LEASE
BETWEEN
COMMERCIAL EQUITY, INC., as Lessor
and
NEW YORK BAGEL ENTERPRISES, INC., as Lessee
November 1, 1997
TABLE OF CONTENTS
ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Leased Property . . . . . . . . . . . . . . . . . . 1
1.2 Term. . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Definitions . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Minimum Rent. . . . . . . . . . . . . . . . . . . . 6
(a) Initial Term . . . . . . . . . . . . . . . . . 6
(b) Extended Terms . . . . . . . . . . . . . . . . 6
3.2 Additional Charges. . . . . . . . . . . . . . . . . 6
3.3 Net Lease . . . . . . . . . . . . . . . . . . . . . 6
3.4 Late Charge . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Payment of Impositions. . . . . . . . . . . . . . . 7
4.2 Notice of Impositions . . . . . . . . . . . . . . . 8
4.3 Utility Charges . . . . . . . . . . . . . . . . . . 9
4.4 Insurance Premiums. . . . . . . . . . . . . . . . . 9
4.5 Payables. . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.1 No Termination, Abatement, etc. . . . . . . . . . . 9
5.2 Abatement Procedures. . . . . . . . . . . . . . . . 10
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1 Ownership of the Leased Property. . . . . . . . . . 10
6.2 Lessee's Personal Property. . . . . . . . . . . . . 10
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.1 Condition of Leased Property. . . . . . . . . . . . 10
7.2 Use of the Leased Property. . . . . . . . . . . . . 11
ARTICLE VIII. . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.1 Compliance with Legal and Insurance
Requirements, Instruments, etc. . . . . . . . . . . 11
8.2 Legal Requirement Covenants . . . . . . . . . . . . 11
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ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.1 Maintenance and Repair. . . . . . . . . . . . . . . 12
9.2 Encroachments, Restrictions, etc. . . . . . . . . . 12
ARTICLE X . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10.1 Lessee's Obligations for Hazardous Materials. . . . 13
10.2 Definition of Hazardous Materials . . . . . . . . . 13
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11. No Liens. . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE XII . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12. Permitted Contests. . . . . . . . . . . . . . . . . 14
ARTICLE XIII. . . . . . . . . . . . . . . . . . . . . . . . . . 15
13.1 General Insurance Requirements. . . . . . . . . . . 15
13.2 Replacement Cost. . . . . . . . . . . . . . . . . . 15
13.3 Additional Insurance. . . . . . . . . . . . . . . . 16
13.4 Waiver of Subrogation . . . . . . . . . . . . . . . 16
13.5 Form Satisfactory, etc. . . . . . . . . . . . . . . 16
13.6 Increase in Limits. . . . . . . . . . . . . . . . . 16
13.7 Blanket Policy. . . . . . . . . . . . . . . . . . . 17
13.8 No Separate Insurance . . . . . . . . . . . . . . . 17
13.9 Continuous Coverage . . . . . . . . . . . . . . . . 17
ARTICLE XIV . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14.1 Insurance Proceeds. . . . . . . . . . . . . . . . . 17
14.2 Reconstruction in the Event of Damage or
Destruction Covered by Insurance Proceeds . . . . . 18
14.3 Reconstruction in the Event of Damage or
Destruction Not Covered by Insurance. . . . . . . . 18
14.4 Lessee's Property . . . . . . . . . . . . . . . . . 18
14.5 Restoration of Lessee's Property. . . . . . . . . . 18
14.6 No Abatement of Rent. . . . . . . . . . . . . . . . 19
14.7 Termination of Option to Extend . . . . . . . . . . 19
14.8 Waiver. . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE XV . . . . . . . . . . . . . . . . . . . . . . . . . . 19
15.1 Definitions . . . . . . . . . . . . . . . . . . . . 19
15.2 Parties' Rights and Obligations . . . . . . . . . . 19
15.3 Total Condemnation. . . . . . . . . . . . . . . . . 19
15.4 Allocation of Portion of Award. . . . . . . . . . . 20
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15.5 Partial Taking. . . . . . . . . . . . . . . . . . . 20
15.6 Temporary Taking. . . . . . . . . . . . . . . . . . 20
ARTICLE XVI . . . . . . . . . . . . . . . . . . . . . . . . . . 21
16.1 Events of Default . . . . . . . . . . . . . . . . . 21
16.2 Certain Remedies. . . . . . . . . . . . . . . . . . 23
16.3 Damages . . . . . . . . . . . . . . . . . . . . . . 23
16.4 Waiver. . . . . . . . . . . . . . . . . . . . . . . 24
16.5 Application of Funds. . . . . . . . . . . . . . . . 24
ARTICLE XVII. . . . . . . . . . . . . . . . . . . . . . . . . . 25
17. Lessor's Right to Cure Lessee's Default . . . . . . 25
ARTICLE XVIII . . . . . . . . . . . . . . . . . . . . . . . . . 25
18.1 Options to Extend . . . . . . . . . . . . . . . . . 25
18.2 Minimum Rent During Extended Terms. . . . . . . . . 25
ARTICLE XIX . . . . . . . . . . . . . . . . . . . . . . . . . . 26
19. Holding Over. . . . . . . . . . . . . . . . . . . . 26
ARTICLE XX . . . . . . . . . . . . . . . . . . . . . . . . . . 26
20. Risk of Loss. . . . . . . . . . . . . . . . . . . . 26
ARTICLE XXI . . . . . . . . . . . . . . . . . . . . . . . . . . 26
21. Indemnification . . . . . . . . . . . . . . . . . . 26
ARTICLE XXII. . . . . . . . . . . . . . . . . . . . . . . . . . 27
22.1 Subletting and Assignment . . . . . . . . . . . . . 27
22.2 Attornment. . . . . . . . . . . . . . . . . . . . . 28
ARTICLE XXIII . . . . . . . . . . . . . . . . . . . . . . . . . 28
23. Officers' Certificates. . . . . . . . . . . . . . . 28
ARTICLE XXIV. . . . . . . . . . . . . . . . . . . . . . . . . . 28
24. Lessor's Right to Inspect . . . . . . . . . . . . . 28
ARTICLE XXV . . . . . . . . . . . . . . . . . . . . . . . . . . 28
25. No Waiver . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE XXVI. . . . . . . . . . . . . . . . . . . . . . . . . . 29
26. Remedies Cumulative . . . . . . . . . . . . . . . . 29
ARTICLE XXVII . . . . . . . . . . . . . . . . . . . . . . . . . 29
27. Acceptance of Surrender . . . . . . . . . . . . . . 29
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ARTICLE XXVIII. . . . . . . . . . . . . . . . . . . . . . . . . 29
28. No Merger of Title. . . . . . . . . . . . . . . . . 29
ARTICLE XXIX. . . . . . . . . . . . . . . . . . . . . . . . . . 29
29. Conveyance by Lessor. . . . . . . . . . . . . . . . 29
ARTICLE XXX . . . . . . . . . . . . . . . . . . . . . . . . . . 29
30. Quiet Enjoyment . . . . . . . . . . . . . . . . . . 29
ARTICLE XXXI. . . . . . . . . . . . . . . . . . . . . . . . . . 30
31. Notices . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE XXXII . . . . . . . . . . . . . . . . . . . . . . . . . 31
32.1 Lessor May Grant Liens. . . . . . . . . . . . . . . 31
32.2 Lessee's Right to Cure. . . . . . . . . . . . . . . 31
32.3 Breach by Lessor. . . . . . . . . . . . . . . . . . 32
ARTICLE XXXIII. . . . . . . . . . . . . . . . . . . . . . . . . 32
33.1 Survival of Obligations . . . . . . . . . . . . . . 32
33.2 Late Charges; Interest. . . . . . . . . . . . . . . 32
33.3 Limits of Lessor's Liability. . . . . . . . . . . . 32
33.4 Addendum, Amendments and Exhibits . . . . . . . . . 32
33.5 Headings. . . . . . . . . . . . . . . . . . . . . . 32
33.6 Time. . . . . . . . . . . . . . . . . . . . . . . . 32
33.7 Days. . . . . . . . . . . . . . . . . . . . . . . . 32
33.8 Rent. . . . . . . . . . . . . . . . . . . . . . . . 33
33.9 Applicable Law. . . . . . . . . . . . . . . . . . . 33
33.10 Successors and Assigns. . . . . . . . . . . . . . . 33
33.11 Recordation . . . . . . . . . . . . . . . . . . . . 33
33.12 Prior and Future Agreements . . . . . . . . . . . . 33
33.13 Partial Invalidity. . . . . . . . . . . . . . . . . 33
33.14 Attorneys' Fees . . . . . . . . . . . . . . . . . . 33
33.15 Authority of Lessor and Lessee. . . . . . . . . . . 33
33.16 Relationship of the Parties . . . . . . . . . . . . 33
33.17 Counterparts. . . . . . . . . . . . . . . . . . . . 34
33.18 Brokers . . . . . . . . . . . . . . . . . . . . . . 34
33.19 Computer Disc . . . . . . . . . . . . . . . . . . . 34
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LEASE
THIS LEASE (this "Lease") is made as of this 1st day of November, 1997, by
and between COMMERCIAL EQUITY, INC., a Kansas corporation, herein called
"Lessor," and NEW YORK BAGEL ENTERPRISES, INC., a Kansas corporation, herein
called "Lessee," subject to the terms, conditions and contingencies set forth
below.
