities
required as a result of the misconduct, negligence, abuse or misuse of the
Building, the Premises and facilities by TENANT, its agents, servants,
employees of invitees. If TENANT refuses or neglects to commence repairs
within ten (10) days after written demand, or adequately to complete such
repairs within a reasonable time thereafter, LANDLORD may make the repairs
(but shall be under no obligation to do so) without liability
(3)
to TENANT for any loss of damage that may accrue to TENANT's business by
reason thereof, unless caused by or resulting from Landlord's negligence or
willful misconduct, and if LANDLORD makes such repairs, TENANT shall pay to
LANDLORD on demand, the cost thereof. Without limiting the generality of
TENANT's undertaking as above stated, TENANT agrees to maintain and repair
all fixtures, interior walls, floors, ceilings, permitted signs and all
interior appliances in the Premises, and to replace all damaged glass and
glass windows in the Premises, unless such glass or glass windows are on the
exterior of the Premises or such damage is caused by Landlord's negligence or
misconduct.
TENANT wishes to utilize a rolling filing system that is currently
permanently affixed to the Premises, and LANDLORD grants permission for
TENANT to utilize the system, however, LANDLORD makes no representations or
warranties regarding the age, condition, working order, suitability, safety
or advisability of the system, and bears no liability to the users of the
system. The cost of repairs or maintenance of this rolling filing system
shall solely be the responsibility of the TENANT.
(C) COMMON AREAS:
LANDLORD shall provide snow removal service to the entire paved portion
of the land and sidewalks during seasonal periods of accumulations of ice and
snow. Said snow removal service shall provide expeditious removal when
accumulations of ice or snow are in excess of three (3") inches. LANDLORD
shall also provide electrical fixtures and lighting of common areas. LANDLORD
shall keep all common paved areas properly maintained and repaired.
ARTICLE VII - ALTERATIONS
TENANT shall make no alterations, decorations, installations, additions
or improvements in or to the Premises without LANDLORD's prior written
consent, which consent shall not be unreasonably withheld, and then only by
contractors or mechanics approved by LANDLORD. All such work, alterations,
decorations, installations, additions or improvements shall be done at
TENANT's sole cost and expense. All alterations, decorations, installations,
additions or improvements upon the Premises, made by either party (excepting
only TENANT's moveable fixtures) shall, unless LANDLORD shall elect
otherwise, (which election shall be made by giving a notice not less than
thirty (30) days prior to the expiration or other termination of this Lease
or any renewal or extension thereof) become the property of LANDLORD, and
shall remain upon, and be surrendered with, the Premises as a part thereof at
the end of the term. In the event LANDLORD shall elect otherwise, as to any
such alterations, decorations, installations, additions or improvements made
by TENANT upon the Premises, the same shall be removed by TENANT and TENANT
shall restore the Premises to the condition existing immediately prior to
such alterations, decorations, installations, additions or improvements and
such removal and restoration shall be at TENANT's own cost and expense.
(4)
No signs of any kind shall be erected, painted on windows or doors, or
be displayed in any manner without the prior written consent of LANDLORD,
which shall not be unreasonably withheld.
ARTICLE VIII - INSURANCE INDEMNITY
TENANT shall not do anything in or about the Premises, which will in any
way impair or invalidate the obligation of any policy of insurance on or in
reference to the Premises or the Building.
(A) During the entire term of this Lease or any extension thereof,
TENANT shall keep in full force and effect, at its expense, a policy or
policies of public liability insurance issued by an insurer or insurers
approved by LANDLORD, with respect to the Premises and the business of TENANT
and any subtenant, licensees or concessions on terms approved in writing by
LANDLORD, in which both TENANT and LANDLORD shall be covered under reasonable
limits of liability of not less than FIVE HUNDRED THOUSAND and 00/100
($500,000.00) DOLLARS for injury or death to any one (1) person and ONE
MILLION and 00/100 ($1,000,000.00) DOLLARS for injury or death to more than
one (1) person, and ONE HUNDRED THOUSAND and 00/100 ($100,000.00) DOLLARS
with respect to property damage.
(B) TENANT shall furnish LANDLORD with certificates of coverage issued
by the insurance carriers providing coverage to LANDLORD as hereinabove
provided and such insurance policies and certificates issued to LANDLORD by
the insurers as evidence of such coverage shall be endorsed substantially as
follows:
"It is understood and agreed that the insurer will give to the LANDLORD,
thirty (30) days prior written notice of any material change in or
cancellation of this policy."
Renewal policies or certificates evidencing such insurance shall be furnished
at least ten (10) days prior to the expiration of the respective insurance
policies. Tenant shall provide to Landlord, annually, a renewed and valid
Certificate of Insurance showing at least the above-mentioned limits of
coverage, and naming Landlord as an additional insured.
(C) TENANT agrees that the use by itself, its agent, contractors,
employees, invitees and servants of the Premises and the Building and the
facilities therein is at its own risk and hereby releases LANDLORD and its
agents, servants, contractors and employees from all claims and demands of
every kind resulting from any accident, damage or injury occurring therein
except if such claim should arise from the LANDLORD'S negligence or willful
misconduct.
