Exhibit 10.04
ASSIGNMENT, ASSUMPTION AND CONSENT TO
ASSIGNMENT OF LEASE
This Assignment, Assumption and Consent to Assignment of Lease is
made this 12th day of December, 1997 between C.J.M. ENTERPRISES, INC., a New
Jersey corporation whose principle office is located at 101 Pompton Avenue,
Cedar Grove, New Jersey 07009 (hereinafter referred to as the "Assignor"), and
CCC KIN MALL CINEMA CORP., a corporation organized and existing under the laws
of Delaware, authorized to do business in New Jersey, whose principal office is
located at 7 Waverly Place, Madison, New Jersey 07940 (hereinafter referred to
as the "Assignee") and Clearview Cinema Group, Inc., a Delaware Corporation
("Guarantor") and Kin Mall Properties, L.L.C. ("Fee Owner").
WITNESSETH:
WHEREAS, Assignor entered into a Lease with LESTER M. ENTIN
ASSOCIATES, dated December 17, 1991, as amended by FIRST AMENDMENT TO LEASE
dated December 31, 1996, a true copy of each is annexed hereto (hereinafter,
collectively, the "Lease Agreement"); and
WHEREAS, the Assignor wishes to assign to Assignee all of its right,
title and interest under and pursuant to the Lease Agreement; and
WHEREAS, the Assignee wishes to accept this Assignment of Lease as
of December 12, 1997, and agrees to assume, perform and abide by all of the
terms, provisions and obligations of Assignor under the Lease Agreement; and
WHEREAS, LESTER M. ENTIN ASSOCIATES (hereinafter the "Landlord")
hereby consents to assignment of the Lease Agreement to the Assignee on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and intending to
be legally bound hereby, the Assignor and Assignee hereby agree as follows:
1. Assignor hereby assign all of its right, title and interest under
and pursuant to the Lease Agreement from and after December 12, 1997 to
Assignee, and its respective successors and/or assigns.
2. Assignee hereby accepts this Assignment of Lease, and agrees from
and after December 12, 1997 to assume, perform and abide by all of the terms,
provisions and obligations of the Assignor under the Lease Agreement.
3. Notwithstanding anything in this Assignment and Acceptance of
Assignment of Lease that may be to the contrary, Assignor expressly agrees that
nothing herein shall relieve the Assignor from any liability under and pursuant
to the Lease Agreement.
4. This Assignment and Acceptance of Assignment of Lease shall be
binding upon the parties hereto and their respective heirs, successors and
assigns.
5. This Assignment and Acceptance of Assignment of Lease shall not
be modified or amended without the written consent of the parties hereto and the
Landlord.
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6. By its signature below, Clearview Cinema Group, Inc., a Delaware
corporation and the parent of the assignee ("Clearview"), for valuable
consideration and in order to induce the Landlord to execute the consent, hereby
guarantees the performance of all tenant obligations set forth in the Lease
Agreement. This is a guarantee of payment and performance.
7. Assignee and Clearview hereby indemnify and agree to hold
Assignor harmless, including reasonable counsel fees, from any liability under
and pursuant to the Lease Agreement.
8. Any further assignment shall require the consent of Landlord.
9. Upon execution hereof Landlord shall receive reimbursement from
Assignor of all of its costs and expenses in reviewing this Assignment, not to
exceed $900.00.
10. This Assignment, Assumption and Consent to Assignment of Lease
shall be governed by the laws of the State of New Jersey.
[Remainder of page intentionally left blank. Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
as of the date and year hereinabove first written.
ATTEST: C.J.M. ENTERPRISES, INC., Assignor
By: /s/ Jesse Sayegh,
- -------------------------- ----------------------------------
Jesse Sayegh, President
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On this 12th day of December in the year 1997, before me personally came
Jesse Sayegh who, I am satisfied, signed, sealed and delivered the same as his
act and deed for the purpose therein expressed.
/s/ Deborah York Sheridan
---------------------------------
Notary Public
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ATTEST: CCC KIN MALL CINEMA CORP., Assignee
/s/ Herbert L. Klein By: /s/ A. Dale Mayo
- ----------------------- ----------------------------
Asst. Secretary A. Dale Mayo, President
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
I CERTIFY that on December 12, 1997 A Dale Mayo personally came before me
and this person acknowledged under oath to my satisfaction, that;
(a) this person signed and delivered the attached document as President of
CCC Kin Mall cinema Corp. the company named in this document;
(b) this document was signed and made by the company as its voluntary act
and deed by virtue of authority from CCC Kin Mall Cinema Corp.
/s/ Deborah York Sheridan
--------------------------------
Notary Public
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ATTEST: Clearview cinema Group, Inc.
Guarantor
/s/ Herbert L. Klein By: /s/ A. Dale Mayo
- ---------------------- ----------------------------
A. Dale Mayo, President
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
I CERTIFY that on December 12, 1997 A. Dale Mayo personally came before me
and this person acknowledged under oath to my satisfaction, that;
(a) this person signed and delivered the attached document as President
of Clearview Cinema Group, Inc. the company named in this document;
(b) this document was signed and made by the company as its voluntary act
and deed by virtue of authority from Clearview Cinema Group.
/s/ Deborah York Sheridan
----------------------------
Notary Public
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CONSENT TO ASSIGNMENT
LESTER M. ENTIN ASSOCIATES hereby consents to the assignment of the Lease
Agreement to the above-named Assignee on the express condition that the Assignor
shall remain liable for the prompt payment of the rent and the performance of
all obligations and covenants provided in the Lease Agreement and the Guarantor
shall execute the Assignment and Assumption of Lease, and that no further
assignment or sublease of any part of the demised premises shall be made without
the prior written consent of the undersigned Landlord.
LANDLORD'S WITNESS: LESTER M. ENTIN ASSOCIATES,
LANDLORD
/s/ Diana M. McCauley by: /s/ Marc Lenner, Trustee
- -------------------------- ------------------------------
Marc Lenner, Trustee
of the Lester M. Entin Trust
dated September 18, 1985, As
Amended, A Partner
State of New Jersey
SS:
County of Passaic
I CERTIFY that on December 5, 1997 Marc Lenner, a Trustee of the LESTER M.
ENTIN TRUST, dated September 18, 1985, As Amended, personally came before me and
this person acknowledged under oath to my satisfaction, that;
(a) this person signed and delivered the attached document as a Partner of
LESTER M. ENTIN ASSOCIATES, the company named in this document;
(b) this document was signed and made by the company as its voluntary act
and deed by virtue of authority from LESTER M. ENTIN ASSOCIATES.
/s/ Diana M. McCauley
----------------------
Date: December 5, 1997 Notary Public
FEE OWNER'S CONWENT TO ASSIGNMENT OF LEASE
Kin-Mall Properties, L.L.C., as Assignee of LESTER M. ENTIN ASSOCIATES,
the original landlord, hereby consents to the assignment of the Lease Agreement
to CCC Kin-Mall Cinema Corp. on the express condition that the Assignor shall
remain liable for the prompt payment of the rent and the performance of all
obligations and covenants provided in the Lease Agreement and the Guarantor
shall execute the Assignment and Assumption of Lease, and that no further
assignment or sublease of any part of the demised premises shall be made without
prior written consent of the undersigned Landlord.
WITNESS: KIN-MALL PROPERTIES, L.L.C.
/s/ Diana M. McCauley By: /s/ Marc Lenner, Trustee
- ----------------------- -----------------------------
Marc Lenner, Trustee
of the LESTER M. ENTIN TRUST
dated September 18, 1985, As
Amended, a Partner
State of New Jersey
SS:
County of Passaic
I CERTIFY that on December 11, 1997, Marc Lenner, Trustee of the Lester M.
Entin Trust, a Member of Kin-Mall properties, L.L.C., Assignee of Lester M.
Entin Associates , personally came before me and this person acknowledged under
oath to my satisfaction, that;
(a) this person signed and delivered the attached documents as Trustee of
the Lester M. Entin Trust, a Member of Kin-Mall Properties, L.L.C., the company
named in this document's Fee Owner;
(b) this document was signed and made by the company as its voluntary act
and deed by virtue of authority from Kin-Mall Properties, L.L.C.
Date: December 11, 1997 /s/ Diana M. McCauley
-----------------------
Notary Public
L E A S E
Between
LESTER M. ENTIN ASSOCIATES,
a partnership of the State of New Jersey
Landlord
and
CJM ENTERPRISES, INC.,
a corporation of the State of New Jersey
Tenant
Dated:
---------------------------
Commencement Date:
---------------------------
Termination Date:
---------------------------
SILLS CUMMIS ZUCKERMAN RADIN TISCHMAN EPSTEIN & GROSS, P.A.
The Legal Center
One Riverfront Plaza
Newark, New Jersey 07102-5400
201-643-700
58 Mortgage Protection Clause
59 [INTENTIONALLY OMITTED]
60 Business Hours
61 Negotiated Lease
62 Center
63 Control of Tenant
64 Processing Charge
65 Right of First Refusal
66 Hazardous Substances
67 Modifications requested by Mortgagee
68 Reimbursement of Legal Expenses
69 Right to Extend
Signatures
Schedule A - The Premises
Schedule B - Legal Description
Schedule C - Certificate of Commencement of Rent
Schedule D - Payment of Rent
Schedule E - Landlord Alteration
Schedule F - Tenant Alteration
Schedule G - Guaranty
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L E A S E
THIS AGREEMENT, ("Lease") entered into this 17th day of December, 1991,
between LESTER M. ENTIN ASSOCIATES, a partnership of the State of New Jersey,
having offices at 1033 Clifton Avenue, P.O. Box 2189, Clifton, New Jersey 07015,
hereinafter referred to as "Landlord", and CJM ENTERPRISES, INC., a corporation
of the State of New Jersey, having offices at 101 Pompton Avenue, Cedar Grove,
New Jersey 07009, hereinafter referred to as "Tenant".
W I T N E S S E T H:
PREMISES: Landlord hereby demises and leases unto Tenant and Tenant hereby
hires and takes from Landlord, for the term and upon the rentals, terms and
conditions hereinafter specified, the premises crosshatched on SCHEDULE "A" (the
"Premises") which Premises are a part of a shopping center located at Route 23
and Kinnelon Road in the Borough of Kinnelon, Morris County, New Jersey known as
the Kinnelon Mall (the "Center"), owned by Landlord on premises more
particularly described on SCHEDULE "B" and also includes a right of access to
the Premises and all public areas of the Center together with the parking spaces
in the parking area in common with other tenants of the Center. The Premises
consists of not less than 22,000 square feet nor more than 23,000 square feet
(measured from the outside facie of exterior walls and the center line of common
walls).
SECTION 1: TERM - CERTIFICATE OF COMMENCEMENT:
The term of this demise shall be ten (10) years beginning on the earlier
of (i) the date on which Tenant shall open for business or (ii) ninety-eight
(98) days after the "Delivery Date" (as defined in Section 12 hereof) (the
"Commencement Date") and ending at midnight on the day immediately preceding the
tenth anniversary of the Commencement Date (the "Term") subject, however, to the
terms contained herein. Notwithstanding the foregoing, if the earlier of the
events referred to in the immediately preceding sentence occurs on a day other
than the
first day of a month, the Commencement Date shall be the first day of the
immediately succeeding calendar month and, in that event, the terms and
conditions of this Lease shall apply from the earlier of the aforesaid events;
however, Tenant shall pay to Landlord until the Commencement Date a use and
occupancy charge equal to that proportion of the basic rent and additional rent
charges (other than Percentage Rent, which shall be calculated pursuant to
SECTION 5) as the number of days from the date upon which the earlier of the
aforesaid events occurs shall bear to the total number of days in such month.
Upon the commencement of the Term, Landlord and Tenant shall execute a
Certificate of Commencement in the form attached as SCHEDULE "C".
SECTION 2: RENT:
The basic rent during the Term of this Lease ("Basic Rent") shall be
payable in monthly installments as set forth on Schedule "D" on or before the
first day of each month, in advance, at the office of Landlord or at such other
place as shall be designated by Landlord, without any prior notice or demand
therefor and without any deduction, abatement or set-off for any reason
whatsoever. In the event that the Term shall commence on a day other than the
first day of a month, then Tenant shall pay to Landlord a proportionate amount
for said period.
The Basic Rent and any Additional Rent (as defined in SECTION 4) are
hereinafter referred to as "Rent".
SECTION 3: PROPORTIONATE MARE:
For the purposes of this Lease, Landlord and Tenant agree that the
Premises constitute approximately 23% of the Center. Tenant's proportionate
share of all costs, expenses and costs of the operation of the Center shall be
deemed to be 23% ("Proportionate Share") unless there is an increase in rental
space constructed by Landlord or Tenant leases more space in the Center, at
which time the Proportionate Share shall be readjusted. Anything contained
herein to the contrary notwithstanding, for purposes of calculating Tenant's
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proportionate share, Tenant's rentable square footage shall in all events be
deemed to be no less than 22,500 square feet.
SECTION 4: ADDITIONAL RENT:
(a) Tenant-shall pay monthly as Additional Rent one-twelfth (1/12th) of
its Proportionate Share of "Operating Costs" as defined in SECTION 8 of this
Lease. Said monthly sums shall be paid in advance on the first day of each month
based upon the statement of actual Operating Costs for the prior lease year
furnished by Landlord. Landlord's reasonable estimate of Tenant's monthly
Proportionate Share of Operating Costs for the first lease year is $4,416.67 per
month.
In the event Tenant's Proportionate Share of Operating Costs exceeds the
monthly sums provided above, Landlord shall submit an invoice to Tenant at any
time during the Term with a statement of the actual Operating Costs and Tenant
shall forthwith make payment to Landlord of the amount in excess of the payments
previously made by Tenant for such period. Tenant's monthly payment of its
Proportionate Share of Operating Costs shall be increased to coincide with any
increase described above.
(b) All sums of money or charges required to be paid by Tenant under this
Lease, whether or not the same be so designated, shall be deemed "Additional
Rent". If such amounts or charges are not paid at the time provided in this
Lease, they shall nevertheless, ,if not paid when due, be collectible as
Additional Rent with the next installment of Rent thereafter falling due
hereunder, but nothing herein contained shall be deemed to suspend or delay the
payment of any amount of money or charges as the same becomes due and payable
hereunder, or limit any other remedy of Landlord.