ARTICLE I
1.1 LEASED PROPERTY. Upon and subject to the terms and conditions
hereinafter set forth, Lessor leases to Lessee, and Lessee rents and hires from
Lessor all of the following (collectively, the "Leased Property"):
(i) The real property described in Exhibit "A" attached hereto
(the "Land");
(ii) All buildings, structures, Fixtures (as hereinafter defined)
and other improvements of every kind including, without limitation, alleyways
and connecting tunnels, sidewalks, utility pipes, conduits and lines (on-site
and off-site), parking areas and roadways appurtenant to such buildings and
structures presently situated upon the Land (collectively, the "Leased
Improvements");
(iii) All easements, rights and appurtenances relating to the
Land and the Leased Improvements; and
(iv) All permanently affixed equipment, machinery, fixtures, and
other items of real and/or personal property, including all components thereof,
permanently affixed to or incorporated into the Leased Improvements, including,
without limitation, all furnaces, boilers, heaters, electrical equipment,
heating, plumbing, lighting, ventilating, refrigerating, incineration, air and
water pollution control, waste disposal, air-cooling and air conditioning
systems and apparatus, sprinkler systems and fire and theft protection
equipment, all of which to the greatest extent permitted by the law, are hereby
deemed by the parties hereto to constitute real estate, together with all
replacements, modifications, alterations and additions thereto, to the extent
acquired by Lessor pursuant to the "Purchase Agreement" as defined in Article II
hereof (collectively, the "Fixtures").
The Leased Property includes the Building operated as a New York Bagel
Cafe restaurant and located at the Location set forth in Schedule 1 attached
hereto. Notwithstanding the foregoing, the Leased Property shall not include
any property not acquired by Lessor from the Seller pursuant to the Purchase
Agreement. The Leased Property is subject to all covenants, conditions,
restrictions, easements, and other matters of record, and all other matters that
affect title, zoning and any other matters set forth in that certain title
policy issued by the title company set forth in Schedule 1 attached hereto
concurrently with Lessor's purchase of the Leased Property and all matters
disclosed in the survey obtained in connection with such title insurance
(collectively, the "Permitted Title Matters").
1.2 TERM. The initial term of this Lease (the "Initial Term") shall
be the period commencing on the closing (the "Closing") under the Purchase
Agreement (the "Commencement Date") and expiring fifteen (15) years after the
Commencement Date. Lessee has the right to extend the term of this Lease, at
Lessee's option, as provided in Article XVIII, below. (The Initial Term plus
all validly exercised options to extend, if any, shall be referred to herein as
the "Term").
ARTICLE II
2. DEFINITIONS. For all purposes of this Lease, except as otherwise
expressly provided, (i) the terms defined in this Article II have the meanings
assigned to them in this Article II and include the plural as well as the
singular; (ii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles at the time applicable; and (iii) the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Lease as a whole and
not to any particular Article, Paragraph or other subdivision:
ADDITIONAL CHARGES. As defined in Paragraph 3.2.
ADDITIONAL RENT. As defined in Paragraph 3.1.
AFFILIATE. When used with respect to any corporation, the term
"Affiliate" shall mean any person or entity (including any trust) which,
directly or indirectly, controls or is controlled by or is under common control
with such corporation. For the purposes of this definition, "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, through the ownership
of voting securities, partnership interests or other equity interests. For the
purposes of this definition, "person" shall mean any natural person, trust,
partnership, corporation, joint venture or other legal entity.
BUILDING. That certain building currently operated as a New York
Bagel Cafe restaurant which is part of the Leased Property, as defined in
Article I, above.
BUILDING MORTGAGE. As defined in Article XIII.
BUILDING MORTGAGEE. As defined in Article XIII.
BUSINESS DAY. Each Monday, Tuesday, Wednesday, Thursday, and Friday,
which is not a day on which national banks in the State of Kansas are authorized
or obligated, by law or executive order, to close.
CALENDAR YEAR. The period from January 1 through and including
December 31 in the same calendar year.
2
CODE. The Internal Revenue Code of 1986, as amended.
ENCUMBRANCE. As defined in Article XXXII.
EVENT OF DEFAULT. As defined in Article XVI.
EXTENDED TERM. As defined in Article XVIII.
FIXTURES. As defined in Article I.
IMPOSITIONS. Collectively, all taxes (including, without limitation,
all ad valorem, sales and use or any other taxes as the same relate to or are
imposed upon Lessee or Lessor or the business conducted upon the Leased
Property), assessments (including, without limitation, all assessments for
public improvements or benefits, whether or not commenced or completed prior to
the date hereof and whether or not to be completed within the Term), water,
sewer or other rents and charges, excises, tax levies, fees (including, without
limitation, license, permit, inspection, authorization and similar fees), and
all other governmental charges, in each case whether general or special,
ordinary or extraordinary, or foreseen or unforeseen, of every character in
respect of the Leased Property, Lessor, or the business conducted thereon by
Lessee (including all interest and penalties thereon due to any failure in
payment by Lessee), and all increases in all the above from any cause
whatsoever, including reassessment, which at any time prior to, during or in
respect of the Term may be assessed or imposed on or in respect of or be a lien
upon (a) Lessor's interest in the Leased Property or any part thereof; (b) the
Leased Property or any part thereof; or (c) any occupancy, operation, use or
possession of, or sales from, or activity conducted on, or in connection with
the Leased Property or the leasing or use of the Leased Property or any part
thereof by Lessee. Without limiting the foregoing, the term "Imposition" shall
include any sales tax paid under this Lease, depreciation recapture, any other
taxes (except for the specific exclusions stated below), fees or charges imposed
by the State and any potential subdivision thereof relating to the Leased
Property, or this Lease, whether relating to any period prior to or after the
Commencement Date. Nothing contained in this Lease shall be construed to
require Lessee to pay (1) the following taxes and fees to the extent they relate
to Lessor's business generally (as opposed to relating specifically to Lessor's
ownership of the Building, lease thereof to Lessee or income therefrom): any
federal, state or local income tax of Lessor, taxes based on outstanding
corporate shares of Lessor or Lessor's equity or capitalization, regardless of
whether denominated as an income tax, franchise tax, capital tax or otherwise;
(2) any income or capital gain tax imposed with respect to the sale, exchange or
other disposition, or operation, by Lessor of any Leased Property or the
proceeds thereof; or (3) estate, inheritance, gift taxes or documentary transfer
taxes.
INSURANCE REQUIREMENTS. All terms of any insurance policy required by
this Lease and all requirements of the issuer of any such policy.
LAND. As defined in Article I.
3
LEASE. As defined in the Preamble.
LEASE YEAR. The twelve (12) month period from January 1 to December
31 in each calendar year. In the case of the beginning of the Initial Term, the
provision "Lease Year" shall mean the period from the Commencement Date (defined
in Paragraph 1.2, above) to December 31, 1997; in the case of the end of the
Term, the provision "Lease Year" shall mean the period from the last January 1
to occur in the Term to the date of expiration of the Lease. The Lease Year
1997 shall mean the Commencement Date through December 31, 1997; the Lease Year
1998 shall mean January 1, 1998 through December 31, 1998, and so on.
LEASED IMPROVEMENTS; LEASED PROPERTY. Each as defined in Article I.
LEGAL REQUIREMENTS. All federal, state, county, municipal, and other
governmental statutes, laws, rules, orders, regulations, ordinances, judgments,
decrees, and injunctions affecting either the Leased Property or the
construction, use or alteration thereof whether now or hereafter enacted and in
force, including any which may (i) require repairs, modifications or alterations
in or to the Leased Property; or (ii) in any way adversely affect the use and
enjoyment thereof, and all permits, licenses and authorizations and regulations
thereto, and all covenants, agreements, restrictions, and encumbrances contained
in any instruments, either of record or known to Lessee, at any time in force
affecting the Leased Property.
LESSEE. New York Bagel Enterprises, Inc., a Kansas corporation (and
any assignee permitted subject to the terms and conditions in this Lease).
LESSEE'S PERSONAL PROPERTY. All machinery, equipment, furniture,
furnishings, movable walls or partitions, computers, or movable trade fixtures
or other personal property, and consumable inventory and supplies, owned by
Lessee and used or useful in Lessee's business on the Leased Property,
including, without limitation, all items of furniture, furnishings, equipment,
supplies and inventory, except items acquired by Lessor pursuant to the Purchase
Agreement.
