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SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT is made and entered into this day of
April, 2000 between SAMUEL MARRAZZO and MARGARET MARRAZZO, husband and wife,
(hereinafter "Landlord") and YARDVILLE NATIONAL BANK, organized and existing
under the laws of United States of America (hereinafter "Tenant") for a portion
of the premises, as hereinafter defined, located at 1400 Parkway Avenue,
Trenton, New Jersey.
In consideration of the rents, covenants and conditions hereinafter
reserved and contained, Landlord hereby agrees to lease to Tenant, and Tenant
hereby agrees to hire from Landlord, the Leased Premises described herein.
Landlord and Tenant agree that the terms and conditions of this
sublease are as set forth in this Sublease Agreement and the attached General
Terms of Lease including, without limitation, the exhibits or riders referred to
in the General Terms of Lease, all of which are incorporated herein and are
hereinafter referred to collectively as the "Lease."
1. BACKGROUND.
On December 21, 1973, Ewing Associates (hereinafter "Lessor") executed
a Lease Agreement (hereinafter "Ewing Lease") with The Grand Union Company
(hereinafter "Lessee") for the premises known as 1400 Parkway Avenue, Ewing
Township, Mercer County, New Jersey (hereinafter "Premises"). A true and correct
copy of the Ewing Lease is attached hereto, incorporated herein and marked as
Exhibit A.
On July 9, 1979, The Grand Union Company (hereinafter "Sublessor")
executed a Sublease Agreement (hereinafter "Grand Union Lease") with Frankford
Quaker Grocery Company (hereinafter "Frankford"). Fleming Companies, Inc., an
Oklahoma corporation, (hereinafter "Sublessee") is successor in interest by
merger to Frankford. A true and correct copy of the Grand Union Lease is
attached hereto, incorporated herein and marked as Exhibit B.
On October 22, 1999, Fleming Companies, Inc., (hereinafter "Fleming")
entered into a Sub-Sublease Agreement (hereinafter "Fleming Lease") with
Marrazzo's Market at Ewing, L.L.C., a New Jersey Limited Liability Company,
(hereafter "Marrazzo's Market"). A copy of the Fleming Lease is attached hereto
as Exhibit C. By Agreement of Assignment dated March 30, 2000, Marrazzo's Market
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assigned the Fleming Lease to Samuel Marrazzo and Margaret Marrazzo, husband and
wife. A true and correct copy of the Agreement of Assignment is attached hereto
and marked as Exhibit D.
Landlord herein has now agreed to Sublease a portion of the Premises to
Tenant herein to be used a full service banking facility. Fleming has consented
to this Sublease Agreement.
The terms of the Ewing Associates Lease, Grand Union Lease and Fleming
Lease, hereinabove referred, are herein incorporated by reference with like
force and effect as if the same had been fully set out, and Tenant herein
acknowledges receipt of true and correct copies of all of said Leases.
2. CONSTRUCTION; PREPARATION FOR OCCUPANCY; PLANS AND SPECIFICATIONS.
Tenant agrees to be singularly responsible for and to construct or
cause to be constructed the facility which Tenant will require to operate a full
service banking facility, namely, the Leased Premises. This banking facility
shall be constructed in strict accordance with plans and specifications approved
by Landlord. Said plans and specifications are attached hereto and incorporated
herein, marked as Exhibit E. All said improvements are to be made in strict
compliance with any governmental or quasigovernmental body having jurisdiction
over such construction and use. All construction is to be carried out in a
manner that is compatible with ongoing construction that is taking place
simultaneously therewith.
Tenant shall obtain or cause its contractors, agents, servants, workmen
or any person used in the construction of the facility described above to
provide insurance naming Landlord as an additional insured or protecting
Landlord from any loss or liability whatsoever caused by or resulting from the
construction of the Leased Premises as set forth in this paragraph. Tenant
further agrees to indemnify and hold harmless Landlord from any action, cause of
action, claim or loss resulting from any and all of said activity.
All work shall be done in a good and workmanlike manner and in strict
compliance with all applicable laws and lawful ordinances, by-laws, regulations
and orders of governmental authority and of the insurers of the Demised
Premises, and Tenant shall be responsible for payment of any and all utilities
used in the construction thereof.
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3. DEFINITIONS.
For purposes of this Sublease, and any supplement(s), amendment(s), or
modification(s) thereof, the terms listed below shall have the following
meanings:
"LANDLORD": SAMUEL MARRAZZO and MARGARET MARRAZZO
husband and wife
ADDRESS: c/o Marrazzo's Thriftway
1091 Washington Boulevard
Robbinsville, New Jersey 08691
"TENANT": YARDVILLE NATIONAL BANK
ADDRESS: 2465 Kuser Road
Trenton, New Jersey 08690
"ADDITIONAL RENT" shall mean Tenant's Pro Rata Share of all of the common area
expenses and other charges for which Sub-Subtenant is responsible under the
terms of the Ewing Lease, Grand Union Lease or Fleming Lease as provided in
Article 4 of the General Terms of Lease.
"BASE RENT" shall mean, for the initial term of this Sublease, the sum of $ [See
attached Exhibit 1] per year which will be payable at the monthly rate of $ [See
attached Exhibit 1] as provided in Article 4 of the General Terms of Lease.
"BILLING ADDRESS" shall mean the address at which Tenant will be billed which is
the Leased Premises.
"BUILDING" shall mean the structure in which the Demised Premises and Leased
Premises are contained.
"COMMENCEMENT DATE" shall mean April 1, 2000.
"COMMON FACILITIES" shall mean the land surrounding the Building, the parking
area and all drives and walkways, all generally as shown on Exhibit F to the
General Terms of Lease.
"DEMISED PREMISES" shall mean the space leased by Landlord pursuant to the
Fleming Lease.
"EWING LEASE" shall mean the Lease Agreement including amendments, if any, by
and between Ewing Associates ("Lessor") and The Grand
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Union Company ("Lessee"), a copy of which is attached hereto and marked as
Exhibit A.
"FLEMING" shall mean Fleming Companies, Inc., the Sub-Sublandlord from time to
time, under the Sub-Sublease Agreement.
"FLEMING LEASE" shall mean the Sub-Sublease Agreement, including amendments, if
any, by and between Fleming Companies, Inc., ("Fleming") and Marrazzo's Market
at Ewing, L.L.C., ("Marrazzo's Market") a copy of which is attached hereto and
marked as Exhibit C.
"GRAND UNION LEASE" shall mean the Sublease, including amendments, if any, by
and between Grand Union Company ("Sublessor") and Fleming Companies, Inc.
("Sublessee") a copy of which is attached hereto and marked as Exhibit B.
"HOURS OF OPERATION" shall mean Monday through Friday from 10:00 a.m. to 7:00
p.m. and Saturdays and Sundays from 10:00 a.m. to 4:00 p.m., excluding all
banking holidays. The hours of operation set forth herein may be modified by the
Tenant at its sole discretion provided the modified hours of operation are
reasonable hours of operation as compared to other banking facilities in Mercer
County.
"LEASED PREMISES" shall mean the space leased by Tenant from Landlord pursuant
to this Sublease Agreement and as more particularly described in Exhibit E.
"LEASE YEAR" shall mean a period of twelve (12) consecutive calendar months, the
first of which will begin on the Commencement Date.
"LESSEE" shall mean The Grand Union Company, the Lessee from time to time under
the Ewing Lease.
"LESSOR" shall mean Ewing Associates, the Lessor from time to time, under the
Ewing Lease.
"MARRAZZO'S MARKET" shall mean Marrazzo's Market at Ewing, L.L.C., the
Sub-Subtenant from time to time, under the Sub-Sublease Agreement.