SECTION 5: PERCENTAGE RENT:
(a) PERCENTAGE RENT RATE. Tenant shall pay to Landlord as Percentage Rent
a sum equal to nine (9%) percent of Tenant's Gross Sales (as defined in Section
6) in excess of the "Percentage Rent Base Amount" set forth on Schedule "D"
hereof.
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Percentage Rent shall be computed for each three (3) months of the term of this
Lease (each a "Percentage Rent Period"). On or before the 15th day of the
calendar month immediately following the close of each Percentage Rent Period,
Tenant shall pay to Landlord a sum equal to nine (9%) percent of Tenant's Gross
Sales made during the Percentage Rent Period in excess of the product of (i)
one-fourth (l/4th) of the Percentage Rent Base Amount (the "Quarterly
Breakpoint") and (ii) the number of Percentage Rent Periods elapsed in the lease
year. Within forty-five (45) days after the end of each lease year Landlord
shall determine the amount of Percentage Rent based on the Gross Sales of Tenant
during the lease year, and the sums paid to Landlord as Percentage Rent. If
Tenant has paid to Landlord an amount of Percentage Rent greater than the
Percentage Rent it is in fact obligated to pay for the lease year as determined
in this SECTION 5, the excess so determined shall be applied against the next
Rent due to Landlord, and if any unused excess exists at the expiration or
termination of the Term, the sum of the unused excess shall be immediately paid
by Landlord to Tenant provided Tenant is not then in default of this Lease. If
Tenant has paid to Landlord an amount of Percentage Rent less than Tenant is
required to pay, Tenant shall immediately pay the difference to Landlord within
fifteen flu) days after receipt of written notice of the amount due.
(b) LAST PERCENTAGE RENT PERIOD: ACCOUNTING PERIODS DEFINED. The last
Percentage Rent Period shall end on the date the Term expires or terminates. A
"lease year" is a calendar year, except that the first lease year shall commence
on the date the Term commences and end on December 31 of that lease year, and
the last lease year shall end on the date the Term expires or terminates. Should
any lease year contain less than four (4) full Percentage Rent Periods, the
Percentage Rent Base Amount and Quarterly Breakpoint shall be adjusted
proportionately.
SECTION 6: GROSS SALES:
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"Gross Sales" of Tenant means the gross selling price of all box office
admission receipts whether sold from the Premises or elsewhere, concession sales
(including the sale of food, beverages and refreshments), promotional items
(such as the sale of tee-shirts, posters, books, magazines, audio and video
tapes, and records customarily sold by motion picture theaters in connection
with the promotion of motion pictures), vending machine proceeds, video and
electronic game receipts, and other merchandise or services sold, leased,
licensed, or delivered in or from the Premises by Tenant, its
permitted-subtenants, licensees, or concessionaires, whether for cash or on
credit (whether collected or not), including the gross amount received by reason
of orders taken (in person or by mail, telephone or facsimile) on the Premises
although filled elsewhere, and whether made by store personnel or vending
machines. Any transaction on an installment basis, including, without
limitation, any "layaway" sale or like transaction, or otherwise involving the
extension of credit, shall be treated as a sale for the full price at the time
of the transaction, irrespective of the time of payment or when title passes.
Gross Sales also shall include any sums that Tenant receives from pay
telephones, stamp machines, music machines, or amusement machines.
Gross Sales shall not include, or if included there shall be deducted (but
only to the extent they have been included), the following:
(i) The selling price of all merchandise returned by customers and
accepted for full credit, or the amount of discounts, refunds, and allowances
made on such merchandise.
(ii) Merchandise returned to sources or transferred to another movie
theater or warehouse owned by or affiliated with Tenant provided that the
purpose of such return or transfer is not to avoid the consummation of a
purchase which would otherwise be included hereunder as Gross Sales.
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(iii) Sums and credits received in the settlement of claims for loss
or damage to merchandise.
(iv) Sales and use taxes, admission taxes, so-called luxury taxes,
consumer's excise taxes, gross receipts taxes, and other similar taxes now or in
the future imposed on the sale of merchandise or services, but only if such
taxes are collected from customers.
(v) Permitted sales of fixtures, trade fixtures, or personal
property that are not merchandise as allowed in this Lease.
(vi) Twenty (20%) percent of admission receipts from any motion
picture licensed to Tenant which is expressly subject to an arrangement between
the motion picture's distributor, as licenser, and Tenant, as licensee,
generally referred to in the motion picture industry as a "90/10 deal", whereby,
after certain allowances are made, the distributor-licensor receives from
Tenant-licensee 90% of the motion picture's "gross" and Tenant licensee retains
10% of the motion picture's "gross."
SECTION 7: STATEMENT OF GROSS SALES:
Tenant shall furnish to Landlord a statement of Tenant's Gross Sales
within fifteen (15) days after the end of each Percentage Rent Period, and an
annual statement of Gross Sales within thirty (30) days after the end of each
lease year. Each statement shall provide, among other things, a detailed
itemized calculation of the deduction from Gross Sales of any amounts which are
deductible pursuant to "(vi)" in Section 6 respecting so-called "90/10 deals" as
hereinbefore described. Upon request, Tenant shall furnish copies of any
distribution agreements or other documents memorializing such "90/10 deals".
Each statement shall also be signed and certified to be correct by Tenant or its
authorized representatives and if Tenant is a corporation, the statement shall
be signed and certified to be correct by an officer of Tenant.
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Tenant shall keep at the Premises full and accurate books of account,
records, cash receipts, ticket receipts, and other pertinent data showing its
Gross Sales. Tenant shall install and maintain accurate receipt printing cash
registers and ticket machines, as applicable, acceptable to Landlord, with
counting devices and shall record on such cash registers and ticket machines
every sale and other transaction made from the Premises. Tenant shall also
furnish to Landlord copies of its quarterly New Jersey sales and use tax returns
at the time each is filed with the State of New Jersey.
Such books of account, records, cash receipts, ticket receipts, and other
pertinent data shall be kept for a period of three (3) years after the end of
each lease year. The receipt by Landlord of any statement, or any payment or
Percentage Rent for any period, shall not bind Landlord as to the correctness of
the statement or the payment.
Landlord shall be entitled during the Term and within three (3) years
after the expiration or termination of each lease year to inspect and examine
all Tenant's books of account, records, cash receipts, and other pertinent data,
so Landlord can ascertain the accuracy of Tenant's reported Gross Sales. Tenant
shall cooperate fully with Landlord in making the inspection. Landlord shall
also be entitled, once during each lease year and once after expiration or
termination of this Lease, to an independent audit of Tenant's books of account,
records, cash receipts, and other pertinent data to determine the accuracy of
Tenant's reported Gross Sales, by a certified public accountant to be designated
by Landlord. The audit shall be limited to the determination of Gross Sales and
shall be conducted during usual business hours at the Premises. If the audit
shows that there is a deficiency in the payment of any Percentage Rent, the
deficiency shall become immediately due and payable, together with interest at
the Default Rate (as defined in SECTION 49 below). The costs of the audit shall
be paid by Landlord unless
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the audit shows that Tenant understated Gross Sales by more than two (2%)
percent, in which case Tenant shall pay all Landlord's costs of the audit. If
the audit shows that Tenant understated Gross Sales by more than five (5%)
percent, then upon the discovery in any subsequent audit that Tenant again
understated Gross Sales by more than five (5%) percent, Landlord shall have the
right, at Landlord's option and without limiting Landlord's other rights or
remedies, to terminate this Lease on thirty (30) days' notice to Tenant.
Landlord shall keep any information gained from such statements,
inspection, or audit confidential and shall not disclose it other than to carry
out the purposes of this Lease, except that Landlord shall be permitted to
divulge the contents of any statements in connection with any financing
arrangements or sale of Landlord's interest in the Center.
SECTION 8: OPERATING COSTS:
Operating Costs, for the purposes of this Lease, shall mean the aggregate
of all expenses of operating the common areas of the Center and its
appurtenances and shall include, but shall not be limited to, the following: all
expenses for maintaining, managing, operating and repairing the Center and its
appurtenances, including the expenses of normal replacement of worn out
equipment; wall and floor coverings; replacement of ceiling tiles; facilities
and installations; the cost of electricity, water, and other utilities
(including, but not limited to, water, standby sprinkler, sprinkler alarm, and
sewer charges for the entire Center); security, gardening and other landscaping;
snow removal, maintenance, repair and replacement of the parking lot areas,
driveways and roof; trash removal; fire insurance, liability insurance, and rent
insurance, any one or more of which may be carried under so-called "umbrella"
coverage; "real estate taxes" as defined in SECTION 41 of this Lease; painting;
supplies; sales or use taxes on supplies or services; wages, salaries, and
fringe benefits of all persons engaged in
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the operation, maintenance and repair of the Center and its appurtenances; the
charges of any independent contractor who performs or does any of the work of
operating, managing, maintaining, or repairing the Center and its appurtenances;
any other expenses or charges of any nature whatsoever, whether or not herein
mentioned, which is in accordance with sound accounting and management
principles generally accepted with respect to the operation of a first-class
shopping center in Landlord's sole good faith reasonable judgment, would be
considered as Operating Costs; and an additional charge equal to fifteen (15%)
percent of all of the above-described Operating Costs to reimburse Landlord for
its administrative and overhead costs in operating the Center. In addition to
the foregoing, Tenant shall pay one hundred (100%) percent of any and all costs
and expenses incurred by Landlord in the operation of the common areas of the
Center which are necessitated as a result of the extraordinary nature of a
theater operation such as, by way of example only, crowd, traffic and litter
control, and security.
Operating Costs shall not include, however, executive salaries; leasing
commissions or so-called fit-up costs associated with the letting of vacant
space in the Center; costs of additional buildings, if any, for which Landlord
is responsible; depreciation, interest on and amortization of mortgages;
franchise, income and other taxes based upon the income of Landlord, provided
the same shall not have been levied as a substitute for real property taxes and
shall not include any items otherwise constituting such expense to the extent
payment therefor is received from, or payable by, another tenant or tenants of
the Center.
SECTION 9: LANDLORD'S OBLIGATIONS:
Landlord, as part of Operating Costs, shall keep the driveways and parking
area reasonably free of snow and ice, and maintain all grounds, shrubs and lawns
in the Center. Landlord shall also, as part of Operating Costs, make all
structural
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repairs unless such repairs are necessitated by negligence, acts or omissions of
Tenant, its servants, agents or employees; in which event said repairs shall be
made by Landlord upon reasonable prior-notice to Tenant at Tenant's sole
expense.
SECTION 10: COMMON AREAS:
The use and occupancy of the Premises shall include the use in common with
others of the common areas and facilities (if any), as hereinafter are more
fully provided. Common areas shall mean those areas of the Center which, at any
given time, are designated by Landlord for common use by tenants or occupants of
premises within the Center which are devoted to such common use or are so
designated by Landlord.
In order to establish that the Center, and any portion thereof, is and
will continue to remain private property, Landlord shall have the unrestricted
right to close (for such periods of time and to the extent necessary, in the
opinion or belief of Landlord's attorneys, to be legally sufficient to prevent a
dedication thereof, or the accrual of any right in any person or to the public
therein) the entire Center, and/or any portion thereof owned or controlled by
Landlord, to the general public. In connection therewith, Landlord may, in its
discretion, seal off entrances to the Center, or any portion thereof, for
periods of at least one (1) day in each calendar year. All common areas and
other facilities in or about the Center provided by Landlord shall be subject to
the exclusive control of Landlord. Provided Landlord does not materially
adversely affect Tenant's occupancy of or access to the Premises, or reduce the
number of parking spaces below that number which would be required by the
Borough of Kinnelon to permit the operation of 1,500-seat theater, Landlord
shall have the right to construct, maintain, replace and operate lighting and
other facilities on all said areas and improvements; to police the same; to
change the area, level, location and arrangement of parking areas and other
facilities; to build multi-story parking
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facilities, to allow anyone designated by Landlord to use the parking facilities
without charge (including without limitation the tenants in any building
adjacent to the Center and the customers of said tenants); and/or to close
temporarily all or any portion of the parking areas or facilities to discourage
non-customer parking; and to erect additional buildings, improvements and
structures in the common areas including without limitation the parking areas
designated from time to time by Landlord. Landlord shall operate and maintain
the common facilities in such manner as Landlord in its discretion shall
determine, and Landlord shall have full right and authority to employ and
discharge all personnel with respect thereto. All common areas and facilities
which Tenant may be permitted to use and occupy are to be used and occupied
under a non-exclusive revocable license, and if such license be revoked or if
the amount of such areas be changed or diminished, Landlord shall not be subject
to any liability nor shall Tenant be entitled to any compensation or diminution
or abatement of Rent nor shall revocation or diminution of such areas be deemed
constructive or actual eviction.
SECTION 11: NET LEASE:
This Lease is a net lease. The Basic Rent and Percentage Rent shall be
absolutely net to Landlord so that, except as expressly provided in this Lease,
this Lease shall yield, net to Landlord, the Basic Rent and Percentage Rent
during the Term.
SECTION 12: ALTERATIONS:
(a) Landlord shall complete at its own expense and in a good and
workmanlike manner, that certain work set forth on SCHEDULE "E" hereof (the
"Landlord Alteration").
Landlord shall complete the Landlord Alteration and deliver possession of
the Premises to Tenant in broom-clean condition by January 3, 1992, subject,
however, to delays beyond Landlord's control and further subject to the issuance
of a building permit for the Premises. The date on which the later of the
following
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occurs shall be deemed to be the "Delivery Date": (i) Landlord delivers
possession of the Premises to Tenant as set forth in the preceding sentence, or
(ii) Tenant receives notification of the issuance of a building permit for the
Premises, provided that Tenant has used its best efforts in obtaining same.
Notwithstanding anything contained herein to the contrary, Landlord shall have
the option to defer the "roof installation" and/or "HVAC delivery", as such
terms are defined in SCHEDULE "E" hereof, until the Spring of 1992 without
thereby delaying the Delivery Date. Tenant shall not enter upon the Premises
prior to the Delivery Date without the prior written consent of Landlord.
(b) Tenant shall complete at its own expense and in a good and workmanlike
manner, using materials and workmen of the highest quality, all of the
alterations set forth on SCHEDULE "F" hereof (the "Tenant Alteration") in
accordance with the final work drawings and specifications prepared by a
licensed architect chosen by Tenant and approved by Landlord.
Tenant's architect shall prepare work drawings and specifications and
submit same to Landlord not later than January 7, 1992. Landlord shall provide
Tenant's architect with comments regarding the work drawings and specifications.