LESSOR. Commercial Equity, Inc., a Kansas corporation, and its
successors and assigns. Unless Lessee is notified by Lessor otherwise, Lessor's
address is: Commercial Equity, Inc., 300 I.M.A. Plaza, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxx 00000-0000, Attention: Xxxxx X. Xxxxxx, President.
MINIMUM RENT. As defined in Paragraph 3.1.
NOTICE. A notice given pursuant to Article XXXI hereof.
OFFICERS' CERTIFICATE. A certificate of Lessee signed by (i) the
Chairman of the Board of Directors, Chief Executive Officer or the President or
any authorized Vice President; and (ii) the Secretary, or another officer
authorized by appropriate resolution to so sign by the Board of
4
Directors. Any signature required above may be substituted with a signature
of another person whose power and authority to act has been authorized by an
appropriate corporate resolution.
OVERDUE RATE. On any date, a rate equal to the Prime Rate (defined
below), plus five percent (5%); provided, however, that it is the intent of
Lessor and Lessee that the Overdue Rate (and all other interest rates provided
for hereunder) be in strict compliance with applicable usury laws of the State
of Kansas, and that in the event the Overdue Rate (or other interest rate
provided for hereunder) shall be deemed to exceed that permitted to be charged
by the laws of the State of Kansas, any and all excess sums collected by Lessor
shall be credited against the Rent payable under this Lease or if there is no
Rent due, promptly refunded to Lessee.
PAYMENT DATE. Any due date for the payment of the installments of
Minimum Rent or any other payments required under this Lease.
PRIMARY INTENDED USE. As defined in Paragraph 7.2.2.
PRIME RATE. On any date, a rate equal to the annual rate on such date
announced by NationsBank, N.A. to be its prime rate for 90-day unsecured loans
to its corporate borrowers of the highest credit standing or, if not available,
such other rate as may be published by THE WALL STREET JOURNAL as the prime rate
in its listing of "MONEY RATES."
PURCHASE AGREEMENT. That certain Agreement of Purchase and Sale,
dated October 21, 1997, between Lessee as "Seller" and Lessor as "Buyer"
providing for Lessor's acquisition of all of Lessee's interest in and to the
Leased Property.
RENT. Any and all monetary obligations of Lessee owing under this
Lease.
STATE. As defined in Schedule 1 attached hereto and incorporated
herein.
SUBSIDIARIES. Corporations, of which either Lessee or Lessor owns,
directly or indirectly, more than 50% of the voting stock (individually, a
"Subsidiary").
TERM. Collectively, the Initial Term plus any Extended Terms, as the
context may require, unless earlier terminated pursuant to the provisions
hereof.
UNSUITABLE FOR ITS PRIMARY INTENDED USE. A state of condition of the
Building such that by reason of damage or destruction, or a partial taking by
Condemnation, in the good faith judgment of Lessor, reasonably exercised, the
Building cannot be operated on a commercially practicable basis for its Primary
Intended Use taking into account.
UNAVOIDABLE DELAYS. Delays due to strikes, lock-outs, inability to
procure materials, power failure, acts of God, governmental restrictions, enemy
action, civil commotion, fire, unavoidable casualty or other causes beyond the
control of the party responsible for performing an
5
obligation hereunder; provided that lack of funds shall not be deemed a cause
beyond the control of either party hereto unless such lack of funds available
to Lessor results from Lessee's failure to perform any of its obligations
under this Lease.
The above does not include all the definitions to be used in this
Lease. Various definitions of other terms are included in the other Articles of
this Lease.
ARTICLE III
3.1 MINIMUM RENT. Lessee will pay to Lessor in lawful money of the
United States of America which shall be legal tender for the payment of public
and private debts, at Lessor's address set forth above or at such other place or
to such other person, firms or corporations as Lessor from time-to-time may
designate in a Notice, Minimum Rent (as defined below), during the Term, as
follows:
(a) INITIAL TERM. The "Minimum Rent" shall be the annual sums
as stated in Schedule 1 attached hereto and incorporated herein. The Minimum
Rent shall be paid in advance in equal, consecutive monthly installments on the
first day of each calendar month of the Term. Minimum Rent shall be prorated
for any partial month at the beginning or end of the Term.
(b) EXTENDED TERMS. The Minimum Rent during the Extended Terms
shall be as stated in Article XVIII, below.
3.2 ADDITIONAL CHARGES. In addition to the Minimum Rent, (1) Lessee
will also pay and discharge as and when due and payable all other amounts,
liabilities, obligations and Impositions which Lessee assumes or agrees to pay
under this Lease, and (2) in the event of any failure on the part of Lessee to
pay any of those items referred to in the immediately preceding clause (1)
above, Lessee will also promptly pay and discharge every fine, penalty, interest
and cost which may be added for non-payment or late payment of such items (the
items referred to in clauses (1) and (2) above being referred to herein
collectively as the "Additional Charges"), and Lessor shall have all legal,
equitable and contractual rights, powers and remedies provided either in this
Lease or by statute or otherwise in the case of non-payment of the Additional
Charges. If any elements of Additional Charges shall not be paid within seven
(7) Business Days after its due date and Lessor pays any such amount (which
Lessor shall have the right, but not the obligation, to do), then, in addition
to Lessor's other rights and remedies, Lessee will pay Lessor on demand, as
Additional Charges, interest on such unpaid Additional Charges computed at the
Overdue Rate from the due date of such installment to the date of Lessee's
payment thereof.
3.3 NET LEASE. Subject to the provisions of Article V, below,
without limiting any provision of this Lease, the Rent shall be paid absolutely
net to Lessor, so that this Lease shall yield to Lessor the full amount of the
installments of Minimum Rent throughout the Term, all as more fully set forth in
Articles IV, VIII, IX and XIII, and other provisions of this Lease, so that,
accordingly, Lessee shall pay all Additional Charges and any other expenses of
any kind associated with this Lease
6
and the Leased Property to insure that Lessor receives the Minimum Rent, net
of all expenses. Further, because Lessee, prior to the date of this Lease,
is the owner of fee simple title to the Leased Property, Lessee shall be
responsible for all Additional Charges and all other amounts due under this
Lease for any period prior to and during the Term.
3.4 LATE CHARGE. LESSEE HEREBY ACKNOWLEDGES THAT LATE PAYMENT BY
LESSEE TO LESSOR OF RENT (INCLUDING, WITHOUT LIMITATION MINIMUM RENT AND
ADDITIONAL CHARGES) WILL CAUSE LESSOR TO INCUR COSTS NOT CONTEMPLATED BY THIS
LEASE, THE EXACT AMOUNT OF WHICH WILL BE EXTREMELY DIFFICULT TO ASCERTAIN. SUCH
COSTS INCLUDE, WITHOUT LIMITATION, PROCESSING AND ACCOUNTING CHARGES.
ACCORDINGLY, IF ANY INSTALLMENT OF MINIMUM RENT OR ANY OTHER SUM DUE FROM LESSEE
SHALL NOT BE RECEIVED BY LESSOR WITHIN FIVE (5) BUSINESS DAYS AFTER SUCH AMOUNT
SHALL BE DUE, THEN WITHOUT ANY REQUIREMENT FOR NOTICE TO LESSEE, LESSEE SHALL
PAY TO LESSOR A LATE CHARGE EQUAL TO FIVE PERCENT (5%) OF SUCH OVERDUE AMOUNT.
THE PARTIES HEREBY AGREE THAT SUCH LATE CHARGE REPRESENTS A FAIR AND REASONABLE
ESTIMATE OF THE COSTS LESSOR WILL INCUR BY REASON OF LATE PAYMENT BY LESSEE.
ACCEPTANCE OF SUCH LATE CHARGE BY LESSOR SHALL IN NO EVENT CONSTITUTE A WAIVER
OF LESSEE'S DEFAULT OR BREACH WITH RESPECT TO ANY UNPAID OVERDUE AMOUNTS, NOR
PREVENT LESSOR FROM EXERCISING ANY OF THE OTHER RIGHTS AND REMEDIES GRANTED
UNDER THIS LEASE WITH RESPECT TO ANY SUCH UNPAID OVERDUE AMOUNTS.
ARTICLE IV
4.1 PAYMENT OF IMPOSITIONS. Subject to Article XII relating to
permitted contests, Lessee will pay, or cause to be paid, all Impositions coming
due prior to or during the Term, or which relate to any period within the Term
or prior to the Term, before any fine, penalty, interest or cost may be added
for non-payment (or earlier if required by any taxing authority), such payments
to be made directly to the taxing authorities where feasible, and will promptly
furnish to Lessor copies of official receipts or other satisfactory proof
evidencing such payments. Lessee's obligation to pay Impositions shall be
deemed absolutely fixed upon the date such Impositions become a lien upon the
Leased Property or any part thereof. If any Imposition may, at the option of
the taxpayer, lawfully (without penalty) be paid in installments (whether or not
interest shall accrue on the unpaid balance of such Imposition), Lessee may
exercise the option to pay the same (and any accrued interest on the unpaid
balance of such Imposition) in installments and in such event, shall pay such
installments during the Term hereof (subject to Lessee's right of contest
pursuant to the provisions of Article XII) as the same respectively become due
and before any fine, penalty, premium, further interest or cost may be added
thereto. Lessee, at its expense, shall, to the extent required or permitted by
Legal Requirements, prepare and file all tax returns and reports in respect of
any Imposition as may be required by governmental authorities. If any refund
shall be due from any taxing authority in respect of any Imposition, the same
shall be paid over to or retained by Lessee if no Event of Default shall
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have occurred hereunder and be continuing, but if such Event of Default has
occurred and is continuing (i.e., it has not been cured), such refund shall
be paid to Lessor and utilized to cure any such continuing Event of Default.