"MORTGAGEE" shall mean the holder of any mortgage or security interest now or
hereafter encumbering the Building, improvements, appurtenances or personal
property of Landlord.
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"OPERATING EXPENSES" shall mean real estate taxes, payments "in lieu of real
estate taxes," insurance premiums and other expenses as referred to in Article 4
of, and as more particularly described in Exhibit G to the General Terms of
Lease.
"STANDARD INDUSTRIAL CLASSIFICATION (SIC) NUMBER" shall mean the SIC number
applicable to Tenant's primary business and referred to in Article 2 of the
General Terms of Lease which Tenant represents and warrants is 6021.
"SUBLESSEE" shall mean Fleming Companies, Inc., the Sublessee from time to time,
under the Grand Union Lease.
"SUBLESSOR" shall mean The Grand Union Company, the Sublessor from time to time,
under the Grand Union Lease.
"SUB-SUBLANDLORD" shall mean Fleming Companies, Inc., the Sub-Sublandlord from
time to time, under the Sub-Sublease Agreement.
"SUB-SUBTENANT" shall mean Marrazzo's Market at Ewing, L.L.C., the Sub-Subtenant
from time to time, under the Sub-Sublease Agreement.
"TENANT IMPROVEMENTS" shall mean the improvements to the Leased Premises
constructed for by Tenant for Tenant's use and occupancy.
"TENANT PLANS" shall mean the final plans, specifications and working drawings
required to be supplied by Tenant and approved in writing by Landlord for the
construction of the Leased Premises and the Tenant Improvements as herein
defined.
"TENANT PLANS DEADLINE" shall mean the date on or before which Landlord must
deliver written approval or disapproval of the Tenant Plans, which Landlord and
Tenant agree will be five (5) business days after receipt of same by Landlord.
"TENANT'S PRO RATA SHARE," shall mean the ratio of (x) the rentable square feet
in the Leased Premises, over (y) the total rentable square feet in the Demised
Premises, which Landlord and Tenant agree is .981 percent as of the date hereof
which is subject to change upon a recalculation of the total rentable building
size.
If any of the operating expense is related to any item entirely within the
Leased Premises and for the sole use and benefit of the Tenant, then Tenant
shall pay 100% of such cost. Otherwise, Tenant shall pay his pro rata share.
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"TERM" shall mean a period of 5 years and 0 months from the Commencement Date
referred to in Article 3 of the General Terms of Lease and will, if the context
requires, include any extension(s) of the initial Term and be subject to earlier
termination as provided in the General Terms of Lease.
"USE" shall mean Tenant's occupancy of the Leased Premises as referred to in
Article 2 of the General Terms of Lease for the purpose of a full-service bank
only.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands
and seals, or caused this Sublease to be signed by their duly authorized general
partners, officers or agents, as of the date and year first above written.
WITNESS: SAMUEL MARRAZZO
XXXXXXXXXXXXXXXX /s/ Samuel Marrazzo
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MARGARET MARRAZZO
XXXXXXXXXXXXXXXX /s/ Margaret Marrazzo
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ATTEST: YARDVILLE NATIONAL BANK
XXXXXXXXXXXXXXXX /s/ XXXXXXXXXXXXXXXX
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GENERAL TERMS OF LEASE
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ARTICLE 1. LEASED PREMISES.
Section 1.1 Tenant will have the right to use and occupy its leasehold
interest and, with respect to the Leased Premises, the right to use in common
with other tenants of the Shopping Center and their invitees, customers and
employees, those public areas of the Common Facilities, all subject to the
terms, conditions and limitations set forth in the Ewing Lease, Grand Union
and/or Fleming Lease.
ARTICLE 2. USE.
Section 2.1 Landlord hereby leases to Tenant, and Tenant hires from
Landlord, only for the operation of a full-service banking facility, a portion
of the Demised Premises consisting of approximately 346 sq. ft. as more
specifically described in Exhibit E attached hereto and incorporated herein.
Tenant agrees, except as to those provisions relating to the payment of rent by
the Tenant and as otherwise specifically set forth in this Sublease Agreement to
be bound by all of the covenants and obligations of the Sub-Subtenant as set
forth in the Fleming Lease.
Section 2.2 Tenant will use and occupy the Leased Premises for the use
specified only and for no other use. Notwithstanding the foregoing, Tenant's use
of the Leased Premises will, at all times, be lawful and will not constitute
waste, nuisance or unreasonable annoyance to Landlord or other tenants of the
Shopping Center.
Section 2.3 Tenant warrants that it will not do or allow anything which will
cause its SIC, as hereinafter set forth in this Agreement, to change and/or fall
within any of the SIC number(s) to which the Industrial Site Recovery Act,
N.J.S.A. 13:1K-6, et seq. ("ISRA") is now or may hereafter be applicable. Tenant
further warrants that it will not use the Leased Premises or any part thereof to
refine, produce, store, handle, transfer, process, or transport "hazardous
waste" or "hazardous substances" as such terms are now or may hereafter be
defined under any federal, state or local law or regulation. In the event Tenant
shall breach this warranty, Landlord will have, in addition to any other
remedies available, the right to immediately terminate this lease.
ARTICLE 3. TERM OF LEASE.
Section 3.1 The initial Term of this Lease shall be for the period
beginning April 1, 2000, and ending at 11:59 p.m. on March 31, 2005 ("Initial
Term"). Thereafter, the term of this Lease shall be automatically renewed for
three (3) successive
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additional terms of five (5) years ("Renewal Term") each unless Tenant
terminates this Lease by giving written notice to Landlord Tenant at least
ninety (90) days prior to the end of the Initial Term or Renewal Term, as
applicable. The Initial Term and Renewal Term are referred to herein as the
"Term." Notwithstanding any provision herein to the contrary, this Lease shall
automatically terminate upon the expiration or termination of the Fleming Lease
for any reason. In no event shall Tenant have the right to exercise any options
to extend the term of the Fleming Lease that may be available to Landlord under
the Fleming Lease.
ARTICLE 4. RENT AND ADDITIONAL RENT.
Section 4.1 In addition to the Base Rent, and as Additional Rent, Tenant
shall pay .981 percent (sublease square footage [346 sq. ft.] divided by total
square footage (35,280 sq. ft.]) of all of the common area expenses and other
charges for which Sub-Subtenant is responsible under the terms of the Ewing
Lease, Grand Union Lease or Fleming Lease as well as .981 percent of Landlord's
Operating Expenses, including, but not limited to, electricity, steam, utility
taxes, water (including sewer rentals), casualty and liability repairs and
maintenance, building and cleaning supplies, window cleaning, service contracts,
independent contractors and all other expenses providing that provided that
nothing herein shall obligate Tenant to be responsible for salaries, wages,
medical, surgical, general welfare benefits, and pension payments of employees
of Landlord. However, with respect to "repairs and maintenance" only, Tenant
shall not be responsible for any prorate share of repairs and maintenance to a
portion of the building that has no effect on Tenant's Leased Premises.
Section 4.2 Tenant will pay Base Rent and Additional Rent without any
setoff, deduction or demand whatsoever. Base Rent will be paid in monthly
installments, in advance, on the first day of each month during the Term in the
amount set forth in this Sublease Agreement.
Section 4.3 Any and all charges and costs which Tenant is required to pay
pursuant to this Sublease, together with all interest and penalties that may
accrue thereon in the event of Tenant's failure to pay such amounts, and all
damages, costs, and expenses which Landlord may incur by reason of any default
or failure on Tenant's part to comply with the terms of this Sublease, will be
deemed to be Additional Rent. In the event of non-payment by Tenant of any
Additional Rent, Landlord will have all the rights and remedies with respect
thereto which Landlord has for non-payment of Base Rent.