If the work drawings and specifications are not approved as noted by Landlord,
then same shall be redrawn, at Tenant's expense, in accordance with Landlord's
comments.
In all events, Tenant shall complete the Tenant Alteration and open for
business no later than ninety-eight (98) days after the Delivery Date.
Upon completion of the Tenant Alteration, Tenant shall furnish Landlord
with waivers of lien and sworn statements from all persons performing labor
and/or supplying materials in connection with the Tenant Alteration that all of
said persons have been compensated in full.
12
SECTION 13: PURPOSE, TRADE NAME, RESTRICTIONS:
(a) Tenant covenants and agrees to trade and do business under the name
Kin Mall Cinemas and to use the Premises:
(i) solely and primarily as an eight-screen, approximately 1,500
seat theater for the exhibition therein of motion pictures (e.g., 16mm.,
35mm., 75mm., "wide angle" or other process or gauge, or such other
process not presently in use in the exhibition of motion pictures,
including tapes, discs and cable-linked direct broadcast) of a first-rate
nature customarily presented in "multi-screen" movie theaters in the
tri-state area, but in all events excluding, without limitation,
pornographic or so-called "adult" motion pictures and other disreputable
types of motion pictures;
(ii) occasionally (i.e., not more than 30 days in any lease year)
for the exhibition of television presentations (as distinguished from
motion pictures), vaudeville acts, dramatic shows, opera, concerts,
lectures or other theatrical performances for entertainment, in not more
than one (1) of the eight "screen rooms" in the Premises at any given time
(which screen room shall have a seating capacity of 325 persons or less)
and never during any of the restricted seating time periods set forth
below; but in all events excluding, without limitation, nude acts, strip
shows, horse racing and other disreputable types of presentations;
(iii) incidentally for the retail sale of food, nonalcoholic
beverages and refreshments and promotional items customarily sold by
motion picture theaters in connection with the promotion of motion
pictures (such as tee-shirts, posters, books, magazines, audio and video
tapes and records);
13
(iv) incidentally for the use of no more than three (3) vending
machines and no more than three (3) video and electronic games; and for no
other purpose without the prior written consent of Landlord, which consent
Landlord may, at its sole discretion, withhold for any reason or no reason
whatsoever. Tenant agrees that under no circumstances may the Premises be
used for the sale of food and food products for off-premises consumption,
prescription and non-prescription drugs, and health and beauty aids, or as
an office (other than an office necessary for the operation of, and
ancillary to, the use permitted in the first sentence of this paragraph
(a)), bowling alley or funeral parlor, it being understood and agreed that
the restrictions in this sentence do not constitute a limitation of the
restrictions on Tenant's use of the Premises set forth in the immediately
preceding sentence of this paragraph (a). Anything contained herein to the
contrary notwithstanding, Tenant agrees not to sell more than a certain
number of tickets for motion pictures and other permitted exhibitions
being shown in the Premises at any given moment during the following
"restricted seating time periods":
14
RESTRICTED SEATING TIME PERIODS
Aggregate Seat
Day/Date Time Period Limit ("Cap")
-------- ----------- -------------
Holy Saturday
(day before Easter Sunday): 7:00 p.m.-9:15 p.m. 1,100
9:15 p.m.-closing 1,350
November (2nd, 3rd & 4th weeks)
Mondays, Tuesdays & Wednesdays: All operating hours 1,000
Thursdays & Fridays: 7:00 p.m.-9:35 p.m. 1,100
9:35 p.m.-closing 1,350
Saturdays: 7:00 p.m.-9:15 p.m. 1,200
9:15 p.m.-closing 1,350
December
7 days prior to Christmas (except
(Saturday Night, which follows
schedule below): All operating hours 1,000
All other Friday Nights: 7:00 p.m.-9:35 p.m. 1,100
9:35 p.m.-closing 1,350
All other Saturday Nights: 7:00 p.m.-9:15 p.m. 1,200
9:15 p.m.-closing 1,350
In furtherance thereof, Tenant shall install and maintain at its sole cost
and expense state-of-the-art ticket machines, acceptable to Landlord, which are
programmed to accurately restrict ticket sales in accordance with the foregoing
ticket sales "cap". Tenant acknowledges that Tenant's agreement with respect to
the restriction on ticket sales, as aforesaid, was a material inducement for
Landlord's entering into this Lease, based on security, crowd control and
traffic concerns, among other reasons, and that but for such agreement, Landlord
would not have entered into this Lease. Landlord, or its agent designated for
such purpose, including, without limitation, the occupant of the Pathmark
premises, shall have the right to monitor, "on-site," the operation of such
state-of-the-art ticket machines, and otherwise inspect or audit ticket sales at
the Premises and Tenant's compliance with the restricted seating time periods
set forth herein, all on not less than two days' written notice from Landlord or
its designated agent to Tenant.
(b) [INTENTIONALLY OMITTED]
(c) Tenant covenants and agrees that Tenant, at its own expense, will keep
the Premises free of insects, rodents, vermin and other pests. Tenant shall, ten
(10) days prior to the commencement of the Term, deliver to Landlord, a
certificate and service contract from an approved exterminating or similar
service providing that the Premises shall be inspected quarterly and kept free
of insects, rodents, vermin and other pests. Tenant further covenants and agrees
that it shall not, at any
15
Landlord, or its agent designated for such purpose, including, without
limitation, the occupant of the Pathmark premises, shall have the right to
monitor, "on-site," the operation of such state-of-the-art ticket machines, and
otherwise inspect or audit ticket sales at the Premises and Tenant's compliance
with the restricted seating time periods set forth herein, all on not less than
two days' written notice from Landlord or its designated agent to Tenant.
15A
time during the Term, keep at the Premises any animals of any kind whatsoever.
Nothing herein shall prohibit sight-impaired patrons or employees from utilizing
the aid of seeing-eye dogs.
(d) Tenant shall not use or permit the use of any apparatus, or sound
reproduction or transmission, or any musical instrument, in such manner that the
sound so reproduced, transmitted or produced shall be audible beyond the
confines of the Premises and will not use any other advertising medium
including, without limitation, flashing lights or searchlights which may be
heard or experienced outside of the Premises.
(e) Tenant shall not cause or permit objectionable odors to emanate or be
dispelled from the Premises nor shall Tenant solicit business, distribute
handbills or other advertising matter or hold demonstrations in the parking
areas, walkways or other common areas of the Center.
(f) Tenant shall not use the plumbing facilities for any other purpose
than that for which they are constructed and will not permit any foreign
substance of any kind to be thrown therein and the expense of repairing any
breakage, stoppage, seepage or damage, whether occurring on or off the Premises
resulting from a violation of this provision by Tenant or Tenant's employees,
agents or invitees shall be borne by Tenant. All grease traps and other plumbing
traps shall be kept clean and operable by Tenant at Tenant's own cost and
expense.
(g) [INTENTIONALLY DELETED]
(h) Tenant agrees not to suffer, permit or commit any waste on the
Premises, nor allow, suffer or permit the Premises or any use thereof to
constitute a nuisance or unreasonably to interfere with the safety, comfort or
enjoyment of the Center by Landlord or any other occupants of the Center or
their customers, invitees or any others lawfully in or at the Center. Upon
written notice by Landlord to Tenant that any of the aforesaid is occurring,
Tenant agrees forthwith to cease and discontinue the same and within ten (10)
days thereafter to make such changes in the
16
Premises and/or install or remove such apparatus or equipment therein or
therefrom as may be required by Landlord for the purpose of obviating any such
condition. Anything contained in this Lease to the contrary notwithstanding,
Tenant covenants, represents and agrees to operate the Premises with all due
regard for the maintenance of security, traffic control, crowd control and
cleanliness on and about the common areas of the Center, including but not
limited to the parking lot. In the event Tenant violates the foregoing covenant,
representation and agreement, then, among any other remedies Landlord may have
for such breach, Landlord shall be entitled to enjoin Tenant from so breaching
the aforesaid covenant, representation and agreement.
(i) Notwithstanding anything in this Lease to the contrary, Tenant shall
not make any penetrations into the roof of the Premises or the Center. In the
event Tenant requires a penetration in the roof of the Premises, Tenant shall
request Landlord's written consent for same, which Landlord may deny, in its
sole discretion, except that Landlord will not unreasonably withhold its consent
where Tenant's request solely involves the maintenance, repair or installation
of Tenant's HVAC apparatus. If Landlord grants its permission for such roof
penetration, such work shall be performed by a contractor designated by Landlord
at Tenant's sole cost and expense. In the event that Tenant violates any
provision of this subparagraph (i), Landlord may, at its option, repair or
replace any portion of the roof of the Premises requiring repairing or replacing
at any time during the term of this Lease, at Tenant's sole cost and expense. In
addition, in the event of such breach by Tenant, Landlord may, at its option,
repair or replace any portion of the roof of the entire Center which requires
such repairing or replacing as a result of Tenant's penetration of the roof in
breach of this subparagraph (i). Tenant shall be liable for any and all damages
"direct, indirect and consequential) to Landlord and any and all other tenants
of the Center, resulting from Tenant's breach of the provisions of this
subparagraph (i). Tenant shall not be liable for any and all
17
other tenants of the Center, resulting from Tenant's breach of the provisions of
this subparagraph (i).
(j) Tenant shall not under any circumstances make any penetrations of the
foundation or any other structural portions of the Premises or the Center. In
the event Tenant requires a penetration of the foundation or any other
structural portions of the Premises or the Center, Tenant shall request
Landlord's written consent for same, which Landlord may deny, in its sole
discretion, except that Landlord will not unreasonably withhold its consent
where Tenant's request solely involves the maintenance, repair or installation
of Tenant's HVAC apparatus or utilities.
(k) Landlord shall not enter into a lease with any other person,
corporation, partnership or other entity to use any portion of the Center for
the operation of a movie theater.
SECTION 14: DEFAULT IN PAYMENT OF RENT - ABANDONMENT OF PREMISES -
RELETTING:
Tenant shall, without any previous demand therefor, pay to Landlord, or
its agent, the Rent at the times and in the manner herein provided. In the event
of the non-payment of the Rent, or any installment thereof, at the times and in
the manner above provided, and if the same shall remain in default for ten (10)
days after notice from Landlord, TIME BEING OF THE ESSENCE, or if Tenant shall
be dispossessed for non-payment of Rent, or if the Premises shall be deserted or
abandoned, or if Tenant fails to open pursuant to Section 12(b), or remain open
pursuant to Section 60 on more than three (3) occasions in any twelve-month
period, Landlord or its agents shall have the right to and may enter the
Premises as the agent of Tenant, either by force or otherwise, without being
liable for any prosecution or damages therefor, and may relet all or part of the
Premises (which reletting may be in conjunction with the letting of other space
in the Center) as the agent of Tenant, and receive the Rent therefor, upon such
terms as shall be reasonably satisfactory to Landlord, and all rights of Tenant
to repossess the Premises
18
under this Lease shall be forfeited. Such re-entry 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 is authorized to make such reasonable repairs or alterations in or to
the Premises as may be reasonably necessary to place the same in the condition
they were at the commencement of the Term. Tenant shall be liable to Landlord
for the reasonable cost of such repairs or alterations and all reasonable
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
may require Tenant to pay on demand liquidated damages equal to the difference
between the Rent reserved for the remainder of the Term from the date of
Tenant's default, and the rent which Landlord is entitled to receive under any
replacement lease for the Premises during such period of time, discounted to
present worth at six (6%) percent per annum. Tenant shall not be entitled to any
surplus accruing as a result of the reletting. Landlord shall have the right, as
agent of Tenant, to take possession of any furniture, fixtures or other personal
property of Tenant found in or about the Premises after Tenant has vacated or
abandoned the Premises, and sell the same at public or private sale and to apply
the proceeds thereof to the payment of any monies becoming due under this Lease,
Tenant hereby waiving the benefit of all present and future laws exempting
property from execution, levy and sale on distress or judgment. Tenant agrees to
pay, as Additional Rent, all reasonable attorney's fees and other expenses
incurred by Landlord in enforcing Tenant's obligation to pay Rent or any other
default of Tenant, whether or not a trial ensues. Notwithstanding the notice and
cure period provided in this Section 14 for Tenant's default in the payment of
Rent, in the event Tenant defaults in the payment of Rent twice in any eight (8)
month period, any subsequent default in
19
such eight-month period shall be deemed to be a non-curable default.
SECTION 15: SUBLETTING AND ASSIGNMENT:
(a) Tenant shall neither assign this Lease or sublet all or any portion of
the Premises to any party without Landlord's prior written consent, which
consent shall not be unreasonably withheld with respect to an assignment of this
Lease. Landlord may withhold such consent if, in the reasonable exercise of its
judgment, Landlord determines, among other factors, that:
(i) the proposed assignee's financial condition is not sufficient to
meet its obligations undertaken in such assignment;
(ii) the proposed assignee is not a reputable and experienced movie
theater operator and motion picture exhibitor; or
(iii) the rental obligation of the proposed assignee would be less
than Tenant's rental obligations hereunder. For the purposes of this Lease, a
merger, reorganization or dissolution involving Tenant or any guarantors, or any
transfer of this Lease by operation of law, shall be deemed to be an assignment
of this Lease which triggers the provisions of this Section 15. Furthermore, the
sale, issuance or transfer of any voting capital stock of Tenant or voting
capital stock of any corporate entity which directly or indirectly controls
Tenant or the sale, issuance or transfer of any interest in any non-corporate
entity which directly or indirectly controls Tenant, which sale, issuance or
transfer results in a change in the direct or indirect voting control of Tenant,
shall be deemed to be an assignment of this Lease which triggers the provisions
of this Section 15, except that the foregoing shall not be applicable to stock
which is traded on the New York Stock Exchange, the American Stock Exchange, or
any other nationally recognized stock exchange. If Tenant is a partnership,
trust or unincorporated association, then the sale, issuance or transfer of a
controlling interest therein or of an interest therein which
20
would result in a change in the voting control of Tenant, or the sale, issuance
or transfer of a majority interest in or a change in the voting control of any
partnership, trust or unincorporated association or corporation which directly
or indirectly controls Tenant, or the sale, issuance or transfer of any portion
of any general partnership or managing interest in Tenant or in any such entity,
shall be deemed to be an assignment of this Lease which triggers the provisions
of this Section 15.
(b) Any request by Tenant for Landlord's consent to an assignment of this
Lease shall state the proposed assignee's address and be accompanied by a
duplicate original of the instrument of assignment (wherein the assignee
assumes, jointly and severally with Tenant, the performance of Tenant's
obligations hereunder).
