Exhibit 10.05
ASSIGNMENT, ASSUMPTION, CONSENT TO ASSIGNMENT
AND AMENDMENT OF LEASE
This Assignment, Assumption of Assignment and Consent to Assignment
of Lease is made this 12th day of December, 1997 between JESSE SAYEGH, and
individual residing at 25 Kinnelon Road, Kinnelon, New Jersey 07405 (hereinafter
referred to as the "Assignor"), and CCC MIDDLEBROOK CINEMA CORP., a Delaware
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 collectively referred to as the
"Assignee"), Clearview Cinema Group, Inc., a Delaware corporation with offices
at 7 Waverly Place, Madison, New Jersey (hereinafter referred to as
"Guarantor"), Westwood Oaks Inc., hereinafter referred to as the ("Landlord")
and Westwood Oaks Associates, a New Jersey partnership (hereinafter referred to
as "Fee Owner").
WITNESSETH:
WHEREAS, Assignor entered into a Lease with WESTWOOD OAKS, INC.,
dated September 28, 1993, together with Rider to Lease, a true copy is annexed
hereto (hereinafter, collectively, referred to as "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, WESTWOOD OAKS, INC., as Landlord and Westwood Oaks
Associates as Fee Owner, hereby consent to assignment of the Lease Agreement to
the Assignee on the terms and conditions hereinafter set forth;
WHEREAS, the Tenant, the Assignee, the Guarantor, the Landlord, and
the Fee Owner, wish to amend the Lease as set forth herein;
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 Assumption 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.
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4. Thus Assignment and Assumption of Assignment of Lease shall be
binding upon the parties hereto and their respective heirs, successors and
assigns.
5. This Assignment and Assumption of Assignment of Lease shall not
be modified or amended without the without the written consent of the parties
hereto and the Landlord.
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 payment of rent and the performance of all tenant obligations set
forth in the aforesaid Lease Agreement.
7. Any further assignment shall require the consent of Landlord.
8. Article Default Provisions of the Lease is hereby amended by
adding the following language at the end of Section 20.1;
"In the event the Assignee ceases or fails to operate the movie
theater for more than three consecutive months (not less than ninety
(90) days for any reason within the control of the Assignee such
cessation of operations shall be considered an additional element of
default, entitling Landlord to the immediate recapture of the
Premises, at Landlord's option, to other remedies at law or in
equity as provided by the Lease Agreement. Excluded from such
default shall be those events beyond the control of the Assignee
including, but not limited to an act of God, a natural disaster, a
fire not the Assignees fault, or the like. Also excluded from this
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"go dark" default provision is any shut down of the theater approved
by the Landlord or Fee Owner including but not limited to making
repairs, construction, reconstruction, rebuilding, refurbishing,
expanding, alterations or any closing or shut down caused by the
Landlord or Fee Owner or their respective agents, servants or
employees.
9. As an additional inducement to obtain the consent of the Landlord
and the Fee Owner to the proposed Assignment, the Assignor will post the sum of
FORTY THREE THOUSAND NINE HUNDRED SEVENTY SEVEN DOLLARS AND 00/100 ($43,977.00)
being two months rent to be held as additional security for the full and
faithful performance of tenants obligations under the Lease by the Assignee.
This security will be held by the Landlord. Notwithstanding the fact that the
personal liability of Jesse Y. Sayegh under the Lease will expire October 1,
1999, Sayegh hereby agrees that the Landlord can continue to hold this
additional security for a period of five (5) years from the date of the
Assignment to CCC Middlebrook Cinema Corp. at which time the entire principal
amount, without interest, will then be returned to Jesse Y. Sayegh. The
provisions of this additional security deposit are in addition to the one months
rent presently being held as security in accord with Section 3.3 of the Lease,
without interest, and the provisions of the Lease respecting the same shall not
be effected
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by Jesse Y. Sayegh's undertaking as stated herein except to confirm that any use
or application of any security deposit held by Landlord will first exhaust the
fund held under Section 3.3 of the Lease which is being assigned by the Assignor
and become the property of the Assignee, before the Landlord uses or applies the
additional security deposit posted with the execution of this Assignment,
Assumption, Consent and Amendment to the Lease.
10. Upon execution hereof, Landlord's attorney shall receive
reimbursement of all of its costs and expenses in reviewing this Assignment and
all other documents related to the Assignment of the Lease Agreement in the
amount of $2,500.00.
11. Landlord will use its best efforts to notify Provident Bank,
agent, Cincinnati, Ohio, of any default under the Lease Agreement.
[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: JESSE SAYEGH, Assignor
By: /s/ Jesse Y. Sayegh
- ------------------------ ---------------------------
JESSE SAYEGH
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 purposes therein expressed.
/s/ Deborah York Sheriden
----------------------------
Notary Public
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ATTEST: CCC Middlebrook 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 Middlebrook 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 Middlebrook 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
- ------------------------ -------------------------
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 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 AND AMENDMENT
Westwood Oaks, Inc. and Westwood Oaks Associates hereby consent
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, that Clearview Cinema Group, Inc. guarantee
the payment of rents in accord with paragraph #6 of the Assignment,
Assumption, Consent to Agreement and Amendment to Lease to which this Consent
is attached, and that no further assignment or sub-lease of any part of the
demised premises shall be made without the prior written consent of the
undersigned Landlord.
WITNESS: Landlord: Westwood Oaks Inc.
/s/ Elizabeth D. Kass By: /s/ Leonard A. Wilf
- ------------------------ ---------------------------
Leonard A. Wilf, President
STATE OF NEW JERSEY )
)
COUNTY OF ESSEX )
I CERTIFY that on December 11, 1997 Leonard A. Wilf personally came before
me and this person acknowledged under oath to my satisfaction, that;
(a) this person signed and delivered the attached document as the act of
Westwood Oaks 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 Westwood Oaks Inc.
/s/ Carl D. Silverman
-----------------------------------
Carl D. Silverman, an Attorney at
Law of the State of New Jersey
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WITNESS: Fee Owner: Westwood Oaks Associates
a New Jersey Partnership
/s/ Elizabeth D. Kass By: /s/ Leonard A. Wilf
- ------------------------ -------------------------
Leonard A. Wilf, Partner
STATE OF NEW JERSEY )
) SS:
COUNTY OF ESSEX )
On this 11th day of December, 1997, before me, the subscriber, personally
appeared Leonard A. Wilf, partner of Westwood Oaks Associates, a New Jersey
Partnership, who I am satisfied is the person named in and who executed the
within instrument and thereupon acknowledged that he signed, sealed and
delivered the same as his act and deed for the purposes therein expressed.
/s/ Carl D. Silverman
-----------------------------------
Carl D. Silverman, an attorney at
Law of the State of New Jersey
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L E A S E
This Lease made and entered into as of this 28 day of Sept. 1993,
B E T W E E N : WESTWOOD OAKS, INC.
816 Deal Road at Highway 35
Ocean, New Jersey 07712
(hereinafter referred to as "Landlord")
A N D : JESSE Y. SAYEGH
25 Kinnelon Road Kinnelon, New Jersey 07405 (hereinafter
referred to as "Tenant").
W I T N E S S E T H :
ARTICLE I
PREMISES
SECTION 1.1 Landlord hereby demises and leases to Tenant, and Tenant takes
and hires from Landlord, the premises consisting of the building and
improvements now or hereafter located therein (hereinafter called the "Demised
Premises") together with all easements, appurtenances, rights and privileges now
or hereafter belonging or appurtenant thereto. The Demised Premises contains
approximately 29,318 square feet of ground floor area (measured from and to the
exterior of exterior walls and from and to the center of partition walls). The
precise square footage will be determined by Architect Certification prior to
the delivery date. The Demised Premises are located in a building thereinafter
called the "'Building") in a Shopping Center on land located on Highway 35,
Ocean Township, Monmouth County, New Jersey (the land, the Building and all
other buildings and improvements comprising such Shopping Center being
hereinafter called collectively the "Shopping Center").
SECTION 1.2 Landlord hereby grants to Tenant the right, for itself and its
agents, servants, employees, customers, licensees and invitees, to use, in
common with other tenants of the Shopping Center, the Common Areas as provided
in Article IV of this Lease.
SECTION 1.3 The parties agree that the Demised Premises shall be
constructed and improved in accordance with the provisions of Rider LC annexed
hereto and incorporated herein.
ARTICLE II
TERM AND RENEWALS
SECTION 2.1 The terms of this Lease shall consist of a short term and a
full term. The short term shall commence on the Date of Delivery of Possession
and shall expire at 11:59 p.m. on the day before the Lease Commencement Date as
defined in Station 2.2. The full tern shall commence on the Lease Commencement
Date and shall expire at 11:59 p.m. on the date which is five (5) years after
the day before the Lease Commencement Date, subject to extension pursuant to
Section 2.5. Such expiration date, as and if extended, is sometimes referred to
in this Lease as the "Expiration Date". References herein to the "terms of the
Lease" shall include both the short term and the full term.
SECTION 2.2 The Lease Commencement Date shall be the date (notwithstanding
any earlier possession of the Demised Premises by
the Tenant for purposes of construction, installation of improvements, fixturing
or preparation) which is the earlier of:
(a) the date which is one hundred and twenty (120) days after the Date of
Delivery of Possession, or when Tenant opens for Business, whichever comes
first, during which period Tenant shall be permitted to enter the Demised
Premises for the purpose of fixturing and stocking and otherwise preparing the
Demised Premises for Tenanted occupancy; or
(b) the date on which Tenant opens to the public for business at the
Demised Premises.
SECTION 2.3 The parties hereto shall, at the request of either of them
after the Lease Commencement Date has occurred, execute an instrument stating
the Lease Commencement Date and the commencement date of each of the Renewal
Periods (as defined in Section 2.5).
SECTION 2.4 The expression "Lease Year" as used in this Lease, shall have
the following meaning. The first Lease Year shall commence upon the Lease
Commencement Date and continue for the fractional month, if any in which the
Lease Commencement Date occurs and for twelve (12) calendar months thereafter.
Each twelve (12) month period after the first Lease Year shall constitute a
Lease Year.
SECTION 2.5 Tenant shall have, and is hereby granted, five (5) successive
separate options to renew and extend the term of this Lease from the date or
dates upon which it would otherwise expire, for five (5) separate successive
renewal periods, which shall be for periods of five (5) years each (each such
period being hereinbefore and hereinafter called a "Renewal Period"). Each such
Renewal Period shall follow consecutively upon the expiration of the initial
term as hereinabove provided or upon the expiration of any prior Renewal Period,
as the case may be, and each such Renewal Period shall, upon commencement
thereof, be deemed included in references to "the term of this Lease" and "the
full term of this Lease". Tenant's said option with respect to each Renewal
Period shall be exercised by Tenant by giving written notice to Landlord of
Tenant's exercise of same not earlier than fifteen (15) months and not later
than twelve (12) months prior to the expiration date of the initial term or the
then current Renewal Period, as the case may be. Time is of the essence with
respect to such notices, and failure of Tenant to give any such notice at least
twelve (12) months prior to the commencement of a Renewal Period shall
constitute a binding and conclusive waiver of Tenant's options with respect to
such Renewal Period and all Renewal periods thereafter. No option shall be
deemed validly exercised unless: (i) the option affecting the preceding Renewal
Period shall have been validly exercised; and (ii) Tenant shall not be in
default at the Lime of the exercise of the renewal option and commencement of
the Renewal Period. If Tenant elects to exercise any one or more of said
options, the full term of this Lease shall be automatically extended for the
Renewal Period or Periods covered by the option or options so exercised without
execution of an extension or renewal lease. Each Renewal Period shall be on all
of the same terms and conditions as are in effect hereunder immediately
preceding the commencement date of such Renewal Period, except that the Basic
Annual Rent during the Renewal Periods shall be as provided in Section 3.1.
Tenant shall have no further right or option to renew after expiration of the
final Renewal Period.
ARTICLE III
ANNUAL RENT
SECTION 3.1 Commencing on the Lease Commencement Date, and during the full
term of this Lease, on the first day of each calendar month, Tenant shall pay to
Landlord basic annual rent ("Basic Annual Rent") as follows:
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(a) During the initial term (as defined in Section 2.1), at the rate per
annum determined by multiplying the floor area (the "Floor Area") of the Demised
Premises (measured as provided in Section 1.1) by nine ($9.00) Dollars per
square foot.
(b) During the first Renewal Period, at the rate per annum determined by
multiplying the said Floor Area by ten ($10.00) Dollars per square foot.
(c) During the second Renewal Period, at the rate per annum determined by
multiplying the said Floor Area by eleven ($11.00) Dollars per square foot.
(d) During the third Renewal Period, at the rate per annum determined by
multiplying the said Floor Area by twelve ($12.00) Dollars per square foot.
(e) During the fourth Renewal Period, at the rate per annum determined by
multiplying the said Floor Area by thirteen ($13.00) Dollars per square foot.
(f) During the fifth Renewal Period, at the rate per annum determined by
multiplying the said Floor Area by fourteen ($14.00) Dollars per square foot.
(g) Notwithstanding anything to the contrary contained herein, in the
event that payment of rent is not received by Landlord within five (5) business
days of the due date, then Tenant shall pay, as additional rent, a sum equal to
five (5) percent of the late payment. Landlord shall be entitled to the same
remedies for non-payment of additional rent as for non-payment of rent.
(h) In the event that the Lease Commencement Date shall fall on a date
other than the first day of a calendar month, then, on the Lease Commencement
Date, Tenant shall pay the pro-rata share of rent for the balance of the month.
SECTION 3.2 Tenant shall pay, as additional rent, a Sun' equal to four
(4%) percent of the net yearly sales in excess of ten (10) times bole then
current rental amount. The Tenant shall provide proof of net yearly sales at the
time that payment is due. Landlord shall be entitled to the same remedies for
non-payment of percentage rent as for non-payment of rent. In no event shall the
percentage rent increase to more than two ($2.00) dollars per square foot.
SECTION 3.2 (a) Except where otherwise stated, it is the intention of the
parties that the Basic Annual Rent payable hereunder shall be net to Landlord so
that Landlord shall have no costs or expenses with respect to the Demised
Premises during the full term of the Lease, so that this Lease shall yield to
Landlord, net, the Basic Annual Rent specified herein during the full term of
this Lease and so that all costs, expenses and obligations of every kind and
nature whatsoever relating to the Demised Premises, as well as Tenant's
proportionate share of Taxes and Common Area Costs (hereinafter defined)
relating to the Shopping Center shall be paid by Tenant commencing on the Lease
Commencement Date.