(5)
(D) TENANT agrees to indemnify and save harmless the LANDLORD from and
against any and all claims and demands of third persons (including but not
limited to, those for death, for personal injuries, or for loss of or damage
to property) arising, directly or indirectly, out of or in connection with
the business conducted in the Premises or (without limiting the foregoing) as
a result of any acts, omissions or negligence of TENANT, or any
concessionaire, or their respective contractors, licensees, invitees, agents,
servants or employees in or about the Premises, and from and against all
costs, expenses and liability (including but not restricted to, reasonable
counsel fees and disbursements) occurring in or in connection with any such
claim or proceeding brought thereon, excluding claims resulting from
LANDLORD'S negligence or willful misconduct.
(E) LANDLORD shall not be responsible or liable to TENANT for any loss
or damage that may be occasioned by or through the acts or omissions of
persons occupying adjoining premises or any part of the premises adjacent to
or connected with the Premises or any part of the Building or of any persons
transacting any business in the Building or present in the Building for any
other purpose or for any loss or damage resulting to TENANT or its property
from any burst, stopped or leaking water, gas, sewer, sprinkler, steam or
other pipes or plumbing fixtures or from any failure of or defect in any
electric line, circuit or facility, unless caused by or resulting from
Landlord's negligence or willful misconduct.
(F) LANDLORD shall secure fire insurance and Standard Extended Coverage
in an acceptable amount so as to provide "full insurable value" on the entire
Building. The aggregate premium cost of such insurance coverage shall be pro
rated to TENANT as its proportionate share of Common Costs, and any increase
in premium over the base year of 1998, shall be payable monthly by Tenant as
Additional Rent, all as set forth in Article III.
(G) LANDLORD shall secure general liability insurance affecting the
common areas against claims for bodily injuries, death or property damage
pertaining to said common areas in the amounts of at least
$1,000,000.00/$3,000,000.00 and $500,000.00 for property damage. The
aggregate premium cost of such insurance coverage shall be pro rated to
TENANT as its proportionate share of common costs and shall be payable by
TENANT as Additional Rent all as set forth in Article III.
ARTICLE IX - DESTRUCTION OF PREMISES BY FIRE (TOTAL OR PARTIAL)
In the event of the total destruction of the Building or the Premises by
fire or other casualty, during the term hereby created or prior thereto, or
in the event of such partial destruction thereof as to render the Premises
wholly untenable or unfit for occupancy, then in either event, unless such
damage can, in the reasonable opinion of LANDLORD be repaired within ninety
(90) days after its occurrence, this Lease and the term hereby created shall
cease and become null and void from the date of such damage or destruction,
and TENANT shall upon
(6)
written notice from LANDLORD, then immediately surrender the Premises and all
interest therein to LANDLORD, and TENANT shall pay rent within said term only
to the time of such damage or destruction. If, however, in LANDLORD's
reasonable opinion, the damage as aforesaid can be repaired within ninety(90)
days from the occurrence thereof, LANDLORD shall (unless LANDLORD shall elect
not to repair or rebuild, as hereinafter provided) repair the Premises with
all reasonable speed, and this Lease shall continue in full force and effect,
but all Rent payments hereunder shall abate from the occurrence of the
damage, until the completion of such repairs. If, however, such damage is due
to the fault or negligence of TENANT, TENANT's servants, agents, employees,
visitors or licensees, the damage shall be repaired by LANDLORD at Tenant's
expense, (unless LANDLORD shall elect not to repair or rebuild as hereinafter
provided) and this Lease shall continue in full force and effect, but there
shall be no such abatement of rent.
In the event of the partial destruction of the Building or Premises by
fire or other casualty, during the term hereby created or prior thereto,
which such partial destruction does not render the Premises wholly
untenantable or unfit for occupancy, LANDLORD shall (unless LANDLORD shall
elect not to repair or rebuild as hereinafter provided) repair the damage
with all reasonable speed, and this Lease shall continue in full force and
effect, but until the completion of such repairs the Minimum Annual Rent and
electricity payments shall abate in proportion to the area of the Premises
which is unusable by TENANT. If, however, such damage is due to the fault or
neglect of TENANT, TENANT's servants, agents, employees, visitors or
licensees, the damage shall be repaired by LANDLORD at Tenant's expense
(unless LANDLORD shall elect not to repair or rebuild as hereinafter
provided) and this Lease shall continue in full force and effect, but there
shall be no such abatement of rent.
In the event that the Building of the Premises shall be so lightly
damaged by fire or other casualty so as not to substantially affect the
operation of TENANT's business in the Premises, then in that event, there
shall be no abatement of rent and this Lease shall continue in full force and
effect, and LANDLORD shall enter and repair the damage with all reasonable
speed.
Notwithstanding anything contained herein to the contrary, if during the
last year of the term of this Lease the Premises or the Building shall be so
damaged by fire or other casualty that LANDLORD decides in its sole judgment
not to repair or rebuild, then LANDLORD may terminate this Lease and the term
hereby created by giving TENANT written notice of such termination within
sixty (60) days after the happening of such damage, and thereupon this Lease
and the term hereby created shall cease and terminate as of the date of the
happening of such damage, and rent and all other charges payable by TENANT
shall be pro rated to the day of such damage.