After fully curing such Event of Default, any excess funds from such refund
shall be paid by Lessor to Lessee. Any such funds retained by Lessor, as
provided above, shall be applied as provided in Article XVI. Lessor and
Lessee shall, upon request of the other, provide such data as is maintained
by the party to whom the request is made with respect to the Leased Property
as may be necessary to prepare any required returns and reports. In the
event governmental authorities classify any property covered by this Lease as
personal property, Lessee shall file all personal property tax returns in
such jurisdictions where it must legally so file. Lessor, to the extent it
possesses the same, and Lessee, to the extent it possesses the same, will
provide the other party, upon request, with cost and depreciation records
necessary for filing returns for any property so classified as personal
property. Where Lessor is legally required to file personal property tax
returns, Lessee will provide to Lessor copies of assessment notices
indicating a value in excess of the reported value in sufficient time for
Lessor to file a protest. Lessee may, upon notice to Lessor, at Lessee's
option and at Lessee's sole cost and expense, protest, appeal or institute
such proceedings as Lessee may deem appropriate to effect a reduction of real
estate or personal property assessments and Lessor, at Lessee's sole cost and
expense as aforesaid, shall fully cooperate with Lessee in such protest,
appeal, or other action, provided that Lessee may not withhold payments
pending such challenges except under the conditions set forth in Article XII.
Lessor shall have the right to require that Lessee pay to Lessor 1/12th of
the annual Impositions each month concurrently with the payment of Minimum
Rent, effective (a) upon the occurrence of any Event of Default relating to
the payment or nonpayment of Impositions (and irrespective of whether such
Event of Default is continuing or has been cured); (b) as to any Event of
Default not covered in the preceding subparagraph (a), upon the occurrence of
the second Event of Default under this Lease (and irrespective of whether any
such Events of Default are continuing or have been cured); and (c) once any
Event of Default has occurred hereunder that has not been cured within sixty
(60) days. Unless Lessee is notified by Lessor otherwise, Lessee shall pay
all Impositions directly to the appropriate taxing or other authorities to
which payments are due, and Lessee shall provide Lessor written evidence and
notice that all such payments have been made. Without limiting any of the
other indemnities set forth in this Lease, Lessee hereby agrees to defend,
indemnify, protect and hold harmless Lessor in connection with any
Impositions that relate to any time prior to or during the Term, and Lessee
acknowledges and agrees that it will not make claims against, or otherwise
look to, Lessor to reimburse Lessee for payments made relating to any period
prior to the Commencement Date.
4.2 NOTICE OF IMPOSITIONS. Lessor shall give prompt Notice to Lessee
for all Impositions payable by Lessee hereunder of which Lessor has knowledge,
but Lessor's failure to give any such Notice shall in no way diminish Lessee's
obligations hereunder to pay such Impositions, but such failure shall obviate
any default hereunder for a reasonable time after Lessee receives notice (from
any source) of any Imposition which it is obligated to pay. However,
notwithstanding the foregoing, it shall be Lessee's sole duty to inquire and
determine all of the Impositions for which it is liable as provided herein and
shall promptly pay such Impositions when due, and Lessor shall have no duty of
inquiry concerning Impositions.
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4.3 UTILITY CHARGES. Lessee will pay or cause to be paid all charges
for electricity, power, gas, oil, water, sewer connection and all other
utilities used in or for the Leased Property during the Term.
4.4 INSURANCE PREMIUMS. Lessee will pay or cause to be paid all
premiums for the insurance coverage required to be maintained pursuant to
Article XIII during the Term.
4.5 PAYABLES. Lessee acknowledges and agrees that prior to the
Commencement Date, certain liabilities and other obligations were incurred
arising from the development, construction and operation of the Building for
which Lessee is and shall remain responsible and liable and Lessor shall have no
responsibility, liability or obligation whatsoever with respect to the same.
Therefore, Lessee agrees as part of this Lease to pay all liabilities and
obligations concerning the Building, whether arising before or after the
Commencement Date.
ARTICLE V
5.1 NO TERMINATION, ABATEMENT, ETC. Subject to the provisions of
Paragraph 5.2, Lessee shall not be entitled to any abatement, deduction,
deferment or reduction of Rent, or set-off against the Rent, nor shall the
respective obligations of Lessor and Lessee be otherwise affected by reasons of
(a) any damage to, or destruction of, any Leased Property or any portion
thereof; (b) the lawful or unlawful prohibition of, or restriction upon,
Lessee's use of the Leased Property, or any portion thereof, the interference
with such use by any person, corporation, partnership or other entity, or by
reason of eviction by paramount title; (c) any claim which Lessee has or might
have against Lessor or by reason of any default or breach of any warranty by
Lessor under this Lease or any other agreement between Lessor and Lessee, or to
which Lessor and Lessee are parties; (d) any bankruptcy, insolvency,
reorganization, composition, readjustment, liquidation, dissolution, winding-up
or other proceedings affecting Lessor or any assignee or transferee of Lessor;
or (e) for any other cause whether similar or dissimilar to any of the foregoing
other than a discharge of Lessee from any such obligations as a matter of law.
Lessee hereby specifically waives all rights, arising from any occurrence
whatsoever, which may now or hereafter be conferred upon it by law to (i)
modify, surrender or terminate this Lease or quit or surrender the Leased
Property or any portion thereof; or (ii) entitle Lessee to any abatement,
reduction, suspension or deferment of the Rent payable under this Lease. The
obligations of Lessor and Lessee hereunder shall be separate and independent
covenants and agreements and the Rent due under this Lease shall continue to be
payable in all events, irrespective of Lessor's performance or non-performance
under this Lease, unless the obligations to pay the same shall be terminated
pursuant to the express provisions of this Lease or by termination of this Lease
other than by reason of an Event of Default.
5.2 ABATEMENT PROCEDURES. In the event Lessee is entitled to an
abatement of Minimum Rent under Article XV (by reason of any Condemnation as
provided thereunder), the Lease shall not terminate (except as provided in
Article XV) but the Minimum Rent shall be abated in proportion to the reduced
capacity of the Leased Property for the use made of the same by Lessee at the
time of the Condemnation. If Lessor and Lessee are unable to agree upon the
amount of such
9
abatement within thirty (30) days after any partial taking as provided under
Article XV, the matter shall be submitted by either party to a court of
competent jurisdiction for resolution, but Lessee during such resolution
shall continue to perform its obligations hereunder, including, without
limitation, payment of that portion of the Minimum Rent which is not then in
dispute.
ARTICLE VI
6.1 OWNERSHIP OF THE LEASED PROPERTY. Lessee acknowledges and agrees
that the Leased Property is the property of Lessor and that Lessee has only the
right to the exclusive possession and use of the Leased Property upon the terms
and conditions of this Lease.
6.2 LESSEE'S PERSONAL PROPERTY. Lessee may (and shall as provided
hereinbelow), at its expense, install, assemble or place on any parcels of the
Land or in any of the Leased Improvements, any items of Lessee's Personal
Property, and Lessee may, subject to the conditions set forth below, remove the
same upon the expiration or any prior termination of the Term. All of Lessee's
Personal Property not removed by Lessee within twenty (20) days following the
expiration or earlier termination of this Lease shall be considered abandoned by
Lessee and may be used, appropriated, sold, destroyed, or otherwise disposed of
by Lessor without first giving notice thereof to Lessee and without any payment
to Lessee and without any obligation to account therefor. Lessee shall, within
twenty (20) days following the expiration or earlier termination of this Lease,
at its sole cost and expense, repair any damage to the Land or the Leased
Improvements occasioned by the installation, maintenance or removal of Lessee's
Personal Property, and restore the Land or Leased Improvements to its condition
immediately prior to any such installation. To the extent allowed by law,
Lessor and Lessee agree that the provisions of this Paragraph 6.2 shall be in
substitution of any statutory obligations Lessor may have to give Lessee notice
of demand for removal of Lessee's Personal Property and notice of sale of
Lessee's Personal Property. Lessor and Lessee agree that Lessor shall not be
required to sell Lessee's Personal Property or account to Lessee therefor.