(b) No abatement, diminution or reduction of the Basic Annual Rent, or any
additional rent or other charges required to be paid by Tenant pursuant to the
terms of this Lease shall be claimed by or allowed to Tenant for any
inconvenience, interruption, or otherwise, caused directly or indirectly by any
present or future laws, ordinances, orders, rules, priorities, rationing or
curtailment of labor or materials, or by war, civil commotion, strikes or riots,
or any other matter or thing resulting therefrom, or by any other cause or
causes beyond the control of Landlord, including, without limitation, casualty
to the Demised Premises, nor shall this lease in any way be affected by any such
causes
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except as hereinafter expressly provided, subject to tenant's right to subrogate
to landlord's rights.
SECTION 3.3 Upon execution of this Lease, Tenant shall provide Landlord
with a sum equal to one (1) month rent as security for the payment of rent
hereunder and the full and faithful performance by the Tenant of the covenants
and conditions on the part of the Tenant to be performed. Said sum shall be
returned to the Tenant, without interest, after the expiration of the term
hereof, provided that the Tenant has fully and faithfully performed all such
covenants and conditions and is not in arrears in rent. During the term hereof,
the Landlord may, if the Landlord so elects, have recourse to such security, to
make good any default by the Tenant, in which event the Tenant shall, on demand,
promptly restore said security to its original amount. The Landlord shall assign
or transfer said security, for the benefit of the Tenant, to any subsequent
owner or holder of the title to said premises, in which case the assignee shall
become liable for the repayment thereof as herein provided, and the assignor
shall be deemed released by the Tenant from all liability to return such
security. This provision shall be applicable to every alienation or change in
title and shall in no wise be deemed to permit the Landlord to retain the
security after termination of the Landlord's title. The Tenant shall not
mortgage, encumber or assign said security without the written consent of the
Landlord.
ARTICLE IV
COMMON AREAS
SECTION 4.1 (a) The Demised Premises are demised together with the right
for the Tenant, its agents, servants, employees, invitees, licensees and all
persons having business with it or claiming under it, and all persons employed
in or having business with the Demised Premises, in connection with their
business in the Shopping Center and their respective agents, servants,
employees, customers, invitees and licensees, the common areas of the Shopping
Center (hereinafter called the "Common Areas") consisting of: (a) the parking
areas, roadways, driveways, the entrances on foot, and landscaped areas and
malls; and (b) all other areas and facilities now or hereafter at the Shopping
Center and intended for common use.
(b) Except as provided in Section 4.3, and unless required by law,
Landlord shall not make or impose on Tenant or any other occupants of the
Demised Premises, or on any agents, servants, employees, customers, invitees or
licensees of Tenant or such other occupants, or on any persons doing business
with the Demised Premises or the Shopping Center, any fee or charge for the use
of the Common Areas or of any additions to the Common Areas.
(c) Landlord covenants and agrees that throughout the term hereof at its
expense, subject to Section 4.3:
(i) it will keep and maintain in good and usable order and condition,
and make all necessary repairs and replacements to the Common Areas
and any additions thereto, including, without limitation, the paving
of the parking areas (including striping), roadways, walks, and
driveways in the Shopping Center, landscaping and the lighting and
drainage systems of the Shopping Center;
(ii) it will keep all of the Common Areas properly drained and reasonably
free of snow, ice, refuse and obstructions;
(iii) it will keep the parking areas, roadways, walks and driveways within
the Shopping Center lighted during the regular business hours of the
Shopping Center and all the hours when the Demised Premises shall be
open for business, and for a reasonable time thereafter; and
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(iv) it will provide adequate security guards and services for the
Shopping Center as determined to be necessary in Landlord's
reasonable judgment.
SECTION 4.2 The layout of, and striping and lighting in, the portion of
the parking area designated as a "No Change Area" shall not be chanted without
Tenant's consent, which shall not be unreasonably withheld. The "No Change Area"
shall be determined by creating imaginary lines brought forward from the side
walls of the Demised Premises and extended directly in front of the Demised
Premises a distance of one hundred (100) feet. It is understood and agreed that
Landlord may change the number, dimensions and locations of the walks,
buildings, parking areas and other facilities as Landlord shall deem proper or
eliminate or add to buildings.
SECTION 4.3 (a) Tenant agrees that for each year of the initial term and
any renewal terms of this Lease, Tenant shall reimburse to Landlord Tenant's
proportionate share of Common Area Costs as hereinafter defined: Tenant's
proportionate share shall be equal to a fraction, the numerator of which shall
be the ground floor area of the Demised Premises, and the denominator of which
shall be the total gross leasable ground floor area of all buildings in the
Shopping Center. The said fraction shall be determined as of the commencement of
each lease year during the term hereof, and shall be modified from time to time
during a lease year in the event of a change in the floor area includible in the
numerator or denominator. The term "Common Area Costs" shall, except as provided
in Paragraph (b) of this Section, mean: (i) the total annual costs and expenses
incurred by Landlord in operating and maintaining the Common Areas, including,
but not limited to: costs of gardening and landscaping; costs of insurance
premiums, including, but not limited to, general comprehensive liability
insurance (including, without limitation, umbrella coverage), automobile
insurance, fire and casualty insurance, rent insurance, sign insurance and any
other insurance carried by Landlord with respect to the Common Areas or Shopping
Center; costs of repair, painting, maintenance, resurfacing and restriping of
the parking area; costs of repair, painting, maintenance and replacement and
rental of signs and sign equipment; costs of repair, painting, maintenance and
replacement of all walls, roofs, ceilings and plate glass doors and windows, if
any, which are not part of the demised premises of any other tenant at the
Shopping Center; costs of replacement of equipment servicing the Common Areas;
costs of repair, maintenance and replacement of lighting (including traffic
lights, if any) and sanitary control facilities; costs of removal or relocation
of snow, ice, trash, rubbish, garbage and other refuse, costs of utilities, such
as, electricity an eater for the Common Areas only; depreciation of the capital
cost of any machinery, equipment (including on-site sewerage facilities and
lighting, but excluding any of said items whose acquisition cost was included by
Landlord in Common Area Costs billed to Tenant) and vehicles used solely in
connection with the operation and maintenance of the Common Areas, such
depreciation to be determined by using the straight-line method of depreciation
and the normal useful lives of the machinery and equipment in question,
provided, however, that any sales proceeds from the sale of such machinery
and/or equipment shall be applied to reduce Common Area Costs); costs of repair,
maintenance and replacement of on-site sewerage facilities, utility lines,
sanitary and storm sewer lines and culverts and drainage facilities; costs of
sanitary sewer hook-up; (ii) costs of performing Landlord's obligations herein;
security costs and costs of traffic control and policing; the cost of personnel,
including management services engaged to manage the Shopping Center, but
excluding any such services to the extent applicable to other premises owned or
operated by Landlord; costs of holiday and other decorations; plus (iii) costs
of performing repairs and replacements to the roofs and structures of all
buildings included in the Shopping Center; plus (iv) fifteen (15) percent of the
foregoing as overhead expenses. Common Area Costs
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shall also include any amounts specifically designated for inclusion therein
elsewhere in this Lease. Notwithstanding the foregoing provisions hereof,
Landlord shall have the right, at its option, to bill Tenant annually for costs
of insurance premiums, in which event there shall be excluded from the monthly
payments to be paid by Tenant as aforesaid, any amount allocable or attributable
to such insurance premium costs, and Tenant shall pay the amount due within ten
(10) days after billing.
(b) Notwithstanding the provisions of Paragraph (a) of this Section 4.3:
(i) In the event that more than an aggregate of one-third (1/3) of
the parking area included in the Common Areas shall be resurfaced
in any lease year, the cost of resurfacing in excess of one-third
(1/3) of the said parking area shall, for purposes of determining
Common Area Costs, be deemed amortized on a straight-line basis,
over a period of ten (10) years, and only the amount of such cost
so allocated to each lease year remaining in the term of this
lease during such ten (10) year amortization period shall be
included in Common Area Costs;
(ii) In the event of any resurfacing (as opposed to repairs) of the
roof of Demised Premises, the Building or any other building at
the Shopping Center, which resurfacing occurs during the initial
term of this Lease, all costs in connection therewith shall be
excluded from Common Area Costs. If however, there shall be any
such roof resurfacing after the expiration of the initial term,
and Tenant chooses to extend the term of this Lease, the cost of
such resurfacing shall, for purposes of determining Common Area
Costs, be deemed amortized on a straight-line basis over a period
of ten (10) years, and only the amount of such cost so allocated
to each lease year remaining n the term of this Lease during such
ten (10) year amortization period shall be included in Common
Area Costs.
(iii) Any expenditures by Landlord for replacement of equipment servicing
the Common Areas shall, for purposes of determining Common Area
Costs, be deemed amortized n a straight-line basis over the normal
useful life of such equipment, and only the amount of such
expenditures so allocated to each lease year remaining in the term
of this Lease during such useful life shall be included in Common
Area Costs;
(iv) Any costs incurred by Landlord in connection with the replacement
of supports or stanchions for lighting or traffic lights, or the
replacement of sewerage facilities, utility lines, sanitary and
storm sewer lines and culverts and drainage facilities shall, for
purposes of determining Common Area Costs be deemed amortized on
a straight-line basis over a ten (10) year period, and only the
amount of such costs so allocated to each lease year remaining in
the term of this Lease during such ten (10) year amortization
period shall be included in Common Area Costs.
If, notwithstanding the allocation of certain Common Area Costs, pursuant to
this Paragraph, Landlord shall have paid such Costs on a more accelerated basis
than is provided in this Paragraph, there shall be included in Common Area Costs
interest at the Lease Interest Rate on the declining principal balance of the
amount so expended by Landlord, from the date of such expenditure by Landlord.
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(c) Tenant shall pay its proportionate share of Common Area Costs in equal
monthly installments of the first day of each month during the term of this
Lease, together with payments of Basic Annual Rent. The amount of each monthly
installment shall be equal to one-twelfth (1/12th) of the Common Area Costs
incurred by Landlord during the preceding calendar year, plus an annual increase
therein. It is agreed that the monthly payment to be made by Tenant during the
first Lease Year of the term hereof shall be in the sum of $1,860.00 per month.
There will be a five (5%) percent cap, on CAM charges annual increase after
first year, exclusive of insurance payments. Within sixty (60) days after the
expiration of each Lease year, or (at Landlord's election) calendar year,
Landlord shall deliver to Tenant a bill showing the actual Common Area Costs
incurred and paid by Landlord during the preceding Lease year or calendar year.
If the bill furnished by Landlord discloses that the Proportionate Share of
Common Area charges paid by Tenant for such Lease Year or calendar year is less
than Tenant's Proportionate Share of actual Common Area Costs for such Lease
Year or calendar year, Tenant shall pay the difference on the first day of the
month next following the date that Landlord shall deliver to Tenant the bill
showing such actual Common Area Costs and Tenant's Proportionate Share thereof,
and, thereafter, until the expiration of the then current Lease Year or calendar
year, Tenant's monthly payments for Common Area Costs shall be equal to
one-twelfth (1/12th) of the amount set forth in the said bill from Landlord. If
the bill from Landlord shall disclose that Tenant's Proportionate Share of
Common Area Costs is greater than Tenant's Proportionate Share of actual Common
Area Costs for such Lease Year or calendar year, the excess shall immediately be
credited against Tenant's Proportionate Share of Common Area Costs in the next
succeeding months of the then current Lease Year or calendar year until such
credit is exhausted; provided, however, that with respect to the last Lease year
of the term of this Lease, Landlord shall promptly refund any excess payment
made by Tenant as soon as same is determined. The bill to be submitted by
Landlord to Tenant shall be a detailed statement showing the computation upon
which Tenant's Proportionate Share of Common Area Costs is based. Tenant shall
have the right, within twelve (12) months after the expiration of each Lease
year or calendar year to audit all of Landlord's records with respect to said
costs for such Lease year or calendar year, which records shall consist of
reasonable and accurate evidence of said costs, and shall be made available for
such audit at the address to which payments of Basic Annual Rent are sent.
Tenant's obligation to pay its Proportionate Share of Common Area Costs shall
survive the Expiration Date.
ARTICLE V
REAL ESTATE TAXES
SECTION 5.1 (a) For each Lease Year during the full term of this Lease,
Tenant shall pay Tenant's Proportionate Share of Taxes. "Taxes" shall be deemed
to mean all Municipal, County, and School taxes, and any and all other real
estate taxes, assessments and other governmental levies and charges, general and
special, ordinary and extraordinary, unforeseen as well as foreseen of any kind
and nature whatsoever, which are assessed, levied, confirmed, imposed or become
due and payable out of or for, or become a lien upon, the Shopping Center, or
any part thereof, during the term of this Lease, and also interest on
installment payments and all costs and fees (including reasonable attorneys'
fees) incurred by Landlord in contesting tax assessments and/or negotiating with
the public authorities as to the same. If at any time during the term of this
Lease, under the laws of the State or any political subdivision thereof in which
the Demised Premises are situated, a tax or excise on, or measured in whole or
in part by, rents or gross receipts or other tax, however characterized, is
levied or assessed by said State or political subdivision against the Landlord
or the Basic Annual Rent or additional rent expressly reserved hereunder, in
addition to or as a substitute in whole or
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in part for taxes assessed or imposed by said State or political subdivision on
land and/or buildings, the Tenant covenants to pay such tax or excise n rents or
gross receipts or other tax but only to the extent of the amount thereof which
is lawfully assessed or imposed upon Landlord and which was so assessed or
imposed as a direct result of Landlord's ownership of the Demised Premises, or
of this Lease or of the rentals accruing under this Lease. Any such additional
or substitute tax shall, for purposes of this Section 5.1, be calculated and
determined as if the Shopping Center were the only property owned or leased by
Landlord and as if the rents or gross receipts therefrom were Landlord's only
income. The current real estate taxes are approximately $1.12 per square foot,
subject to change.
Income taxes, net or gross, are not intended to be passed through to the Tenant.
(b) Tenant's Proportionate Share of Taxes shall be a fraction the
numerator of which shall be the ground floor area of the Demised Premises and
the denominator of which shall be the total gross leasable ground floor area of
all buildings in the Shopping Center. The floor area of the Demised Premises and
the Shopping Center shall be determined as of the date upon which value is to be
determined, under applicable statutes, ordinances, rules or regulations, for
purposes of assessing, levying or imposing the Taxes.