Section 4.4 In addition to any other remedies provided for herein, in the
event of any installment of Base Rent or payment of
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Additional Rent remains unpaid for more than seven (7) calendar days after
receipt of written notice thereof, then a late charge of four percent (4%) of
the amount(s) so overdue may be charged by Landlord for each month or part
thereof that the same remains overdue. This charge will be deemed compensation
to Landlord for the inconvenience and expense of policing and processing the
late payment(s) and will be in addition to and not in lieu of any other remedy
the Landlord may have under the circumstances and in addition to any reasonable
fees and charges of any agents or attorney Landlord may employ in the event of
any default hereunder, whether authorized herein or by law.
ARTICLE 5. COMPLIANCE WITH LAWS.
Section 5.1 Tenant will, at its expense, promptly observe and comply or
cause compliance with all laws and ordinances, orders, rules, regulations, and
requirements of all federal, state, county or municipal governments and
appropriate departments, agencies, commissions, boards and offices thereof, and
the board of fire underwriters and/or any other body exercising similar
functions and all insurance companies writing policies covering the building
and/or Leased Premises, or any part thereof, foreseen or unforeseen, ordinary as
well as extraordinary, which relate or pertain to Tenant's use and occupancy of
the Leased Premises, including the conduct of Tenant's business therein, whether
or not the same: a) involve any change of governmental policy; b) are now in
force or hereafter passed, enacted or directed, or c) require extraordinary
repairs, alterations, equipment or additions of any work (or changes of such
work) or any other requirements incidental thereto, of any kind which may be
applicable to, or in or about, the Leased Premises including, without
limitation, the fixtures, equipment thereof, or the purposes to which the Leased
Premises are put, or manner or use of the Leased Premises at the commencement or
during the term of this Sublease. Tenant's obligations as set forth in this
paragraph will include, but not be limited to, compliance with any and all laws,
orders, rules, regulations and requirements relating to life safety and
environmental control, conservation or protection, including, without
limitation, the Occupational Safety and Health Act (OSHA), the Spill
Compensation and Control Act, and the Industrial Site Recovery Act (ISRA) with
respect to the use of and operation of the Leased Premises. In the event of
Tenant's failure to comply with the conditions of this paragraph, Landlord may,
but will not be required to, perform any of the Tenant's obligations as stated
herein. It is specifically understood that Tenant will defend, indemnify and
hold harmless Landlord, its agents, successors and assigns from and against, and
be responsible for, payment of any and all costs, expenses, claims, fines,
penalties, and damages that may in any manner arise out of or be imposed because
of the failure of Tenant to comply with the provisions of this paragraph,
including expenses incurred by
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Landlord in the exercise of its rights pursuant to this paragraph, and all of
the foregoing shall be deemed Additional Rent.
ARTICLE 6. EVENTS OF DEFAULT; REMEDIES.
Section 6.1 It will be a default hereunder if, at any time after the date
hereof, any of the following events (hereinafter called "Events of Default")
occurs:
(a) Tenant fails to pay any installment of Base Rent or Operating Expenses,
or any part thereof, when same is due and payable and such failure continues for
seven (7) days after receipt of written notice thereof;
(b) Tenant fails to pay any item of Additional Rent or any other charges
required to be paid by Tenant hereunder and such failure continues for ten (10)
days after receipt of written notice thereof from Landlord to Tenant; or
(c) Tenant fails to perform any of the requirements of this Sublease (other
than the payment of money) on the part of Tenant to be performed or observed and
such failure continues for thirty (30) days after receipt of written notice
thereof from Landlord to Tenant; or
(d) Tenant allows the Leased Premises to become vacant, deserted, or
abandoned for a period of forty-five (45) days (the fact that any Tenant
property remains in the Leased Premises shall not be evidence that Tenant has
not vacated or abandoned the Leased Premises) or if Tenant fails to keep the
Leased Premises occupied to the extent necessary to maintain fire insurance
coverage; or
(e) Tenant assigns, mortgages or encumbers this Sublease, Tenant's Leased
Premises or any part thereof, other than as expressly permitted hereunder; or
(f) Tenant makes an assignment for the benefit of its creditors; or
(g) Any petitions filed by or against Tenant in any court, whether or not
pursuant to any statute of the United States or any state in any bankruptcy,
reorganization, extension, arrangement or any insolvency proceeding and, with
regard any petition filed against Tenant, the same is not dismissed within
forty-five (45) days, provided that during such period, Tenant continues to pay
all Base Rent and all Additional Rent in performance of all of its obligations
under this Sublease; or
(h) A receiver or trustee is appointed for all or any substantial portion of
Tenant's property and, with regard to a proceeding
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brought against Tenant, the same is not dismissed in forty-five (45) days,
provided that during such period Tenant continues to pay all Base Rent and all
Additional Rent in performance of all of its obligations under this Sublease; or
(i) If a petition or proceeding is filed or commenced by against Tenant for
its dissolution or liquidation, other than in connection with any merger
permitted hereunder, or if Tenant's property is taken by any governmental
authority in connection with a dissolution or liquidation and, with regard to a
petition filed or commenced against Tenant, the same is not dismissed within
forty-five (45) days, provided that during such time Tenant continues to pay all
Base Rent and all Additional Rent and performs all of its obligations under this
Sublease; or
(j) If a levy under judgment against Tenant is not satisfied or bonded
within thirty (30) days.
Section 6.2 Upon occurrence of any one or more of the aforementioned Events
of Default and the expiration of the period of time for curing the same, if any,
Landlord may give Tenant a notice (hereinafter called "Notice of Termination")
of its intention to end the term of this Sublease at the expiration of five (5)
days from date of service of such Notice of Termination. At the expiration of
five (5) days, the term hereof, as well as all of the right, title and interest
of Tenant hereunder, will wholly cease and expire in the same manner and with
the same force and effect as if the date of expiration of such five (5) day
period were the date originally specifically herein for expiration of the term,
and Tenant will then quit and surrender the Leased Premises to Landlord, but
Tenant will be liable to Landlord as hereinafter provided. Notwithstanding the
foregoing provision of this paragraph, Landlord will not be required to give any
Notice of Default and no cure period shall be applicable for the failure of
Tenant to observe or perform any of its agreements or obligations hereunder if,
within any one hundred eighty (180) day period, Tenant has committed two or more
defaults hereunder and Landlord has transmitted to Tenant two or more Default
Notices.
Section 6.3 If this Sublease is terminated as provided hereinabove, Landlord
or Landlord's agent and servants may, at any time thereafter, re-enter the
Leased Premises and remove Tenant, its agents, employees, servants, licensees,
permittees and any subtenants or assignees, and all of its or their property,
either by summary dispossess proceeding or by any suitable action or proceeding
at law, without being liable to indictment charges of any nature, and recover
and enjoy the Leased Premises together with all additions, alterations, and
improvements thereto.
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Section 6.4 If default occurs during the original Term, then all Rent and
Additional Rent shall be paid monthly for the remainder of the Term, and the
Leased Premises shall be restored at Tenant's sole expense within seventy-five
(75) days after default.
Section 6.5 If default occurs during any Option Period, then all Rent and
Additional Rent shall be paid monthly for the twelve (12) months following such
date of default, and the Leased Premises shall be restored at Tenant's sole
expense within seventy-five (75) days after default.