(c) Any request by Tenant for Landlord's consent to a sublease shall state
the proposed subtenant's address and be accompanied by a duplicate original of
the instrument of sublease (wherein Tenant and the proposed subtenant agree that
such sublease is subject to this Lease and such subtenant agrees that, if this
Lease is terminated because of Tenant's default, such subtenant shall, at
Landlord's option, attorn to Landlord).
(d) If Landlord consents in writing to Tenant's request, Tenant, within
thirty (30) days after receipt of Landlord's consent notice, may assign this
Lease or sublet the Premises to the proposed assignee or subtenant upon the
terms specified in Landlord's consent notice. If the permitted assignment or
sublease is not effected within such thirty (30) day period, then Tenant's right
to assign this Lease or sublet the Premises shall again be subject to the
provisions of this Section 15. If such permitted assignment or subletting of
this Lease becomes effective for any renewal term, then the Basic Rent for such
renewal term shall be the greater of: (i) the Basic Rent set forth on Schedule D
hereof for such renewal terms, or (ii) the fair market fixed rental value for
the Premises for movie theater use as determined by
21
a member of the American Institute of Real Estate Appraisers or the American
Society of Appraisers, mutually selected by Landlord and Tenant, who has at
least ten (10) years' appraisal experience with the Northern New Jersey
commercial real estate market, including, without limitation, shopping center
theater leasing. If the selected appraiser refuses to serve or fails to act for
any reason, or if Landlord and Tenant are unable to agree upon the selection of
an appraiser, then either party may apply to the President of the American
Institute of Real Estate Appraisers for such appointment or, in the case of his
failure to act, to the American Arbitration Association. A decision of the
appraiser so selected shall be final and binding upon Landlord and Tenant.
Landlord and Tenant shall bear equally the costs and expenses of the appraiser.
If necessary due to a pending resolution of the issue of fair market fixed
rental value, Tenant shall pay Landlord as of the first day of the renewal
period, the Basic Rent payable by Tenant during the immediately preceding twelve
(12) full months, subject to retroactive adjustment upon final determination of
this issue. In all events, the Percentage Rent Base Amount shall be determined
pursuant to the formula set forth in Schedule D hereof.
(e) Notwithstanding the above, Tenant is herewith granted the right to
assign this Lease without Landlord's consent if and only if the assignee or
subtenant is either a division of Tenant or a wholly owned subsidiary of Tenant,
provided that in the event of an assignment pursuant to this paragraph (e),
Tenant executes, in recordable form, a document agreeing to Tenant's assumption
of direct, primary responsibility, together with such assignee, for the
performance of all of the terms and conditions of this Lease, as if Tenant were
the assignee of Tenant.
(f) In the event of an assignment or sublease to which Landlord has
consented or an assignment which is expressly permitted under this Section 15,
Tenant will not thereby be released from the payment and performance of any of
its
22
obligations in this Lease; rather, Tenant and its assignee or subtenant, as the
case may be, will be jointly and severally primarily liable for such payment and
performance. Accordingly, Landlord may collect Rent and Additional Rent from the
assignee or subtenant, as the case may be, and in either such event, Landlord
may apply any amounts so collected to the Rent and Additional Rent hereunder
without thereby waiving any provisions hereof or releasing Tenant from liability
for the performance of its obligations hereunder.
(g) Landlord's consent to any assignment or sublease hereunder shall not
be deemed a consent to any further proposed assignment or sublease, which shall
be governed by this Section 15.
(h) Tenant shall not, by operation of law or otherwise, mortgage or
encumber this Lease.
(i)
(j) In the ovens of any assignment or sublease hereunder, Tenant shall pay
to Landlord as additional rent, upon demand, any and all costs and expenses
(including, without limitation, reasonable attorneys' fees) incurred by Landlord
in connection with such assignment or sublease.
(k) Tenant hereby indemnifies, defends and holds Landlord harmless from
and against any and all losses, liability, damages, costs and expenses
(including reasonable attorneys' fees) resulting from any claims that may be
made against Landlord by (i) any assignee or subtenant or proposed assignee or
subtenant, or (ii) any brokers or other persons claiming a commission or similar
compensation in connection with the assignee or subtenant
23
or the proposed assignment or sublease or termination of this Lease.
SECTION 16: CONDITION OF PREMISES; - REPAIRS - CLEAN AND SANITARY AND
REPAIRS:
Tenant shall keep the Premises in good condition, repair and appearance.
Tenant shall quit and surrender the Premises at the end of the Term in good
condition, reasonable wear and tear excepted, and shall not make any
alterations, additions or improvements to the Premises during the term of this
Lease without the prior written consent of Landlord, which consent shall not be
unreasonably withheld; provided, however, in the event Landlord does consent to
Tenant's making any alterations, additions or improvements, Landlord reserves
the right, thirty (30) days prior to the end of the Term, to demand that Tenant
remove said alterations or improvements or leave same. In the event that
Landlord requires the removal of said alterations, additions or improvements,
then Tenant shall restore the Premises to their condition prior to the
installation of said alterations, additions or improvements. All alterations,
additions and improvements of a permanent nature (expressly including, without
limitation, any and all theater seats), which may be made upon the Premises
either by Landlord or Tenant, except furniture or movable fixtures, machinery
and equipment installed at the expense of Tenant (unless otherwise specified
herein), shall be the property of Landlord and shall remain upon and be
surrendered with the Premises as a part thereof at the expiration or sooner
termination of this Lease, without compensation to Tenant, unless removal is
required by Landlord as aforesaid. Tenant further agrees to keep the Premises
and all parts thereof, including, but not limited to, the loading docks,
electrical wiring, plumbing and heating, ventilating and air conditioning
equipment, platforms, windows, walkways, exits and entrances to the
24
Premises, in a clean and sanitary condition and free from trash, snow, ice,
inflammable materials and other objectionable matter.
SECTION 17: UTILITIES, SERVICES, TAXES. ETC., AND HVAC:
(a) Tenant shall furnish heat and air conditioning at its own cost and
expense.
(b) Tenant shall repair all utility, ventilating, heating, air
conditioning, electrical, gas and other utility lines within the Premises and,
if damage outside of the Premises is caused by the negligence, acts or omissions
of Tenant, its agents, servants or employees, Tenant shall likewise repair same
outside of the Premises. Tenant shall replace, at its own expense, any and all
glass which may be broken in and on the Premises. Tenant shall also maintain its
own trash dumpster and remove the trash disposed therein pursuant to the terms
of this Lease.
(c) Tenant shall pay all costs for electricity, water, standby sprinkler
charges, repairs to the sprinkler system, gas and other utilities and services
consumed by it as well as all costs for trash removal required to properly
service the Premises (i.e., not less than three time per week), except that if
Landlord elects to furnish trash removal services for some or all of the tenants
of the Center, including Tenant, then Tenant shall pay its proportionate share
thereof.
(d) In the event that any utility deposits are necessary, Tenant shall pay
said deposits to the utility company.
(e) Tenant agrees to operate the heating, ventilating and air-conditioning
equipment serving the Premises so that the conditions inside the Premises are
maintained within the range of the conditions in the enclosed mall portion of
the Center (the "Mall") so that heat, ventilation and cooled air are not unduly
drained from the Mall. Tenant shall pay to Landlord as Additional Rent an amount
equal to Two Hundred and 00/100 ($200.00) Dollars per day for each day that
Tenant is in violation of the terms and conditions of this Section 17 (e) after
written notice from Landlord, which sum is agreed to be
25
just and reasonable compensation to Landlord for Tenant's violation of such
terms and conditions. Any amounts so collected shall be applied to reduce the
Operating Costs paid by tenants and occupants of the Center.
(f) Tenant shall enter into a maintenance agreement with a firm reasonably
acceptable to Landlord to service the heating, ventilating and air conditioning
systems (HVAC) servicing the Premises. Tenant shall pay the full cost of such
maintenance agreement.
SECTION 18: MECHANICS' LIENS:
In the event that any mechanic's lien is filed against the Premises or the
Center as a result of alterations, additions or improvements made by Tenant,
Tenant shall, within ten (10) days after receiving notice from Landlord, remove
said lien or post any bond which may be reasonably required, which bond shall be
with adequate surety. In the event that Tenant fails to file a bond as set forth
above, then Landlord may, at its option, terminate this Lease and may pay said
lien, without inquiring into the validity thereof, whereupon Tenant shall
forthwith reimburse Landlord for the total expense incurred by Landlord in
discharging said lien, as Additional Rent, and Tenant shall be and remain liable
to Landlord for all damages and losses suffered by it in the same manner as if
this Lease were terminated for any other default of Tenant.
SECTION 19: NON-LIABILITY OF LANDLORD - LANDLORD INDEMNITY:
(a) Landlord shall not be responsible for the loss of or damage to
property, or injury to persons, including Tenant, occurring in or about the
Center or the Premises by reason of any existing or future condition, defect,
matter or thing in the Premises or the Center or for the acts, omissions or
negligence of other persons or tenants in and about the Center. Tenant agrees to
indemnify and save Landlord harmless from all claims and liability for loss of
or damage to property, or injuries to persons occurring in or about the Premises
due to the negligent
26
acts or omissions of Tenant, its servants, agents, employees or invitees.
(b) The liability of Landlord shall in any event be limited to its
interest in the Center and Tenant agrees that, in the event of any claim or
action against Landlord, Tenant shall not look to any assets of Landlord or any
of its partners other than the Center.
SECTION 20: LIABILITY INSURANCE:
Tenant, at its cost, shall maintain public liability and property damage
insurance with liability limits of not less than Three Million ($3,000,000.00)
Dollars, combined single limit, insuring against all liability of Tenant, its
agents, servants and employees arising out of and in connection with Tenant's
use of the Premises and the Center. All of the aforesaid insurance shall insure
both Tenant and Landlord, who shall be named as co-insureds, and Tenant shall
deliver to Landlord, ten (10) days prior to the expiration of said policy, a
renewal thereof.
SECTION 21: TENANT `S OWN INSURANCE:
Anything contained herein to the contrary notwithstanding, Tenant may
effect, for its own account, any insurance not required under the provisions of
this Lease, but any insurance effected by Tenant on the Premises or any part of
the Center, whether or not required pursuant to this Lease, shall be for the
mutual benefit of Landlord and Tenant and shall be subject to all provisions of
this Lease. Tenant shall retain the sole control of all rights with respect to
any insurance effected by it insuring against its business interruption and any
proceeds therefrom shall be its sole property.
SECTION 22: MUTUAL WAIVER OF SUBROGATION:
It is covenanted and agreed by and between the parties hereto that Tenant
shall relieve Landlord of all liability for loss or damage to Tenant's property,
whether real or personal, caused by fire and/or the perils covered in a standard
form fire insurance policy with Extended Coverage, due to any acts of
27
commission or omission of Landlord; and Landlord shall relieve Tenant of all
liability for loss or damage to Landlord's property, whether real or personal,
caused by fire and/or the perils covered in a standard form fire insurance
policy with Extended Coverage, due to any acts of commission or omission of
Tenant.
SECTION 23: FAILURE TO OBTAIN INSURANCE:
If any of the policies of insurance as in this Lease provided to be
obtained and maintained by Tenant or Landlord cannot be obtained and/or kept in
force through Tenant's fault, and Tenant shall fail to commence to cure, remedy
and correct the condition which makes it impossible to obtain and keep in force
said policies within five (5) days after written notice given by Landlord to
Tenant, and Tenant fails, neglects or refuses to proceed diligently to cure such
condition, Landlord may terminate this Lease by giving at least five (5) days'
notice of such termination to Tenant, and this Lease shall terminate at the
expiration of said five (5) days with the same force and effect as if that were
the original expiration date thereof, and Tenant shall be and remain liable to
Landlord for all damages and losses suffered by it in the same manner as if this
Lease were terminated for any other default of Tenant. In lieu of exercising
such right of termination, Landlord may, at its option, obtain such policies at
regular or increased rates and pay the premiums therefor, and Tenant shall
reimburse Landlord for the amount of such premium upon demand, and, if not paid,
the amount thereof, together with interest at the Default Rate, shall be added
to the amount of the next month's Rent as Additional Rent.
SECTION 24: UNAVAILABILITY OF FIRE INSURANCE:
If, because of Tenant's occupancy, it shall be impossible to obtain fire
insurance on the Premises and/or the Center for full insurable value and at
standard rates and in fire insurance companies licensed in the State of New
Jersey, and reasonably
28
acceptable to Landlord, Landlord may, if Landlord so elects, at any time
thereafter, terminate this Lease and the Term thereof on giving to Tenant thirty
(30) days' notice in writing of Landlord's intention so to do, and, upon the
giving of such of notice, this Lease and the Term thereof shall terminate and
come to an end, and Tenant shall be and remain liable to Landlord for all
damages and losses suffered by it in the same manner as if this Lease were
terminated for any other default of Tenant.
SECTION 25: RIGHT TO INSPECT AND EXHIBIT:
Landlord, or its agent, shall have the right to enter the Premises at
reasonable hours in the day, and at night in the case of emergency, to examine
the same, or to run telephone or other wires, or to make such repairs, additions
or alterations as it shall deem necessary for the safety, preservation or
restoration of the improvements, or for the safety or convenience of the
occupants or users thereof (there being no obligation, however, unless expressly
set forth herein, on the part of Landlord to make any such repairs, additions or
alterations), or to exhibit the same to prospective purchasers and put upon the
Premises a suitable "For Sale" or "To Let" sign. For twelve (12) months prior to
the expiration of the Term, Landlord, or its agents, may similarly exhibit the
Premises to prospective tenants.