In case of any damage by fire or other casualty, TENANT shall
immediately notify LANDLORD.
(7)
ARTICLE X - EMINENT DOMAIN
If substantially all of the Premises shall be taken by any public
authority under the power of eminent domain, then the term of this Lease
shall cease as of the day possession shall be taken by such public authority
and TENANT shall pay rent and all other charges only to the time of such
taking.
If more than one-third (1/3) of the Premises shall be taken under
eminent domain, TENANT shall have the right to terminate this Lease, or
subject to LANDLORD's right of termination as hereinafter in this Article set
forth, to continue in possession of the remainder of the Premises, and TENANT
shall notify LANDLORD in writing, within ten (10) days after such taking, of
TENANT's election.
In the event TENANT elects to remain in possession, all the terms herein
provided shall continue in effect and LANDLORD, at its own cost and expense,
shall make all necessary repairs and alterations to the basic building and
interior of the physical structure so as to constitute the remaining premises
a complete architectural unit. In such event, the Minimum Annual Rent shall be
reduced in proportion to the loss of floor area in the Premises. If, however,
the unexpired portion of the term of this Lease shall be three (3) years or
less at the date of the taking of any portion of the Premises or the Building
(without regard to the amount of space taken), LANDLORD may, by written notice
to TENANT, given within thirty (30) days after the date of such taking,
terminate this Lease and TENANT shall pay rent and all other charges only to
the time of such termination.
In any event, all damages and compensation for taking under the power
of eminent domain, whether for the whole or a part of the Premises, shall
belong to and be the property of LANDLORD, whether such damages shall be
awarded as compensation for diminution in value of the leasehold or of the
fee, and TENANT hereby sets over and assigns to LANDLORD any part of such
award awarded to it under such circumstances.
ARTICLE XI - ASSIGNMENT OR SUBLETTING, ETC.
TENANT agrees not to sell, assign, mortgage, pledge, or in any manner,
transfer this Lease or any estate or interest thereunder and not to sublet
the Premises or any part or parts thereof and TENANT further agrees not to
permit any license or concessionaire therein without the prior written
consent of LANDLORD in each instance, which shall not be unreasonably
withheld. If this Lease be assigned or transferred in any manner whatsoever,
such assignment or transfer shall be upon and subject to all of the
covenants, provisions and conditions contained in this Lease, and
notwithstanding any consent by LANDLORD to any such assignment or transfer or
any subletting by TENANT, TENANT shall continue to be and remain liable
hereunder. Any consent by LANDLORD to any such assignment, transfer,
subletting, license or concession or other matter or thing contained in this
Article shall not in any wise be construed to relieve
(8)
TENANT from obtaining the prior consent of LANDLORD to any other or further
such assignment, transfer, subletting, license, concession, matter or thing.
All rental payments received by LANDLORD on account of assignment,
subletting or otherwise shall be the property of LANDLORD and paid to
LANDLORD as but in no event shall the Annual Minimum Rent or New Base Rent be
reduced by virtue of said assignment or subletting. In the event that the New
Base Rent paid by SubTenant is in excess of the Minimum Annual rent,
the parties agree that such excess shall be divided equally between Landlord
and Tenant.
ARTICLE XII - SURRENDER
On the last day of the term demised, of the sooner termination thereof,
TENANT shall peaceably surrender the Premises in good order, condition and
repair, broom-clean, damage by unavoidable casualty, fire and reasonable wear
and tear excepted. On or before the last day of the term or the sooner
termination thereof, TENANT shall, at its expense, remove its fixtures and
signs, unless otherwise directed by LANDLORD, from the Premises and any
property not removed shall be deemed abandoned and may be removed and
disposed of by LANDLORD and the expense of such removal shall be paid to
LANDLORD by TENANT without any set off for the salvage value of goods so
removed. If the Premises are not surrendered at the end of the term or the
sooner termination thereof, TENANT shall indemnify LANDLORD against loss or
liability resulting from delay by TENANT in so surrendering the Premises,
including without limitation, claims made by an succeeding tenant founded on
such delay. TENANT shall promptly surrender all keys for the Premises to
LANDLORD at the place then fixed for payment of rent.
ARTICLE XIII - DEFAULT
The following shall be considered events of default under this Lease:
(A) the Tenant defaults in the payment of said rents or of any installments
or part thereof, or in the payment of any other sum or any part thereof
which may become due from TENANT to LANDLORD hereunder, at the times and
in the manner provided herein, and remains in default for fifteen (15)
days after such sums becomes due, or in any violation under Article III,
or
(B) the Premises shall be deserted, abandoned or vacated, other than in
accordance with the terms set forth herein, or
(C) the violation by TENANT of any of the covenants, agreements and
conditions herein provided and the failure to cure such violation within
fifteen (15) days after notice, in writing, of such violation by
LANDLORD to TENANT.