Section 6.7 In case of any such termination by summary proceeding or
otherwise, Tenant agrees that:
(a) The Base Rent and all Additional Rent required to be paid by Tenant
hereunder will thereupon become due and be paid up to the time of such
termination or dispossess. Tenant will also pay to Landlord, as Additional Rent,
all of Landlord's reasonable expenses for attorneys' fees, brokerage
commissions, all costs paid or incurred by Landlord for retaking and
repossessing the Leased Premises (including the removal of personal and property
therefrom), restoring the Leased Premises to good order and condition, altering
and otherwise preparing the same for reletting (without regard to whether such
alterations may be characterized as capital improvements), the unamortized
portion of any rental concessions, Tenant fit-out or abatement (treated as if
amortized over the initial Term hereof) and for all other reasonable costs and
expenses incurred in securing a new tenant or tenants (all of the foregoing
collectively referred to as the "Early Termination Damages").
(b) Landlord may, at any time and from time to time, relet the Leased
Premises, in whole or in part, in its own name, for a term or terms which, at
Landlord's option, may be for the remainder of the then current Term of this
Sublease, or for any longer or shorter period. Landlord undertakes to use
reasonable efforts to relet the Leased Premises so as to mitigate damages but
will not be required to prefer such reletting to any letting of other vacant
space in the Building.
(c) Tenant will be obligated and agrees to pay to Landlord, upon demand, and
Landlord will be entitled to recover from Tenant, the Early Termination Damages
plus damages in an amount equal to the excess, if any, of (i) all Base Rent and
all Additional Rent as would have been required to be paid by Tenant under this
Sublease for each calendar month had this Sublease and the Term not been so
terminated, over (ii) the rents, if any, collected by Landlord in respect of
such calendar month pursuant to any reletting. In no event will Tenant be
entitled to receive any excess of such rents over the sums payable by Tenant to
Landlord hereunder. Said
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damages will be payable by Tenant to Landlord in monthly installments in the
same manner as Base Rent hereunder, and no suit or action brought to collect the
amount of the deficiency for any month will in any way prejudice Landlord's
right to collect the deficiency for any subsequent month by a similar
proceeding.
(d) Suit or suits for the recovery of any and all such damages, or for any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing herein contained will be deemed to require Landlord to
postpone suit until the date the Term would have expired had the Lease not been
terminated as provided herein or under any provision of law or had landlord not
re-entered into or upon the Leased Premises.
(e) If any statute or rule of law governing Landlord's claim for damages
will limit the amount of such claim capable of being so proved and allowed,
Landlord will be entitled to prove as and for liquidated damages and have
allowed an amount equal to the maximum allowed by or under any such statute or
rule of law.
SECTION 7. CUMULATIVE REMEDIES; WAIVER
Section 7.1 Every term, condition, agreement or provision contained in this
Sublease will also be deemed to be a covenant.
Section 7.2 In addition to the other remedies provided in this Sublease,
Landlord will be entitled to the restraint by injunction of any violation or
attempted to threatened violation of any of the terms or covenants of this
Sublease. Landlord's remedies under the terms of this Sublease are cumulative
and are not intended to be exclusive of any other remedies to which Landlord may
be lawfully entitled, at law or in equity, in case of any breach by Tenant of
any provision of this Sublease.
Section 7.3 The failure of the Landlord to insist in any one or more cases
upon the strict performance of any of the terms of covenants of this Sublease,
or to exercise any option herein contained, will not be construed as a waiver or
a relinquishment for the future of any such term or covenant. No waiver by
Landlord of any term or covenant of this Sublease will be deemed to have been
made unless made in a writing signed by Landlord.
Section 7.4 Neither the payment by Tenant nor acceptance by Landlord of rent
or any other payment, nor the acceptance by Landlord of performance of anything
required by this Sublease to be performed, with the knowledge of the breach of
any term or covenant of this Sublease, will be deemed a waiver of such breach or
of any of Landlord's rights hereunder. Landlord's acceptance of rent or any
other payment in a lesser amount than is due (regardless of any endorsement on
any check, or any statement in any letter
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accompanying any such rent or payment) will not operate or be construed either
as an accord and satisfaction or in any manner other than as payment on account
of the earliest rent or other sums then unpaid.
Section 7.5 Tenant and Landlord waive all right to trial by jury in any
proceeding instituted with respect to this Sublease.
ARTICLE 8. SURRENDER OF PREMISES.
Section 8.1 Tenant will, upon the expiration or earlier termination of this
Sublease, quit and surrender the Leased Premises to Landlord, together with all
Tenant Improvements and other alterations (unless Landlord elects otherwise as
hereinafter provided) and replacements thereof then on the Leased Premises, in
good order, condition and repair, except for reasonable wear and tear. Prior to
the expiration or earlier termination of this Sublease, the Tenant will remove
all of its property, equipment and trade fixtures from the Leased Premises
without damage, leaving the Leased Premises in broom-clean condition. All
property not removed by Tenant will be deemed abandoned by Tenant and Landlord
reserves the right to charge the cost of removal, storage and/or disposal of
same to Tenant.
Section 8.2 If the Leased Premises is not surrendered at the end of the
Term, including a failure to surrender by virtue of failure to comply with ISRA
as referred to hereinabove, or if the Leased Premises is damaged or is not in
broom-clean condition upon surrender, Tenant will indemnify Landlord against any
loss or liability resulting, including, without limitation and in addition to
any other remedy or claim of Landlord's, any claims made or damages sustained by
any succeeding tenant founded on the delay, condition and/or damage.
Section 8.3 Tenant's obligations under this Article 8 will survive the
expiration or earlier termination of this Sublease and surrender of the Leased
Premises.
ARTICLE 9. ASSIGNMENT OR SUBLETTING.
Section 9.1 Tenant will neither assign this Sublease, sublet the Leased
Premises or any part thereof, nor encumber its interest in this Sublease unless
it receives the written consent of the Landlord which shall not be unreasonably
withheld.
Section 9.2 Tenant, without Landlord's consent, may sublet or assign its
interest in this Sublease to any affiliate or subsidiary corporation of Tenant
or to any corporation resulting from a merger or consolidation with Tenant or to
any person or entity which acquires all of the assets of Tenant's business as a
going concern
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without violating this provision, provided, however, that Tenant remains liable
under the terms of this Sublease.
ARTICLE 10. MAINTENANCE AND REPAIRS; COVENANT AGAINST WASTE; RIGHT OF
INSPECTION.
Section 10.1 Tenant will, at its sole cost and expense, maintain the Leased
Premises and all of its fixtures, systems, equipment and improvements, in clean,
safe, orderly and sanitary condition free of accumulation of dirt and rubbish.
Tenant will not permit or suffer any overloading of the floors of the Leased
Premises and will not do or suffer any waste or injury with respect thereto. In
case of any destruction or damage of any kind whatsoever to the Leased Premises,
or any part thereof or system therein, including, without limitation, any glass
and the Tenant Improvements in or at the Leased Premises, Tenant shall repair
said damage or destruction as speedily as possible at Tenant's own cost and
expense, provided, however, that if any such damage or destruction results
solely from the act, fault or negligence of Landlord, or anyone acting under
Landlord, when making replacements pursuant to this Sublease Agreement, then it
will be the responsibility of Landlord to make the repairs at its expense.
Tenant will also be responsible, at its own cost and expense, to (i) repair
HVAC, electrical or plumbing system(s), if any, ("Tenant System") which service
only the Leased Premises, and (ii) maintain throughout the Term an HVAC
maintenance contract and, if required by Landlord, a maintenance contract on any
other Tenant System(s), covering any such Tenant System(s). When used in this
Article, the term "repair(s)" includes replacement(s), restoration(s),
addition(s), improvement(s), alteration(s) and/or renewal(s) when necessary.