SECTION 26: TOTAL OR PARTIAL DESTRUCTION:
In the event of
(a) the total destruction of the Premises or the Center by fire,
explosion, the elements or otherwise during the Term or previous thereto, or
(b) such partial destruction thereof as to render the Premises
untenantable or unfit for occupancy, then, in the case of (a) or (b), Landlord
shall, within 30 days of the date of such destruction (subject to delays beyond
its control), notify Tenant of Landlord's estimate, in Landlord's sole opinion,
of whether the Premises are so badly damaged that the same cannot be repaired
within one hundred eighty (180) days
29
from the happening of such damage ("Landlord's Notification"). In the event
Landlord estimates that the Premises cannot be repaired within the aforesaid
time-frame; then the Term hereby created shall, at the option of Landlord or
Tenant, to be exercised by notice sent within thirty (30) days from the date of
the issuance of Landlord's Notification, cease and become null and void from the
date of such damage or destruction, and Tenant shall immediately surrender the
Premises and all Tenant's interest therein to Landlord, and shall pay rent only
to the time of such damage, in which event Landlord may re-enter and repossess
the Premises thus discharged from this Lease and may remove all parties
therefrom. If (i) neither Landlord nor Tenant exercises its option to cancel, as
aforesaid, or (ii) should Landlord's Notification state that the Premises are
repairable within one hundred eighty (180) days from the happening of said
damage, or (iii) should the casualty be so extensive as to destroy the Pathmark
premises and Landlord repairs or rebuilds the Pathmark premises, then Landlord
shall, provided there are sufficient casualty insurance proceeds available from
any insurance coverage maintained by Landlord, after Landlord has allocated same
to the other portions of the Center, and/or from any insurance coverage
maintained by Tenant as set forth in paragraph (c) below, enter and repair or
rebuild the Premises as nearly as possible to their previous condition with
reasonable speed and the Rent, to the extent hereinafter provided, shall
continue to be paid while repairs are being made. The Rent accrued and accruing
shall cease and determine if the Premises are totally untenantable by Tenant. If
a portion is untenantable, the Rent shall be equitably reduced with respect to
the untenantable portion until the repairs are completed. Tenant shall
immediately notify Landlord in case of fire or other damage to the Premises. In
no event shall Landlord be obligated to repair or rebuild the Premises if a
casualty occurs during the Second Five Year Renewal Option.
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(c) Consistent with the parties' intention and agreement as . is stated at
paragraphs (a) and (b) above:
(i) Tenant shall maintain insurance against fire, extended coverage,
vandalism, malicious mischief and such other additional perils as may be
included in a standard extended coverage endorsement insuring Tenant's
merchandise, trade fixtures, leasehold improvements and personal property
(including, without limitation, all theatre seats) in an amount equal to
the full replacement cost thereof, and Tenant may also maintain, but shall
not be required to maintain, such fire and casualty insurance as Tenant
shall see fit on the Premises (ices, the building) sufficient to repair or
rebuild the Premises as nearly as possible to their previous condition, or
in any amount less than that if Tenant so determines, together with such
additional contents insurance as Tenant sees fit, all at Tenant's sole
cost and sole option.
(ii) Any such insurance maintained by Tenant shall name the Landlord
and Tenant, as their interests may appear, as named insureds, but shall
also provide for a Trustee as loss payee for purposes of holding any
proceeds paid until distribution can be effected consistent with the
provisions of this paragraph (c) of this Section 26.
(iii) In the event that, in accord with the provisions of paragraph
(b) of this Section 26, the Landlord undertakes to enter and repair or
rebuild the Premises as nearly as possible as is set forth at paragraph
(b) above, the Trustee shall make the insurance proceeds available to
Landlord, as shall be required for the said building, excepting only the
portion of the proceeds due Tenant in all events as set forth in
subparagraph (v).
(iv) In the event this Lease is terminated under any provision of
this Section 26, the Trustee shall pay the proceeds of the insurance such
that Tenant receives an
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amount equal to the unamortized balance of Tenant's leasehold
improvements, together with the unamortized balance of all furniture,
fixtures, and equipment as are subject to Landlord's control at the end of
this Lease, as such unamortized balance is shown in each case on Tenants
books for federal income tax purposes. After such payment to the Tenant,
together with the payment called for at subparagraph (v) below, the
Trustee shall pay Landlord the balance of the proceeds, PROVIDED that
Landlord shall first deliver to Tenant the Landlord's covenant that it
will not build or operate or allow any other person to build or operate a
theater in the Center for a period of three years from the date of
casualty.
(v) Tenant shall in all events receive from the Trustee immediate
payment of so much of the insurance proceeds as are paid by the insurer
for Tenant's loss of cash, valuable papers, inventory, movable personal
property, etc. and such other property or insurable interest of Tenant as
is not fixtures and equipment whose disposition is subject to the
direction and control of Landlord at the termination of this Lease.
Nothing in this paragraph (c) shall be construed to reduce or eliminate
Tenant's insurance obligations elsewhere in this Lease.
SECTION 27: LAWS AND ORDINANCES:
Tenant agrees to observe and comply with all laws, ordinances, rules and
regulations of the Federal, state, county and municipal authorities applicable
to the business to be conducted by Tenant in the Premises, including the making
of structural and non-structural repairs or alterations due to Tenant's use or
occupancy thereof. If any of such laws, ordinances, rules and regulations shall
require structural alterations which would have been required irrespective of
the nature of the tenancy, then in such event the same shall be
32
complied with by Landlord and shall be deemed part of Operating Costs. Tenant
agrees not to do or permit to be done at any time during the Term anything in
the Premises, or keep anything therein, which will increase the rate of fire
insurance premiums on the Center or any part thereof, or on the property kept
therein.
SECTION 28: SIGNS:
No sign shall be affixed to or placed upon any exterior part of the
Premises or the Center by Tenant, except in such manner, and of such size,
design, location and color as shall be approved in advance by Landlord in
writing and installed and maintained at Tenant's sole cost and expense. Landlord
shall not unreasonably withhold its approval to Tenant's exterior sign(s)
provided same are consistent with the character of the Center.
SECTION 29: PRIORITY OF FEE MORTGAGES:
This Lease shall be subject and subordinate to any present or future
mortgages of the entire fee interest of the land and building of which the
Premises are a part and any renewals, modifications, replacements or extensions
thereof. No further document shall be necessary to effect said subordination.
Tenant shall, however, on demand of Landlord, execute, acknowledge and deliver
to any mortgagee a subordination agreement or an agreement to attorn to such
mortgagee as landlord if such mortgagee becomes landlord hereunder. If the
holder of any mortgage of the entire fee interest of the land and building of
which the Premises are a part requires that this Lease have priority over such
mortgage, Tenant shall, upon request of such holder, execute, acknowledge and
deliver to such holder an agreement acknowledging such priority. If Tenant does
not execute, acknowledge and deliver same within ten (10) days following request
for same by Landlord, then Tenant shall be deemed to have appointed Landlord as
its attorney-in-fact, coupled with an interest, to so execute, acknowledge and
deliver such instrument.
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Landlord shall use its reasonable efforts to obtain from any such present
or future mortgagee an agreement ("Non-Disturbance Agreement"), in writing,
providing in substance that so long as Tenant performs all of the obligations
imposed upon Tenant hereunder, its tenancy will not be disturbed by any default
under the mortgage nor shall Tenant be named as a defendant in any foreclosure
proceeding.
In the event Landlord does not obtain a Non-Disturbance Agreement from its
present or any future mortgagee, Landlord agrees that:
(i) It will deliver to Tenant promptly upon receipt (time being of
the essence) a copy of any notice that Landlord receives from its mortgagee
expressly relating to any delinquency, omission, or default by Landlord under
its mortgage.
(ii) It will afford to Tenant a reasonable opportunity to tender or
effect cure of the delinquency, omission, or default claimed in such notice.
(iii) If the tender or cure is accepted by the mortgagee to the
credit of the Landlord, Landlord will allow Tenant to offset and apply the costs
of such tender or cure against any balance otherwise due or coming due from
Tenant to Landlord under this Lease, so that Tenant might receive credit for
same as though said costs had been paid to Landlord as rent or other items due
hereunder.
In the event Landlord does not obtain a Non-Disturbance Agreement, as is
set forth in the second paragraph of this Section 29, from the holder of any
future mortgage and such future mortgagee is not an institutional lender, then
this Lease shall retain so much of its priority over any such future mortgage to
a non-institutional mortgagee as shall be necessary for Tenant hereunder to
retain possession of the Premises in accord with the provisions of this Lease so
long as the Tenant shall comply with the terms of this Lease.
34
The inability of Landlord to obtain a Non-Disturbance Agreement from any
present or future mortgagee, as aforesaid, shall not be deemed a default on
Landlord's part of its obligations hereunder, or impose any claim in favor of
Tenant against Landlord by any reason thereof, or affect the validity of this
Lease.
SECTION 30: FIRST TWO MONTH'S RENT:
Upon the execution hereof, Tenant shall pay to Landlord the sum of
$25,000.00 which amount shall be applied to the first two months of Basic Rent
coming due under this Lease.
SECTION 31: RULES AND REGULATIONS, EMPLOYEE PARKING:
(a) Reasonable rules and regulations regarding the Premises and the
Center, including the walkways and parking areas, and the use thereof, which may
hereafter be promulgated by Landlord, shall be observed by Tenant and Tenant's
employees, agents and business invitees. Landlord reserves the right to rescind
any rules promulgated hereafter, and to make such other and further rules and
regulations as in its reasonable judgment may from time to time be desirable for
the safety, care and cleanliness of the Premises and the Center and for the
preservation of good order therein, which rules, when so made and reasonable
notice given to Tenant, shall have the same force and effect as if originally
made a part of this Lease. Such other and further reasonable rules shall not,
however, be inconsistent with the proper and rightful enjoyment by Tenant of the
Premises and the Center in the conduct of its business.
(b) In the event that Tenant's employees park in an area other than
that designated by Landlord, then, after notice, Tenant shall pay to Landlord
the sum of Ten and 00/100 ($10.00) Dollars per day for each car of its employees
which is parked in an area other than that designated by Landlord for employee
parking, which sum is agreed to be just and reasonable compensation to Landlord
for each such parking violation.
SECTION 32: TENANT'S VIOLATION OF TERMS - RE-ENTRY BY LANDLORD:
35
In case of violation by Tenant of any of the covenants, agreements and
conditions of this Lease, or of the rules and regulations hereafter to be
reasonably established by Landlord, and upon failure (i) to cure or otherwise
discontinue such violation of any nonmonetary obligation within twenty (20) days
after notice thereof given to Tenant, unless a greater time is reasonably
necessary in Landlord's opinion to cure said violation, or (ii) to cure any
violation set forth in Section 14 within the time period set forth therein, this
Lease shall thenceforth, at the option of Landlord, become null and void, and
Landlord may re-enter without further notice or demand. The Rent for the
remainder of the Term in such case shall become due and be paid, and Tenant
shall be liable for all loss or damage resulting from such violation as
aforesaid. No waiver by Landlord of any violation ox breach of condition by
Tenant shall constitute or be construed as a waiver of any other violation or
breach of condition, nor shall lapse of time after breach of condition by Tenant
before Landlord shall exercise its option under this Section operate to defeat
the right of Landlord to declare this Lease null and void and to re-enter upon
the Premises after the said breach or violation. Landlord shall have the option
of correcting said default and charging the cost thereof to Tenant as Additional
Rent, which shall be due and payable with the next Rent payment, together with
interest at the Default Rate.
SECTION 33: NOTICES:
All notices and demands, legal or otherwise, incidental to this Lease, or
the occupancy of the Premises, shall be in writing. If Landlord or its agent
desires to give or serve upon Tenant any notice or demand, it shall be
sufficient to send a copy thereof by certified mail, return receipt requested,
or by nationally recognized overnight courier, addressed to Tenant at the
address at the beginning of this Lease or to such other address as Tenant may
from time to time designate to Landlord in
36
writing, with a copy to Buklad and Buklad, Attention: Henry A. Buklad, Jr., 76
South Orange Avenue, South Orange, New Jersey 07079. Notices from Tenant to
Landlord shall be sent by certified mail, return receipt requested, or by
nationally recognized overnight courier, at the address at the beginning of this
Lease, with a copy thereof to Sills Cummis Zuckerman Radin Tischman Epstein &
Gross, Attention: Morris Yamner, Esq., One Riverfront Plaza, Newark, New Jersey
07102-5400, or to such other party or place as Landlord may from time to time
designate to Tenant in writing. The date of receipt or rejection, as evidenced
by the green receipt card or bill of lading, as the case may be, shall be
conclusive evidence of the date of service.
SECTION 34: ENTIRE AGREEMENT:
This Lease contains all agreements made between the parties hereto. No
representative or agent of Landlord or Tenant is authorized to make any
representations or to alter or modify this Lease or any of the options in this
Lease contained and provided for in any way. Any additions, alterations,
changes, or modifications to or in this agreement or any other agreements
hereafter made or conditions created, to be binding upon the parties hereto,
must be in writing and signed by said parties, and it is agreed that none of the
provisions of this Lease, including this provision, can be waived, except by
writing duly signed by the parties hereto.
SECTION 35: INSOLVENCY OF TENANT:
It is further agreed that if at any time during the Term of this Lease
Tenant shall make any assignment for the benefit of creditors, or be decreed
insolvent or bankrupt according to law, or if a receiver shall be appointed for
Tenant, and the same is not dismissed within thirty (30) days, then Landlord
may, at its option, terminate this Lease, exercise of such option to be
evidenced by notice to that effect served upon the assignee, receiver, trustee
or other person in charge of the liquidation of the property of Tenant or
Tenant's estate, but such termination
37
shall not release or discharge any payment of rent payable hereunder and then
accrued, or any liability then accrued by reason of any agreement or covenant
herein contained on the part of Tenant or Tenant's legal representatives.
Anything in this Section 35 to the contrary notwithstanding, if in any
bankruptcy or reorganization proceedings the full Rent payable to Landlord shall
be paid and Tenant shall continue to observe all the other terms and conditions
of this Lease, Landlord's right to terminate shall not be operative.
SECTION 36: EMINENT DOMAIN, CONDEMNATION:
(a) If the whole of the Premises shall be taken under the power of eminent
domain, then this Lease shall be terminated as of the day possession shall be
taken.
(b) If more than twenty-five (25%) percent of the floor area of the
Premises, or if more than fifty (50%) percent of the common parking area, or if
more than fifty (50%) percent of all of the ground level floor area of the
Center shall be taken under power of eminent domain, either Landlord or Tenant
may terminate this Lease by written notice given within thirty (30) days after
the date of surrendering possession to the public authority pursuant to such
taking, and if neither Landlord nor Tenant elects to terminate this Lease,
Landlord shall restore and adapt the remaining Premises, and the Rent shall be
reduced as described in Paragraph (c) below.
(c) If twenty-five (25%) percent or less of the floor area of the
Premises, or fifty (50%) percent or less of the common parking area, or fifty
(50%) percent or less of all of the ground level floor area of the Center shall
be taken under the power of eminent domain, this Lease shall not terminate but
shall continue in full force and effect, except that the Basic Rent shall be
reduced in the same proportion that the floor area of the Premises so taken
bears to the total floor area demised to Tenant at the time of such taking, and
Landlord shall, at its own cost and expense, making all necessary restorations
to the Premises as
39
to constitute the Premises or the building of which the Premises are a part, a
complete architectural unit.