ARTICLE VII
7.1 CONDITION OF LEASED PROPERTY. Lessee acknowledges receipt and
delivery of possession of the Leased Property and further acknowledges that
Lessee has examined and otherwise has knowledge of the condition of the Leased
Property prior to the execution and delivery of this Lease and has found the
same to be in good order and repair and satisfactory for it purposes hereunder.
Lessee is leasing the Leased Property "AS-IS" in its present condition. Lessee
waives any claim or action against Lessor in respect of the condition of the
Leased Property. LESSOR MAKES NO WARRANTY OR REPRESENTATIONS, EXPRESS OR
IMPLIED, IN RESPECT OF THE LEASED PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS
FITNESS FOR USE, DESIGN OR CONDITION FOR THE MATERIAL OR WORKMANSHIP THEREIN,
LATENT OR PATENT, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY LESSEE.
LESSEE ACKNOWLEDGES THAT THE LEASED PROPERTY HAS BEEN INSPECTED BY LESSEE AND IS
SATISFACTORY TO IT.
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7.2 USE OF THE LEASED PROPERTY.
7.2.1 Lessee covenants that it will obtain and, at all times
during the Term, maintain all approvals needed to use and operate the Leased
Property under applicable federal, state and local law.
7.2.2 After the Commencement Date and during the entire Term,
Lessee shall use or cause to be used the Leased Property as a New York Bagel
Cafe restaurant or other restaurant (the particular such use to which the Leased
Property is put at any particular time is herein referred to as the "Primary
Intended Use"). Lessee shall not use the Leased Property or any portion thereof
for any other use without the prior written consent of Lessor, which consent
shall not be unreasonably withheld or delayed.
7.2.3 Lessee shall not commit or suffer to be committed any
waste on the Leased Property, or in the Building nor shall Lessee cause or
permit any nuisance thereon.
7.2.4 Lessee shall neither suffer nor permit the Leased
Property to be used in such a manner as (i) might reasonably tend to impair
Lessor's title thereto or to any portion thereof; or (ii) may reasonably make
possible a claim or claims of adverse usage or adverse possession by the public,
as such, or of implied dedication of the Leased Property or any portion thereof.
ARTICLE VIII
8.1 COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS, INSTRUMENTS,
ETC. Subject to Article XII relating to permitted contests, Lessee, at its
sole cost and expense, will promptly comply with all applicable Legal
Requirements and Insurance Requirements in respect of the use, operation,
maintenance, repair, and restoration of the Leased Property, whether or not
compliance therewith shall require structural changes in any of the Leased
Improvements or interfere with the use and enjoyment of the Leased Property.
8.2 LEGAL REQUIREMENT COVENANTS. Lessee covenants and agrees that
the Leased Property and Lessee's Personal Property shall not be used for any
unlawful purpose. Lessee further warrants and represents that Lessee has
obtained all necessary approvals and has given all necessary notices to allow
Lessee to operate the Leased Property for its Primary Intended Use.
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ARTICLE IX
9.1 MAINTENANCE AND REPAIR.
9.1.1 Lessee, at its sole cost and expense, will keep the
Leased Property and all sidewalks and curbs appurtenant thereto and which are
under Lessee's control in good order and repair (whether or not the need for
such repairs occurs as a result of Lessee's use, any prior use, the elements or
the age of the Leased Property, or any portion thereof), and, except as
otherwise provided in Article XIV, with reasonable promptness, make all
necessary and appropriate repairs thereto of every kind and nature, whether
interior or exterior, structural or non-structural, ordinary or extraordinary,
foreseen or unforeseen or arising by reason of a condition existing prior to the
Commencement Date (concealed or otherwise). All repairs shall, to the extent
reasonably achievable, be at least equivalent in quality to the original work.
Lessee will not take or omit to take any action the taking or omission of which
may materially or adversely impair the value or the usefulness of the Leased
Property or any part thereof for its Primary Intended Use. Any repair work
performed by Lessee shall be paid for so that no lien (i.e., mechanics',
materialmen's or other liens) shall attach to the Leased Property, subject to
the provisions of Article XII.
9.1.2 Lessor shall not under any circumstances be required in
connection with this Lease to build or rebuild any improvements on the Leased
Property, or to make any repairs, replacements, alterations, restorations, or
renewals of any nature or description to the Leased Property, whether ordinary
or extraordinary, structural or non-structural, foreseen or unforeseen, or to
make any expenditure whatsoever with respect thereto, or to maintain the Leased
Property in any way. Lessee hereby waives, to the extent permitted by law, the
right to make repairs at the expense of Lessor pursuant to any law in effect at
the time of the execution of this Lease or hereafter enacted. Lessor shall have
the right to give, record and post, as appropriate, notices of
non-responsibility (or similar notices) under any mechanics' or materialmen's
lien laws now or hereafter existing.
9.1.3 Lessee shall not make any modifications, alterations or
improvements to the Leased Improvements or any portion thereof, whether by
addition or deletion, without Lessor's prior written consent, which consent
shall not be unreasonably withheld or delayed.
9.1.4 Lessee will, upon the expiration or prior termination
of the Term, vacate and surrender the Leased Property in the condition in which
the Leased Property was originally received from Lessor, except as repaired,
rebuilt, restored, altered or added to as permitted or required under this Lease
and except for ordinary wear and tear (subject to the obligation of Lessee to
maintain the Leased Property in good order and repair during the entire Term).
9.2 ENCROACHMENTS, RESTRICTIONS, ETC. If any of the Leased
Improvements shall, at any time, encroach upon any property, street or
right-of-way adjacent to the Leased Property, or shall violate the agreements or
conditions contained in any lawful restrictive covenant or other agreement
affecting the Leased Property, or any part thereof, or shall impair the rights
of others under any easement or right-of-way to which the Leased Property is
subject, then promptly upon the
12
request of Lessor at the behest of any person affected by any such encroachment,
violation or impairment, Lessee shall, at its sole cost and expense, (and after
Lessor's prior approval) subject to Lessee's right to xxx Xxxxxx'x predecessors
in title with respect thereto or to contest the existence of any such
encroachment, violation or impairment and, in such case, in the event of an
adverse final determination, either (i) obtain valid and effective waivers or
settlements of all claims, liabilities and damages resulting from each such
encroachment, violation or impairment, whether the same shall affect Lessor or
the Leased Property; or (ii) make such changes in the Leased Improvements, and
take such other actions, as Lessee in the good faith exercise of its judgment
deems reasonably practicable, to remove such encroachment, and to end such
violation or impairment, including, if necessary, the alteration of any of the
Leased Improvements, and in any event take all such actions as may be necessary
in order to be able to continue the operation of the Leased Improvements for the
Primary Intended Use substantially in the manner and to the extent the Leased
Improvements were operated prior to the assertion of such violation, impairment
or encroachment. Lessee's obligations under this Paragraph 9.2 shall be in
addition to and shall in no way discharge or diminish any obligation of any
insurer under any policy of title or other insurance.
ARTICLE X
10.1 LESSEE'S OBLIGATIONS FOR HAZARDOUS MATERIALS. Lessee shall, at
its sole cost and expense, take all actions as required to cause the Leased
Property including, without limitation, the Land and all Leased Improvements, to
be free and clear of the presence of all Hazardous Materials during the Term;
provided, however, that Lessee shall be entitled to use and maintain Hazardous
Materials on the Leased Property in connection with Lessee's business and in
compliance with all applicable laws. In this connection, Lessee shall, upon its
discovery, belief or suspicion of the presence of Hazardous Materials on, in or
under any part of the Leased Property, including, without limitation, the Land
and all Leased Improvements, immediately notify Lessor and, at no expense to
Lessor, cause any such Hazardous Materials to be removed immediately, in
compliance with all applicable laws and in a manner causing the least disruption
of or interference with the operation of Lessee's business. Lessee hereby
agrees to fully indemnify, protect, defend and hold harmless Lessor from any
costs, damages, claims, liability or loss of any kind or nature arising out of
or in any way in connection with the presence, suspected presence, removal or
remediation of Hazardous Materials in, on, or under the Leased Property, or any
part thereof.
10.2 DEFINITION OF HAZARDOUS MATERIALS. For purposes of this Lease,
"Hazardous Materials" shall include, without limitation, any substance,
material, waste, pollutant or contaminant, now or hereafter defined, listed or
regulated by the "Environmental Laws" (defined below) or any other federal state
or local law, regulation or order or by common law decision. "Environmental
Laws" means and includes any law, ordinance, regulation or requirement now or
hereinafter in effect relating to land use, air, soil, surface water,
groundwater (including the protection, cleanup, removal, remediation or damage
thereof), human health and safety or any other environmental matter, including,
without limitation, the following laws as the same may be amended from time to
time: Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. Sec. 9601, et seq.; Federal Resource Conservation and Recovery
Act, 42 U.S.C. Sec. 6901, et seq.; Clean
13
Water Act, 33 U.S.C. Sec. 1251, et seq.; Toxic Substances Control Act, 15
U.S.C. Sec. 2601, et seq.; Refuse Act, 33 U.S.C. Sec. 407; Occupational
Safety and Health Act, 29 U.S.C. Sec. 651, et seq.; Clean Air Act, 42 U.S.C.