Prior to making any repairs, Tenant will notify Landlord of the nature of the
damage or destruction and contractors Tenant intends to employ to effect the
repairs. The provisions and conditions of Article 12 applicable to changes or
alterations (including the condition that Landlord may require that the repairs
be performed by its agents, servants, employees or contractors) will similarly
apply to repairs required to be done by Tenant under this Article. to the extent
that there are any warranties or guaranties applicable to the Leased Premises,
including the fixtures, equipment and systems therein, which could be applicable
to the obligations of Tenant under this Article, Landlord will assign said
warranties or guaranties to Tenant.
ARTICLE 11. MECHANIC'S LIENS.
Section 11.1 Tenant will not suffer or permit any Mechanics Notice of
Intention or Mechanic's Lien ("Lien") against the Leased Premises and/or
Property or any part thereof, by reason of any work, labor, services or
materials done or supplied, or claimed to have been done or supplied, for or to
Tenant or any contractor or
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subcontractor employed by Tenant or anyone holding the Leased Premises or any
part thereof through or under Tenant ("Lien"). If at any time a Lien is filed
against the Leased Premises and/or Property, Tenant will cause the same to be
discharged of record or bonded within thirty (30) days after notice to Tenant of
the filing of same. If Tenant fails to discharge or bond any such Lien within
such period, then, in addition to any other right or remedy of Landlord,
Landlord may elect, but shall not be obligated, either to procure the discharge
of the Lien by bonding or by payment or deposit into court of the amount claimed
to be due, or to compel the prosecution of an action for the foreclosure of such
Lien by the lienor and to pay the amount of the judgment, if any, in favor of
the lienor within interest, costs and allowances. Any amounts paid or deposited
by Landlord for any of the aforesaid purposes, and all legal and other expenses
and disbursements of Landlord, including reasonable counsel fees, in defending
any action or in or about procuring the discharge of such Lien, together with
interest thereon at the rate which is the Prime Rate as published in the Wall
Street Journal, from time to time, plus five percent (5%), from the date of
payment or deposit, will become due and payable forthwith by Tenant to Landlord,
as Additional Rent.
ARTICLE 12. ALTERATIONS.
Section 12.1 Tenant will not make, cause or permit any alterations,
additions, improvements ("alterations") in or to the Leased Premises without in
each instance obtaining Landlord's prior written consent thereto. By way of
illustration but not limitation, Landlord will be entitled to withhold its
consent if the proposed alterations (i) impair or affect the structural
soundness or integrity of the Leased Premises, Building, or any of the systems
or equipment therein, (ii) lessen the present or future value of the Demised
Premises or Building, (iii) change the type of use of the Leased Premises; or
(iv) increase the risk of damage or injury to the Leased Premises, the Building
or the occupants of the Building. Any such consent by Landlord may be upon
condition that the work be performed by Landlord's agents, servants, employees
or contractors and that Tenant furnish to Landlord such evidence of Tenant's
financial ability to assure payment and/or completion as Landlord may reasonably
require. If Landlord so elects and notifies Tenant at the time of Tenant's
request to make such alterations, Tenant will, at its sole cost and expense,
remove any alterations (structural or non-structural) at the expiration or other
termination of this Sublease, repair all damage caused by such removal and
restore the Leased Premises to the condition in which they were prior to the
installation of any such alterations. Nothing herein contained will be construed
to restrict Tenant's right to install or to make any changes in Tenant's own
movable trade fixtures or to qualify Landlord's obligation to make structural
replacements as provided in this Sublease. The
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provisions of this Article are subject to the terms and conditions of any
mortgage to which this Sublease is subordinate, and if the consent of any such
mortgagee is required for such work, such consent will be obtained by Tenant
before any such work is commenced. In that regard, Landlord agrees to reasonably
cooperate with Tenant in obtaining the consent of such mortgagee.
Plans and specification for any proposed alterations will be submitted to
Landlord for approval upon the request for its consent together with a reputable
contractor's (which may include a contractor in Tenant's employ) estimate of the
cost thereof. Upon completion of the alterations, Landlord is to receive one
print and one reproducible copy of the "as-built" construction plans.
Section 12.2 In making any alteration contemplated by this Article, or any
repair or restoration contemplated by other items and conditions of this
Sublease, the parties will comply with all applicable laws, regulations,
ordinances and orders and procure all requisite permits, all at Tenant's
expense. Copies of all such approvals, authorizations and permits will be
delivered to and retained by Landlord. Each party will, on written request from
the other, execute any documents necessary to be signed on its part in order to
obtain any such permit. All alterations made hereunder will be performed in a
first-class, good and workmanlike manner using new materials at least equivalent
in quality to those used in the construction of the Building.
Section 12.3 Tenant will maintain, or cause Tenant's contractors to
maintain, worker's compensation and comprehensive general liability insurance
and property damage insurance, all in amounts, and with companies and on forms
reasonably satisfactory to Landlord and on an occurrence basis. Such insurance
will be in effect at all times during any period of such contractor's entry upon
the Leased Premises and certificates of insurance will be delivered to Landlord
prior to any such entry by Tenant or Tenant's contractors. If required by
Landlord, such insurance will name Landlord as additional insured(s), and in all
cases will be primary insurance not contributing with other insurance Landlord
or its contractors and/or construction manager may carry. Landlord will not in
any way be liable for any injury, loss, theft or damage which may occur to any
supplies or equipment of, or any decorations or installations made by, Tenant or
Tenant's contractors, the same being at the sole risk of Tenant and Tenant's
contractors.
ARTICLE 13. INSURANCE.
Section 13.1 During the term of this Sublease, Tenant will, at its own cost
and expense, provide and keep in force the following insurance:
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(a) Comprehensive general liability insurance written on an occurrence
basis, naming Landlord as additional insured, against claims for bodily injury,
death or property damage occurring in or about the Leased Premises, the Demised
Premises and the Common Facilities (including, without limitation, bodily
injury, death or property damage resulting directly or indirectly from or in
connection with any alteration, improvement or repair thereof made by and on
behalf on the Tenant) with limits on an occurrence basis of not less than
$1,000,000.00/$2,000,000.00 for bodily injury or death and $500,000.00 for
property damage or $5,000,000.00 combined single. Tenant's coverage must
include (i) premises/operations, (ii) excess owner's, contractor's protective,
and (iii) blanket contractual liability.
(b) Workman's Compensation in statutory amounts and employer's liability of
at least $100,000.00.
(c) Insurance covering its contents and all Tenant Improvements from loss or
damage from fire or casualty and, as to Tenant Improvements, such coverage shall
be written on an all-risk special form commercial property insurance (or its
equivalent) and shall include a replacement cost valuation, and shall name
Landlord as loss payee and mortgagee as their interests may appear.
(d) Such other insurance as Landlord or any mortgagee may reasonably require
from time to time.
Section 13.2 All policies will be obtained by Tenant and copies of same, or
at Landlord's option, certificates evidencing coverage will be delivered to
Landlord at or before the Commencement Date. All insurance will be written by
companies satisfactory to the Landlord and Mortgagee and authorized to do
business in the State of New Jersey. All policies will be for periods that are
consistent with the term of this Lease and shall contain a provision whereby the
same cannot be canceled or materially altered unless Landlord is given at least
thirty (30) days prior written notice of such cancellation. All policies of
insurance to be obtained which relate or pertain to the Leased Premises, the
Building, the Common Facilities or any of the Tenant's contents, Tenant's
improvements, fixtures and property, must include a waiver by the insurer of all
rights of subrogation.
ARTICLE 14. QUIET ENJOYMENT.
Section 14.1 Landlord covenants that so long as Tenant pays the rents and
performs the covenants and conditions in this Sublease, Tenant may peacefully
hold and enjoy the Leased Premises during the Term subject, however, to the
terms of this Sublease.