(9)
Then upon the happening of any such event of default, LANDLORD may, at its
option, elect either to terminate this Lease or to enter the said Premises as
the agent of TENANT, either by force or otherwise, without being liable for
any prosecution or damage therefore, and relet the Premises as the agent of
TENANT, and receive the rent therefor, upon such terms as shall be
satisfactory to LANDLORD, and all rights of TENANT to repossess the Premises
under this Lease shall cease and end upon such termination or entry. Such
entry for reletting by LANDLORD shall not operate to release TENANT from any
rent to be paid or covenants to be performed hereunder during the full term
of this Lease. For the purpose of reletting, LANDLORD shall be authorized to
make such repairs or alterations in or to the Premises as may be necessary to
place the same in good order and condition. TENANT shall be liable for and
hereby agrees to pay to LANDLORD the cost of such repairs or alterations and
all expenses of such reletting. If the sum realized or to be realized from
the reletting is insufficient to satisfy the rent provided in this Lease,
LANDLORD, at its option, may require TENANT to pay such deficiency month by
month (or at any greater intervals) or may hold TENANT in advance for the
entire deficiency resulting from such reletting. TENANT agrees to pay, as
Additional Rent, all reasonable attorney's fees and other expenses incurred
by LANDLORD in enforcing any of TENANT's obligations under this Lease. No
waiver by LANDLORD of any such breach, violation or default by TENANT shall
constitute or be construed as a waiver of any other such breach, violation or
default, nor shall lapse of time after such breach, violation or default by
TENANT before LANDLORD shall exercise any right with respect thereto operate
to defeat or adversely affect rights of LANDLORD.
ARTICLE XIV - INSOLVENCY OF TENANT
At any time prior to or during the term of this Lease, if TENANT shall
make an assignment for the benefit of its creditors; or if TENANT shall file
a voluntary petition in bankruptcy; or if the affairs of TENANT shall be
taken over by or pursuant to an order of any court or of any other officer or
governmental authority pursuant to any federal, state or other statute or
law; or if TENANT shall admit in writing its inability to pay debts generally
as they become due; or if TENANT shall file any petition or answer seeking
any reorganization, arrangement, composition, re-adjustment, liquidation,
dissolution or similar relief under the present or any future bankruptcy act
or any other present or future applicable federal, state or other other
statute or law; or such proceedings shall have not been dismissed; or if
within sixty (60) days after the appointment, without the consent or
acquiescence of TENANT, of any trustee, receiver, or liquidator of TENANT or
of all or any substantial part of its property, such appointment shall not
have been vacated or stayed on appeal or otherwise, or if, within sixty (60)
days after the expiration of any such stay, such appointment shall not have
been vacated; or in the event corporate action shall be taken by TENANT in
furtherance of any of the aforesaid purposes, then and in any such event,
LANDLORD may at its option terminate this Lease and all rights of TENANT
herein, by giving to TENANT notice in writing of the election of
(10)
LANDLORD so to terminate, and in such event neither TENANT nor any person
claiming by, through or under TENANT by virtue of any statute or of an order
of any court shall be entitled to possession or to remain in possession of
the Premises but shall forthwith quit and surrender the Premises. Such causes
for the termination of this Lease as set forth in this Article shall
constitute a default by TENANT and all rights and remedies stated or
otherwise reserved under Article XIII hereof shall be available to LANDLORD.
ARTICLE XV - QUIET ENJOYMENT
TENANT, subject to the terms and provisions of this Lease, on payment of
the rent and observing, keeping and performing all of the terms and
provisions of this Lease, shall lawfully, peaceably and quietly have, hold,
occupy and enjoy the Premises during the term hereof subject, however, to all
the provisions of this Lease. It is understood and agreed that this covenant,
and any all other covenants of LANDLORD herein contained shall be binding on
LANDLORD only during its ownership of the Premises. In the event LANDLORD
shall sell or otherwise dispose of its interest in the Premises during the
term of this Lease, such sale or other disposition shall operate to release
and relieve LANDLORD from any further liability or obligation to TENANT
hereunder. It is further understood and agreed that with respect to any
services and/or facilities to be furnished by LANDLORD to TENANT, LANDLORD
shall in no event be liable for failure to furnish the same when prevented
from so doing by strikes, lockouts, breakdown, accident, order or regulation
of or by any governmental authority, or failure of supply, or inability, by
the exercise of reasonable diligence, to obtain supplies, parts or employees,
or because of war or other emergency, or for any cause beyond LANDLORD's
reasonable control, except for negligence and willful misconduct, and in no
event shall LANDLORD ever be liable to TENANT for any indirect, consequential
damage or punitive damages.