SECTION 5.2 (a) Within fifteen (15) days after the Lease Commencement
Date, Tenant shall pay to Landlord Tenant's Proportionate Share of the Taxes
theretofore prepaid, or then currently payable, by Landlord for the period
commencing on the Lease Commencement Date and continuing to and including the
day preceding the due date of the next ensuing payment of Taxes. On the next
ensuing due date for the payment of Taxes, the Tenant will pay to Landlord,
Tenant's Proportionate Share of the installment then due. Contemporaneously,
with the payment of such installment, the 1/12 monthly installments of Taxes
pursuant to Paragraph (b) of this Section shall commence and thereafter Tenant's
payments of Taxes shall be made in accordance with such Paragraph (b).
(b) Tenant shall pay its Proportionate Share of Taxes in monthly
installments on the first day of each month during the term hereof, together
with payments of Basic Annual Rent. Each such monthly installment shall be equal
to one-twelfth (1/12th) of Tenant's Proportionate Share of Taxes based upon the
most current bill for taxes then available to Landlord. Upon the receipt and
effective date of each new bill for Taxes, Tenant's said monthly payment of its
Proportionate Share of Taxes shall be appropriately adjusted. Within thirty (30)
days after the end of each Lease Year or (at Landlord's election) each calendar
year expiring during a Lease Year during the full terms of this Lease, Landlord
shall submit to Tenant the originals or photocopies of the receipted bills for
Taxes due such Lease Year or calendar year, together with a written statement
setting forth how Tenant's Proportionate Share was determined. If such bills
shall disclose that the monthly payments made by Tenant were, in the aggregate,
less than Tenant's Proportionate Share of Taxes for the period in question,
Tenant shall, together with payment of the next month's Basic Annual Rent, remit
to Landlord the excess amount due. If such bills should disclose that Tenant's
monthly payments were, in the aggregate, in excess of its Proportionate Share of
Taxes for the period in question, the amount of the excess shall be credited
against monthly payments of Tenant's Proportionate Share of Taxes thereafter
accruing until the amount of the credit has been exhausted, except that, with
respect to the final Lease Year of the term hereof, the amount of such excess
shall be promptly refunded by Landlord to Tenant upon determination of the
amount thereof. Tenant's obligation to pay its Proportionate Share of Taxes
shall survive the Expiration Date.
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SECTION 5.3 Nothing herein contained shall be construed to impose upon
Tenant an obligation to pay all or any part of any franchise, estate, transfer,
inheritance, succession or excess profits tax assessed against or imposed upon
Landlord or any partner or principal of Landlord, and nothing herein contained
shall be construed to impose upon Tenant an obligation to pay any part of any
other tax, assessment or charge assessed against Landlord or the Shopping
Center, its lands or upon the Demised Premises, except of the kind specified in
this Article. As well, nothing herein contained shall impose upon the Landlord
an obligation to pay any part of any tax, assessment or charge assessed against
and which is personal to the Tenant with respect to the operation of its
business in the Demised Premises.
SECTION 5.4 (a) Notwithstanding any other provision of this Article, if
there shall be levied, assessed or imposed upon Landlord, the Shopping Center or
the Demised Premises an assessment for public improvements or installations made
at governmental expense, Tenant's obligations with respect thereto shall be as
follows:
(i) Subject to (ii) and (iii) below, if such assessment is payable in
installments and if Tenant's Proportionate Share (determined
under Section 5.1 (b) of the full amount of such assessment
exceeds $10,000.00, Landlord shall be deemed to have elected to
pay such assessment in the maximum number of installments then
permitted by law (whether or not Landlord actually so elects),
and Tenant shall pay its said Proportionate Share of either the
installments payable during the term of this Lease if Landlord
elects to pay in installments or the installments which would
have been payable during the term of this Lease if Landlord has
so elected;
(ii) Subject to (iii) below, if such assessment is not, under then
applicable laws, payable in installments, or if the maximum
number of installments permitted by law shall be greater than ten
(10) annual installments, and if Tenant's said Proportionate
Share of the full amount of such assessment exceeds $10,000.00,
then Tenant shall be obligated to pay a portion of the assessment
equal to the product of Tenant's said Proportionate Share of the
full amount of the assessment multiplied by a fraction, the
denominator of which shall be ten (10) years and the numerator of
which shall be the lesser of: (1) ten (10) years, and (2) the
number of Lease Years remaining between the date the improvement
or installation work is completed and the Expiration Date;
(iii) If Tenant's said Proportionate Share of the full amount of the
assessment is $10,000.00 or less, Tenant shall pay such amount in
one payment.
(b) Landlord shall, promptly after receipt by it, deliver to Tenant copies
of all bills for assessments. Payments by Tenants pursuant to Paragraph (a)
hereof shall be made as follows:
(i) Payments under Paragraphs (a) (i) and (a) (ii) shall be made not
later than ten (10) days prior to the due date for payment of each
installment by Landlord; and
(ii) The amount payable under Paragraph (a) (iii) shall be paid not later
than ten (10) days prior to the due date for payment by Landlord of
the full assessment or the first installment thereof.
SECTION 5.5 (a) Tenant shall have the right to contest, at its own
expense, the validity or amount of any assessment of Taxes as defined in Section
5.1. Any proceeding which may be instituted shall be prosecuted with due
diligence and dispatch at Tenant's
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sole cost and expense. Payment of the Taxes being contested shall not be
deferred or omitted during the pending of such contest. Tenant shall indemnify
Landlord, and save Landlord harmless, from any and all liability, claim, cost or
expense, in connection with any such contest, including, but not limited to, any
increase in Taxes resulting from or arising out of such contest.
(b) If Landlord, Tenant or any other tenant at the Shopping Center shall
obtain a remission or refund of all or any part of the Taxes with respect to
which Tenant has paid its Proportionate Share pursuant to Section 5.1 or Section
5.4, Landlord shall promptly remit to Tenant Tenant's Proportionate Share of the
remission or refund, such Proportionate Share to be calculated after deduction
of actual reasonable costs and expenses incurred in obtaining such reemission or
refund.
SECTION 5.6 Tenant shall not be obligated or required to pay any part of
any Taxes or assessments levied, imposed or allocable to any period prior to the
Lease Commencement Date or subsequent to the Expiration Date. If, prior to the
expiration or to other termination of this Lease for reasons other than Tenant's
default, Tenant shall have made any payment pursuant to this Article and a
portion of such payment is allocable to a period of time subsequent to such
expiration or other termination, Landlord shall promptly refund to Tenant the
portion of such payment that is allocable to such period of time, it being
intend that in the event such expiration or other termination occurs in the
midst of a tax period, Tenant's responsibility of its Proportionate Share of
Taxes shall be prorated based upon the number of days of said tax period that
shall have elapsed up to the date of such expiration or other termination.
ARTICLE VI
SECTION 6.1 Landlord shall, at its expense, make available to the Demised
Premises all facilities (including pipes, conduits and cables ready for hookup)
for water, gas, electricity, sewerage and other utility for use in the Demised
Premises in accordance with the Plans. Tenant shall, at its expense install
separate meters for such utility services and arrange with the public utility
companies servicing the Shopping Center for providing services. Tenant shall pay
directly to the utility company or governmental agency or authority, and the
case may be, for water, gas, electricity and other public utilities supplied or
furnished to the Demised Premises from and after the Date of Delivery of
Possession and during the term of this Lease. Notwithstanding the foregoing, if
Tenant cannot obtain a separate water meter for the Demised Premises, Tenant
shall pay its equitable share of water charges (and sewer charges if based upon
water usage), such equitable share to be determined accordance with the relative
usage of water (and sewer) in the Demised Premises as compared with such usage
in other leased premises in the Shopping Center included on the same meter as
Demised Premises. The following Section is subject to Rider LC, attached hereto.
ARTICLE VII
LANDLORDS INSURANCE AND INDEMNITY
SECTION 7.1 During the term of this Lease Landlord shall maintain a policy
of general liability insurance with respect to injuries to property or person,
including death, sustained by any person or persons while within the Common
Areas, in a policy or policies in the amount of not less than $2,000,000.00 with
respect to injury or death to any one person or in any one accident or
occurrence, and in the amount of not less than replacement value with respect to
damage to property.
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SECTION 7.2 (a) From and after the Date of Delivery of Possession and
until the expiration or termination of the term of the lease, Landlord shall
keep the Shopping Center, including the Demised Premises, insured against damage
or destruction by fire or other casualties under standing extended coverage
endorsement as from time to time in effect, and against damage caused by
vandalism and malicious mischief. Said insurance shall be in amount at least
equal to the full replacement cost new, from time to time during the term of
this Lease, of the building and improvements in the Shopping Center.
(b) In addition to the insurance described in Section 7.1 and in Paragraph
(a) of this Section 7.2, Landlord may, at its option, obtain boiler and pressure
vessel insurance in such amount as Landlord may determine, sprinkler leakage and
sprinkler liability insurance, and such other insurance as Landlord may from
time to time determine is necessary with respect to the Shopping Center. The
premium cost for such insurance shall be included in Common Area Costs pursuant
to Section 4.3 of this Lease.
SECTION 7.3 Copies of Certificates evidencing the existence of the
foregoing insurance, shall be promptly delivered to Tenant upon Tenant's request
therefor. All such policies shall be issued by reputable and responsible
insurance companies authorized to do business in New Jersey.
SECTION 7.4 Tenant shall pay, as part of Common Area Costs, Tenant's share
of the premiums for the insurance provided by Landlord under Section 7.1 hereof.
If, however, as a result of the business or method or operation of Tenant, a
risk rating is ascribed to the Demised Premises or to the Shopping Center by
Landlord's insurers higher than the rating which would otherwise be applicable
to the Demised Premises or Shopping Center, Tenant shall pay all increased
premiums payable by Landlord as a result of such higher risk rating. Landlord
shall submit to Tenant the originals or photocopies of the insurance bills for
each premium for the aforesaid insurance.
ARTICLE VIII
INDEMNIFICATION BY TENANT
AND TENANT'S INSURANCE
SECTION 8.1 (a) Tenant shall indemnify and save harmless Landlord from and
against any and all liability, claim, cost, expense, damage, penalties or
judgments, and attorneys fees and other expenses incident to litigation, arising
from: (i) any breach, non-performance or violation by the tenant, or Tenant's
agents, employees, contractors, licensees or invitees of any covenant or
provision of this lease; or (ii) injury to person or property sustained on or
about the Demised Premises or Shopping Center resulting from any act or acts or
omission or omissions or the carelessness, negligence or improper conduct of
Tenant or Tenant's agents, employees, licensees, contractors, or invitees; or
(iii) any occurrence in , upon, at or from the Demised Premises, or occupancy,
condition or use of the Demised Premises. Tenant shall, at its own cost and
expense, defend (using counsel reasonably satisfactory to Landlord) any and all
suits or actions (just or unjust) which may be brought against Landlord or in
which Landlord may be impleaded with others upon any such above-mentioned
matter.
(b) Tenant further covenants and agrees to pay, and to indemnify Landlord
against, all costs, expenses and charges, including, but not limited to,
attorneys' fees and other expenses incident to litigation, incurred in obtaining
possession of the Demised Premises after default by Tenant or upon the
expiration or earlier termination of the term hereof, or in enforcing any
covenant or agreement of Tenant herein contained.
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SECTION 8.2 During the term of this Lease, Tenant shall maintain and pay
the premium for public liability insurance in standard form protecting the
Tenant and Landlord against any damage to property and injury or death to person
or persons arising or resulting from accident in or about the Demised Premises.
Said policy shall be in the amount of not less than $1,000,000.00 for the
initial term of this Lease and not less than $2,000,000.00 for the Renewal
terms, with respect to injury or death to any one person and with respect to any
one accident or occurrence, and not less than replacement value with respect to
damage to property.
SECTION 8.3 In addition to the insurance required under Section 8.2
hereof, Tenant shall, throughout the terms of this Lease, maintain in full force
and effect , the following policies of insurance: (a) insurance covering its
trade fixture, furniture, equipment, inventory and leasehold improvements
against lost or damage by fire, and such casualties as are from time to time
normally carried by standard extended coverage insurance in the amount of the
full replacement costs from time to time thereof; (b) a policy of business
interruption insurance sufficient to provide payment of Basic Annual Rent and
additional rent pursuant to this Lease; and (c) such other insurance coverage as
Landlord may from time to time reasonably require which requirement shall b in
accordance with insurance coverage from time to time generally provided by
tenants occupying premises similar to the Demised Premises.
SECTION 8.4 All policies of insurance required to be provided by Tenant
hereunder shall be issued by insurance companies of recognized responsibility
duly licensed and authorized to transact business in the State of New Jersey.
Tenant may provide any such insurance under blanket policies provided the
coverage and protection to Landlord shall not be reduced as a result thereof
Tenant agrees to deliver to Landlord, prior to the Date of Delivery of
Possession and thereafter not later than ten days prior to the expiration of any
such policy, certificates evidencing such insurance together with proof to
payment of the initial or renewal premiums therefore. Certificates for blanket
insurance shall specify the Demised Premises as an insured location. Tenant's
said insurance shall be non-cancelable without thirty (30) days prior written
notice to Landlord. All policies of insurance shall provide that any loss
payable shall be payable notwithstanding any act or negligence of Tenant or
Landlord.
ARTICLE IX
WAIVER OF SUBROGATION
SECTION 9.1 Each of the parties hereto hereby waives and releases any and
all rights of action against the other which may hereafter arise for damage to
or destruction of the Shopping Center, to or of the Demised Premises or to or of
property in and contents of the Demised Premises, resulting from fire or other
casualties of the kind covered by standard fire insurance policies with standard
extended coverage, irrespective of the cause thereof and regardless of whether
or not, or in what amounts, such insurance is now or hereafter carried by the
parties hereto or either of them. Each policy of such insurance maintained by
Landlord or Tenant shall contain a waiver of subrogation in favor of the other,
so long as such waiver is obtainable. If any premium or other cost shall be
charged for such waiver of subrogation, the party to be benefited hereby shall
pay such premium or be deemed to have waived the obligation of the other party
to obtain such waiver of subrogation.
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ARTICLE X
USE OF DEMISED PREMISES
SECTION 10.1 (a) Tenant's primary use of the Demised Premises shall be for
the operation of a cinema multiplex movie theatre ("Primary Use") and for any
other lawful retail use provided that such other retain use does not conflict or
compete with the Primary use from time to time of any other tenant in the
Shopping Center. In no event, however, may the Demised Premises be used in whole
or in part for any of the following: offices (other than as reasonably required
in connection with the retain use of the Demised Premises); "adult" pornography
theater; bar; restaurant; cafeteria; night club; skating rink; massage parlor;
"adult" book store; store selling pornographic materials or devices; game room;
funeral parlor; off-track betting establishment.