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ARTICLE 15. DAMAGE OR DESTRUCTION.
Section 15.1 In case of any damage to or destruction of the Leased Premises,
or any part thereof, Tenant will promptly give written notice thereof to
Landlord.
Section 15.2 If the Building or the Leased Premises is partially or totally
damaged or destroyed by fire or other cause, then, whether or not the damage or
destruction resulted from the fault or neglect of Tenant (and if this Sublease
has not been terminated as hereinafter provided in this Article), Landlord will
repair the damage and restore and rebuild the Building and/or Leased Premises
(which for purposes of this Article shall not include any Tenant Improvements).
Section 15.3 If the Building or the Leased Premises is partially damaged or
partially destroyed by fire or other cause, the rents payable hereunder will be
abated to the extent that the Leased Premises has been rendered unusable to
Tenant in the conduct of its business and for the period from the date of such
damage or destruction to the date the damage was repaired or restored. If the
Leased Premises or a major part thereof has been totally (which shall be deemed
to include substantially) damaged or destroyed or rendered completely unusable
to Tenant in the conduct of its business on account of fire or other cause, the
rents shall completely abate as of the date of the damage or destruction and
until Landlord repairs, restores and rebuilds the Leased Premises provided,
however, that if Tenant reoccupies a portion of the Leased Premises for the
conduct of Tenant's business during the time that the restoration work is taking
place and prior to the date that the same are made completely tenantable, rents
allocable to such portion will be payable by Tenant from the date of such
occupancy.
Section 15.4 In case of any damage or destruction mentioned in this Article,
Landlord may terminate this Sublease, by notice to the Tenant, if the Leased
Premises and/or Building are not reasonably capable of restoration within ninety
(90) days. Within thirty (30) days after such fire or casualty, Landlord will
advise Tenant in writing as to whether or not it can restore the Premises within
the ninety (90) day period referred to above, and whether or not it elects to
terminate this Sublease as provided in this Section. If Landlord elects not to
terminate the Sublease, then Landlord will have one hundred eighty (180) days
from receipt of Tenant's notice of such damages to restore the Leased Premises.
In the event Landlord is not able to restore the Leased Premises within 180
days, then Tenant shall have the option to terminate this Sublease by providing
written notice of termination to Landlord.
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Section 15.5 Provided that Landlord diligently prosecutes such repair and
restoration, Landlord will have no liability if the term for repair or
restoration extends beyond the two hundred ten (210) day period. During any
period of restoration, Tenant will be responsible for the security of its goods,
fixtures and equipment and will be responsible at its costs and expense to
remove same from the damaged Leased Premises pending restoration if necessary,
it being understood and agreed that Landlord will have no responsibility or
liability with respect thereto if the same remain in the damaged area.
Section 15.6 Notwithstanding anything to the contrary contained herein,
Landlord's obligation to repair will not extend to the Tenant Improvements
unless Tenant makes available to Landlord the funds to pay for the cost of such
repairs and Landlord's repairs will not exceed the scope of the work required to
be done at the outset of this Sublease as set forth in Exhibit E and any
additional improvements made by the Tenant consistent with the terms of this
Lease. Furthermore, should the damage or destruction occur during the last year
of the Term, then notwithstanding any contrary provision contained herein,
Landlord will have the option of not repairing the Leased Premises. Landlord
must give Tenant notice of its election not to repair within thirty (30) days of
receipt of Tenant's notice of the damage or destruction or such option will be
deemed terminated.
Section 15.7 No damages, compensation or claim will be payable by Landlord
for inconvenience, loss of business or otherwise arising from any repair or
restoration of any portion of the Leased Premises or of the Building pursuant to
this Article. Landlord will use reasonable and diligent efforts to effect such
repair or restoration promptly and in such manner as not to unreasonably
interfere with Tenant's use and occupancy.
Section 15.8 Notwithstanding anything to the contrary contained herein,
Landlord's obligations to repair the damage and restore and rebuild the Building
and/or the Leased Premises pursuant to this Article will be contingent upon its
obtaining all necessary approvals from the applicable governmental authorities.
ARTICLE 16. EMINENT DOMAIN.
Section 16.1 The Tenant agrees that, in the event of taking of the premises
by eminent domain, it will make no claim for the value of the unexpired term of
this lease, except to the extent as may be necessary to recover the reasonable
value of its leasehold improvements and trade fixtures.
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ARTICLE 17. INDEMNIFICATION.
Section 17.1 Tenant covenants and agrees, at its sole cost and expense and
in addition to any other right or remedy of Landlord hereunder, to indemnify and
save harmless Landlord from and against any and all loss, costs, expense and
liability from claims by any third party(ies) (but excluding any liability
arising solely out of the negligence of Landlord or its agents, employees or
contractors), including, without limitation, reasonable attorneys' fees and
court costs, arising from or in connection with (a) Tenant's use, occupancy,
operation and control of the Leased Premises or Common Facilities, (b) the
conduct or management of any work, or any act or omission whatsoever, done in or
on the Leased Premises by or under the direction or at the request of Tenant,
(c) any breach or default on the part of Tenant in the payment of any rent or
performance of any covenant or agreement on the part of Tenant to be performed
pursuant to the terms of this Sublease, or (d) any act or negligence of Tenant
or any of its agents, contractors, servants, employees, licensees or invitees.
Section 17.2 In the event that any action or proceeding is brought against
Landlord by reason of any claims covered by the foregoing indemnity, Tenant
will, upon notice from Landlord, resist or defend such action or proceeding.
Landlord will not defend such action or proceeding so long as Tenant is
diligently doing so. Landlord will give prompt notice to Tenant of any action or
proceeding brought against Landlord by reason of any claims covered by the
foregoing indemnity together with copies of any documents served on Landlord in
connection therewith, and Landlord will not settle any claim without Tenant's
written consent.
ARTICLE 18. SELF-HELP.
Section 18.1 Tenant covenants and agrees that if it, at any time, fails to
make any payments or perform any act which it is obligated to make or perform
under this Sublease, then Landlord may, but will not be obligated to, after
Tenant's time to make any such payment or perform any such act as provided in
this Sublease has expired and any required notice has been given, and without
waiving or releasing Tenant from any of its obligations under this Sublease,
make any such payment or perform any such act in such manner and to such extent
as is necessary and consistent with Tenant's obligations hereunder. In
exercising any such rights, Landlord may pay or incur costs and expenses,
including, without limitation, reasonably attorneys' fees. Notwithstanding the
foregoing, Landlord may make any such payment or perform any such act before
Tenant's time to do so (as provided in Article 6) has expired only if payment or
performance of the same is necessary or required prior to the expiration of the
applicable grace period for the preservation or protection of the Building
and/or Leased Premises.
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Section 18.2 Provided Landlord has given notice to Tenant and Tenant has
failed to pay all sums within thirty (30) days of such notice, then all sums so
paid or incurred in connection with the performance of any such act by Landlord,
together with interest thereon from the date that the Landlord made such
expenditure at the rate which Yardville National Bank announces as its so-called
"base rate," from time to time for the first month after the making of such
expenditure will be deemed Additional Rent hereunder and, except as otherwise in
this Sublease expressly provided, will be payable to Landlord on demand or, at
the option of Landlord, may be added to any rent then due or thereafter becoming
due under this Sublease.
ARTICLE 19. ESTOPPEL CERTIFICATE.