(d) All damages awarded for any taking under the power of eminent domain,
whether for the whole or a part of the Premises, shall belong to and be the sole
property of Landlord, whether such damages shall be awarded as compensation for
diminution in value to the leasehold or to the fee of the premises; provided,
however, that Landlord shall not be entitled to any award made to Tenant for
loss of or damage to Tenant's trade fixtures.
(e) If this Lease is terminated as provided in this Section, Tenant shall
pay all Rent and additional charges and perform all other covenants up to the
day that possession is so taken by public authority and Landlord shall (i) make
a proportionate refund of any Rent or additional charges paid by Tenant in
advance and (ii) reimburse Tenant for the unamortized costs of Tenant's
leasehold improvements (to the extent not covered by any award made by the
condemning authority or otherwise).
(f) Tenant acknowledges and agrees (i) that a condemnation of a portion of
the Center is pending as of the date hereof; (ii) that Tenant has independently
verified the status of such condemnation proceeding; and (iii) that Tenant's
obligations under this Lease shall not in any way be diminished thereby.
SECTION 37: DELIVERY OF LEASE AND RECORDING:
No rights are to be conferred upon Tenant until this Lease has been signed
by Landlord and an executed copy of the Lease has been delivered to Tenant.
This Lease shall not be recorded; however, Landlord shall have the right,
but not the obligation, to record a short-form or memorandum thereof, at
Landlord's expense, at any time during the term hereof.
SECTION 38: LEASE PROVISIONS NOT EXCLUSIVE - INDEPENDENT COVENANTS:
The rights and remedies of Landlord contained in this Lease are not
intended to be exclusive but as additional to all other
39
rights and remedies Landlord would otherwise have by law. Tenant agrees that
Tenant's covenants and obligations under this Lease shall be independent of
Landlord's covenants and obligations under this Lease and that each such
covenant and obligation is independent of any other covenant or obligation.
Landlord's breach or non-performance of any of Landlord's covenants or
obligations under this Lease shall not excuse Tenant of Tenant's covenants and
obligations under this Lease, and shall not be the basis for any defense, of any
kind or nature whatsoever, to any suit by Landlord for Tenant's breach or
nonperformance of any of Tenant's covenants or obligations under this Lease
(including, without limitation, Tenant's failure to pay Rent).
SECTION 39: HEIRS, ETC.:
All of the terms, covenants and conditions of this Lease shall inure to
the benefit of, and be binding upon, the respective heirs, executors,
administrators, successors and assigns of the parties hereto.
SECTION 40: DATE OF POSSESSION:
Landlord shall not be liable for failure to give possession of the
Premises upon the commencement date by reason of the fact that the Premises are
not ready on the Delivery Date, or due to a prior tenant wrongfully holding over
or any other person wrongfully in possession, or because of Landlord's failure
to complete the Landlord Alteration, or for any other reason; in such event, the
Rent shall not commence until possession is given or is available. If Landlord
has not completed the Landlord Alteration and given possession of the Premises
to Tenant within two hundred seventy (270) days of the date hereof, Tenant may
terminate this Lease by giving Landlord ten (10) days' written notice and
neither party shall have any obligation to the other except that Landlord shall
return to Tenant without interest, any moneys it has received for Rent and the
Security Deposit under
40
this Lease (provided Tenant is not in default of this Lease) and the parties
shall have no claim against the other.
SECTION 41: REAL ESTATE TAXES:
The term "real estate taxes" shall mean all taxes imposed on the land and
buildings constituting the Center including, without limitation, special
assessments, water and sewer charges, and other governmental charges not levied
against the land and buildings. If the system of taxation shall be changed
during the term of this Lease, or any extension thereof, so that in lieu of, or
in addition to, the regular municipal real estate taxes now assessed or levied
against real property, a tax shall be imposed on such rental income or rental
value, or on some other basis, and Landlord shall be burdened in part or in
whole with such additional tax or taxes, Tenant shall pay or reimburse Landlord
its Proportionate Share of the amount of such substitute or additional tax or
taxes. If Landlord and Tenant cannot agree on the amount of such substitute or
additional tax or taxes, the matter shall be submitted to arbitration in Newark,
New Jersey in accordance with the rules of the American Arbitration Association.
Anything contained herein to the contrary notwithstanding, Tenant shall
pay one hundred (100%) percent of any and all assessments resulting from the
Tenant Alteration or any other construction or improvements initiated by Tenant.
SECTION 42: TAX APPEALS BY LANDLORD:
If Landlord shall institute a tax appeal, and said tax appeal shall result
in a reduction in taxes, then Tenant shall pay to Landlord its Proportionate
Share of Landlord's cost of said appeal, but in no event shall that amount
exceed the reduction in taxes and Tenant shall receive or be credited with its
Proportionate Share of any refund or reduction.
Tenant shall cooperate in any proceedings described herein. Tenant shall
be entitled to its Proportionate Share of the refund, if any (to the extent the
refund is allocable to a
41
portion of the Term), after Landlord deducts any and all costs and expenses.
SECTION 43: QUIET ENJOYMENT:
Landlord represents that it has the full right and power to execute and
perform this Lease and to grant the estate demised herein, and that Tenant, on
payment of the Rent herein reserved and performing the covenants and agreements
hereof, shall peaceably and quietly have, hold and enjoy the Premises and all
rights, easements, appurtenances and privileges belonging or in any way
appertaining thereto during the Lease Term without molestation or hindrance of
any person whomsoever.
SECTION 44: LANDLORD'S SECURITY INTEREST:
Tenant hereby grants Landlord a security interest in Tenant's merchandise,
trade fixtures, leasehold improvements and personal property (including, without
limitation, all theater seats) located in or upon the Premises to further secure
Tenant's performance of any and all of Tenant's obligations under this Lease. To
perfect said security interest, Tenant agrees to execute and deliver to Landlord
such financing statements (or any extensions thereof) required by the applicable
Uniform Commercial Code as Landlord may from time to time request. In the event
Tenant does not promptly execute and deliver such financing statement to
Landlord or its designee, Tenant hereby irrevocably appoints Landlord as
Tenant's attorney-in-fact, coupled with an interest, to execute any such
statement for and on behalf of Tenant. Tenant shall not assign, lien, encumber,
chattel mortgage or create a security interest in and to any of its merchandise,
trade fixtures, leasehold improvements and personal property without first
obtaining in each instance the prior written consent of Landlord and any first
mortgagee of the Premises. Without limitation to Landlord's rights as a secured
party pursuant to the foregoing sentences of this Section 44, and anything
contained in this Lease to the contrary notwithstanding, in the event of
Tenant's default, all of Tenant's merchandise,
42
trade fixtures, leasehold improvements and personal property shall remain on the
Premises at Landlord's sole option and, continuing during the length of said
default, Landlord shall have the right to take exclusive possession of same and
to use same free of rent or charge until all defaults have been cured or, at
Landlord's sole option, to require Tenant to remove same immediately.
SECTION 45: OUTSIDE OUTRAGE:
Tenant shall not store any goods, other than temporarily in connection
with the delivery of any item, outside of the Premises or any place in the
Center.
SECTION 46: CERTIFICATE OF OCCUPANCY:
If required, Tenant shall obtain a Certificate of Occupancy permitting the
use of the Premises by Tenant in accordance with the terms of this Lease,
provided that Landlord shall cooperate fully with Tenant in obtaining said
Certificate of Occupancy.
SECTION 47: HOLDING OVER:
If Tenant shall hold over, with or without Landlord's consent, after the
Term, then such holding over shall be constituted as a tenancy from month to
month, subject to all of the provisions, conditions and obligations of this
Lease, except that the Basic Rent shall be double the Basic Rent for the last
month of the Term.
SECTION 48: CONSENTS TO DEFAULTS:
No consent or waiver, express or implied, by Landlord, to or of any breach
or default in the performance by Tenant of Tenant's obligations hereunder shall
be deemed or construed to be a consent or waiver to or of any other breach or
default in the performance by Tenant of the same or any other obligations of
Tenant hereunder. Failure on the part of Landlord to complain of any act or
failure to act of Tenant or to declare Tenant in default, irrespective of how
long such act or failure continues, shall not constitute a waiver by Landlord of
its rights hereunder.
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SECTION 49: INTEREST ON DEFAULT:
In the event Tenant fails to pay Rent when due, or fails, after notice, to
take any action required of it under this Lease, which action is then taken by
Landlord, Tenant shall pay to Landlord interest at the rate of twenty-four (24%)
per cent per annum (the "Default Rate") on the Rent or monies expended by
Landlord to cure any default of Tenant, which sum is agreed to be just and
reasonable compensation to Landlord for Tenant's failure to pay the amount due
and for Landlord not having the funds to otherwise invest, said interest to run
from the date the same becomes due from Tenant until the date of payment. In the
event that said interest rate is not allowable by law, then the interest to be
paid shall be the highest rate allowable by law. No interest shall be due
provided Rent is paid on or before the 5th day of the month.
SECTION 50: FINANCIAL STATEMENTS - ESTOPPEL CERTIFICATES:
(a) Tenant shall, if required by Landlord's mortgagee or any future
mortgagee, or prospective mortgagee or prospective purchaser, submit to
Landlord, any prospective mortgagee or purchaser, without cost to Landlord, a
copy of Tenant's financial statement which shall be considered "confidential" by
the recipient. Tenant shall also, without cost to Landlord, submit to any
prospective mortgagee or purchaser such prior statements as it may have, as and
when required by Landlord or Landlord's mortgagee or prospective mortgagee or
prospective purchaser.
(b) Tenant, upon at least five days' prior request by Landlord, shall
(without charge therefor) execute, acknowledge and deliver to Landlord (or to
such parties as Landlord shall designate), a statement addressed to Landlord or
such designated party certifying that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that it is in full force and
effect as modified and stating the modifications), stating the dates to which
the base rent and additional rent have been paid, and stating whether or not
Tenant knows of any default
44
by Landlord under this Lease, and, if so, specifying each such known default, it
being intended that any such statement may be relied upon by Landlord, or the
holder of any mortgage which is or may become a lien upon the Building, a
purchaser of the Building, an assignee of Landlord's interest in this Lease or
any such other parties as Landlord shall have designated. In the event Tenant
does not promptly execute and deliver any such statement to Landlord or such
designated party, as aforesaid, Tenant hereby irrevocably appoints Landlord as
Tenant's attorney-in-fact, coupled with an interest, to execute any such
statement for and on behalf of Tenant.
SECTION 51: TABLE OF CONTENTS AND CAPTIONS:
The Table of Contents, captions or notes in the margin of this Lease are
inserted only as a matter of convenience and in no way to define, limit or
describe the scope or intent of this Lease, or the terms, conditions and
provisions hereof, nor as affecting the meaning of the text of any article or
section hereof in any way.
SECTION 52: BROKER:
Tenant agrees to pay, pursuant to a separate agreement, all brokerage
commissions and any consulting fees payable in connection with the negotiations
for, and execution of, this Lease. Tenant and Landlord warrant to each other
that they have not dealt with any real estate broker except Alexander Summer Co.
in connection with this Lease. In the event of any misrepresentation by either
Landlord or Tenant, each party agrees to hold the other harmless, including any
costs, interest and legal fees.
SECTION 53: NO ORAL CHANGES:
(a) There are no oral agreements between Landlord and Tenant and this
Lease supersedes and cancels any and all previous negotiations, arrangements,
letters of intent, lease proposals, brochures, agreements, representations,
promises, warranties and undertakings between Landlord and Tenant with respect
to the
45
subject matter hereof and none thereof shall be used to interpret or construe
this Lease.
(b) This Lease, including the Schedules hereto and any addenda hereto,
sets forth all of the covenants, promises, agreements, conditions and
undertakings between Landlord and Tenant concerning the Premises and the Center.
No alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing, signed by them and mutually
delivered between them.
SECTION 84: MERCHANT'S ASSOCIATION:
In the event that a Merchants' Association (the "Association") is
established, Tenant agrees to abide by the By-Laws of the Association, pay its
Proportionate Share of any dues, assessments, or costs incurred by the
Association, and join and thereafter remain a member of the Association so long
as one exists; provided, however, that Pathmark (or its successor-in interest)
and 75% of the other tenants of the Center are then also members of the
Association and are obligated to contribute an equitable share to the
Association.
SECTION 55: INTERPRETATION - SEVERABILITY:
The laws of the State of New Jersey shall govern the validity, performance
and enforcement of this Lease. The invalidity or unenforceability of any
provision hereof shall not affect or impair any other provision.
SECTION 56: ACCORD AND SATISFACTION:
No payment by Tenant or receipt by Landlord of lesser amount than the Rent
stipulated in this Lease shall be deemed to be other than on account of the
earliest stipulated Rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
provided in this Lease by law.
46
SECTION 57: CONSENTS:
With respect to any provision of this Lease which requires that Landlord
shall not unreasonably withhold or unreasonably delay any consent or approval,
Tenant shall not make or assert any claim for, and Tenant hereby waives any
claim for money damages. Tenant shall not claim any money damages 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. Tenant's sole and exclusive remedy shall be an action or proceeding
for specific performance, injunction or declaratory judgment.
SECTION 58: MORTGAGEE PROTECTION CLAUSE:
Tenant agrees to give all mortgagees and/or trust deed holders, by
certified mail, a copy of any notice of default served on Landlord, provided
that prior to such notice Tenant has been notified, in writing (by way of notice
of assignment of rents and leases or otherwise), of the name and address of such
mortgagees and/or trust deed holders. The mortgagees and/or trust deed holders
shall have the same time within which to cure such default as is given to
Landlord under this Lease.
SECTION 59: [INTENTIONALLY OMITTED]
SECTION 60: BUSINESS HOURS:
Tenant agrees to continuously operate not less that four (4) of the eight
screen rooms in the Premises and otherwise conduct its business Monday to
Friday, from at least 7 p.m. to at least 12 midnight; Saturday, from at least 2
p.m. to at least 12 midnight; and Sundays, from at least 2 p.m. to at least 12
midnight, except that Tenant may close on July 4, New Year's Day, Thanksgiving
Day, Christmas Day, Mother's Day, Easter Sunday and such other days as may be
necessary whenever any repairs or alterations permitted or required to be made
hereunder cannot be effected in Tenant's reasonable opinion unless the Premises
are closed. In the event that Tenant does not (i) open within one calendar month
of the time period set forth in Section 12(b), or
47
(ii) remain open without interruption during the aforesaid hours, Tenant shall
pay to Landlord, as Additional Rent, $250.00 per day for each day or part
thereof that it is closed, which sum is agreed to be just and reasonable
compensation to Landlord for Tenant's failure to so open the Premises for
business. Tenant need not remain open in severe inclement weather.