ARTICLE XVI - SECURITY DEPOSIT
Prior to the inception of this Lease, Tenant has deposited with LANDLORD
the sum of Ten Thousand Dollars ($10,000.00) to be held by LANDLORD, as
security, without interest, for and during the term of this Lease, which
deposit shall be returned to TENANT at the termination of this Lease provided
there has been no breach of the undertakings of TENANT. In no instance shall
the amount of such security deposit be considered as a measure of liquidated
damages. All or any part of the said deposit may be applied by LANDLORD
in total or partial satisfaction of any default by TENANT. The application of
all or any part of the deposit to any obligation or default of TENANT under
this Lease shall not deprive LANDLORD of any other rights or remedies
LANDLORD may have nor shall such application by LANDLORD constitute a waiver
by LANDLORD. If all or any part of the security deposit is applied to an
obligation of TENANT hereunder, LANDLORD shall have the right to call upon
TENANT to restore the said security deposit to its original amount by giving
notice to TENANT and TENANT shall immediately restore such security deposit
by payment thereof to LANDLORD. TENANT shall not have the right to call upon
LANDLORD to apply all or any part of the security deposit to
(11)
cure any default or fulfill any obligation of TENANT, but such use shall be
solely in the discretion of LANDLORD. It is distinctly understood and agreed
that should LANDLORD convey its interest under this Lease, the said security
deposit may be turned over by LANDLORD to LANDLORD's grantee or transferee,
and upon any such delivery of the deposit, TENANT hereby releases LANDLORD
herein named of any and all liability with respect to the deposit, its
application and return, and TENANT agrees to look solely to such grantee or
transferee, and it is further understood that this provision shall also apply
to subsequent grantees and transferees.
ARTICLE XVII - HOLDING OVER
Any holding over by TENANT after the expiration of term of this Lease
shall not operate except by written agreement to extend or renew this Lease
or to imply or create a new Lease, but in such case LANDLORD's occupancy or
to the treatment of TENANT's occupancy as a month-to-month tenancy. If
TENANT's occupancy is treated as a month-to-month tenancy, then TENANT shall
pay a fixed monthly minimum rent of an amount equal to double the monthly
installment of the Minimum Annual Rent payable at the expiration of the
lease, which shall be paid in addition to the Additional Rent charges set
forth in this lease.
ARTICLE XVIII - MECHANIC'S LIENS
TENANT shall not suffer any mechanics' notice of intention, stop notice,
or lien to be filed against the Premises by reason of work, labor, services
or materials performed or furnished to TENANT or to anyone holding the
Premises through or under TENANT. If any such mechanics' notice of intention,
stop notice, or lien shall at any time be filed against the Premises, TENANT
shall forthwith cause the same to be discharged of record. If TENANT shall
fail to cause such mechanics' notice of intention, stop notice, or lien to
be discharged within thirty (30) days after being notified of the filing
thereof, then, in addition to any other right or remedy of LANDLORD, LANDLORD
may, but shall not be obligated to, discharge the same by paying the amount
claimed to be due, and the amount so paid by LANDLORD and/or all costs and
expenses, including reasonable attorneys' fees, incurred by LANDLORD in
procuring the discharge of such lien, shall be deemed to be Additional Rent
for the Premises and shall be due and payable by TENANT to LANDLORD on the
first day of the next following month. Nothing in this Lease contained shall
be construed as a consent on the part of LANDLORD to subject LANDLORD'S
estate in the Premises to any lien or liability under the Mechanics' Lien Law
of the State of New Jersey.
(12)
ARTICLE XIX - NOTICES
Any notice required or permitted under this Lease shall, unless otherwise
specifically provided herein, be deemed sufficiently given or served if sent
by regular mail addressed to TENANT at the Premises, with a copy to ARM
Financial Group, 515 W. Market Street, Louisville, Kentucky 40202, Attn:
General Counsel, and to LANDLORD at the address then fixed for the payment of
rent. Any such notice shall be deemed given as of the date of mailing. Either
party may by like written notice at any time designate a different address to
which notices shall subsequently be mailed. Notices shall be mailed to the
following addresses:
As to the Landlord: Hubco, Inc.
Attn: Facilities Manager
1000 MacArthur Boulevard
Mahwah, NJ 07430
With a copy to: McBride Corporate Real Estate, National Services
851 Franklin Lake Road
Franklin Lakes, NJ 07417
ARTICLE XX - ACCESS TO PREMISES BY LANDLORD, ETC.
LANDLORD reserves the right to enter upon the Premises at reasonable
hours to inspect the same, or to make repairs, additions or alterations to
the Premises or other property, or to exhibit the Premises to prospective
tenants, purchasers or others, and to enter at any time in the event of an
emergency. With respect to the foregoing, Landlord shall use its best efforts
to minimize disruption of Tenant's business.
LANDLORD reserves the right to erect, use and maintain pipes, cables,
conduits, plumbing, vents and wires in, on and through the Premises to the
extent that LANDLORD may now or hereafter deem to be necessary or appropriate
for the proper operation and maintenance of the Building.
(13)
ARTICLE XXI - ENVIRONMENTAL MATTERS
As a condition to leasing the premises, LANDLORD requires the TENANT to
make certain representations and provide certain indemnities concerning (i)
Hazardous Materials, as hereinafter defined, which may now exist on, in or
under the Premises or otherwise affect it as a result of TENANT'S occupancy,
(ii) violations of Environmental Laws, as hereinafter defined, with respect
to Premises; (iii) the release of Hazardous Materials from the Premises onto
any surrounding property, and (iv) claims for injury to the Premises or the
person or property of third parties as a result of Hazardous Materials
existing, on or released from, the Premises during TENANT'S use and occupancy
of the premises.