(b) It is understood and agreed that it is of the essence of this lease
that Tenant open for business within one hundred and twenty (120) days after the
Date of Delivery of Possession, or when Tenant opens for Business, whichever
comes first, and thereafter conduct its normal business operating in the entire
Demised Premises. Tenant covenants and agrees that it will continuously operate
its said business in the entire Demised Premises throughout the term hereof
shall remain open for business during the hours designated by Landlord for
tenants in the Shopping Center. Tenant's said operational shall be conducted
under the trade name "Middlebrook Galleria Ten-Plex" and Tenant may not change
such name without Landlord's prior written consent.
(c) If Landlord shall permit Tenant to be open for business in the Demised
Premises during hours in addition to those which are the normal business hours
for other tenants at the Shopping Center, Tenant shall be responsible for any
additional costs and expenses incurred by Landlord as a result of Tenant's
operation during such additional hours, including, but not limited to any costs
and expenses for lighting of the Common Areas and providing security therefore.
SECTION 10.2 (a) Landlord covenants and agrees that Landlord will not, at
any time during the term of this Lease so long as the Demised Premises are being
used by Tenant for the Primary Use as set forth in Section 10.1 (a) above, lease
or rent any space or premises within the Shopping Center for the same Primary
Use.
(b) Notwithstanding the provisions of Paragraph (a) to this Section, in
the event that, at any time during the term of this Lease, Landlord desires to
lease or rent any space within the Shopping Center, for any use which is
described in Paragraph (a), Landlord shall so notify Tenant, such notice to
contain the name of the proposed tenant, a description of the proposed use and a
description of the floor area and location in the Shopping Center of the
premises to be leased to such tenant. Tenant shall then have a period of thirty
(30) days after such notice within which to notify Landlord whether or not
Tenant elects to enforce the provisions of Paragraph (a) of this Section. If
tenant shall notify Landlord that Tenant does not elect to enforce such
provisions, or if Tenant shall fail to give any notice to Landlord, within such
thirty (30) day period, Tenant shall, subject to the provisions of the final
sentence of this paragraph (b), be deemed to have waived its rights and remedies
under said Paragraph (a) with respect to the particular leasing described in the
notice from Landlord. If Tenant shall notify Landlord that Tenant elects to
enforce the provisions of Paragraph (a) of this Section 10.3, then Landlord
agrees to comply with such provisions as they apply to the proposed leasing,
and, in any such event, Tenant shall automatically be deemed to have agreed to
indemnify Landlord and save Landlord harmless from and against any liability,
claim, cost or expense arising out of the enforcement of the restrictions and
limitations set forth in said Paragraph (a). In not event, however, shall
Landlord be obligated to enforce such restrictions and
13
limitations if such enforcement shall expose Landlord to criminal or
quasi-criminal prosecution or penalty. In the event that Tenant shall either
notify Landlord that Tenant does not elect to enforce the said restrictions and
limitations or shall fail to give notice within the thirty (30) day period
specified above, and if Landlord shall not conclude a leasing arrangement with
the proposed tenant within six (6) months from the date of the expiration of
such thirty (30) day period, the provisions of Paragraph (a) and this Paragraph
(b) shall again be applicable to the Tenant and premises described in Landlord's
aforesaid notice.
SECTION 10.3 Tenant agrees that Landlord shall have the right to prohibit
the continued use by Tenant of any unethical or unfair method of business
operation, advertising or interior display if, in Landlord's reasonable opinion,
the continued use thereof would impair the reputation of the Shopping Center as
a desirable place to shop or is otherwise out of harmony with the general
character of the Shopping Center. Upon notice from Landlord, Tenant shall
forthwith refrain from or discontinue any such activities. In addition, Tenant
agrees to:
(a) obey and observe (and compel its officers, employees, contractors,
licensees, invitees, subtenants, concessionaires and all others doing business
with it) all reasonable rules and regulations established by Landlord from time
to time for the conduct of Tenant or for the welfare of the Shopping Center, so
long as the same are not discriminatory with respect to Tenant. Landlord shall,
except in the case of any emergency, give Tenant at lease five days notice of
the establishment thereof:
(b) use the Shopping Center name in referring to the location of the
Demised Premises in all newspaper or other advertising or other printed material
and all other references to the location of the Demised Premises;
(c) include the address and identity of its business activity in the the
Demised Premises and all advertisements made by Tenant in which the address an
identity of any local business activity of like character conducted by Tenant
shall be mentioned;
(d) participate in any reasonable window cleaning and exterminating
program that my be established by Landlord for all or substantially all of the
retail stores and businesses in the Shopping Center;
(e) operate its business in the Demised Premises with adequate equipment
and trade fixtures which shall be new, functional, sufficient and of first class
workmanship; and
(f) handle and dispose of all rubbish, garbage and waste from Tenant's
operations in accordance with regulations established by Landlord and not permit
the accumulation (unless concealed in metal containers inside the Demised
Premises) or burning of any rubbish or garbage in, on or about any part of the
Demised Premises or Shopping Center.
ARTICLE XI
WARRANTY OF USE; COMPLIANCE WIT LAWS
SECTION 11.1 Landlord covenants, warrants and represents that, upon the
Date of Delivery of Possession of the Demised Premises to Tenant, the Demised
Premises shall be free of all others or notices of violation of any public or
quasi-public authorities, that upon said date Tenant shall be permitted by the
public authorities having jurisdiction thereover to occupy and use the Demised
Premises for the use as set forth in Section 10.1 (a)
14
herein, and that, upon the Lease Commencement Date, Landlord's work in
connection with the construction of the Demised Premises shall comply with all
applicable statutes and ordinances and with all applicable regulations, rules,
orders and requirements of all governmental authorities, bureaus or departments
having jurisdiction. Landlord shall, at its expense, make any and all
alterations or changes to the Demised Premises of a capital nature (determined
in accordance with generally accepted accounting principles consistently
applied) required by any of the aforesaid statutes, ordinances, regulations,
rules, orders or requirements, and any amounts so expended by Landlord shall b
included in Common Area Costs under Section 4.3 (a) hereof; provided, however,
that the cost of any such alterations or changes of a capital nature required
solely by reason of Tenant's particular use or method of operation in the
Demised Premises shall not be included in Common Area Costs and shall be paid by
Tenant.
SECTION 11.2 During the term hereof, subject to the provisions of the last
sentence of Section 11.1 hereof, Tenant, at Tenant's expense, shall comply with
all applicable statutes and ordinances and with all applicable regulations,
rules, orders and requirements of al governmental authorities, bureaus or
departments having jurisdiction, for the correction, prevention and abatement of
nuisances or other violations in or upon the Demised Premises, and Tenant shall
make any repairs or alterations to the Demised Premises required by any such
applicable statutes, ordinances, regulations, rules, orders or requirements. If
Tenant shall fail, for a period of thirty (30) days after written notice to it,
to comply with any such statute, ordinance, regulations, rule order or
requirement with which it is obligated by this Section to comply (or to commence
to effect compliance therewith within such period and thereafter diligently
continue its efforts to effect such compliance until completion thereof),
Landlord shall have the right (but not the obligation) to do all things
necessary to comply therewith. In the event of such compliance by Landlord,
Tenant shall, on the first day of the Calendar month next succeeding the
calendar month in winch such compliance shall have been completed by Landlord,
pay to Landlord, as additional rent, the amount expended by Landlord in
effecting such compliance, together with interest at the Lease Interest Rate
from the time of such expenditure.
SECTION 11.3 Notwithstanding the foregoing provisions of this Article,
Tenant shall have the right to contest, by appropriate proceedings, at Tenant's
expense, any obligation or alleged violation of any of the statutes, ordinances,
regulations, rules, orders and requirements with which Tenant is required to
comply as hereinabove provided. During the tendency of such contest, Tenant
shall have the right to defer compliance so long as such non-compliance shall
not constitute a crime or subject Landlord to fine, penalty or damages or
constitute a breach or violation of any mortgage or other loan or financing
agreements encumbering the Shopping Center or subject the fee or the Shopping
Center to any lien. If compliance is so deferred, the deferral shall not be
deemed a breach of this Lease, so long as such contest proceeding shall be
prosecuted diligently by Tenant and in good faith. Landlord hereby agrees to
cooperate reasonably with Tenant in connection with any such contest and to
execute any documents reasonably required in furtherance of such purpose, all
without cost or expense to Landlord. Tenant agrees to indemnify and save
Landlord harmless from and against any and all cost or expense by reason of such
deferral or contest by Tenant.
SECTION 11.4 (a) Without limiting the foregoing and notwithstanding
anything in this Lease to the contrary, Tenant agrees that it shall, at its sole
cost and expense, fulfill, observe and comply with all of the terms and
provisions of the Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6 ET
SEQ., as the same may be amended from time to time and all rules, regulations,
ordinances, opinions, orders and directives issued or
15
promulgated pursuant to or in connection with said Act by the Department of
Environmental Protection ("DEP"), or any subdivision or bureau thereof or any
other governmental or quasi-governmental agency, authority or body having
jurisdiction. (Said Act and all of said rules, regulations, ordinances,
opinions, orders and directive are hereinafter in this Article collectively
referred to as "ECRA").
(b) Without limiting the foregoing, upon the Landlord's request therefor,
and in all events no later than sixty (60) days prior to "closing, terminating
or transferring operations" (as said term is defined in ECRA) at the Demised
Premises, Tenant, at its sole cost and expense, shall provide Landlord with a
true copy of:
(i) An opinion letter from DEP (or such other agency or body as shall
then have jurisdiction over ECRA matters) in a form satisfactory to
Landlord's counsel, stating the ECRA does not then apply to Tenant,
Tenant's use and occupancy of the Demised Premises and the closing,
terminating or transferring of operations at the Demised Premises;
or
(ii) A Negative Declaration (as said term is defined in ECRA) duly
approved by DEP or such other agency or body as shall then have
jurisdiction over ECRA matters; or
(iii) A Cleanup Plan (as said term is defined in ECRA) duly approved by
DEP or such other agency or body as shall then have jurisdiction
over ECRA matters.
Nothing in this Paragraph (b) shall be construed as limiting Tenant's
obligation to otherwise comply with ECRA.
(c) In the event Tenant complies with Paragraph (c) of this Section, by
obtaining an approved Cleanup Plan, Tenant agrees that it shall, at its sole
cost and expense:
(i) Post any financial guarantee or other bond required to secure
implementation and completion of said Cleanup Plan and
(ii) Promptly implement and prosecute to completion said Cleanup Plan,
in accordance with the schedules contained in said Cleanup Plan
or as may be otherwise ordered or directed by DEP or such other
agency or body as shall then have jurisdiction over said Cleanup
Plan. Tenant expressly understands and acknowledges that
Tenant's compliance with the provisions of this Paragraph (c) may
require Tenant to expend funds or do acts after the expiration or
termination of the Term of this Lease. Tenant agrees that it
shall expend such funds and do such acts and Tenant shall not be
excused therefrom even though the Terms of this Lease shall have
previously expired or been terminated.
(d) Within then (10) days after written request by the Landlord or any
mortgagee or ground lessor or Landlord, Tenant shall deliver to Landlord or
Landlord's mortgagee or ground lessor, as the case may be, duly executed and
acknowledged affidavit of Tenant's chief executive officer, certifying:
(i) The proper four digit Standard Industrial Classification number
relating to Tenant's then current use of the Demised Premises (said
Standard Industrial Classification number to be obtained by
reference to the then current Standard Industrial Classification
Manual prepared and published by the Executive Office of the
President, Office of Management and Budget or the successor or such
publications); and
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(ii) The Tenant's then current use of the Demised Premises does not
involve the generation, manufacture, refining, transportation,
treatment, storage, handling, or disposal of hazardous substances or
wastes (as hazardous substances and hazardous wastes are defined in
ECRA) on site, above ground or below ground (all of the foregoing
being hereinafter collectively referred to as the Presence of
Hazardous Substances), in which event, said affidavit shall describe
in detail that portion of Tenant's operations which involves the
Presence of Hazardous Substances. Said description shall, INTER ALIA
, identify each hazardous substance and describe the manner in which
it is generated, handled, manufactured, refined, transported,
treated, stored, and/or disposed of. Tenant shall supply Landlord or
Landlord's mortgagee or ground lessor with such additional
information relating to said Presence of Hazardous substances as
Landlord or Landlord's mortgagee or ground lessor may request.
(e) Without limiting the foregoing, Tenant agrees,
(i) at its sole cost and expense, to promptly discharge and remove any
lien or other encumbrance against the Demised Premises, the Shopping
Center or any other property owned or controlled, in whole or in
part, by Landlord; and
(ii) to indemnify and hold Landlord harmless from and against any and
all liability, penalties, losses, expenses, damages, costs, claims
causes of action, judgments and/or the like, of whatever nature,
including but not limited to attorneys fees and other costs of
litigation or preparation therefore, to the extent said lien,
encumbrance, liability, penalty, loss, expense, damage, cost, claim,
cause of action, judgment adn/or the like or attorneys fees or other
costs arise from or in connection with Tenant's failure or
inability, for any reason whatsoever, to observe or comply with ECRA
and/or the provisions of this Section.
(f) (i) Notwithstanding anything in this Lease to the contrary and
without limiting the foregoing provisions of this Section, Tenant
agrees that it shall, at its sole cost and expense, observe, comply
and fulfill all of the terms and provisions of the Spill
Compensation and Control Act, N.J.S.A. 58:10-23.11 ET SEQ., as the
same may be amended from time to time and all rules, regulations,
ordinances, opinions, orders and directives issued or promulgated
pursuant to or in connection with said Act by the Department of
Environmental Protection ("DEP"), any subdivision or bureau thereof
or any other governmental or quasi-governmental agency or body
having jurisdiction. (Said Act and all of said rules, regulations,
ordinances, opinions, orders and directives are hereinafter in this
Article collectively referred to as "Spill Act".)
(ii) Without limiting the foregoing, Tenant agrees:
(1) That it shall not do or omit to donor suffer he commission or
omission of any act the commission or omission of which is
prohibited by or may result in liability under the Spill Act,
including without limitation, the discharge of petroleum
products or other hazardous substances (as said term are
defined in the Spill Act); and
(2) Whenever the Spill Act requires the "owner or operator" to do
any act, Tenant shall do such act at its sole cost and
expenses, it being
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the intention of the parties hereto that Landlord shall be
free of all expenses and obligations arising from or in
connection with compliance with the Spill Act and that Tenant
shall fulfill all such obligations and pay all such expenses.