Section 19.1 Each party agrees that, at any time and from time to time,
within ten (10) days of the receipt of written request by the other, it will
execute, acknowledge and deliver a statement in writing certifying (i) that this
Sublease is unmodified and in full force and effect, or if there have been
modifications, that the same is in full force and effect as modified and stating
the modification, (ii) the dates to which the Base Rent and other charges have
been paid and the amount of same, and (iii) to the best of knowledge of the
certifying party whether there are any default or rent abatements or offsets
claimed. Notwithstanding the foregoing, it is intended that any such statement
delivered pursuant to this Article may be relied upon by any prospective
Purchaser of the fee or mortgagee or assignee of any mortgage of the Landlord's
interest in the Building and/or Leased Premises and the statement will contain
such other information as is requested, and be in the form required by such
Purchaser, mortgagee or assignee.
ARTICLE 20. SUBORDINATION AND NON-DISTURBANCE.
Section 20.1 This Sublease is and will at all times be subject and
subordinate to (i) the lien of any mortgage on or affecting the Building or any
part thereof, at the date hereof, and (ii) the Ewing Lease, Grand Union and/or
Fleming Lease. The provisions of this subordination shall be automatic and no
further instrument of subordination will be necessary, but in confirmation of
this subordination Tenant will, at Landlord's request, execute and deliver such
further instruments as may be required by the holder(s) of said mortgage(s),
Ewing Lease, Grand Union and/or Fleming Lease. Where there is a conflict between
the obligations of the Landlord to Tenant and Landlord's obligations under the
Ewing Lease, Grand Union and/or Fleming Lease, then Landlord's
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obligation under the Ewing Lease, Grand Union and/or Fleming Lease shall prevail
and pass through to Tenant in accordance with this Sublease Agreement.
Section 20.2 If any Mortgagee or any other person claiming by or through any
Mortgagee, or by or through any foreclosure proceeding or sale in lieu of
foreclosure, succeeds to the rights of Landlord under this Sublease, Tenant
will, at the request of such successor or at Landlord's request, attorn to and
recognize such successor as the landlord of Tenant under this Sublease, and
Tenant will promptly execute, acknowledge and deliver at any time any
instruments required by such person to evidence such attornment and/or confirm
Tenant's agreements to attorn. Upon such attornment, this Sublease will continue
as a direct lease from such successor landlord to Tenant, upon and subject to
all of the provisions of this Sublease for the remainder of the Term, except
that the successor landlord will not be:
(a) liable for any previous act or omission of Landlord under this Sublease;
(b) subject to any offset not expressly provided for in this Sublease which
has theretofore accrued to Tenant against Landlord;
(c) bound by (i) any modification of this lease after the date of such
mortgage, or (ii) any prepayment of more than one (1) months' Base Rent or
Additional Rent, unless same has been expressly approved in writing by the
holder of such mortgage through or by reason of which the successor landlord
shall have succeeded to the rights of Landlord under this Sublease.
(d) bound by any security deposit which Tenant may have paid to any prior
landlord, unless such deposit is in an escrow fund available to Mortgagee, or
actually received by Mortgagee;
(e) bound by any provision in the Lease which obligates the landlord to
erect or complete any building or to perform any construction work or to make
any improvements to the Premises or to expand or rehabilitate any existing
improvements or to restore any improvements following any casualty or taking;
(f) bound by any notice of termination given by Landlord to Tenant without
Mortgagee's written consent thereto; or
(g) personally liable under the Lease and Mortgagee's liability under the
Lease shall be limited to the ownership interest of Lender in the Premises.
Tenant will further agree with Mortgagee that Tenant will not voluntarily
subordinate the Lease to any lien or encumbrance without Mortgagee's prior
written consent.
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Notwithstanding anything to the contrary contained herein, this Sublease
shall be contingent upon Landlord's obtaining for Tenant's benefit a recognition
agreement satisfactory to Tenant from all Mortgagees having a lien on or
affecting the Building or any part thereof at the date hereof and all parties
having a prior interest in the Building, Common Facilities and/or Leased
Premises prior to execution of this document.
ARTICLE 21. NOTICES.
Section 21.1 Except as expressly provided in this Sublease to the contrary,
all notices, demands and requests (other than invoices for Base Rent or
Additional Rent) which are required to be given by either party to the other
will be in writing and will be sent by United States first class certified or
registered mail, return receipt requested, and addressed to (i) Landlord at the
address set forth in the agreement with a copy to Leo R. Zamparelli, Esquire,
1719 Brunswick Pike, Lawrenceville, New Jersey 08648, or (ii) to Tenant at the
address set forth in the agreement with a copy to Daniel J. O'Donnell, Esquire,
c/o Destribats, Campbell, DeSantis, Magee & O'Donnell, 247 White Horse Avenue,
Trenton, New Jersey 08610. Notices for late payments may be send by way of
regular mail and/or facsimile transmittal.
Section 21.2 Notice is deemed to be given upon receipt, provided, however,
that in the event a party refused to accept delivery of said certified mail, the
notice will nevertheless be deemed to be given upon the date of refusal to
accept delivery.
ARTICLE 22. BROKER.
Section 22.1 Landlord and Tenant represent to each other that they dealt
with no broker in connection with this Sublease.
Section 22.2 Tenant agrees that if any claim should be made for commissions
by any broker by reason of any act of Tenant or its representatives, Tenant will
hold Landlord free and harmless from any and all loss, liabilities, and expenses
in connection therewith. Landlord will give prompt notice to Tenant after any
such claim is made by any broker. Tenant will have the right to defend such
claim and Landlord will not pay or settle such claim as long as Tenant is
defending same.
Section 22.3 Landlord agrees that if any claims should be made for
commissions by any broker by reason of any act of Landlord or its
representatives, Landlord will hold Tenant free and harmless from any and all
loss, liabilities and expenses in connection therewith. Tenant will give prompt
notice to Landlord after any such claim is made by any such broker. Landlord
will have the
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right to defend such claim and Tenant will not pay or settle such claim as long
as Landlord is defending same.
ARTICLE 23. SIGNS.
Section 23.1 Tenant will not place any signs on the land, or the exterior or
interior of the Building, or in any window whereby such sign would be visible
from the outside of the Building, except as agreed to in writing by Landlord.
Tenant will obtain, at its sole cost and expense, any and all permits, licenses
or approvals which may be necessary in connection with its sign or signs.
Section 23.2 Any and all signs are to be approved by Landlord, whose
approval shall not be unreasonably withheld.
ARTICLE 24. HOLDOVER.
Section 24.1 If Tenant continues in the occupancy of the Leased Premises
after the expiration of the Term, Tenant's occupancy will be deemed a
month-to-month tenancy subject to the terms of the Sublease and Tenant will pay
the Base Rent in effect upon the expiration of the Term together with the
Additional Rent provided herein or one and one-half (1.5) times such charges if
Landlord has immediate use for such space. The provision of this Article will
not be construed (i) to relieve Tenant from liability to Landlord for damages
resulting from any such holding over, or (ii) as Landlord's consent for Tenant
to hold over.
ARTICLE 25. LIMITATION OF LIABILITY.
Section 25.1 Notwithstanding any contrary provision contained in this
Sublease, neither Landlord, nor any of its officers, directors, principal
partners, agents or employees, will be responsible or liable to Tenant:
(a) for any damage or injury resulting from acts or omissions of persons
occupying or using any other part of the Building or for any injury or damages
resulting from acts or omissions of persons occupying or using any other part of
the Building or for any injury or damage resulting from bursting, stoppage or
leakage of water, sprinkler, gas, sewer or steam pipes; or
(b) for any consequential damages or lost profits, under any circumstances
whatsoever.
Notwithstanding the provisions of this Section, if Landlord is in default
with respect to its obligations hereunder and is thereby or otherwise determined
to be liable to Tenant (whether as a result of negligence, strict liability,
breach of warranty or any other theory or concept of liability), Landlord will
be liable for
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monetary damages only and as of the date such cause of action occurs, following
a final judgment establishing such default or liability.