Sec. 7401, et seq.; and any and all similar state and local laws and
ordinances and the regulations now or hereafter adopted, published and/or
promulgated pursuant thereto.
ARTICLE XI
11. NO LIENS. Subject to the provisions of Article XII relating to
permitted contests, Lessee will not directly or indirectly, voluntarily or by
operation of law, create or allow to remain and will promptly discharge at its
expense any lien, mortgage, encumbrance, attachment, title retention agreement,
or claim upon the Leased Property or any attachment, levy, claim, or encumbrance
in respect of the Rent.
ARTICLE XII
12. PERMITTED CONTESTS. Lessee shall have the right to contest the amount
or validity of any Imposition or any Legal Requirement or Insurance Requirement
or any lien, attachment, levy, encumbrance, charge or claim ("Claims") not
otherwise permitted by Article XI, by appropriate legal proceedings in good
faith and with due diligence, and to delay payment if legally permitted;
provided this shall not be deemed or construed in any way as relieving,
modifying or extending Lessee's covenants to pay or its covenants to cause to be
paid any such charges at the time and in the manner as in this Lease provided
and further provided that, such legal proceedings (and delay in payment) shall
not cause the sale of the Leased Property, or any part thereof, to satisfy the
same or cause Lessor or Lessee to be in default under any mortgage or deed of
trust encumbering the Leased Property or any interest therein or otherwise
threaten to cause loss or damage to Lessor or the Leased Property. Upon the
reasonable request of Lessor, Lessee shall provide to Lessor reasonable security
satisfactory to Lessor to assure the payment of all Claims which may be assessed
against the Leased Property, together with interest and penalties, if any,
thereon. Lessor agrees to join in any such proceedings if the same be required
to legally prosecute such contest of the validity of such Claims; provided,
however, that Lessor shall not thereby be subjected to any liability for the
payment of any costs or expenses in connection with any proceedings brought by
Lessee; and Lessee covenants to indemnify and save harmless Lessor from any such
costs or expenses. In the event that Lessee fails to pay any Claims when due
or, upon Lessor's request, to provide the security therefor as provided in this
Article XII and to diligently prosecute any contest of the same or in the event
the same threatens to cause loss or damage to Lessor or the Leased Property,
Lessor may, upon thirty (30) days advance written Notice to Lessee, pay such
charges together with any interest and penalties and the same shall be repayable
by Lessee to Lessor at the next Payment Date provided for in this Lease.
Provided, however, that should Lessor reasonably determine that the giving of
such Notice would risk loss to the Leased Property or otherwise threaten to
cause loss or damage to Lessor, then Lessor shall give such written Notice as is
practical under the circumstances. Lessee shall be entitled to any refund of
any Claims and such charges and penalties or interest thereon which have been
paid by Lessee or paid by Lessor and for which Lessor has been fully reimbursed.
14
ARTICLE XIII
13.1 GENERAL INSURANCE REQUIREMENTS. Subject to the provisions of
Paragraph 13.8, during the Term, Lessee shall at all times keep the Leased
Property, and all property located in or on the Leased Property, insured with
the kinds and amounts of insurance described below. This insurance shall be
written by companies authorized to do insurance business in the state in which
the Leased Property is located. The policies must name Lessor as loss payee and
additional named insured, shall contain a provision that such insurance may not
be canceled or amended without at least thirty (30) days' notice to Lessor and
shall be payable to Lessor as provided in Article XIV. In addition, upon
Lessor's written request, the policies shall name as mortgagee, loss payee and
additional insured the holder ("Building Mortgagee") of any mortgage, deed of
trust or other security agreement and any other Encumbrance placed on the Leased
Property in accordance with the provisions of Article XXXII, as well as any
other entity interested in the Leased Property ("Building Mortgage") by way of a
standard form of mortgagee's loss payable endorsement. Evidence of insurance
shall be deposited with Lessor and, if requested, with any Building
Mortgagee(s). The policies on the Leased Property, including the Leased
Improvements, Fixtures and Lessee's Personal Property, shall insure against the
following risks:
13.1.1 Loss or damage by fire, vandalism and malicious
mischief, extended coverage perils commonly known as "All Risk," and all
physical loss perils normally included in such All Risk insurance, including,
without limitation, sprinkler leakage, in an amount not less than one hundred
percent (100%) of the then full replacement cost thereof (as defined below in
Paragraph 13.2);
13.1.2 Claims for personal injury or property damage under a
policy of comprehensive general public liability insurance with amounts not less
than One Million Dollars ($1,000,000.00) per occurrence, and with an annual
aggregate of Three Million Dollars ($3,000,000.00);
13.1.3 Flood (if the Leased Property is located in whole or in
part within a flood plain area, as designated by any governmental or other
responsible agency and if such insurance is available pursuant to applicable
law) and such other hazards and in such amounts as may be customary for
comparable properties in the area; and
13.1.4 Any other kinds of insurance, and in such amounts, as
Lessor may reasonably require from time to time to the extent available in the
state where the Leased Property is located.
13.2 REPLACEMENT COST. The term "full replacement cost" as used
herein, shall mean the full actual replacement cost of the Leased Property as
determined from time-to-time upon the request of Lessor or Lessee (but not more
frequently than once in every 24 months), including an increased cost of
construction endorsement, less exclusions provided in the standard form of fire
insurance policy in the state where the Leased Property is located. Lessor and
Lessee agree that as
15
of the Commencement Date the full replacement cost shall be deemed to be that
amount set forth in Schedule 1 attached hereto and incorporated herein.
13.3 ADDITIONAL INSURANCE. In addition to the insurance described
above, Lessee shall maintain such additional insurance as may be reasonably
required from time-to-time by Lessor or any Building Mortgagee (to the extent
available in the state where the Leased Property is located) and shall further
at all times maintain adequate worker's compensation insurance coverage for all
persons employed by Lessee on the Leased Property. Such worker's compensation
insurance shall be in accordance with the requirements of applicable federal,
state and local law.
13.4 WAIVER OF SUBROGATION. All insurance policies carried by either
party covering the Leased Property, the Fixtures, the Building, or Lessee's
Personal Property including, without limitation, contents, fire and casualty
insurance, shall expressly waive any right of subrogation on the part of the
insurer against the other party. The parties hereto agree that their policies
will include such waiver clause or endorsement so long as the same are
obtainable without extra cost, and in the event of such an extra charge the
other party, at its election, may pay the same, but shall not be obligated to do
so. Upon written request, each party shall provide the other party with a copy
of each insurance policy with the waiver clause or endorsement attached.
13.5 FORM SATISFACTORY, ETC. All of the policies of insurance
referred to in this Article XIII shall be written in a form reasonably
satisfactory to Lessor and by insurance companies reasonably satisfactory to
Lessor. Subject to the foregoing, Lessor agrees that it will not unreasonably
withhold its approval as to the form of the policies of insurance or as to the
insurance companies selected by Lessee. Lessee shall pay all of the premiums
therefor, and deliver such policies or certificates thereof to Lessor prior to
their effective date (and, with respect to any renewal policy, prior to the
expiration of the existing policy), and in the event of the failure of Lessee
either to effect such insurance as herein called for or to pay the premiums
therefor, or to deliver such policies or certificates thereof to Lessor at the
times required, Lessor shall be entitled, but shall have no obligation, to
effect such insurance and pay the premiums therefor, which premiums shall be
repayable by Lessee to Lessor upon written demand therefor, and failure to repay
the same shall constitute an Event of Default within the meaning of Paragraph
16.1(b). Each insurer mentioned in this Article XIII shall agree, by
endorsement on the policy or policies issued by it, or by independent instrument
furnished to Lessor, that will give to Lessor (and to any Building Mortgagee, if
required by the same) thirty (30) days written notice before the policy or
policies in questions shall be altered, allowed to expire or cancel.
13.6 INCREASE IN LIMITS. In the event that Lessor or a Building
Mortgagee shall at any reasonable time deem the limits of the personal injury or
property damage public liability insurance then carried to be insufficient,
Lessee shall thereafter carry the insurance with increased limits until further
change pursuant to the provisions of this Paragraph; provided that if Lessor
desires to increase the limits of insurance, and such is not pursuant to the
request of a Building Mortgagee, then Lessor may not demand an increase in
limits above the limits generally consistent with the requirements of owners of
restaurant facilities in the State.
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13.7 BLANKET POLICY. Notwithstanding anything to the contrary
contained in this Article XIII, Lessee's obligations to carry the insurance
provided for herein may be brought within the coverage of a so-called blanket
policy or policies of insurance carried and maintained by Lessee; provided,
however, that the coverage afforded Lessor will not be reduced or diminished or
otherwise be different from that which would exist under a separate policy
meeting all other requirements of this Lease by reason of the use of such
blanket policy of insurance, and provided further that the requirements of this
Article XIII are otherwise satisfied.