(iii) Without limiting the foregoing, Tenant agrees
(1) at its own cost and expense, to promptly discharge and remove
any lien or other encumbrance against the Demised Premises,
the Shopping Center or any other property owned or
controlled, in whole or in part, by Landlord and
(2) to indemnify and hold Landlord harmless from and against any
and all liability, penalties, losses, expenses, damages,
costs, claims, causes of action, judgments and/or the like of
whatever nature, including but not limited to attorneys fees
and other costs of litigation or preparation therefore, to
the extent said lien, encumbrance, liability, penalty, loss,
expense, damage, cost, claim, cause of action, judgment and
or the like or attorneys fees or other costs arise from or in
connection with Tenant's failure or inability, for any reason
whatsoever, to observe or comply with the Spill Compensation
Act and/or the provisions of this Section.
(g) Without limiting the foregoing provisions of this Section and the
provisions of Sections 11.1 and 11.2, Tenant agrees that it shall, at its cost
and expenses, promptly comply with all federal, state and local laws,
ordinances, rules, regulations and requirements relating to air, ground and
water pollution and protection and/or preservations of the environment.
(h) Tenant agrees that each and every provision of this Section shall
survive the expiration or earlier termination of the Term of this Lease, the
parties hereto expressly agreeing and acknowledging that Landlord would not
enter into this Lease but for the provisions of this Article and the aforesaid
survival thereof.
ARTICLE XII
COVENANT OF TITLE AND QUIET ENJOYMENT
SECTION 12.1 (a) Landlord covenants, warrants and represents that:
(i) Landlord is the fee owner of the Shopping Center, subject to
easements and restrictions of record; and
(ii) Landlord, has full right and power to execute and perform this Lease
and to grant the estate herein demised for the entire term hereof.
(b) Landlord further covenants and agrees that Tenant, upon paying the
rents herein provided and performing and observing the covenants, agreements and
conditions of this Lease on Tenant's part to be performed and observed, shall
and may, during the term of this Lease, lawfully, peaceably and quietly have,
hold and enjoy the Demised Premises adn all o rights, easements, appurtenances
and privileges granted herein or belonging or appertaining thereto , without
hindrance, molestation, eviction or disturbance by Landlord, or by any other
person or person claiming through Landlord, subject , nevertheless, to the
provisions of this Lease.
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ARTICLE XIII
MORTGAGE SUBORDINATION AND NON-DISTURBANCE
SECTION 13.1 This lease shall be subject and subordinate at all times to
the lien of any mortgage (s) and any renewals, extensions, consolidations or
replacements thereof now or hereafter affecting the Demised Premises or Shopping
Center, and to the rights of any ground lessor of the Demised Premises or
Shipping Center. Landlord shall obtain the agreement of the holder of any such
mortgage or ground lessor, in a duly executed and acknowledged instrument, that
such holder or ground lessor recognizes this Lease, and that so long as this
Lease shall be in full force and effect and Tenant is not in default hereunder
(after expiration of applicable notice and grace periods): (a) this Lease and
the leasehold estate hereby created will not be extinguished or terminated nor
will the possession or rights hereunder of Tenant be distributed, affected or
impaired by the foreclosure of such mortgage arising out of any default
thereunder or by delivery of a deed in lieu of foreclosure of such mortgage or
otherwise or by termination of such ground lease or default by Landlord
thereunder; (b) Tenant shall not be named or joined as a party defendant or
otherwise in any proceeding for the foreclosure of any such mortgage or to
enforce any rights hereunder or any proceeding to enforce any rights under any
such ground lease; (c) all condemnation awards and payments and all proceeds of
insurance paid or payable with respect to the Demised Premises or the Shopping
Center shall first be applied and used in the manner set forth in this Lease;
and (b) neither the mortgage nor any other security instrument executed in
connection therewith nor any ground lease shall cover or be construed as
subjecting in any manner to the lien thereof any trade fixtures, business
equipment, signs or other personal property at any time supplied or installed by
Tenant in or on the Demised Premises, regardless of the manner or mode of
attachment thereof to the Demised Premises. If the holder of any such
institutional mortgage shall require that this Lease have priority over such
mortgage, Tenant shall, upon request of such holder, execute, acknowledge and
deliver an agreement acknowledging and confirming such priority.
SECTION 13.2 If the holder of any mortgage encumbering the Demised
Premises or Shopping Center shall so require, Tenant shall enter into a written
agreement with such holder wherein Tenant agrees to attain to such holder as the
Landlord under this Lease if such holder should holder should succeed to
Landlord's interest in the Demised Premises or Shopping Center.
ARTICLE XIV
ASSIGNMENT AND SUBLETTING
SECTION 14.1 (a) Tenant shall not, either voluntarily or involuntarily, by
operation of law or otherwise, assign, transfer mortgage or otherwise encumber
this Lease, or sublet the whole or any part of the Demised Premises, or permit
the Demised Premises or any part thereof to be occupied by others except in
accordance with this Article XIV. If Tenant shall desire to assign this Lease or
to sublet all or any portion of the Demised Premises, or to permit any other
party to occupy all or any portion of the Demised Premises, Tenant shall notify
Landlord of such desire, which notice must be accompanied by the following
information:
(i) The name of the proposed assignee, subtenant or occupant;
(ii) If a partnership or corporation, the names of the principals of the
proposed assignee, subtenant or occupant;
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(iii) A current financial statement for the proposed assignee, subtenant
or occupant, including such financial information as Landlord shall
reasonably require; and
(iv) A description of the proposed use of the Demised Premises by the
proposed assignee, subtenant or occupant.
(v) Notwithstanding the forgoing, Tenant shall have the right to assign
this Lease within ninety (90) days from execution, to a partnership
or corporation in which Tenant is a principal.
Tenant shall be PERSONALLY LIABLE FOR ALL OBLIGATIONS UNDER THIS LEASE for the
initial five (5) year term of the Lease, regardless of whether the Lease is
assigned to an entity.
Tenant may sublet, not assign, up to twenty (20%) of commercial space, subject
to notice under subsections 14.1 (a) (1-v), but only for uses permitted under
this lease.
(b) Tenant may not without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, assign this Lease or sublet the
Demised Premises, in whole or in part, or permit the Demised Premises or any
part thereof to be occupied by others. It is understood and agreed that
Landlord's refusal to consent to any of the foregoing shall not be deemed
unreasonable if either: (i) Tenant is in default under this Lease at the time;
or (ii) the proposed use by the assignee or subtenant or the name under which
the assignee or subleases will operate is other than that permitted under
Section 10.1 of this Lease; or the giving of such consent by Landlord shall
apply only to the specific transaction thereby authorized, and shall not be
construed to relieve Tenant from obtaining Landlord's consent to any other or
subsequent such assignment, transfer, mortgage or other encumbrance, subletting,
use or occupancy, or as modifying or limiting Landlord's rights under this
Section 14.1. Notwithstanding Landlord's consent as aforesaid, Tenant shall,
nevertheless, remain primarily liable to perform all covenants and conditions of
this Lease. Tenant shall not be released or discharged from such liability by
reason of any modification, amendment or supplement of this Lease agreed to by
Landlord and any assignee or subtenant or by reason of Landlord's failure to
enforce any of its rights or remedies hereunder against any such assignee or
subtenant. At least ten (10) days prior to the effective date thereof, Tenant
shall furnish Landlord with a conformed copy of any such assignment or sublease,
together with an agreement in writing executed by any such assignee or subtenant
to assume the obligations imposed by this Lease upon the Tenant and to perform
the same in accordance with the terms hereof, and pursuant to which any
subtenant agrees that it this Lease shall be terminated by reason of Tenant's
default hereunder or otherwise, at Landlord's option, to be exercised by notice
to the subtenant, such sublease shall continue in full force and effect and the
subtenant will attain to Landlord.
Tenant shall be primarily liable for the initial term of any assignment.
(c) If Landlord shall consent to an assignment or subletting pursuant ot
Paragraph (b) hereof, then, in any such event, Landlord shall be entitled to
receive the full amount of any consideration, of whatever kind or nature,
payable by the assignee, subleases or occupancy in connection with such
assignment, subletting or occupancy. The foregoing shall include any basic
annual rent or additional rent or percentage rent payable by the assignee,
subleases or occupancy in addition to that payable by Tenant under the provision
of this Lease. In addition, if this Lease be assigned, or if the Demised
Premises or any part thereof be sublet, or occupied by anybody other than
Tenant, Landlord may, after
20
default hereunder, collect rent, additional rent and percentage rent from the
assignee, subtenant or occupant, and apply the net amount collected to the Basic
Annual Rent and/or additional rent reserved hereunder, but no such collection
shall be deemed a waiver of its covenant, or the acceptance of the assignee,
subtenant or occupancy as tenant, or a release of Tenant from the further
performance by Tenant of the terms, covenants and conditions of this Lease on
the part of the Tenant to be performed. Any violation of any provision of this
Lease, whether by act or omission, by any assignee, subtenant or occupancy,
shall be deemed a violation of such provision by Tenant, it being the intention
and meaning of the parties hereto that Tenant shall assume and be liable to
Landlord for and all acts and omissions of any and all assignees, subtenants
and/or other occupants.
Landlord shall receive any profits on rentals, not on fixtures of goodwill with
reference to this Section. Tenant shall be able to keep the proceeds of sale for
fixtures, inventory and good will only.
SECTION 14.2 Notwithstanding the provisions of Section 14.1 hereof, Tenant
shall have the right, without the provisions of Section 14.1 being applicable,
to assign this Lease or sublet the Demised Premises, in whole or in part, to,
any parent or subsidiary to Tenant or in connection with a merger of Tenant
provided that the surviving entity in a merger shall have a tangible net worth
(determined in accordance with generally accepted accounting principles) not
less than the then net worth of Tenant.
ARTICLE XV
SIGNS
SECTION 15.1 Tenant shall have the right, at its expense, and subject to
Landlord's approval, which shall not be unreasonably withheld, to erect and
maintain upon the exterior front facade of the Demised Premises, its sign in
accordance with its specifications, provided that such sign complies with, and
Tenant, at its expense, obtains all permits and approvals required by,
applicable laws, statutes, ordinances and regulations of governmental
authorities applicable thereto. Notwithstanding the foregoing, the parties agree
that;
(i) Landlord has approved the design of the initial sign to be installed
sign to be installed by Tenant in connection with its opening of the
Demised Premises for business;
(ii) With respect to any changes tin Tenant's said exterior sign, so
long as such changed or replacement sign is substantially the
same as the other signs being utilized by Tenant in its other
store locations in the northern New Jersey area, does not have
dimensions greater than those of the original sign and is
non-flashing and is the same color as the original, Landlord
shall not have the right to withhold its approval of any such
sign; and
(iii) Landlord's consent shall not be required with respect to Tenant's
interior signs, provided that no window signs shall be permitted.
Upon the expiration or termination of the term of this Lease, Tenant, at its
expense shall remove all of its exterior and interior signs and its sign face on
any pylon sign.
SECTION 15.2 (a) Landlord hereby consents to the placement of Tenant's
sign the face on the Shopping Center pylon sign to be located at the Shopping
Center. Tenant shall supply Landlord, for Landlord's approval, with a sign
drawing for Tenant's said signs at least sixty (60) days prior to the date
Tenant opens for business in the Demised Premises. Tenant shall pay a share of
the cost of
21
installation of the pylon sign, such share to be equal to 100% of cost of such
pylon and electrification thereof. In addition, Tenant shall pay the full cost
of Tenant's sign panels and installation thereof on the Shopping Center pylon
sign.
(b) Landlord shall repair and maintain or cause to be repaired and
maintained any pylon sign presently existing at the Shopping Center, or
otherwise contemplated by this Section 15.2, in good order and condition, and
the costs thereof shall be included in Common Area Costs under Section 4.3.
ARTICLE XVI
REPAIRS
SECTION 16.1 (a) During the initial term of this Lease, Landlord shall
make all necessary repairs and replacements to or of: (i) the foundation and
structure of the Demised Premises (the structure to be deemed to mean exterior
walls, bearing walls, structural frames, beams and supports, and floor as
distinguished from floor covering); (ii) the roof covering at the Demised
Premises. Notwithstanding the foregoing, if the necessity for any of the
foregoing repairs or replacements shall result from the act, fault or negligence
of Tenant, or its agents, servants, employees, licensees or invitees, or of
anyone claiming under Tenant, or shall result from the default by Tenant under
the provisions of this Lease, Tenant shall, upon demand, reimburse Landlord for
the cost of such repairs or replacements. After five (5) years, such repairs
will be the responsibility of the Tenant.
(b) Tenant shall, at its expense, keep the interior of the Demised
Premises and the sidewalks adjoining the Demised Premises in a clean and orderly
condition free of accumulation of dirt, rubbish, debris, snow and ice, shall
perform normal maintenance procedures on , and all necessary repairs to and
replacements of the heating, ventilating and air-conditioning equipment serving
the Demised Premises, and shall make all interior and exterior repairs to
Demised Premises which Landlord is not obligated to make pursuant to the
provisions of this Lease; provided, however, that if the necessity for any of
the repairs which Tenant is hereby required to make shall result from the act,
fault or negligence of Landlord, or its agents, servants, employees, licensees
or invitees, or Landlords default under the provisions of this Lease, it shall
be the responsibility of Landlord to make the same at Landlord's expense.
SECTION 16.2 Landlord shall assign to Tenant all guarantees or warranties
from suppliers, contractors, subcontractors or workers of which Landlord has the
benefit, where such guarantees or warranties cover materials, equipment or
workmanship installed or performed by or for Landlord pursuant to Rider LC
hereof which Tenant is obligated to maintain, repair or replace pursuant to
Section 16.1 (b). Landlord further covenants and agrees that it will cooperate
fully with Tenant, at not cost or expense to Landlord, in the enforcement of all
guarantees or warranties to be assigned by Landlord to Tenant pursuant to this
Section 16.2
SECTION 16.3 Landlord shall, subject to the provisions of Section 4.3, and
except as otherwise provided in Section 16.1 (b), maintain or cause to be
maintained (in accordance with applicable tenant lease provisions) the exterior
of all buildings and other structures in the Shopping Center in reasonably good
order and condition.
SECTION 16.4 All repairs and replacements performed by Landlord or Tenant
pursuant to this Article XVI shall be performed in a good and workmanlike manner
and in conformity with all statutes, ordinances, rules, regulations and
requirements of public authorities and insurance inspection and rating bureaus.
The party
22
performing such work shall, at its expense, obtain all necessary permits and
approvals required in connection therewith.