ARTICLE 26. MODIFICATIONS REQUESTED BY MORTGAGEE.
Section 26.1 Tenant hereby agrees that if any Lender to the Landlord
proposing to make a mortgage on Landlord's interests in the Building and/or
Leased Premises requires, as a condition to making any loan to be secured by
such mortgage, that Tenant agree to modifications to this Sublease, or that
Tenant supply corporate financial statements and/or other information, then
Tenant agrees that it will enter into an agreement with Landlord making such
modifications as are requested by such Lender and will supply such financial
statements and other information as are requested by such Lender. Under no
circumstances will Tenant be required to agree to any modification which changes
the Leased Premises, increases the Base Rent or any Additional Rent, abridges or
enlarges the Term, or requires the expenditure of funds by Tenant which Tenant
is not obligated to expend pursuant to the existing terms of this Sublease.
Tenant will execute such modification or supply such information within ten (10)
days after Landlord's request. In the event of Tenant's refusal, Landlord will
have the right among other remedies, to cancel and terminate this Sublease.
Provided, however, that nothing in this Section 26.1 shall require the Tenant to
consent to any modifications that materially adversely affect the Tenant's
rights under the Sublease.
ARTICLE 27. PARKING.
Section 27.1 Employees of Tenant will be required to park in designated
areas or spaces. A minimum of three (3) such spaces will be assigned to Tenant.
ARTICLE 28. RULES AND REGULATIONS.
Section 28.1 Tenant, its agents, employees, contractors, licensees, and
invitees, will at all times abide by and observe the Rules and Regulations as
may be promulgated from time to time by Landlord for the operation and
maintenance of the Building and Common Facilities provided, however, that a copy
of the same are sent to Tenant and that the same are in conformity with common
practice and usage in similar buildings and are not inconsistent with the
provisions of this Sublease; as well as any Rules and Regulations promulgated
pursuant to the Ewing Lease, Grand Union Lease or Fleming Lease. Landlord shall
provide to Tenant copies of all Rules and Regulations referred to in this
Article.
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ARTICLE 29. REGULATION OF COMMON FACILITIES.
Section 29.1 The Common Facilities are at all times subject to the exclusive
control and management of Lessor and Landlord. Lessor and Landlord will have the
right to change the areas, locations and arrangements of parking areas, lobbies,
and other Common Facilities (provided that Tenant and its customers will have
reasonable access to the Leased Premises) all of which is set forth in this
Sublease or in the Ewing Lease, Grand Union and/or Fleming Lease as the case may
be.
ARTICLE 30. CAPTIONS.
Section 30.1 The captions in this Sublease are for convenience and reference
only, in no way define, limit or describe the scope or intent of this Sublease
and are in no way to affect the interpretation or construction of this Sublease.
ARTICLE 31. APPLICABILITY TO SUCCESSORS AND ASSIGNS.
Section 31.1 The provisions of this Sublease will be binding upon and inure
to the benefit of Landlord and Tenant, and their respective heirs, successors,
legal representatives, and assigns, but nothing herein will grant to Tenant the
right to assign this Sublease other than pursuant to the provisions hereof. It
is understood that the term "Landlord" as used in this Sublease means only the
owner, a mortgagee in possession, or a term lessee of the Demised Premises, so
that in the event of any assignment by Landlord of the Lease for the Demised
Premises, or if a mortgagee takes possession of the Building and/or Demised
Premises, the Landlord named herein will be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder accruing
thereafter, and it will be deemed, without further agreement, that the
Purchaser, the term lessee of the Building and/or Demised Premises, or the
mortgagee in possession has assumed and agreed to carry out any and all
covenants and obligations of Landlord hereunder accruing from and after the date
of transfer, lease or possession, as applicable.
ARTICLE 32. ENTIRE AGREEMENT; MODIFICATION.
Section 32.1 This Sublease (i) constitutes the entire and only agreement
between the parties relating to the subject matter hereof, (ii) cancels and
supersedes any prior agreements or discussions between the parties or their
representatives, and (iii) may not be modified except by an instrument in
writing which is signed by both parties.
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ARTICLE 33. MISCELLANEOUS.
Section 33.1 The terms, covenants, conditions, provisions and agreements of
this Sublease are deemed to be severable. If any clause or provision herein
contained is adjudged to be invalid or unenforceable by a court of competent
jurisdiction or by operation of any applicable law or regulation, it will not
affect the validity of any other clause or provision herein, but such other
clause or provisions will remain in full force and effect. In addition, Landlord
may pursue the relief or remedy sought in any invalid clause, by conforming such
clause with the provisions of the statute or regulation as if the particular
provisions of the applicable statute or regulation were set forth herein at
length.
Section 33.2 This Sublease is not to be strictly construed against either
Landlord or Tenant. No remedy or election given by any provision in this
Sublease is deemed exclusive unless so indicated, but each, whenever possible,
is cumulative with all other remedies in law or at equity.
Section 33.3 All obligations of Tenant which, by their nature, cannot be
ascertained to have been fully performed until after the end of the Term, will
survive the expiration or sooner termination of this Sublease.
Section 33.4 With respect to any provision of this Sublease which provides,
or is held to provide, that Landlord may withhold or delay any consent or any
approval or exercise its judgment or discretion, Tenant in no event will be
entitled to make, and Tenant hereby waives, any claim for damages, directly or
by way of setoff, counterclaim or defense, based upon any claim or assertion by
Tenant that Landlord has unreasonably withheld or unreasonably delayed any
consent or approval or unreasonably exercised its judgment or discretion.
Section 33.5 This Sublease is to be interpreted, governed by and enforced in
accordance with the substantive laws of the State of New Jersey.
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EXHIBIT I
Base Rent Schedule
Dates Annual Rent Monthly Rent Sq. Ft. Charge
----- ----------- ------------ --------------
4/01/00 to 3/31/01 $0.00 $0.00 $0.00
4/01/01 to 3/31/02 $20,000.00 $1,666.67 $57.80
4/01/02 to 3/31/03 $20,000.00 $1,666.67 $57.80
4/01/03 to 3/31/04 $20,000.00 $1,666.67 $57.80
4/01/04 to 3/31/05 $20,000.00 $1,666.67 $57.80
Option Renewal Term 1
---------------------
4/01/05 to 3/31/06 $21,000.00 $1,750.00 $60.69
4/01/06 to 3/31/07 $21,000.00 $1,750.00 $60.69
4/01/07 to 3/31/08 $21,000.00 $1,750.00 $60.69
4/01/08 to 3/31/09 $21,000.00 $1,750.00 $60.69
4/01/09 to 3/31/10 $21,000.00 $1,750.00 $60.69
Option Renewal Term 2
---------------------
4/01/10 to 3/31/11 $22,050.00 $1,837.50 $63.73
4/01/11 to 3/31/12 $22,050.00 $1,837.50 $63.73
4/01/12 to 3/31/13 $22,050.00 $1,837.50 $63.73
4/01/13 to 3/31/14 $22,050.00 $1,837.50 $63.73
4/01/14 to 3/31/15 $22,050.00 $1,837.50 $63.73
Option Renewal Term 3
---------------------
4/01/15 to 3/31/16 $23,152.50 $1,929.38 $66.91
4/01/16 to 3/31/17 $23,152.50 $1,929.38 $66.91
4/01/17 to 3/31/18 $23,152.50 $1,929.38 $66.91
4/01/18 to 3/31/19 $23,152.50 $1,929.38 $66.91
4/01/19 to 3/31/20 $23,152.50 $1,929.38 $66.91
In addition to the Base Rent, Tenant shall pay Additional Rent as set forth in
the General Terms of Lease.