13.8 NO SEPARATE INSURANCE. Lessee shall not on Lessee's own
initiative or pursuant to the request or requirement of any third party take out
separate insurance concurrent in form or contributing in the event of loss with
that required in this Article, to be furnished or which may reasonably be
required to be furnished, by Lessee or increase the amount of any then existing
insurance by securing any additional policy or additional policies, unless all
parties having an insurable interest in the subject matter of the insurance,
including in all cases Lessor and all Building Mortgagees, are included therein
as additional insureds, and the loss is payable under said insurance in the same
manner as losses are payable under the Lease. Lessee shall immediately notify
Lessor of the taking out of any such separate insurance or of the increasing of
any of the amount of the then existing insurance.
13.9 CONTINUOUS COVERAGE. Lessee was the owner of the Leased Property
prior to the date of this Lease. Therefore, Lessee already has in place
insurance with respect to the Leased Property. Lessee shall assure that there
is no gap in the insurance coverage provided in connection with the Building at
or after the Commencement Date, and therefore, the insurance provided by Lessee
shall be continuous, with the types and amounts of coverage, described herein to
be applicable on the Commencement Date. To the extent there is not full,
complete and continuous coverage for all issues, no matter when arising, claimed
or occurring, Lessee shall, at its sole cost, obtain such insurance.
ARTICLE XIV
14.1 INSURANCE PROCEEDS. All proceeds payable by reason of any loss
of or damage to the Leased Property, or any portion thereof, which is insured
under any policy of insurance required by Article XIII of this Lease, where the
total proceeds paid by the insurer are less than $150,000.00, shall be paid to
Lessee and applied to the reconstruction or repair, as the case may be, of any
damage to or destruction of the Leased Property, or any portion thereof. All
proceeds payable by reason of any loss of or damage to the Leased Property, or
any portion thereof, which is insured under any policy of insurance required by
Article XIII of this Lease where the total proceeds paid by the insurer are
equal to or in excess of $150,000.00 shall be paid to Lessor and held by Lessor
in trust (subject to the provisions of Paragraph 14.7) and shall be made
available for reconstruction or repair, as the case may be, of any damage to or
destruction of the Leased Property, or any portion thereof, and shall be paid
out by Lessor from time-to-time for the reasonable costs of such reconstruction
or repair. Any excess proceeds of insurance remaining after the completion of
the restoration or reconstruction of the Leased Property shall go to Lessee,
provided this Lease is in force and there
17
exists no uncured Event of Default; otherwise such excess shall be paid to
Lessor for application as set forth in Article XVI hereof. In the event
neither Lessor nor Lessee is required or elects to repair and restore, and
this Lease is terminated as described in Paragraph 14.7, all such insurance
proceeds shall be retained by Lessor. All salvage resulting from any risk
covered by insurance shall belong to Lessor except that any salvage relating
to Lessee's Personal Property shall belong to Lessee.
14.2 RECONSTRUCTION IN THE EVENT OF DAMAGE OR DESTRUCTION COVERED BY
INSURANCE PROCEEDS.
14.2.1 If during the Term, the Leased Property is totally or
partially destroyed by a risk covered by the insurance described in Article XIII
and whether or not the Building thereby is rendered Unsuitable for Its Primary
Intended Use, Lessee shall restore the Leased Property to substantially the same
condition as existed immediately before the damage or destruction.
14.2.2 If the cost of the repair or restoration exceeds the
amount of proceeds received by Lessee or Lessor from the insurance required
under Article XIII, Lessee shall be obligated to restore the Leased Property and
pay the extra cost therefor, provided that, prior to commencing the repair and
restoration, Lessee shall either (i) contribute any excess amount needed to
restore the Leased Property, or (ii) provide Lessor with satisfactory evidence
that such funds are, and throughout the entire period of reconstruction will be,
available. If Lessee contributes such excess in cash, such excess shall be paid
by Lessee to Lessor to be held in trust, together with any insurance proceeds,
for application to the cost of repair and restoration.
14.3 RECONSTRUCTION IN THE EVENT OF DAMAGE OR DESTRUCTION NOT COVERED
BY INSURANCE. If during the Term, the Leased Property is damaged or destroyed
irrespective of the extent of the damage from a risk not covered by the
insurance described in Article XIII, whether or not such damage or renders the
Building Unsuitable for Its Primary Intended Use, Lessee shall restore the
Leased Property to substantially the same condition it was in immediately before
such damage or destruction and such damage or destruction shall not terminate
this Lease.
14.4 LESSEE'S PROPERTY. All insurance proceeds payable by reason of
any loss of or damage to any of Lessee's Personal Property shall be paid to
Lessee, and Lessee shall hold such insurance proceeds in trust to pay the cost
of repairing or replacing damaged Lessee's Personal Property. Any proceeds in
excess of the cost of repairing or replacing any such Lessee's Personal Property
shall belong to Lessee.
14.5 RESTORATION OF LESSEE'S PROPERTY. Without limiting Lessee's
obligation to restore the Leased Property as provided in Paragraphs 14.2 and
14.3, Lessee shall also pay the cost to restore all Alterations and other
improvements made by Lessee which Lessee elects to restore, including Lessee's
Personal Property to the extent that Lessee's Personal Property is necessary to
the operation of the Leased Property for its Primary Intended Use in accordance
with applicable Legal Requirements.
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14.6 NO ABATEMENT OF RENT. This Lease shall remain in full force and
effect and Lessee's obligation to make rental payments and to pay all other
charges required by this Lease shall remain unabated during any period required
for repair and restoration.
14.7 TERMINATION OF OPTION TO EXTEND. Any termination of this Lease
by reason of damage to or destruction of the Leased Property shall cause any
options to extend the Lease under Article XVIII to be terminated and without
further force or effect.
14.8 WAIVER. Lessee hereby waives any statutory rights of termination
which may arise by reason of any damage to or destruction of the Leased Property
which Lessor is obligated to restore or may restore under any of the provisions
of this Lease.
ARTICLE XV
15.1 DEFINITIONS.
15.1.1 "Condemnation" means (a) the exercise of any
governmental power, whether by legal proceedings or otherwise, by a Condemnor;
or (b) a voluntary sale or transfer by Lessor to any Condemnor, either under
threat of Condemnation or while legal proceedings for Condemnation are pending.
15.1.2 "Date of Taking" means the date the Condemnor has the
right to possession of the property being condemned.
15.1.3 "Award" means all compensation, sums or anything of
value awarded, paid or received on a total or partial Condemnation.
15.1.4 "Condemnor" means any public or quasi-public authority,
or private corporation or individual, having the power of Condemnation.
15.2 PARTIES' RIGHTS AND OBLIGATIONS. If during the Term there is any
taking of all or any part of the Leased Property or any interest in this Lease
by Condemnation, the rights and obligations of the parties shall be determined
by this Article XV.
15.3 TOTAL CONDEMNATION. If title to the fee of the whole of the
Leased Property shall be taken or condemned by any Condemnor, this Lease shall
cease and terminate as of the Date of Condemnation by said Condemnor. If title
to the fee of less than the whole of the Leased Property shall be so taken or
condemned, which nevertheless renders the Leased Property Unsuitable for Its
Primary Intended Use, as reasonably determined by Lessor and Lessee, Lessee and
Lessor shall each have the option by written Notice to the other, at any time at
or prior to the taking of possession by, or the date of vesting of title in,
such Condemnor, whichever first occurs, to terminate this Lease as of the date
of the occurrence of such first event. If such Notice has timely been given,
this Lease shall thereupon cease and terminate. Upon the termination of the
Lease, all Minimum Rent, and
19
Additional Charges paid or payable by Lessee hereunder shall be apportioned
as of the date the Lease terminates.
15.4 ALLOCATION OF PORTION OF AWARD. The total Award made with
respect to all or any portion of the Leased Property or for loss of rent, or for
loss of business, whether or not beyond the Term of this Lease, or for the loss
of value of the leasehold shall be solely the property of and payable to Lessor
and Lessee hereby assigns to Lessor any and all rights in such Award; provided,
however, that Lessee shall be entitled to make a separate claim for the taking
of Lessee's Personal Property and relocation expense as long as any such claim
will not in any way diminish Lessor's Award, or for any other loss that can be
awarded to Lessee separately from Lessor's claim and which will not in any
respect whatsoever diminish or threaten to diminish the total amounts to be
awarded to Lessor, as set forth above or otherwise. To the extent Lessee's
claim may thereafter reduce Lessor's claim, Lessee shall, and hereby does,
assign its claim to Lessor. In any Condemnation proceedings, each of the Lessor
and Lessee shall seek its own claim in conformity herewith, at its own expense.
