LEASE MODIFICATION AGREEMENT
NO. 1
This Agreement made as of the 13th day of June, 2001 by and between
XXXXXXXXX METROMALL LLC, a Delaware limited liability company
("Landlord"), with its principal office at 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000, and Cinema Ride Times Square, Inc. ("Tenant") d/b/a
Cinema Ride, a New York corporation, with its principal office at 00000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
November 1, 1999 (the "Lease"), for those certain premises designated as
space numbers 1111 and 1112 (the "Premises") within the Jersey Gardens
(the "Shopping Center") located in the City of Xxxxxxxxx, and State of
New Jersey;
WHEREAS, CINEMA RIDE, INC. guaranteed the performance of Tenant's
obligations under the Lease pursuant to a Guaranty of Lease dated October
19, 1999; and,
WHEREAS, Landlord and Tenant mutually intend and desire to modify the
Lease on and subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Undefined capitalized terms used herein shall have the respective
meanings given such terms in the Lease.
2. The following Sections of the Lease are hereby amended, effective as
of November 1, 1999, as follows:
a.) Data Sheet, Section 2.01.
The new paragraph (iii ) shall be added to Section 2.01 on page 1
of the Data Sheet of the Lease, as follows: "(iii) Notwithstanding
anything to the contrary in this Lease, for the period commencing on
January 1, 2001 and expiring on the last day of the original term of this
Lease (the "Modification Period"), the sum of Fifty-two Thousand Six
Hundred Fifty-seven and 50/100 Dollars ($52,657.00) annually, which sum
shall be payable by Tenant in equal consecutive monthly installments of
Four Thousand Three Hundred Thirty-three and 13/100 Dollars ($4,388.13)
each."
b.) Data Sheet, Section 2.02.
The new paragraph (iii) shall be added to Section 2.02 on page 2 of
the Data Sheet of the Lease, as follows: "(iii) Notwithstanding anything
to the contrary in this Lease, for the period commencing on
January 1, 2001 and expiring on the last day of the original term of this
Lease (the "Modification Period"), a sum equal to ten percent (10%)(the
"percentage factor") of all "Gross Sales" resulting from business
conducted in, on or from the leased premises during each lease year in
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excess of Five Hundred Twenty-six Thousand Five Hundred Seventy-four and
99/100 Dollars ($526,574.99)."
c.) Section 1.02.
The following paragraph in Section 1.02 of the Lease is hereby deleted
in its entirety: "Further, in the event that a movie theater has
not opened at the regional development within eighteen (18) months of the
Commencement Date, Tenant shall have the right, within sixty (60) days
of the end of the aforementioned eighteen (18) month period, to terminate
this Lease by written notice to Landlord. In the event the movie theater
opens during the aforementioned sixty (60) day period, and before Tenant
has given Landlord written notice that it is terminating the Lease, such
right to terminate shall be void and of no further force and effect as of
the date the movie theater opens."
3. In consideration for Landlord entering into this Agreement, Tenant
shall pay Landlord, by certified or bank check, simultaneous with
Tenant's execution of this Agreement, the sum of Fifty Thousand and
00/100 Dollars ($50,000.00), which sum shall be accepted by Landlord in
full satisfaction of Tenant's outstanding balance for the period
commencing on October 1, 2000 and continuing through May 31, 2001, and
settlement of associated construction chargebacks.
4. As a material inducement to Landlord entering into this Agreement,
Tenant certifies to Landlord that as of the date hereof: (i) the Lease,
as modified hereby, contains the entire agreement between the parties
hereto relating to the Premises and that there are no other agreements
between the parties relating to the Premises, the Lease or the Shopping
Center which are not contained herein or in the Lease; (ii) Landlord is
not in default in any respect in any of the terms, covenants and
conditions of the Lease; and (iii) Tenant has no setoffs, counterclaims
or defenses against Landlord under the Lease.
5. Tenant and its predecessors, successors, parent, subsidiaries,
affiliates and any related entity or person, hereby release Landlord and
its parent, subsidiaries, or affiliated entities, and their agents,
partners, officers, directors, and employees, and the respective heirs,
executors, administrators, successors and assigns of any of the
foregoing, from any and all liability, claims, damages, causes of action
or any other form of relief, legal or equitable, that are, have been, or
could have been or in the future might be asserted in any way relating to
the Lease, the Landlord's performance thereunder, or the Premises, from
the beginning of time to the date of signature of this Agreement.
6. Landlord and Tenant each mutually covenants, represents and warrants
to the other that it has had no dealings or communications with any
broker or agent in connection with this Agreement and each covenants and
agrees to pay, hold harmless and indemnify the other from and against any
and all cost, expense (including reasonable attorneys' fees) or liability
for any compensation, commission or charges to any broker or agent
claiming through the indemnifying party with respect hereto.
7. Tenant represents and warrants that it has taken all corporate,
partnership or other action necessary to execute and deliver this
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Agreement, and that this Agreement constitutes the legally binding
obligation of Tenant enforceable in accordance with its terms. Tenant
shall save and hold Landlord harmless from any claims, or damages
including reasonable attorneys' fees arising from Tenant's
misrepresentation of its authority to enter into and execute this
Agreement.
8. As modified and amended hereby, Landlord and Tenant each ratifies
and affirms the terms of the Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have set their respective hands
as of the date first above written.
LANDLORD:
Witnessed By: ELIZABETH METROMALL LLC, a
Delaware limited liability company
Xxxxxx X. Xxxx
______________________________ By: Glimcher New Jersey Metromall LLC,
a Delaware limited liability company,
Xxxxx Xxxxxxx Xxxxxx Managing Member
______________________________
By: Glimcher Properties Limited
Partnership, a Delaware limited
partnership, Managing Member
By: Glimcher Properties Corporation,
a Delaware corporation, General
Partner
/s/ Xxxxxxx X. Gilmcher
_______________________________
By: Xxxxxxx X. Xxxxxxxx, President
TENANT:
Witnessed By: Cinema Ride Times Square, Inc.
Xxx Xxxxxxxx /s/ Xxxxx Xxxxxxx
_______________________________ ________________________________
Printed Name: Xxxxx Xxxxxxx
Xxxxxx X. Xxxx Title: President
_______________________________
The undersigned acknowledges this Lease Modification Agreement No. 1 as
being a part of this Lease for the purpose of a Guaranty of Lease dated
October 19, 1999 and further acknowledges and reaffirms continued
obligations under that certain Guaranty of Lease, executed in connection
with the Lease, to guaranty the full performance of all of Tenant's
obligations under the Lease and any amendments, modifications or
alterations thereto, including the payment of all amounts that may become
due and payable by Tenant to or for the benefit of Landlord.
TENANT'S GUARANTOR
Cinema Ride, Inc.
________________________________ By: /s/ Xxxxx Xxxxxxx
________________________________
________________________________ Printed Name: Xxxxx Xxxxxxx
Title: President
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