SECTION 16.5 Landlord, and its agents and employees, shall not be liable
or responsible for any damage or injury to any property of Tenant, or to any of
Tenant's agents, employees, customers, licensees, invitees or contractors
arising from or out of any breakage, stoppage or leakage or pipes, conduits and
cable or any other occurrence, in, upon or at or from the Demised Premises or
Shopping Center, or the occupancy, condition or use of the Demised Premises or
Shopping Center, excluding gross negligence on the part of Landlord.
ARTICLE XVII
ALTERATIONS
SECTION 17.1 Tenant shall not make any structural or exterior alterations
or improvements to the Demised Premises without in each instance first obtaining
Landlord's written consent. Tenant shall have the right, at any time from time
to time, without Landlord's consent, to paint the interior of Demised Premises
or any part of parts thereof, and to make any non-structural alterations,
improvements or installations in, to or upon the interior of Demised Premises;
provided, however, that;
(i) Tenant shall have the right to make alterations or improvements to
the storefront of the Demised Premises only with Landlord's consent,
which shall not be unreasonably withheld, provided that the
alteration or improvement is consistent with the appearance of the
balance of the Shopping Center; and
(ii) No alteration, improvement, installation or addition made by Tenant
shall endanger or impair the structure of, or decrease the value,
utility or cubic area of, the Demised Premises.
SECTION 17.2 All alterations, improvements or installation made or doe by
Tenant in, on or to the Demised Premises or any parts or facilities thereof
shall be done in a good and workmanlike manner and in conformity with all
statutes, ordinances, rules, regulations and requirements of public authorities
and insurance inspection and rating bureaus having jurisdiction, and with all
necessary governmental permits or authorities.
SECTION 17.3 Any and all alterations, improvements or installations made
in , to or upon the Demised Premises by Tenant or Landlord (but not Tenant's
furniture, lighting fixtures, trade fixtures and movable trade equipment,
counters and shelving or signs installed by Tenant) shall, except as hereinafter
provided, be surrendered with the Demised Premises as part thereof at the
expiration or other termination of the term of this Lease. Tenant shall remove
any such alterations, improvements or installations if Landlord shall require
such removal by notice to Tenant at least 60 days prior to the Expiration Date.
Tenant shall, upon the Expiration Date or sooner termination of this Lease,
remove its said furniture, trade fixtures and trade equipment, counters,
shelving, racking and signs, and Tenant shall have the right, at its option, to
remove any such alterations, improvements, installations or interior additions
from the Demised Premises upon the expiration or other termination (for reasons
other than Tenant's default) of the term of this Lease, and, in such event,
Tenant shall repair any and all damage to the Demised Premises caused by such
removal and restore the Demised Premises to their condition prior to the making
of the alterations, improvement or installation being removed, with the
exception of floors.
SECTION 17.4 Tenant agrees to indemnify and save harmless Landlord against
and from any and all claims for injury, loss or
23
damage to person or property caused by or resulting from the work in connection
with any alterations, improvements, installations or additions in, to or upon
the Demised Premises made by Tenant or by anyone claiming under Tenant.
ARTICLE XVIII
MECHANIC'S LIENS
SECTION 18.1 If any mechanic's liens shall be filed against the fee of the
Demised Premises or against Tenant's leasehold interest therein by reason of
work, labor, services or materials supplied or claimed to have been supplied to
Tenant or anyone holding the Demised Premises or any part thereof through or
under Tenant, Tenant shall, within thirty (30) days after receiving notice of
the filing thereof, cause the same to be discharged of record by payment,
deposit, bond, order of a court of competent jurisdiction, or otherwise. Nothing
contained in this Lease shall be construed as a consent on the part of Landlord
to subject the estate of Landlord in the Demised Premises or the Shopping Center
to any liability under the New Jersey Mechanic's Lien Law, it being expressly
understood and agreed that Landlord's estate shall not be subject to such
liability and any work performed or material supplied by or on behalf of Tenant
or at Tenant's request, shall be solely upon the credit of the Tenant and
Landlord shall have no liability or obligation with respect thereto. Any
provisions of this Lease pursuant to which the Tenant may perform any work,
alterations, improvements or installations at the Demised Premises or Shopping
Center, shall not be deemed to constitute a consent by Landlord thereto for
purposes of the said New Jersey mechanic's Lien Law.
ARTICLE XIX
LANDLORD'S ACCESS TO DEMISED PREMISES
SECTION 19.1 Landlord shall have the right, during reasonable business
hours and without unreasonable interference with the operation of the business
conducted therein, and upon not less than twenty-four (24) hours' notice to
Tenant, to enter upon the Demised Premises for the purposes of inspecting same,
or making repairs and replacements thereto or therein pursuant to this Lease, or
exhibiting the same to prospective purchases or mortgagees of the Shopping
Center. Without limiting the foregoing, Landlord shall also have the right, in
the event of an emergency, to enter the Demised Premises at such time or times
as shall be required by such emergency upon such telephone or other notice to
Tenant as shall be practicable under the circumstances. In the event of any such
emergency entry: (i) Landlord shall make reasonable efforts to be accompanied by
a member of the police force or fire department, (ii) Landlord shall be
responsible for, and agrees to indemnify Tenant and save Tenant harmless
against, any loss or damage resulting from the negligence of Landlord or any of
its agents, servants, employees, licensees or invitees entering the Demised
Premises.
ARTICLE XX
DEFAULT PROVISIONS
SECTION 20.1 If Tenant does not: (a) within twenty (20) days after the due
date thereof pay any installment of Basic Annual Rent or additional rent; or (b)
within thirty (30) days after notice from Landlord cure a default or additional
rent (provided, however, that such thirty (30) day period shall be extended if
the default is of such a nature that it could not reasonably be cured within
such period of thirty (30) days and Tenant promptly commences and thereafter
diligently pursues the curing of such default), then, in any such event, Tenant
shall be deemed in default under this Lease. Landlord may thereupon re-enter the
Demised Premises and, by
24
summary proceedings or otherwise, dispossess the Tenant and any other occupants
thereof, remove their effects not previously removed by them, and hold the
Demised Premises as if this Lease had not been made. In addition, Landlord may,
upon three (3) days notice to Tenant, terminate this Lease. In any such event
Tenant shall remain liable as hereinafter provided in Section 20.2
SECTION 20.2 In any case where Landlord has recovered possession of the
Demised Premises by reason of Tenant's default, whether or not Landlord
terminates this Lease, Landlord may, at Landlord's option, relate the Demised
Premises or any part thereof, for a term or terms ot expire prior to, at the
same time as, or subsequent to the expiration date of this Lease, and receive
the rent therefore, applying the same first to the payment of such expenses as
Landlord may have incurred in connection with the recovery of possession, then
to the cost of repairs, replacements or renewals necessary because of the
condition in which the Demised Premises were left by Tenant or repairs
alterations, or improvements otherwise necessary for reletting, and the expenses
of reletting, including brokerage and attorneys' fees and costs of alterations
to the Demised Premises, and then to the payment of an amount equal to the Basic
Annual Rent and additional rent hereunder and to the cost and expense of
performance of the other covenants of Tenants as herein provided. All Basic
Annual Rent and additional rent to be paid by Tenant shall be computed
separately for each month, less the net proceeds of the reletting, if any, as
ascertained from time to time , and the same shall be payable bye Tenant on the
several rent payment days above specified. In reletting the Demised Premises, as
aforesaid, Landlord may grant rent concessions, and Tenant shall not be credited
therewith. No such reletting shall constitute acceptance of surrender of Demised
Premises or be deemed evidence thereof. The Tenant shall not be entitled to any
monthly or other surplus accruing as a result of any reletting .
(b) Upon termination or recovery of possession by Landlord on default, the
Tenant and the Tenant's creditors and representatives shall thereafter have no
right, legally or equitably, in or to the Demised Premises, or any part thereof,
or in or to the repossession of same, or in or to this Lease, and the Tenant
hereby waives all right of redemption which is or may hereafter be provided by
statute.
(c) The specified remedies to which Landlord may resort under the terms of
this Section are cumulative and are not intended to be exclusive of any or all
other remedies or means of redress to which Landlord may be lawfully entitled in
case of any breach or threatened breach by Tenant of any provision of this
Lease. Without limiting the generality of the foregoing, Landlord shall have the
right to institute summary dispossess proceedings against Tenant under all
circumstances from time to time permitted by law. In the event judgment Tenant
in any such proceedings, Tenant shall thereafter remain liable to Landlord as
provided in Paragraph (a) above as if Landlord had terminated this Lease by
reason of Tenant's default pursuant to Section 20.1
SECTION 20.3 (a) Subject to the provisions of Paragraph (b) of
this Section, if. pursuant to an order, judgment or decree entered by any
court of competent jurisdiction:
(i) a receiver, trustee or liquidator of all or substantially all of
the assets of Tenant shall be appointed; or
(ii) Tenant shall be adjudicated a bankrupt or insolvent; or
(iii) a petition seeking the reorganization of Tenant or an arrangement
with creditors or a petition to take advantage of any insolvency law
shall be approved,
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and as a result of the happening of any of the foregoing contingencies, the
obligation of Tenant to pay Basic Annual Rent or additional rent shall be
modified or abrogated, or the provisions of this Lease shall otherwise be
materially modified or amended, Landlord may serve notice of termination of this
Lease upon Tenant, stating the date of termination, which date shall be at least
ten (10) days after the date on which such notice is served, and upon the date
specified in such notice, this Lease and the term hereof shall cease and expire,
and Tenant shall then quit and surrender the Demised Premises, but Tenant shall
remain liable as hereinafter provided. If this Lease and the term hereof shall
cease and expire in accordance with the provisions of this Paragraph (a),
Landlord may dispossess or remove Tenant or any other occupant of the Demised
Premises, by summary proceedings or otherwise, and remove their effects and hold
the Demised Premises as if this Lease had not been made.
(b) (i) Notwithstanding the provisions of Paragraph (a) of this
Section, in the event that Tenant shall file a petition under
Chapter 11 of the Bankruptcy code, Tenant's trustee or Tenant, as
debtor in possession, must, unless otherwise ordered by the
Bankruptcy Court, elect to assume this Lease at or prior to the
earlier of: (i) 180 days after the date of filing of such
petition, and (ii) confirmation of a plan under Chapter 11. In
the absence of an election to assume within such time period,
Tenant's trustee or Tenant, as debtor-in-possession, shall be
deemed to have rejected this Lease. In the event that Tenant,
Tenant's trustee or Tenant, as debtor-in-possession, has failed
to perform all of Tenant's obligations under this Lease within
the time periods (subject to the notices and grace periods
provided for herein) required for such performance, no election
by Tenant's trustee or Tenant, as debtor-in-possession, to assume
this Lease shall be effective unless each of the following
conditions has been satisfied:
(1) Tenant's trustee or Tenant, as debtor-in-possession, has cured
all defaults under this Lease susceptible of being cured by
the payment of money, or has provided Landlord with Assurance
(as defined below) that it will cure all defaults susceptible
of being cured by the payment of money within ten (10) days
from the date of such assumption and that it will, promptly
after the date of such assumption, commence to cure all other
defaults under this Lease which are susceptible of being cured
by the performance of any act and will diligently pursue
completion of such curing;
(2) Tenant's trustee or Tenant, as debtor-in-possession, has
compensated, or has provided Landlord with Assurance that
within ten (10) days from the date of such assumption it will
compensate, Landlord for any actual pecuniary loss incurred by
Landlord arising from the default of Tenant, Tenant's trustee
or Tenant, as debtor-in-possession, as indicated in any
statement of actual pecuniary loss sent by Landlord to
Tenant's trustee or Tenant, as debtor-in-possession, such
statement, however, not be deemed a binding and conclusive
determination or computation of the amount of such loss;
(3) Tenant's trustee or Tenant, as debtor-in-possession, has
provided Landlord with Assurance of the future performance of
each of the obligations under this Lease of Tenant, Tenant's
trustee or Tenant, as debtor-in-possession; and
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(4) Such assumption will not breach or cause a default under any
provision of any other lease, mortgage, financing agreement or
other agreement by which Landlord is bound relating to the
Demised Premises.
For purposes of this Subparagraph (i), Landlord and Tenant acknowledge that
"Assurance" shall mean either: (x) Tenant's trustee or Tenant, as
debtor-in-possession, has and will continue to have reasonably sufficient
unencumbered assets after the payment of all secured obligations and
administrative expenses to reasonably assure Landlord that sufficient funds will
be available to fulfill the obligations of Tenant under this Lease; or (y)
Tenant's trustee or Tenant, as debtor-in-possession, has deposited with
Landlord, as security, an amount equal to two (2) installments of Basic Annual
Rent (at the rate then payable) which shall be applied to installments of Basic
Annual rent in the inverse order of their maturity; or (z) the Bankruptcy Court
shall have entered an order granting to Landlord a valid and perfected first
lien and security interest in property of Tenant, Tenant's trustee or Tenant, as
debtor-in-possession, having a fair market value as determined by the Bankruptcy
Court appraiser at least equal to two (2) installments of Basic Annual Rent (at
the rate then payable).
(ii) If Tenant's trustee or Tenant, as debtor-in-possession, has
assumed this Lease pursuant to the terms and provisions of
Subparagraph (i) of this Paragraph (b) for the purpose of
assigning (or elects to assign) this Lease, this Lease may be so
assigned only if the proposed assignee has provided adequate
assurance of future performance of all of the terms, covenants
and conditions of this Lease to be performed by Tenant. As used
herein "adequate assurance of future performance" shall mean that
each of the following conditions has been satisfied:
(1) The proposed assignee shall have paid to Landlord an amount
equal to six (6) months of Basic Annual Rent at the rate then
payable;
(2) The proposed assignee has furnished Landlord with either: a
current financial statement audited or reviewed by a certified
public accountant indicating by a net worth and working
capital in amounts which Landlord reasonably determines to be
sufficient to assure the future performance by such assignee
of Tenant's obligations under this Lease; or a guarantee or
guarantees, in form and substance reasonably satisfactory to
Landlord, from one or more persons with a net worth equal to
or in excess of $3,000,000.00 in the aggregate;
(3) Landlord has obtained all consents or waivers from others
required under any lease, mortgage, financing arrangement or
other agreement by which Landlord is bound to permit Landlord
to consent to such assignment, Landlord to use its reasonable
efforts to obtain such consents or waivers; and
(4) The proposed assignment will not release or impair any
guaranty of the obligations of Tenant (including the proposed
assignee) under this Lease.
(c) When, pursuant to the Bankruptcy Code, Tenant's trustee or Tenant, as
debtor-in-possession, shall be obligated to pay reasonable use and occupancy
charges for the use of the Demised Premises (as distinguished from Basic Annual
Rent, percentage rent and additional rent under this Lease while this Lease
continues in force and effect), such charges shall be not less than the Basic
Annual Rent, percentage rent and additional rent payable by Tenant under this
Lease.