SECTION 61: NEGOTIATED LEASE:
Landlord and Tenant represent, acknowledge and agree that this Lease has
been fully and freely negotiated. In the event of a dispute in respect of all or
any part of this Lease, the parties agree that no inference shall be drawn
against Landlord by reason of Landlord having prepared this Lease.
SECTION 62: CENTER:
(a) The Center shall include the parcel(s) of land and improvements
generally depicted as the Center whether owned in fee or ground leased by
Landlord. Landlord reserves the right to add to or sever the ownership of or
title to any portion of the Center at any time. It is agreed that the depiction
of the Center does not constitute a representation, covenant or warranty of any
kind by Landlord. Landlord reserves the right to change the size and dimensions
of the Center, the number and location of buildings, building dimensions, the
number of floors in any of the buildings, store dimensions, identity and type of
other stores and tenancies, and, as provided in Section 10, the common areas.
(b) In accordance with paragraph (a) above, Landlord specifically reserves
the right to include any additional buildings and improvements which may be
erected adjacent to the Center as part of the Center for all purposes under this
Lease.
(c) In the event that Landlord exercises its rights pursuant to paragraph
(a) or (b) above, Operating Costs shall be determined pursuant to Section 8
hereof on the basis of the redefined Center.
48
(d) Landlord shall have the right to convert the Premises and/or the
Center into condominiums and in connection therewith Landlord shall be permitted
to assign this Lease to the owner of a condominium which includes the Premises.
In such event, Tenant agrees to attorn to the owner of such condominium as
Landlord under this Lease.
SECTION 63: CONTROL OF TENT:
If Tenant or any Guarantor under this Lease is a corporation and if at any
time during the Term of this Lease such corporation's shares of capital stock
shall be transferred to a related entity or corporation, Tenant shall so notify
Landlord. Landlord may terminate this Lease if Tenant or any Guarantor under
this Lease is a corporation or partnership and the interest of any corporation
or partner in Tenant or any Guarantor under this Lease in excess of fifty (50%)
percent is transferred to a non-related entity or corporation or to an
individual, and Tenant shall be and remain liable to Landlord for all damages
and losses suffered by it in the same manner as if this Lease were terminated
for any other default of Tenant. Notwithstanding the foregoing, transfers of the
corporation's shares of capital stock to members of the immediately family of
Jesse Y. Sayegh shall not be subject to the provisions of this Section 63
provided that Jesse Y. Sayogh and/or Elias Sayegh and/or Mousa Sayegh retain
management and effective control of Tenant in its regular business operations
including financial, marketing and employment decisions and otherwise, and in
the event of the death of the said Jesse Y. Sayagh, such management and control
shall be conducted under the supervision and guidance of the wife and/or
children of the said Jesse Y. Sayegh for not less than five (5) years after his
death.
SECTION 64: PROCESSING CHARGE:
Tenant agrees to reimburse Landlord for reasonable attorneys' fees and
accounting fees incurred by Landlord in connection with the processing and
documentation of any
49
assignment, subletting, license, concession, creation of a security interest,
granting of a collateral assignment, change of ownership or other transfer
required by Tenant for which Landlord's consent is required or sought, it being
agreed that Landlord shall not be required to take any action thereon until
Landlord is first paid such amount.
SECTION 65: RIGHT OF FIRST REFUSAL:
In the event that any or all of Tenant's interest in the Premises and/or
this Lease is transferred by operation of law to any trustee, receiver, or other
representative or agent of Tenant, or to Tenant as a debtor in possession, and
subsequently any or all of Tenant's interest in the Premises and/or this Lease
is offered or to be offered by Tenant or any trustee, receiver, or other
representative or agent of Tenant as to its estate or property (such person,
firm or entity being hereinafter referred to as the "Grantor"), for assignment,
conveyance, lease, or other disposition to a person, firm or entity other than
Landlord (each such transaction being hereinafter referred to as a
"Disposition"), it is agreed that Landlord has and shall have a right of first
refusal to purchase, take, or otherwise acquire, the same upon the same terms
and conditions as the Grantor thereof shall accept upon such Disposition to such
other person, firm, or entity; and as to each such Disposition the Grantor shall
give written notice to Landlord in reasonable detail of all of the terms and
conditions of such Disposition within twenty (20) days next following its
determination to accept the same but prior to accepting the same, and Grantor
shall not make the Disposition until and unless Landlord has failed or refused
to accept such right of first refusal as to the Disposition, as set forth
herein.
Landlord shall have sixty (60) days next following its receipt of the
written notice as to such Disposition in which to exercise the option to acquire
Tenant's interest by such Disposition, and the exercise of the option by
Landlord shall be
50
effected by written notice to that effect sent to the Grantor by certified or
registered mail; but nothing herein shall require Landlord to accept a
particular Disposition or any Disposition, nor does the rejection of any one
such offer of first refusal constitute a waiver or release of the obligation of
the Grantor to submit other offers hereunder to Landlord. In the event Landlord
accepts such offer of first refusal, the transaction shall be consummated
pursuant to the terms and conditions of the Disposition described in the notice
to Landlord. In the event Landlord rejects such offer of first refusal, Grantor
may consummate the Disposition with such other person, firm, or entity; but any
decrease in price of more than two (2%) percent of the price sought from
Landlord or any change in the terms of payment for such Disposition shall
constitute a new transaction requiring a further option of first refusal to be
given to Landlord hereunder.
SECTION 66: HAZARDOUS SUBSTANCES:
(a) Tenant shall not keep, maintain or dispose of any hazardous, toxic or
nuclear substances or wastes at the Premises. At the end of the Term or any
extensions thereof, Tenant shall comply with all environmental laws including,
but not limited to, Environmental Clean-Up Responsibility Act, N.J.S.A. 13:
1K-6, et seq., resulting from Tenant's use and occupancy of the Premises. At
least thirty (30) days prior to the end of the Term of this Lease, or any
extensions thereof, or the vacation of the Premises by Tenant for any reason,
Tenant shall deliver to Landlord written proof from the proper governmental
authorities that all environmental laws have been complied with or are not
applicable to the Premises. During the Term, Tenant shall deliver to Landlord,
ten (10) days after written demand, any information, certificate or similar
document required by Landlord to comply with any environmental or similar laws.
Tenant represents and warrants that Tenant's Standard Industrial Classification
number as designated on the Standard Industrial Classification manual
51
prepared by the Office of Management and Budget in the Executive Office of the
United States of America is, and shall be during the term of this Lease, #7830.
(b) Tenant shall provide all information within Tenant's control requested
by Landlord or the Industrial Site Evaluation Element or its successor
("Element") of the New Jersey Department of Environmental Protection and Energy
or its successor ("NJDEPE") for preparation of a non-applicability affidavit or
other type of submission, should Landlord or NJDEPE so request, and Tenant shall
promptly execute such affidavit or submission should the information contained
in the affidavit or submission be found by Tenant to be complete and accurate.
(c) If ECRA compliance becomes necessary at the Premises due to any action
or non-action on the part of Landlord, including but not limited to Landlord's
execution of a sale agreement for the Center or the Premises, any change in
ownership of the Center or the Premises, initiation of bankruptcy proceedings,
Landlord's financial reorganization or sale of the controlling share of
Landlord's assets, then Landlord shall comply with ECRA and all requirements of
the Element and NJDEPE at Landlord's own expense, except for the actual clean up
costs resulting from or attributable to Tenant's use and occupancy of the
Premises, which shall be borne by Tenant.
(d) This Section 66 shall survive the expiration or earlier termination of
this Lease.
SECTION 67: MODIFICATIONS REQUESTED BY MORTGAGEE:
In the event that a prospective mortgagee of the Center shall request a
change in the language of the terms of this Lease, or the execution of any
document in connection therewith, Tenant agrees to make such change or execute
such document provided the same shall not increase Tenant's obligations or
liabilities under this Lease.
SECTION 68: REIMBURSEMENT OF LEGAL EXPENSES:
52
In case Landlord shall, without fault on its part, be made a party to any
litigation commenced by or against Tenant, Tenant shall pay on written demand
from Landlord, as Additional Rent hereunder, all casts, including reasonable
attorney's fees incurred by or against Landlord in connection with such
litigation. Tenant shall also pay on written demand from Landlord, as Additional
Rent hereunder, all costs and reasonable attorney's fees incurred by or against
Landlord in enforcing any of the covenants, terms, and provisions of this Lease,
or in terminating this Lease by reason of Tenant's default. Landlord shall have
the right to charge a legal fee no less than Two Hundred Fifty ($250.00) Dollars
for each and every instance where Landlord requires the use of its attorneys to
enforce any of the covenants, terms and provisions of this Lease.
SECTION 69: RIGHT TO EXTEND:
Tenant shall have the right, at its election, to extend the original term
of this Lease for one (1) additional period of ten (10) years followed by two
(2) successive additional periods of five (5) years each, exercisable upon the
following terms and conditions:
(a) Tenant shall give Landlord written notice of such election to extend
the term hereof (i) in the event of the extension of the original term, not
later than twelve (l2) months prior to the expiration of the original term, and
(ii) in the event of an extension of a term after the original term, not later
than twelve (12) months prior to the expiration of the then current term; (b) At
the time of exercise of such election and at the time of the commencement of
such extension term, Tenant shall not be in default of this Lease; and
(c) Each such extended term shall be upon the same terms and conditions as
during the original term hereof including the payment of Rent, except that
Tenant shall (i) have no further election to extend the term of the Lease beyond
the third
53
additional term, (ii) pay to Landlord and Landlord shall accept Basic Rent
during such additional terms at the yearly rates set forth on Schedule "D"
hereof which shall be payable in advance, in monthly installments on or before
the first day of each month, (iii) pay to Landlord and Landlord shall accept as
Percentage Rent during such additional terms amounts based upon the applicable
Percentage Rent Base Amount set forth on Schedule "D" hereof, and (iv) at the
beginning of each such extended term, remodel the Premises at its sole cost and
expense including, without limitation, refurbishing all theater seats, and
painting and carpeting the Premises.
If Tenant elects to exercise any such option, the term of this Lease shall
be automatically extended for the period of such additional term without the
necessity for the execution of any instrument to effect the same, and in such
event the phrases "the term of this Lease" and "the term hereof" as used in this
Lease shall include such additional term.
IN WITNESS WHEREOF, the parties have executed these presents the day and
year first above written.
WITNESS: LESTER M. ENTIN ASSOCIATES
Landlord
/s/ Illegible By: /s/ Joseph Waters
- ---------------------------- ------------------------------
Joseph Waters, Partner
ATTEST: CJM ENTERPRISES, INC.
By: /s/ Jesse Y. Sayegh
- ---------------------------- ------------------------------
, Secretary , President
54
SCHEDULE "A"
The Premises
To be completed and incorporated when finalized, as is presently pending between
the parties, including "no-build" area.
Same for Exhibit A to Schedule E.
[GRAPHIC OMITTED]
EXHIBIT "B"
All that certain piece or parcel of land situate, lying and being in the Borough
at Kinnelon; County of Passaic, State of New Jersey, being more particularly
bounded and described as follows:
BEGINNING at a point in the southerly line of Kinnelon Road 75.00 feet wide at
its intersection with the easterly line of lands of Kenneth B. Mead as said
lands are recited in Deed Book C-34 page 79 and running; thence (1) south 86
degrees 46 minutes 49 seconds east, 717.78 feet along the southerly line of
Kinnelon Road (as recited in a certain deed from Daniel R. and Emma Mead and
Grace B. Mead to the County of Morris and recorded in Deed Book 1846 page 539)
to a point of curvature; thence (2) southeasterly on a curve to the right having
a radius of 1599.52 feet an arc distance of 640.03 feet along the same to a
point of compound curvature; thence (3) southerly on a curve to the right having
a radius of 65.00 feet an arc distance of 105.92 feet to a point in the westerly
line of a connecting ramp all as recited in deed book 1846 page 539; thence (4)
southerly on a curve to the left having a radius of 145.00 feet an arc distance
of 119.55 feet still along the same to a point of reverse curvature; thence (5)
southerly and southwesterly on a curve to the right having a radius of 40.00
feet an arc distance of 42.87 feet along the same to a point of tangency; thence
(6) south 43 degrees 39 minutes 37 seconds west 35.53 feet partly along the same
to its intersection with the northerly line of Kiel Avenue 25 feet north of the
centerline thereof; thence (7) south 70 degrees 39 minutes 50 seconds west,
255.15 feet along the northerly line of Kiel Avenue to a point of curvature;
thence (8) southwesterly on a curve to the left having a radius of 1444.79 feet
an arc distance of 177.78 along the same to a point of reverse curvature; thence
(8) southwesterly on a curve to the right having a radius of 170.71 feet an arc
distance of 106.42 feet along the same to a point of tangency; thence (10) north
80 degrees 40 minutes 10 seconds west, 178.75 feet along the same to a point of
curvature; thence (11) westerly on a curve to the right having a radius of
1319.04 feet an arc distance of 99.95 feet along the same to a point of
tangency; thence (12) north 76 degrees 19 minutes 40 seconds west 204.63 feet
along the same to a point of curvature; thence (13) westerly on a curve to the
right having a radius of 2190.60 feet an arc distance of 99.98 feet along the
same to a point of tangency; thence (14) north 73 degrees 42 minutes 50 seconds
west, 256.51 feet still along the same to a point in the easterly line of lands
of Herbert C. & Georgiana Stephens as recited in Deed Book T-57 page 457 and
running; thence (15) the same to the northeasterly corner thereof and a corner
of 10 seconds east, 193.50 feet along the same to the southerly line of Kinnelon
Road and the point and place of beginning.
(Containing 15.52 acres)
The above description prepared by Canger Engineering Associates. Fair Lawn,
New Jersey, August 24, 1965.
SCHEDULE "C"
Certificate of Commencement
Pursuant to the provisions of Section 1 of the Lease dated ____________,
199__ , Landlord and Tenant, intending to be legally bound, hereby agree that
the Term of the Lease shall end on the _______ day of ________________,
_________, unless sooner terminated or extended as therein provided.
IN WITNESS WHEREOF, the parties have executed these presents the day and
year first above written.