TENANT hereby certifies and promises that:
1. TENANT has not and will not use the premise for the generation,
manufacture, storage, treatment, discharge or disposal of Hazardous
Materials; and
2. The TENANT is in compliance with all Environmental Laws; and
3. To Tenant's knowledge, there is no pending or threatened claim,
action or proceeding by any governmental authority or third party
against or respecting the TENANT, or the Premises; and
4. To Tenant's knowledge, the Premises has not been used for activities
which require compliance with the Industrial Site Recovery Act.
TENANT hereby agrees at its sole cost and expense to indemnify, defend
and hold Landlord, its shareholders, directors, officers, employees of any of
its affiliates and any agents of representatives of the landlord
(collectively, the ""Indemnities'') harmless from and against any and all
Loss and Damage (as hereinafter defined) arising from or out of:
1. TENANT'S use of any Hazardous Materials existing on or after the
Tenant's occupancy of the Premises, or subsequent hereto at or under
the Premises; and
2. The failure of the TENANT to be in full compliance on the date
hereto with all Environmental Laws; and
(14)
3. Any release of any Hazardous Materials by the TENANT from the
Premises onto any surrounding property; and
4. Any injury occurring to the person or property of third parties as a
result of the existence of Hazardous Materials in the Premises or
released from the Premises onto surrounding property; provided,
however, that such injury is caused by the release of Hazardous
Materials in or under the Premises by Tenant, and not by Landlord,
any of Landlord's other tenants, or any other person.
TENANT hereby agrees to indemnify and hold the landlord harmless from any
loss, costs or expense arising out of the enforcement of this Article XXI by
the TENANT or the assertion by LANDLORD of any defenses to its obligations
hereunder provided the LANDLORD prevails in any such action for enforcement
of this Article XXI.
As used in this Agreement:
(A) The term "Loss or Damage" shall mean and include all costs, losses,
damages, liabilities, obligations, penalties, litigation,
proceedings, claims, causes of action, demands, defense costs,
disbursements, judgements and the like, of whatever nature,
including but not limited to reasonable attorneys' fees, experts'
fees and other costs of litigation or administrative proceedings
including preparation therefore, as well as (i) the costs of removal
of any and all Hazardous Materials from all or any portion of the
Premises or surrounding areas, and (ii) additional costs required to
take necessary precautions to protect against the release of
Hazardous Materials on, in, under or affecting the Premises into the
air, any body of water, any other public domain or any surrounding
areas, and (iii) costs incurred to comply, in connection with the
Premises and surrounding areas, with all applicable Environmental
Laws; and
(B) The term "Environmental Laws" shall mean and include the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 US C. 9601 ET SEQ., the Resource Conservation and
Recovery Act, 42 USC '6904, the Superfund Act (Hazardous Waste
Material Fund), New York Environmental Conservation Law, 72-04,
72-0923, 72-131, ET SEQ., the Oil Spill Prevention Control and
Compensation Act, New York Navigational Law, ET SEQ., and all other
similar existing and future federal, state and municipal statutes
and ordinances governing the environment, all as amended from time
to time, together with all rules, regulations, opinions, orders,
judgements and directives issued or promulgated pursuant to or in
connection with any of the foregoing by the New York Department of
Environmental Conservation, the US Environmental Protection, the
U.S. Environmental Protection Agency, any bureau or subdivision
thereof or any other governmental agency, court or entity having
jurisdiction; and
(15)
(C) The term "Hazardous Materials" shall mean and include asbestos, any
hazardous or toxic materials, wastes and substances which are
defined, determined or identified as such in any Environmental Law
or any judicial or administrative interpretation thereof.
No delay on Landlord's part in exercising any right, power or privilege
shall operate as a waiver of any such privilege, power or right.
The promises and representations made in this Article shall survive the
expiration of the lease.
TENANT agrees to provide LANDLORD with copies of all annual State
inspection reports from initial occupancy of the premises to date and further
agrees to provide copies of future reports to LANDLORD immediately upon
receipt during the term of this lease.
Landlord warrants and represents that all Premises, the Building, and the
associated common areas and grounds are, or will be at the time of
commencement be and remain, in full compliance with all applicable federal,
state, and local laws and regulations respecting hazardous wastes, materials,
and emissions, or their production, storage, disposal or abatement
("Environmental Standards") as well as all Environmental Laws currently in
effect. Landlord will defend, indemnify and hold Tenant harmless from any and
all claims, demands, assessments, failure of this warranty, however, nothing
in the foregoing shall exculpate Tenant from liability for its own acts or
commissions causing any such failure of warranty. Notwithstanding anything
to the contrary, Landlord shall not include within operating costs or other
Additional Rent any costs or charges incurred in remedying any failure to
comply with Environmental Standards or Environmental Laws including, without
limitation, any associated legal defense costs, fines, or penalties.