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(d) Neither the whole nor any portion of Tenant's interest in this Lease
or its estate in the Demised Premises shall pass to any trustee, receiver,
assignee for the benefit of creditors, or any other person or entity or
otherwise by operation of law under the laws of any state having jurisdiction of
the person or property of Tenant (excluding a merger, as contemplated by Section
14.2 of this Lease) unless Landlord shall have consented to such transfer in
writing. No acceptance by landlord of rent or any other payments from any such
trustee, receiver, assignee, or other person or entity shall be deemed to
constitute such consent by Landlord nor shall it be deemed a waiver of
landlord's right to terminate this lease and recover possession of the Demised
Premises for any transfer of Tenant's interest under this Lease without such
consent.
SECTION 20.4 Without limiting the foregoing provisions of this Article, if
Tenant shall default in the performance of any act, covenant or condition on
Tenant's part to be performed hereunder, and if Tenant shall not cure such
defaults within thirty (30) days after written notice specifying the default
shall have been given to it by Landlord (or shall not have commenced to cure
such default within said thirty (30) day period, and be diligently prosecuting
the curing thereof to completion). Landlord may, but shall not be obligated to,
perform such act, covenant or condition to the extent Landlord may, in its
reasonable judgment, deem desirable, and pay the expenses which Landlord may
deem necessary or advisable in with such performance. In the case of emergency,
however, reasonably necessitating protection of the Landlord's interest in the
Demised Premises or the prevention of injury or damage to person or property,
Landlord may undertake to cure such default (after telephonic notice, if
practicable, to Tenant), before expiration of the aforesaid thirty (30) day
period. All sums expended by Landlord in the curing of such default, plus
interest from the date expended, at the lease Interest Rule, shall be deemed
additional rent hereunder and shall be paid by Tenant to Landlord at the
latter's demand, on the first day of the next succeeding calendar month.
ARTICLE XXI
CUMULATIVE REMEDIES; NO WAIVER
SECTION 21.1 The specific remedies to which landlord or Tenant may resort
under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which they or either of
them may be lawfully entitled in case of any breach or threatened breach by
either of them of any provision of this Lease. In addition to the other remedies
in this Lease provided, landlord and Tenant shall be entitled to the restraint
by injunction of the violation, or attempted or threatened violation, of any of
the covenants, conditions or provisions of this Lease, or to a decree compelling
performance of any of such covenants, conditions or provisions, other than for
the payment of money. The failure of Landlord or Tenant to insist in any one or
more cases upon the strict performance of any of the covenants hereof on
Tenant's or Landlord's, as the case may be, part to be performed, or to exercise
any option herein contained, shall not be construed as a waiver or
relinquishment for the future of such covenant or option.
ARTICLE XXII
DESTRUCTION OR DAMAGE
BY FIRE OR OTHER CASUALTY
SECTION 22.1 If at any time during the term hereof the Demised Premises
shall be damages or destroyed in whole or in part by fire or other casualty or
by the elements, Tenant shall give notice thereof to Landlord, and, except as
hereinafter in this
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Article otherwise provided, landlord, at landlord's expense to the extent of the
available insurance proceeds, shall promptly and with due diligence repair,
rebuild and restore the Demised Premises as nearly as practicable to the
condition thereof existing immediately prior to such damage or destruction. If
the Demised Premises shall be so damages or destroyed that Tenant cannot carry
on its normal business operations in the entire Demised Premises, then all Basic
Annual Rent and additional rent shall abate from the date of such damage or
destruction until the Demised Premises are restored as aforesaid; provided,
however, that if Tenant continues to conduct business in a portion of the
Demised Premises, such abatement shall be only in proportion to the area of the
Demised Premises not usable for Tenant's normal business operations from the
date of such damage or destruction until the Demised Premises are restored in
the manner stated above.
Landlord will rebuild to the point Landlord originally delivered the premises,
with tenant responsible for remainder of restoration. Such rebuilding by both
parties will be mandatory, notwithstanding paragraphs 22.2, 22.3 and 22.4.
Tenant shall at all times insure for replacement cost plus business interruption
to pay rent during construction period. Lease term suspended during rebuilding
to resume on completion.
SECTION 22.2 If Landlord shall fail to commence the repairing, rebuilding
or restoration of the Demised Premises, required by the provisions of Section
22.1 within twelve (12) months after the damage or destruction has occurred, and
if such repairing, rebuilding and restoration are not completed on the earlier
to occur of twelve (12) months after the date of commencement of rebuilding and
eighteen (18) months after the date of commencement of rebuilding and eighteen
(18) months after the date of occurrence of the damage or destruction, then, in
any such event, Tenant shall have the right, at its election, as its exclusive
remedy, to terminate this Lease by giving Landlord notice of termination, within
thirty (30) days after expiration of the applicable time period. This Lease
shall terminate on the date specified in such notice and Basic Annual Rent and
additional rent shall be pro-rated and adjusted as of the date of occurrence of
the damage or destruction.
SECTION 22.3 Notwithstanding the foregoing provisions of this Article, if
at any time during the last two (2) years of the terms of this Lease, more than
fifty (50%) percent of the ground floor area of the Demised Premises shall be so
damaged or destroyed by fire or other casualty, or if, during such last two (2)
years, as a result of damage or destruction by fire or other casualty, tenants
occupying at least sixty (60%) percent of the leasable ground floor area at the
Shopping Center (including the Demised Premises) shall close for business for
six (6) consecutive months or more then, in any such event, Landlord and Tenant
shall each have the right, at its respective option, as its exclusive remedy,
upon and after expiration of such six (6) month period, to terminate this Lease
by notice to other specifying the effective date of termination which effective
date of termination shall be not less than fifteen (15) days nor more than
thirty (30) days after the date of such notice. IF this lease shall be
terminated pursuant to this Section 22.3, Basic Annual Rent and additional rent
shall be adjusted as of the date of occurrence of the damage or destruction.
SECTION 22.4 Notwithstanding any provision of this Article, in no event
shall Landlord be obligated to expend, in connection with the repair or
restoration of the Demised Premises pursuant to this Article, any amount in
excess of the available net proceeds of the insurance carried by Landlord with
respect to the damage or destruction. In the event that such proceeds shall be
insufficient for the repair or restoration or in the event that Landlord's
mortgagee shall apply all or any portion of such proceeds to the reduction of
the indebtedness secured by such mortgage, then to the
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extent of such unavailable proceeds, Landlord shall be excused from the
performance of repair or restoration work hereunder.
ARTICLE XXIII
EMINENT DOMAIN
SECTION 23.1 In the event of a taking for any public or quasi-public use
or purpose by any lawful power or authority by exercise of the right of
condemnation or eminent domain or by agreement between Landlord and those having
the authority to exercise such right (hereinafter called a "Taking") of the
entire Demised Premises or such substantial portion thereof so that the balance
of the Demised Premises is not suitable for the conduct of Tenant's normal
business operations therein, then this Lease and the terms hereof shall cease
and expire on the date of transfer of possession in connection with the Taking.
SECTION 23.2 In the event of: (a) a Taking of any portion of, the Demised
Premises as a result of which this Lease is not terminated pursuant to Section
23.1; or (b) a Taking resulting in a reduction of more than fifteen (15%)
percent of the parking spaces within a radius of one hundred (100) feet of the
front entrance to the Demised Premises (unless landlord provides adequate and
sufficient and reasonably convenient additional parking in substitution
therefor); or (c) a Taking of more than forty (40%) percent of the leasable
space at the Shopping Center (whether or not any portion of Demised Premises is
included in the Taking) or (d) a permanent denial or substantial impairment of
adequate access to the Shopping Center and Demised Premises, then, in such
event, Landlord or Tenant may, at its option, terminate this Lease by giving
notice of termination to the other within sixty (60) days after receipt by
Tenant of notice that the Taking will occur, such notice of termination to be
effective as of the date of transfer of possession in connection with the
Taking.
SECTION 23.3 In the event this Lease is not terminated pursuant to
Sections 23.1 or 23.2, then Landlord shall promptly commence and with due
diligence continue to restore the portion of the Shopping Center and the Demised
Premises remaining after the Taking to substantially the same condition and
tenantability as existed immediately preceding the Taking, to the extent such
restoration may be accomplished with the available net proceeds of the award or
payment to Landlord in connection with the taking. During the period of
restoration by Landlord, if the Taking or such restoration shall cause a
material adverse impact on Tenant's business at Demised Premises, Basic Annual
Rent and additional rent shall be abated and adjusted in an equitable fashion.
Upon completion of the restoration, basic Annual Rent and additional rent shall
also be abated and adjusted in such manner as shall be just and equitable. In
the event that Landlord shall fail to commence such restoration as hereinabove
required, or if such restoration shall not be completed within eighteen (18)
months from and after the date of transfer of possession in connection with
Taking, then, in either such event, Tenant shall have the right, as its
exclusive remedy, to terminate this Lease by notice to Landlord, such notice to
specify the effective date of termination.
SECTION 23.4 Whether or not this Lease shall be terminated pursuant to the
preceding Sections of this Article, Tenant shall have the right in connection
with any Taking to assert all claims available to it for loss of leasehold
improvements, trade fixtures and equipment, and such other terms of loss or
damage as Tenant shall suffer as a result of the Taking with respect to which
Tenant shall, from time to time under applicable law, be permitted to make an
independent claim, provided that such claim by Tenant will not reduce the award
or payment to Landlord in connection with the Taking. Notwithstanding the
foregoing, it is understood and agreed that Tenant shall have not claim against
the Taking authority or against the Landlord for the loss of the value of any
remaining
30
portion of Tenant's leasehold hereunder, and Tenant hereby assigns to Landlord
all rights and claims with respect to the loss of leasehold value.
SECTION 23.5 Notwithstanding any provision of this Article, in no event
shall Landlord be obligated to expend, in connection with repair or restoration
of the Demised Premises pursuant to this Article, any amount in excess of the
award or payment in connection with the Taking. In the event that such award or
payment shall be insufficient for the repair or restoration or in the event that
Landlord's mortgagee shall apply all or any portion of such award of payment to
the reduction of the indebtedness secured by such mortgage, then to the extent
of such unavailable award or payment, Landlord shall be excused from the
performance of repair or restoration work hereunder.
ARTICLE XXIV
NOTICES
SECTION 24.1 All notices, demands and request, required or permitted to be
given or made under any provision of this Lease, shall be in writing and shall
be given or made by overnight courier which obtains delivery receipts (e.g.
Federal Express) or by requested, postage prepaid, addressed as follows or to
such other addresses as either party may from time to time designate by written
notice given to the other:
(a) If to Tenant, addressed to it at:
JESSE Y. SAYEGH
25 Kinnelon Road
Kinnelon, New Jersey 07405
with a copy to:
BUKLAD & BUKLAD
78 So. Orange Ave.
South Orange, N.J. 07079
(b) If to Landlord, addressed to it at:
WESTWOOD OAKS, INC.
816 Deal Road
Ocean, New Jersey 07712
with a copy to:
Wilf & Silverman, Esqs.
820 Morris Turnpike
Short Hills, New Jersey 07078
Any such notice, demand or request shall be deemed given or made on the next
business day after delivery to the overnight courier and, if mailed, on the
third (3rd) business day after the date so mailed. Notwithstanding the
foregoing, in the case of the emergency referred to in Section 20.4 the notice
to be given under either of said Sections may be given, if practicable, by
telephone or by telegram or cablegram, sent to Landlord or Tenant at its
respective address or addresses as aforesaid, and such notice shall be deemed
given on the day on which the telephone call is made or the day on which the
telegram or cablegram is sent, as applicable.
ARTICLE XXV
HOLDOVER
SECTION 25.1 Notwithstanding any law, statute, custom or practice to the
contrary, in the event Tenant shall hold over after the date herein originally
specified for the termination of the term of this Lease, except under an
extension of the term pursuant
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to Section 2.5 of this Lease, or in the event that Tenant holds over after the
date for termination of the term hereof specified in any notice of termination
given by Tenant in the exercise of any right which it may have hereunder or by
law, the, and in either of such events, Tenant shall be a monthly tenant only,
at a monthly rent which shall be one and one-half (1 1/2) times the Basic Annual
Rent, and additional rent, if any, that was payable hereunder for the last full
Lease Year prior to the commencement of such monthly tenancy, and such monthly
rent shall be payable by Tenant to Landlord in advance on the first day of each
month of such monthly tenancy, but such monthly tenancy shall otherwise be upon
and subject to the provisions of this Lease insofar as the same maybe made
applicable to such a tenancy.
ARTICLE XXVI
DEFINITION OF LANDLORD
SECTION 26.1 The term "Landlord", whenever used in this Lease, shall mean
the owner at the time of Landlord's interest in this Lease or the mortgagee in
possession for the time being of the Demised Premises. Each owner from time to
time of the Landlord's interest in this Lease shall be liable with respect to
the covenants and other obligations of landlord hereunder (which covenants and
obligations shall run with the land of which the Demised Premises form a part)
only so long as such owner shall be the owner of the landlord's interest in this
lease, and such owner shall not be so liable after any sale or other conveyance
or transfer of landlord's interest in this Lease (except for any liability
relating to any breach, default, act or omission on the part of Landlord
occurring prior to such sale or other conveyance or transfer). Any sale or other
conveyance or transfer of the Demised Premises or of the Landlord's interest in
this Lease shall be subject to this Lease and to the covenants and provisions
hereof on Landlord's part to be performed or observed, and in the event of a
sale, or other conveyance or transfer thereof, the purchaser, grantee or
transferee shall be deemed to have assumed and agreed to perform and carry out
the covenants and obligations of Landlord hereunder during the period of such
purchaser's, grantee's or transferee's ownership of Landlord's interest.
Notwithstanding the foregoing, the original Landlord named herein shall not, in
any event, be relieved of any of its obligations to perform and complete the
construction, if any, to be performed by said Landlord as set forth in Section
1.3 hereof, with respect to the Demised premises and the Shopping Center, such
obligations to perform and complete construction being a personal covenant of
the original Landlord named herein.
SECTION 26.2 It is understood and agreed that, notwithstanding any other
provision of this Lease, landlord's liability under this Lease with respect to
monetary claims by tenant arising hereunder, or other claims by Tenant hereunder
which may be converted into monetary claims, shall be limited to Landlord's
equity interest in the Shopping Center and neither Landlord nor any stockholder,
partner or principal of landlord shall have any personal liability to Tenant
arising hereunder. The foregoing provisions shall be without any exception
whatsoever, but the foregoing shall not prevent Tenant form exercising or
enforcing any rights it may have for injunctive relief or specific performance.