WITNESS: LESTER M. ENTIN ASSOCIATES
Landlord
By:
- ------------------------- --------------------------
Joseph Waters, Partner
ATTEST: CJM ENTERPRISES, INC.
Tenant
By:
- ------------------------- --------------------------
, Secretary , President
SCHEDULE "D"
Basic Rent/Percentage Rent Base Amount
Annual Percentage Rent
Year(s) Basic Rent Monthly Installment Base Amount
1 $175,000.00 $14,583.33 $1,944,444 44
2, 3 $200,000.00 $16,666.67 $2,222,222 22
4, 5, 6 $225,000.00 $18,750.00 $2,500,000.00
7, 8, 9 $245,250.00 $20,437.50 $2,725,000 00
10 $267,325.00 $22,277.08 $2,970.277 78
Ten Year Renewal Option
1-3 $267,325.00 $22,277.08 $2,970,277.78
4-5 $291,380.00 $24,281.67 $3,237,555.56
6-10 $300,000.00 $25,000.00 $3,333,333.33
First Five Year Renewal Option
1-5 The greater of (i) the Basic 2nd Renewal Rent 2nd Renewal Rent
Rent during the last twelve divided 12 divided .09
(12) full months of the Ten
Year Renewal Option or (ii)
the average Basic Rent plus
Percentage Rent paid during
the last three full years of
the Ten Year Renewal Option
("2nd Renewal Rent").
Second Five Year Renewal Option
1-5 The greater of (i) the Basic 3rd Renewal Rent 3rd Renewal Rent
Rent paid during the last divided by 12 divided by .09
twelve (12) full months of
the Ten Year Renewal Option
or (ii) the Basic Rent paid
during the First Five Year
Renewal Option or (iii) the
average Basic Rent plus
Percentage Rent paid during
the last three full years of
the First Five Year Renewal
Option ("3rd Renewal Rent")
SCHEDULE "E"
Landlord Alteration
1. Remove existing partitions and storefronts as shown on Exhibit "A"
attached to this Schedule "E".
2. Install new roof over the Premises (the "roof installation").
3. Purchase and deliver new HVAC unit to the ground level of the Premises
(the "HVAC delivery"). Anything contained in this Lease to the contrary
notwithstanding, in the event the cost to Landlord therefor shall exceed
$100,000.00, Tenant shall pay such excess cost to Landlord prior to the
HVAC delivery). In addition, Tenant shall lift and install the new HVAC
unit at Tenant's sole cost and expense.
SCHEDULE "F"
Tenant Alteration
1. Construction of eight (8) auditoria, complete with movie screens,
audio-visual equipment and seats.
2. Construction of lobby, restrooms, administrative office, etc.
3. Installation of any and all electrical, plumbing and other mechanical or
utility systems necessary for Tenant's use and occupancy of the Premises.
4. Lift and install the new HVAC unit.
5. Install signage permitted pursuant to Section 28.
SCHEDULE "G"
Guaranty
ANNEXED TO LEASED DATED DECEMBER 17, 1991, BY AND BETWEEN LESTER M. ENTIN
ASSOCIATES, LANDLORD, AND CJM ENTERPRISES, INC., TENANT.
The undersigned, Jesse Y. Sayegh, whose home address is 8 Westview Court,
Cedar Grove, N.J. 07009 in consideration of the leasing of the leased premises
described in the above-referenced lease ("Lease") to the above mentioned Tenant
("Tenant"), does hereby covenant and agree as follows:
A. The undersigned hereby guarantees the full, faithful and timely payment
and performance by Tenant of all the payments, covenants and other obligations
of Tenant under or pursuant to the Lease. If Tenant shall default at any time in
the payment of any rent or any other sums, costs or charges whatsoever, or in
the performance of any of the other covenants and obligations of Tenant, under
or pursuant to the Lease, then the undersigned, at its expense, shall on demand
of Landlord fully and promptly pay all rent, sums, costs and charges to be paid
by Tenant, and perform all the other covenants and obligations to be performed
by Tenant, under or pursuant to the Lease, and in addition shall on Landlord's
demand pay to Landlord any and all sums due to Landlord, including (without
limitation) all interest on past due obligations of Tenant, costs advanced by
Landlord, and damages and all expenses, that may arise in consequence of
Tenant's default. The undersigned hereby waives all requirements of notice of
the acceptance of this Guaranty and all requirements of notice of breach or
nonperformance by Tenant.
B. The obligations of the undersigned hereunder are independent of, and
may exceed, the obligations of Tenant. A separate action or actions may, at
Landlord's option, be brought and prosecuted against the undersigned, whether or
not any action is first or subsequently brought against Tenant, or whether or
not Tenant is joined in any such action, and the undersigned may be joined in
any action or proceeding commenced by Landlord against Tenant arising out of, in
connection with or based upon the Lease. The undersigned waives any right to
require Landlord to proceed against Tenant or pursue ant other remedy in
Landlord's power whatsoever, any right to complain of delay in the enforcement
of Landlord's rights under the Lease, and any demand by Landlord and/or prior
action by Landlord of any nature whatsoever against Tenant, or otherwise.
C. This Guaranty shall remain and continue in full force and effect and
shall not be discharged in whole or in part notwithstanding (whether prior or
subsequent to the execution hereof) any alteration, renewal, extension,
modification, amendment or assignment of, or subletting, concession,
franchising, licensing or permitting under, the Lease. The undersigned hereby
waives notices of all of the foregoing, and agrees that the liability of the
undersigned hereunder shall be based upon the obligations of Tenant set forth in
the Lease as the same may be altered, renewed, extended, modified, amended or
assigned. For the purpose of this Guaranty and the obligations and liabilities
of the undersigned hereunder, "Tenant" shall be deemed to include any and all
concessionaires, licensees, franchisees, department operators, assignees,
subtenants, permitters or others directly or indirectly operating or conducting
a business in or from the leased premises, as fully as if any of the same were
the named Tenant under the Lease.
D. The undersigned's obligations hereunder shall remain fully binding
although Landlord may have waived one or more defaults by Tenant, extended the
time of performance by Tenant,
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT, made this 31st day of December, 1996 between LESTER
M. ENTIN ASSOCIATES, a New Jersey partnership, 1033 Clifton Avenue, P.O. Box
2189, Clifton, New Jersey 07015 (hereinafter referred to as "Landlord") and CAM
ENTERPRISES, INC., a corporation of the State of New Jersey, having its
principal place of business at 101 Pompton Avenue, Cedar Grove, New Jersey 07009
(hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, by Lease dated on or about December 17, 1991 (the "Lease"),
Landlord demised unto Tenant certain premises in the Kinnelon Mall, Kinnelon
Road, Borough of Kinnelon, Morris County, New Jersey (the "Premises");
WHEREAS, Landlord and Tenant are mutually desirous of amending the
Lease as hereinafter provided; and
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions contained herein, and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, and in further
consideration of the respective benefits to be derived by the parties hereto,
said parties covenant and agree as follows:
1. On or before December 31, 1996, Landlord shall pay to Tenant an agreed
upon sum of One Hundred Thousand and 00/100 ($100,000.00) Dollars, as full
reimbursement to Tenant of its claims for overpaid rent and common area charges
through the date hereof.
2. Effective January 1, 1997, the Premises shall be deemed to consist of
an agreed upon 23,050 square feet.
3. Effective January 1, 1997, the Proportionate Share shall be deemed to
be 22.68%. In the event the rentable square footage of the Center is expanded or
reduced during the Term of the Lease, the Proportionate Share shall be
proportionately adjusted and Tenant's agreed upon share of Operating Costs shall
also be proportionately adjusted.
4. Schedule D of the Lease, as referenced in Section 2 of the Lease, is
hereby amended so that in each year of the remainder of the original Term,
commencing with the Basic Rent payment due on January 1, 1997, (i) the Annual
Basic Rent shall be reduced by Twenty-Seven Thousand and 00/100 ($27,000.00)
Dollars, or Two Thousand Two Hundred Fifty and 00/100 ($2,250.00) Dollars per
month, and (ii) the Percentage Rent Base Amount shall be the quotient of the
Annual Basic Rent, as hereby reduced, divided by .09.
5. Commencing January 1, 1996, Sub-Section 4(a) of the Lease shall be
deleted in its entirety and the following shall be inserted in its place and
stead:
Tenant shall pay as Additional Rent, and as its agreed upon share of
Landlord's cost to operate the common areas of the Center ("Operating Costs")
(irrespective of the actual amount of Operating Costs incurred by Landlord), an
agreed upon amount equal to Ninety-Two Thousand Two Hundred and 00/100 ($92,200)
Dollars per year (i.e., $4.00 per square foot) (the "Operating Costs Charge").
The Operating Costs Charge shall be paid in advance, in one-twelfth (1/12th)
installments, on the first day of each month. Commencing on January 1, 1998 and
on each January 1 thereafter during the Term of this Lease, the Operating Costs
Charge shall be increased by Two Thousand Seven Hundred Sixty-Six and 00/100
($2,766.00) Dollars each year, payable in equal monthly installments of Two
Hundred Thirty and 50/100 ($230.50) Dollars per month, payable on the first day
of each month. Tenant hereby acknowledges and agrees that the actual amount of
Operating Costs incurred by Landlord is of no relevance to Tenant or this Lease,
and that Tenant shall have no right to audit, inspect or otherwise review
Landlord's books and records pertaining to Operating Costs.
6. Commencing January 1, 1997, Section 8 of the Lease shall be deleted in
its entirety and the following shall be inserted in its place and stead:
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"It is hereby expressly agreed that Landlord's obligations with
respect to the common areas shall specifically include, as part of
Operating Costs, the costs incurred by Landlord in policing the common
areas and in keeping the common areas in clean and orderly condition, all
as is required in the normal operation of a shopping center; however, in
the event Tenant breaches any of its Lease obligations, such as, by way of
example and not limitation only, the restricted seating time periods set
forth in Subsection 13(a) or required operation of the Premises with due
regard for the maintenance of security, traffic control, crowd control and
cleanliness of the common areas of the Center as set forth in Subsection
13(h), then, if any such breach by Tenant increases Landlord's obligations
for the common areas above the requirements customarily associated with
the normal operation of a shopping center, Tenant shall pay, as Additional
Rent and in addition to the Operating Costs Charge payable by Tenant
pursuant to Subsection 4(a) of this Lease, one hundred (100%) percent of
any and all such excess costs and expenses so incurred by Landlord.
Nothing herein shall be deemed to limit Landlord's other rights and
remedies hereunder, at law, in equity or otherwise relating to such breach
by Tenant."
7. Commencing January 1, 1996, Subsection 17(c) of the Lease shall be
deleted in its entirety and the following shall be inserted in its place and
stead:
"Tenant shall pay directly to the applicable utility providers, for
and under Tenant's own account, all costs for electricity, water, gas and
other utilities consumed by Tenant; standby sprinkler charges; the cost of
any and all repairs to the sprinkler system; and costs for the removal of
Tenant's trash notless than three (3) times per week (or, if
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Tenant compacts its trash, one (1) time per week). In the event Tenant
fails or refuses to contract for such regular removal of trash and the
trash is removed, then Landlord may, but shall not be obligated to,
arrange for trash removal service on Tenant's behalf and at Tenant's cost,
which shall be deemed Additional Rent, in addition to Landlord's other
rights and remedies hereunder, at law, in equity or otherwise relating to
such failure or refusal by Tenant."
8. The second paragraph of Section 29 is hereby amended in the fifth line
thereof, to add the phrase ", lease, possession and occupancy of the Premises"
after the word "tenancy".
9. Landlord and Tenant each hereby acknowledges, confirms and agrees, as
of the date hereof, that: (i) the Premises have been accepted by each party as
being in full compliance with all of the terms and conditions of the Lease; (ii)
each party has completed the alterations to the Premises and the Center as
required by the terms of the Lease to the complete satisfaction of the other
party; (iii) the Lease is in full force and effect and is a binding obligation
of Landlord and Tenant; (iv) to the actual knowledge of each party, there are no
existing or claimed defaults on the part of the other party; (v) there are no
existing or claimed conditions that, with the passage of time or notice, would
constitute a default on the part of the other party; and (vi) the Lease has not
been amended, modified or supplemented, except for this First Amendment.
10. Landlord and Tenant do hereby agree that they release and forever
remiss any claims relating to Basic Rent, Additional Rent (including Operating
Costs and real estate taxes), or construction costs that it may have against the
other for any period prior to the date hereof.
11. Landlord and Tenant do hereby indemnify and agree to hold the other
harmless for claims made by any workmen, suppliers, or contractors for
alterations and/or improvements at the Premises. It is the intent of Landlord
and Tenant that each
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shall be responsible for payment to any contractors, workmen and suppliers which
it engaged to perform alterations and improvements at the Premises.
12. Landlord and Tenant agree that this First Amendment has been fully and
completely negotiated by the parties, each of whom has been represented by legal
counsel. Landlord and Tenant further agree that in the event of a dispute in
respect of all or any part of this First Amendment or the Lease, no inference
shall be drawn against Landlord by virtue of Landlord's having drawn such
documents, regardless of any ambiguity or the susceptibility of any provision to
dual interpretation.
13. Terms not otherwise defined herein shall have the same meaning as set
forth in the Lease. In the event of a conflict between the terms of the Lease
and the terms of this First Amendment, the latter shall prevail and govern the
resolution of such conflict.
14. The provisions of this First Amendment, or any of same, shall not
become effective unless and until this First Amendment is fully-executed and
delivered by the parties hereto, whereupon the Lease shall remain in full force
and effect, as modified by this First Amendment, and whereupon the Lease and
this First Amendment shall collectively be referred to as the "Lease".
15. Tenant covenants and agrees to keep the terms and conditions of this
First Amendment absolutely confidential, and Tenant hereby agrees to indemnify
and hold harmless Landlord against any loss, cost, damage or expense that
Landlord may incur as a result of the violation by Tenant of its covenant and
agreement in this Paragraph 15.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment
to Lease as of the day and year first above written.
WITNESS: LESTER M. ENTIN ASSOCIATES, Landlord
By: /s/ Joseph Waters
- --------------------------- -------------------------------
Joseph Waters, Partner
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ATTEST: CJM ENTERPRISES, INC., Tenant
By: /s/Jesse Sayegh
- -------------------------- ------------------------------
Name:
Title: President
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