ARTICLE XXII - TENANT'S WORK
All work necessary to prepare the Premises for the TENANT's use and
occupancy shall be done by the TENANT at TENANT'S sole cost and expense.
Before the commencement of any such work, the TENANT shall submit detailed
plans and specifications therefore to the LANDLORD and obtain the LANDLORD's
written approval therefore. LANDLORD also reserves the right to approve or
reject TENANT's proposed contractors. The TENANT of TENANT's contractor in the
performance of such work shall obtain and pay for all permits and
governmental authorities having jurisdiction thereof, and shall not interfere
with other work being done in the Building or adjacent to the Premises, and
shall comply with all rules the LANDLORD may make, and employ only contractors
approved by LANDLORD.
Prior to the commencement of any work, the TENANT's contractor shall
obtain and maintain at its own expense, Workmen's Compensation, Protective
Public Liability and Property Damage Insurance as will be acceptable to the
LANDLORD and furnish the LANDLORD with certificates of such insurance
indicating the LANDLORD as an insured.
(16)
TENANT agrees that it will procure all necessary permits before
commencing such work. TENANT agrees to pay promptly when due the entire cost
of any work done by or for TENANT upon the Premises so that the Premises
shall at all times be free of liens for labor or materials. TENANT hereby
guarantees full completion of all TENANT's work hereunder in compliance with
this Lease and all applicable laws and ordinances.
ARTICLE XIII - PARKING
No parking spaces shall be for the exclusive use of TENANT. TENANT
shall not impair, hinder or otherwise utilize parking area for storage or any
other purpose other than parking.
ARTICLE XXIV - OPTION TO RENEW
Provided that Tenant shall not be in default of any terms, provisions,
conditions or covenants herein at the time of the exercise of the option set
forth in this Article XXIV, and at the time said option shall take effect,
and provided further that Tenant is substantially physically occupying the
Leased Premises as so to enable Tenant to carry out its business at the time
of the exercise of the option set forth in this Article XXIV, and at the time
said option takes effect, Tenant shall have the right to extend the term of
this Lease for an additional period of five (5) years commencing on the date
following the termination of the initial Term. Said option to extend the
Term shall be on the same terms, conditions, provisions and covenants as are
set forth herein, with the following exceptions:
(a) The Minimum Annual Rent during the option period shall be at Fair
Market Rent. The term "Fair Market Rent" shall mean the Minimum
Annual Rent, (real estate taxes and operating expenses and other
charges known as Additional Rent are excluded) per square foot of the
Premises as of the date the option period commences (Adjusted
Minimum Annual Rent), but in no event less than the Minimum Annual
Rent payable by Tenant immediately prior to the "Adjusted Minimum
Annual Rent." More specifically, it is defined as the Minimum Annual
Rent then being charged to tenants under any new leases being made
in the building or in comparable office buildings located in the
Goshen and Orange County office market, "the Area." In addition, in
determining the Fair Market Rent, no consideration shall be given to
the following facts: (1) that no vacancy or reletting expenses will
be incurred by Landlord (including without limitation, advertising
or promotional expenses; (2) that Landlord shall not perform work at
its expense for the Tenant or pay Tenant any special work allowance;
(3) that Landlord shall not grant any rent concession to Tenant; and
(4) that Tenant will not incur the cost and expense of (a) having
to locate other premises in which to move, (b) designing and
constructing improvements to same, (c) relocating to said new
premises, and (d) having its operations disrupted during the
relocation.
(17)
(b) If the parties cannot agree upon the Fair Market Rent within 30 days
of Tenant's notice described in Article XXIV (B) herein, the Fair
Market Rent shall be determined by two commercial real estate
brokers, one selected by Landlord and one selected by Tenant, each
at their own expense. With fifteen (15) days following said 30-day
period described herein, Landlord and Tenant shall each notify the
other of its selection of a commercial real estate broker with a
minimum of five (5) years commercial real estate brokerage
experience. Said brokers shall work together to ascertain said
Fair Market Rent and shall each issue an opinion setting their
determination. If the retained brokers cannot agree on the Fair
Market Rent within seventy-five (75) days of Tenant's notice
described in Article XXIV (B) herein, they shall select, within
ninety days (90) of Tenant's notice described in Article XXIV (B),
a third broker with equal qualifications, whose costs and expenses
shall be borne equally by the parties, and whose decision as to
Fair Market Rent, which must be made, within sixty (60) days of
Tenant's notice described in Article XXIV (B) herein, shall be
final. All brokers shall be independent, third-party brokers
having at least five (5) years experience in commercial real estate
brokerage in the area and shall not have been or thereafter be
employed or retained by Landlord or any affiliate or Tenant or any
affiliate in connection with this Lease or any other matter for a
period of three (3) years and shall issue a written opinion setting
forth such determination of Fair Market Rent. All brokers shall be
instructed to follow and shall be bound by the directions outlined
in subparagraph (a) above in making their determinations.
(B) The right, option and privilege of the TENANT to renew this Lease
as hereinabove set forth is expressly conditioned upon the Tenant delivering
to the LANDLORD, in writing, sent certified mail, return receipt requested,
seven (7) month's prior notice of its intention to renew, which notice shall
be given to the LANDLORD by the TENANT no later than seven (7) months prior
to the date fixed for termination of the original term hereinbefore provided.