As a result of any such injunctive relief or specific performance, Landlord
shall not be required to expend an amount greater than Landlord's said equity
interest in the Shopping Center and, in lieu of such expenditure, landlord may
permit Tenant to obtain a judgment lien or other lien upon such equity interest
to the extent of the cost (not in excess of landlord's said equity interest) of
performing the obligation which is the subject of such injunctive relief or
specific performance decree or order.
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ARTICLE XXVII
MISCELLANEOUS PROVISIONS
SECTION 27.1 In any case where either party hereto is required hereunder
to do any act, a delay in the performance of such act caused by or resulting
from act of God, riot, civil commotion, strikes, lock-out, acts, orders or
regulations of governmental authority, acts or failure to act of the other
party, fire, tornado, windstorm, adverse weather conditions or other causes
beyond such party's reasonable control (collectively :Force Majeure"), shall not
be counted in determining the time for completion of the performance of such
act, whether such be herein designated as a specific date, a fixed period of
time or a reasonable time. It is expressly understood and agreed, however, that
the provisions of the preceding sentence shall not apply to, or operate to
postpone, defer or extend or otherwise affect Tenant's obligation to make
payments of Basic Annual Rent and additional rent pursuant to this Lease.
SECTION 27.2 If any provision of this Lease shall be determined by a court
of competent jurisdiction to be invalid, such determination shall not affect any
of the other provisions of this Lease and such other provisions shall remain in
force and effect. If any provision of this Lease shall be capable of two
constructions, one of which would render the provision valid and the other of
which would render it invalid, then such provision shall have the construction
and meaning which would render it valid.
SECTION 27.3 If, at any time after the commencement of the term hereof,
Tenant or landlord shall make written request therefor, Landlord or Tenant
shall, within seven (7) days after such request, deliver to the other a written
instrument, duly executed by Landlord or Tenant, certifying, if such be the
case: (i) that this Lease is in force and effect; (ii) that this Lease has not
been modified, amended or supplemented or specifying the modification, amendment
or supplement; (iii) that Tenant or Landlord, as the case may be, is not in
default hereunder, or if it is then in default, specifying the nature of the
default and whether or not the time period for curing the same has expired; (iv)
the date or dates through which Basic Annual Rent and additional rent have been
paid; and (v) that there are not offsets or deductions against Basic Annual Rent
or additional rent, or if any are claimed, specifying the amount thereof and the
basis therefor.
SECTION 27.4 If at any time hereafter a dispute shall arise between
landlord and Tenant with respect to any amount of money to be paid by either if
them to the other under any of the provisions of this Lease, the party against
whom the obligation shall be asserted shall have the right to make payment
"under protest". If such party shall exercise such right, such payment shall not
be deemed a voluntary payment but there shall be deemed reserved to such party
the right to institute an appropriate action or proceeding against the other for
recovery of the whole or such part of said sum as such party shall claim it was
not obligated to pay hereunder. If at any time a dispute shall arise between
Landlord and Tenant as to any act to be done or work to be performed by either
of them in or about the Demised Premises under any of the provisions of this
lease, the party against whom the obligations to do such act or perform such
work shall be asserted, may do such act or perform such work and pay the cost
thereof "under protest". If such party shall do so the performance of such act
or work and payment of such cost shall not be deemed a voluntary performance or
voluntary payment, but there shall be deemed reserved to such party the right to
institute an appropriate action or proceeding against the other for recovery of
the whole or such cost or such part thereof as shall represent the cost of
performing the act or work which such party shall claim it was not obligated to
perform hereunder, plus interest at the Lease Interest Rate.
33
SECTION 27.5 Wherever in this Lease provision is made for the doing of any
act by either party hereto, it shall be deemed that said act shall be done by
such party at such party's own cost and expense, except as may be herein
otherwise expressly provided. Each of the parties shall, whenever necessary,
join with and cooperate with the other in any necessary applications for
governmental permits or approvals.
SECTION 27.6 This Lease, and the rights and obligations of the parties
hereto, shall be interpreted and construed in accordance with the laws of the
state or commonwealth in which the Demised Premises are located.
SECTION 27.7 Upon request of either party, Landlord and Tenant each hereby
agrees to execute and deliver to the other duplicate originals with signatures
duly acknowledged, of a memorandum of this Lease, and, upon request of either
party, a memorandum of any modification of this Lease. Such memorandum shall be
in recordable form and shall contain such information as shall be necessary in
the reasonable opinion of counsel for the parties, neither to be unreasonable,
to give record notice of the provisions of this Lease or said modification;
provided, however, in no event shall such memorandum set forth the Basic Annual
Rent or additional rent payable hereunder. Notwithstanding the foregoing, it is
understood and agreed that no memorandum of this Lease shall be recorded by
Landlord or Tenant prior to the occurrence of the Lease Commencement Date.
SECTION 27.8 Landlord and Tenant each hereby represents that Landlord
dealt with no Broker in connection with the negotiation, execution and delivery
of this Lease Agreement, and Tenant dealt exclusively with Wm. A. White/Grubb &
Ellis Inc. Both Landlord and Tenant each acknowledge that any broker fees in
connection with this Lease Agreement are the sole responsibility of Tenant.
SECTION 27.9 The term "Lease Interest Rate" as used in this Lease shall be
deemed to refer to the prime rate of interest from time to time being charged by
Citibank N.A. of New York, New York to its most creditworthy customers, plus one
(1%) percent.
SECTION 27.10 All trade fixtures and equipment furnished or installed by
Tenant or subtenants, concessionaires or licensees in the Demised Premises,
regardless of the manner or mode of attachment thereof, shall be and remain the
property of Tenant or its subtenants, concessionaires or licensees, and may be
removed by Tenant or its subtenants, concessionaires or licensees at any time
during the term of this Lease. Such trade fixtures and equipment shall be
removed not later than fifteen (15) days after the expiration date or sooner
termination date of the term hereof. any such trade fixtures or equipment
remaining in the Demised Premises after the expiration of the said fifteen (15)
day period may be removed by Landlord at the cost and expense of Tenant,
including but not limited to, any costs of storage or warehousing incurred by
Landlord. Notwithstanding the foregoing provisions of this Section 27.10 or the
provisions of Section 17.3, in no event shall Tenant have the right to remove
the heating, ventilating, air-conditioning, plumbing or electrical systems
servicing the Demised Premises, or the lighting fixtures or ceiling therein.
SECTION 27.11 All Schedules and Riders attached hereto constitute part of
this Lease.
SECTION 27.12 All monetary payments by Tenant to Landlord under this
Lease, including those required by Articles IV and V shall constitute additional
rent whether or not so designated herein. Landlord shall have with respect to
such monetary payments, all of rights and remedies as are otherwise provided to
Landlord herein or at law with respect to the payment of Basic Annual Rent.
34
SECTION 27.13 The rules and regulations annexed hereto shall be deemed
incorporated in and part of this Lease and Tenant shall be bound thereby.
Landlord shall have the right, form time to time during the term of this Lease,
to promulgate such other or additional rules and regulations or to modify or
amend the rules and regulations as Landlord shall, in its sole discretion deem
appropriate and necessary for the operation of the Shopping Center. Landlord
shall have no liability or obligation to Tenant in the event that Landlord shall
elect not to enforce any rule or regulation against any other Tenant of the
Shopping Center.
SECTION 27.14 Intentionally omitted.
SECTION 27.15 The submission of this Lease by Landlord to Tenant shall not
constitute an offer to Lease, and Tenant shall not have any claim against
Landlord or any rights with respect to the Demised Premises or the Shopping
Center unless and until this Lease is signed by Landlord and Tenant.
ARTICLE XXVIII
SUCCESSORS AND ASSIGNS
SECTION 28.1 It is covenanted and agreed by and between the parties hereto
that the covenants and agreements herein contained shall bind and inure to the
benefit of Landlord, its successors and assigns, and Tenant, its successors and
assigns, subject to the provisions of this Lease. The words "Landlord" and
"Tenant" and the pronouns referring thereto, as used in this Lease, shall mean,
where the context requires or permits, the person named herein as Landlord and
Tenant and their respective successors, assigns, and if the Landlord or Tenant
be an individual or individuals, the heirs and personal representatives of such
party, whether singular or plural and irrespective of gender.
ARTICLE XXIX
CAPTIONS
SECTION 29.1 The captions set forth below the Article number or elsewhere
in this Lease are for convenience of reference only and in no way define, limit
or describe the meaning, scope or intention of this Lease or of any of its
provisions or in any way affect this Lease.
ARTICLE XXX
ENTIRE AGREEMENT
SECTION 30.1 This instrument, together with the Schedules and Riders
attached hereto (all of which shall be deemed part of this Lease), contains the
entire agreement and understanding between the parties hereto with respect to
the lease of the Demised Premises to Tenant. No statements, representations,
prior agreement or understanding not herein set forth shall have any force or
effect unless appropriate amendment is executed by all parties hereto. This
Lease shall become effective only upon execution hereof by both parties hereto
and delivery of a fully executed original hereof to Tenant.
ARTICLE XXXI
CONTINGENCIES
SECTION 31.1 Notwithstanding any other provision of this Lease, this Lease
and the obligations and responsibilities of Landlord hereunder are conditional
and contingent upon Landlord's obtaining of all governmental permits and
approvals, including, but
35
not limited to, a building permit, necessary for construction of the Demised
Premises and Shopping Center.
SECTION 31.2 Landlord agrees to use due diligence to satisfy the
contingencies set forth in Section 31.1 hereof. In the event that Landlord shall
not have satisfied such contingencies and so notified Tenant, within days from
and after the date of this Lease, Landlord and Tenant shall have the right, as
their exclusive remedy, by notice to the other, to cancel and terminate this
Lease in which event, neither party shall have any further liability or
obligation to the other.
IN WITNESS WHEREOF the parties hereto have duly executed this instrument
as of the date first above written, which date shall be deemed to be and shall
be referred to as the date of this Lease.
WITNESS OR ATTEST: WESTWOOD OAKS, INC. - LANDLORD
/s/ Illegible BY: /s/ LEONARD A. WILF
- --------------------------- -------------------------------
/s/ Illegible BY: /s/ JESSE Y. SAYEGH
- --------------------------- -------------------------------
JESSE Y. SAYEGH - TENANT
BUKLAD & BUKLAD
78 So. Orange Ave.
South Orange, NJ 07079
36
RIDER LC
Subject to Tenant's ability to obtain all necessary governmental
approvals, Landlord shall deliver the herein described building with the
following work completed:
1. All footing foundations and structural steel framing including mezzanine
projection steel installed on concrete block footings as shown on plans
prepared by John Schimenti A.I.A. and attached hereto.
2. All exterior masonry walls will be painted 8" x 8" scored block with
accent patterns as indicated on the construction drawings.
3. Building shall have a single ply roof system with rigid insulation,
exterior roof drains, and a ten (10) year guaranty from the manufacturer.
4. There shall be a 3' high parapet with flashing and cant strip around the
building with copings.
5. Store front - Construction at the front of the building with glass block
as delineated in the schematic elevation drawing, except Tenant shall pay
to the Landlord the difference in the cost of the glass block vs. the
aforesaid 8" x 8' square block.
6. HVAC - Provide and install HVAC units on roof curbs as per plan (capacity
to meet boca code) with return air ducts at screens. all other work
including wiring, supply air ducts, dampers, registers and thermostats are
Tenants responsibility, as is the cost of additional capacity in excess of
the tonnage required by code.
7. Water supply to meter room - Supply to be sufficient for sprinkler and
domestic water. Provide back-flow devices if required.
8. Structural steel for roof and steel stairs and dunnage for HVAC system -
Roof steel to have outriggers for marquee. All metal decking.
9. Fireproofing - If required on the structural framing only, any other
fireproofing as may be required by any codes shall be the responsibility
of the Tenant.
10. 1600 amp electrical service to meter room with panel and meter. Subject to
the approval of J.C.P.& L. based on electrical load information to be
provided by Tenant. Should J.C.P.& L. deny said service, then landlord and
Tenant shall revise their electrical specifications based on the
availability of service to be provided by J.C.P.& L.
11. All landscaping, exterior parking lot lighting, concrete sidewalks, and
one (1) hose bib as per drawing. All exterior doors, hollow metal or glass
with hardware.
12. Pylon Sign - Landlord shall sign any documents Tenant shall require in
order to submit a permit for the installation of Tenant's signage on the
existing shopping center pylon.
13. Sanitary Piping - Landlord shall bring all sanitary lines to within five
(5') feet of the building. Should Tenant's building require a house trap,
same shall be Tenant's responsibility to install, however Landlord shall
credit Tenant the sum of $1,500.00 should the house trap be required.
14. Borings - Roof access door with stationary ladder.
15. Roof drains to exterior dry wells or sewer, including all piping.
16. Glass blocks at entranceway with landlord to be reimbursed the difference
in cost between said glass block and the cost of the 8" x 8" scored block.
17. Exterior areaways and drainage - All exterior railings and handrails as
requried by either BOCA or Handicap Code, any other railings shall be
Tenant's responsibility.
18. Provide and install sprinkler riser valve in sprinkler room with flange
connection ready for Tenants build out as per construction drawing.
19. Fire Stopping - Provide and install same as it relates to Landlord's work
only. Any additional fire stopping based on partitioning plan is Tenant's
responsibility.
20. Gas service, meter and piping to the HVAC units on the roof.
21. Excavate rough grading as indicated on construction drawings to within 2"
of the sub floor height.
22. Remove any hazardous soil which may be discovered during excavation.
Notwithstanding anything to the contrary contained in this work letter or
the attached Lease. it is understood that the Landlord shall be responsible for
obtaining all necessary Planning Board approvals including county approvals,
D.O.T. approvals, including approvals form the Ocean County Soils Conservation
Bureau as they may apply to the above referenced building. Unless specifically
stated above, or in the Lease, all work other than Items 1 through 22 shall be
the responsibility of the Tenant and Tenant shall be responsible for filing
whatever paperwork, submissions and review fees may be required in order to
procure said permit and certificate of occupancy.
WITNESS: WESTWOOD OAKS, INC.
BY: /s/ LEONARD A. WILF
- ------------------------ ----------------------------
Vice President
WITNESS: RUSTIC BERN CORP.
BY: /s/ Illegible
- ------------------------ ----------------------------
Vice President
BY: /s/ JESSE Y. SAYEGH
----------------------------
Jesse Sayegh, Tenant