ARTICLE XXVI - GENERAL PROVISIONS
(A) This Lease does not create the relationship of principal and agent
or of partnership or of joint venture or of any association between LANDLORD
and TENANT, the sole relationship between LANDLORD and TENANT being that of
LANDLORD and TENANT.
(B) No waiver of any default of TENANT hereunder shall be implied from
any omission by LANDLORD to take any action on account of such default if
such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the express waiver and that only
for the time and to the extent therein stated. One or more waivers by
LANDLORD shall not be construed as a waiver of a subsequent breach of the
same covenant, term or condition. The receipt of rent by LANDLORD with
knowledge of the breach of any TENANT obligation under this Lease shall not
be deemed a waiver of such breach, unless such breach was for failure to pay
rent.
(18)
(C) The consent to or approval by LANDLORD of any act by TENANT
requiring LANDLORD's consent or approval shall not waive or render
unnecessary LANDLORD's consent to or approval of any subsequent similar act
by TENANT.
(D) Each term and each provision of this Lease performable by TENANT
shall be construed to be both an covenant and a condition.
(E) No action required or permitted to be taken by or on behalf of
LANDLORD under the terms of provisions of this Lease shall be deemed to
constitute an eviction or disturbance of TENANT's possession of the
Premises, provided action is taken in accord with Article XIII.
(F) TENANT represents and agrees McBride Corporate Real Estate is the
sole broker in this transaction, and that it has not directly or indirectly
dealt with any other real estate broker in connection with this transaction.
TENANT agrees to hold LANDLORD harmless from and against any claim for
brokerage fees or commission from any other broker arising out of or in
connection with this Lease.
(G) Under no circumstances shall TENANT use any space outside the
premises for the conduct of its business operations.
(H) The submission of this Lease or a summary of some or all of its
provisions for examination does not constitute a reservation of or option for
the Premises, or an offer to Lease.
(I) The topical headings of the several articles, paragraphs and clauses
are not a part of this Lease, but are for convenience only and do not define,
enlarge, limit or construe any of the provisions hereof.
(J) This lease may not be changed or terminated nor may any provision
hereof be waived orally.
(K) The laws of the State of New York, without reference to New York
principles regarding the conflict of laws, shall govern the validity,
performance and enforcement of this Lease.
(19)
It is understood and agreed that all prior contemporaneous
representations, statements, understandings and agreements, oral or written,
between the parties hereto are merged in this Lease, which alone fully and
completely expresses the parties agreement, and that this Lease is entered
into after a full consideration, no party relying on any statement or
representation or warranty not embodied in this lease.
All of the parties hereto hereby waive trial by jury in any action,
proceeding, or counterclaim involving any matter whatsoever arising out of,
or in any way connected with this Lease or the relationship of the parties
herein, or the right of any party to any relief or remedy.
(L) The invalidity of one or more phrases, sentences, clauses or
paragraphs contained in this Lease shall not affect the remaining portion of
this Lease or any part thereof, and in the event that any one or more of the
phrases, sentences, clauses or paragraphs contained in this Lease should be
declared invalid by the final order, decree or judgment of a court of
competent jurisdiction, this Lease shall be construed as if such invalid
phrases, sentences, clauses or paragraphs had not been inserted herein.
(M) TENANT shall not record this Lease.
(N) The terms conditions and covenants hereof shall be binding upon and
inure to the successors in interest of the parties hereto.
(O) TENANT will make any and all repairs and changes to the Premises
required by any and all applicable laws, ordinances, rules, regulations and
decrees of any public body with jurisdiction, which repairs or changes are
attributable to TENANT's use or possession of the Premises. All such changes
not attributable to the TENANT's use or possession of the Premises, or
attributable to the building as a whole, shall not be the responsibility of
the TENANT. However, TENANT agrees to cooperate with and not interfere in
the installation, construction, completion and continued maintenance of all
such repairs or changes to the Premises of the benefit of other tenants in
the Building or Buildings.
(P) TENANT shall place signage on the 2nd floor hallway and the lobby
area off parking lot, the copy the size to be subject to Landlord's approval,
which shall not be unreasonably withheld.
(20)
IN WITNESS WHEREOF, the parties have signed their names and affixed
their seals the day and year first above written.
ATTEST:
NATIONAL INTEGRITY LIFE INSURANCE COMPANY
A Corporation of New York,
/s/ [Illegible] By: /s/ John R. Lindholm
- -------------------- --------------------------------------
Assistant Secretary Title: President
Date: 1/28/99
ATTEST: HUBCO, Inc.,
A Corporation of New Jersey
/s/ [Illegible] /s/ [Illegible]
- -------------------- --------------------------------------
Title: Executive Vice President
Date: 2/11/99
(21)
EXHIBIT A
[FLOOR PLAN]
EXHIBIT A
---------
PROPOSED SPACE FOR
ARM FINANCIAL GROUP AT
35 MATTHEWS ST., GOSHEN, NY