15.5 PARTIAL TAKING. If title to the fee of less than the whole of
the Leased Property shall be so taken or condemned, and the Leased Property is
still suitable for its Primary Intended Use, as reasonably determined by Lessor
and Lessee, or if Lessee or Lessor shall be so entitled, but shall not elect to
terminate this Lease as provided in Paragraph 15.3 hereof, Lessee, at its own
cost and expense (subject to Lessor's contribution described below), shall with
all reasonable dispatch restore the untaken portion of any Leased Improvements
on the Leased Property so that such Leased Improvements shall constitute a
complete architectural unit of the same general character and condition (as
nearly as may be possible under the circumstances) as the Leased Improvements
existed immediately prior to such Condemnation. Lessor shall contribute to the
cost of restoration that part of its Award specifically allocated to such
restoration, provided, however, the amount of such contribution shall not exceed
the cost of restoration. The Minimum Rent shall be reduced as set forth in
Paragraph 5.2.
15.6 TEMPORARY TAKING. Lessee agrees that if, at any time after the
date hereof, the whole or any part of the Leased Property or of Lessee's
interest under this Lease, shall be Condemned by any Condemnor for its temporary
use or occupancy, this Lease shall not terminate by reason thereof, and Lessee
shall continue to pay, in the manner and at the times herein specified, the full
amounts of Minimum Rent and Additional Charges. Except only to the extent that
Lessee may be prevented from doing so pursuant to the terms of the order of the
Condemnor, Lessee shall also continue to perform and observe all of the other
terms, covenants, conditions and obligations hereof, on the part of the Lessee
to be performed and observed, as though such Condemnation had not occurred. In
the event of any such Condemnation as in this Paragraph 15.6 described, the
entire amount of any such Award made for such temporary use, whether paid by way
of damages, rent or otherwise, shall be paid to Lessee to the extent
attributable to any period within the Initial Term (as extended by any already
exercised options to extend) and except as otherwise provided hereunder.
Notwithstanding the foregoing, in the event that any temporary use or occupancy
covered under this Paragraph 15.6 renders any portion of the Leased Property
Unsuitable for its Primary Intended Use
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(or otherwise reduces the number of residents the Leased Property can
accommodate) for a period in excess of twelve (12) calendar months, Lessee
shall have the right to elect a reduction in Minimum Rent as set forth in
Paragraph 5.2 commencing on the twelve (12) month anniversary of any such use
or occupancy and continuing so long as such temporary use or occupancy
continues, in which event any Award made for such temporary use or occupancy
shall be paid to Lessor to the extent attributable to the period that Minimum
Rent is so abated. Lessee covenants that upon the termination of any such
period of temporary use or occupancy as set forth in this Paragraph 15.6, it
will, at its sole cost and expense, restore the Leased Property as nearly as
may be reasonably possible, to the condition in which the same was
immediately prior to the Condemnation, unless such period of temporary use or
occupancy shall extend beyond the expiration of the Term, in which case
Lessee shall not be required to make such restoration, and in such case,
Lessee shall contribute to the cost of such restoration that portion of its
entire Award which is specifically allocated to such restoration in the
judgment or order of the court, if any.
ARTICLE XVI
16.1 EVENTS OF DEFAULT. Any one or more of the following events shall
be an "Event of Default":
(a) if Lessee fails to make payment of the Rent payable by
Lessee under this Lease when the same becomes due and payable and such failure
is not cured by Lessee within a period of five (5) Business Days; or
(b) if Lessee fails to observe or perform any other term,
covenant or condition of this Lease and such failure is not cured by Lessee
within a period of thirty (30) days after Notice thereof from Lessor, unless
such failure cannot with due diligence be cured within a period of thirty (30)
days, in which case such failure shall not be deemed an Event of Default if
Lessee proceeds promptly and with due diligence to cure the failure and
diligently completes the curing thereof within ninety (90) days; or
(c) if Lessee does any of the following:
(i) admit in writing its inability to pay its debts
generally as they become due;
(ii) file a petition in bankruptcy or a petition to take
advantage of any insolvency law;
(iii) make an assignment for the benefit of creditors;
(iv) consent to the appointment of a receiver of itself or
of the whole or any substantial part of its property; or
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(v) file a petition or answer seeking reorganization or
arrangement under the Federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state thereof; or
(d) if Lessee, on a petition in bankruptcy filed against it, is
adjudicated a bankrupt or an order for relief thereunder is entered against it
or a court of competent jurisdiction shall enter an order or decree appointing,
without the consent of Lessee, a receiver for Lessee or of the whole or
substantially all of its property or the Building, or approving a petition filed
against Lessee seeking reorganization or arrangement of Lessee under the Federal
bankruptcy laws or other applicable law or statute of the United States of
America or any state thereof, and such judgment, order or decree shall not be
vacated or set aside within one hundred twenty (120) days from the date of the
entry thereof; or
(e) if Lessee shall be liquidated or dissolved, or shall begin
proceedings toward such liquidation or dissolution, or shall, in any manner,
permit the sale or divestiture of substantially all of its assets; or
(f) subject to the provisions of Article XII hereof, if the
estate or interest of Lessee in the Leased Property or any part thereof be
levied upon or attached in a proceeding and the same shall not be vacated or
discharged within the later of ninety (90) days after commencement thereof or
thirty (30) days after Notice thereof from Lessor, or a mechanic's or similar
lien is filed with respect to the Leased Property and is not released or bonded
around for a period exceeding sixty (60) days after Lessee first has knowledge
of the same; or
(g) if Lessee voluntarily ceases operations on the Leased
Property for a period in excess of two (2) days other than for required
remodeling or if required by law; or
(h) if any of Lessee's representations or warranties expressly
set forth in this Lease (or financial statements provided to Lessor) proves to
be untrue when made in any material respect which materially and adversely
affects Lessor; or
(i) if Lessee attempts to assign or sublease, in violation of
the provisions of this Lease; or
(j) subject to the provisions of Article XII hereof, if Lessee
ceases to maintain in effect any license, permit, certificate or approval
necessary or otherwise required to operate the Building in accordance with its
Primary Intended Use.
Upon the occurrence of an Event of Default, in addition to all of
Lessor's other remedies, Lessor may terminate this Lease by giving Lessee not
less than ten (10) Business Days Notice of such termination and upon the
expiration of the time fixed in such Notice, the Term shall terminate and all
rights of Lessee under this Lease shall cease.
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In the event litigation is commenced with respect to any alleged
default under this Lease, the prevailing party in such litigation shall receive,
in addition to its damages incurred, such sum as the court shall determine as
its reasonable attorneys' fees, and all costs and expenses incurred in
connection therewith, including reasonable attorneys' fees and costs incurred on
appeal.
16.2 CERTAIN REMEDIES. Lessor shall have all remedies and rights
provided under this Lease and/or otherwise available at law and in equity as a
result of an Event of Default or Lessee's other breach under this Lease,
including, to the extent permitted by the laws of the State, the right to
appoint a receiver as a matter of strict right without regard to the solvency of
Lessee, for the purpose of procuring the Leased Property, preventing waste,
protecting and otherwise enforcing the provisions of this Lease and for any and
all other purposes for which a receiver is allowed under the laws of the State.
Without limiting the foregoing, if an Event of Default occurs (and the event
giving rise to such Event of Default has not been cured within the curative
period, if any, relating thereto as set forth in this Lease) whether or not this
Lease has been terminated pursuant to Paragraph 16.1, Lessee shall, to the
extent permitted by law, and if required by Lessor to so do, immediately
surrender to Lessor the Leased Property pursuant to the provisions of Paragraph
16.1 and quit the same and Lessor may enter upon and repossess the Leased
Property, in person, by agent or by a court-appointed receiver, by reasonable
force, summary proceedings, ejectment or otherwise, and may remove Lessee and
all other persons and any and all personal property from the Leased Property
subject to any requirements of law. Without limiting all other rights and
remedies of Lessor under this Lease and under law, Lessor shall have the right
to accelerate all Rent (including Minimum Rent) and therefore, upon Lessee's
default, at Lessor's option, all such Rent shall become immediately due and
payable in accordance with Paragraph 16.3, below. Further, without limiting all
other rights and remedies of Lessor under this Lease and under law, Lessor shall
be entitled to recover from Lessee, and Lessee shall therefore be liable for,
all costs of recovering possession (including without limitation all costs
associated with any receiver) and renovating the Leased Property for a new
lessee and all other costs of re-leasing, including, but not limited to,
broker's commissions and attorneys' fees, except as limited by Paragraph 16.3
below.
16.3 DAMAGES. Neither (i) the termination of this Lease pursuant to
Section 16.1; (ii) the repossession of the Leased Property; (iii) the failure of
Lessor, notwithstanding reasonable good faith efforts, to relet the Leased
Property; nor (iv) the reletting of all or any portion thereof, shall relieve
Lessee of its liability and obligations hereunder, all of which shall survive
any such termination, repossession or reletting (except for proceeds received on
subletting). In the event of any such termination, Lessee shall forthwith pay
to Lessor all Rent due and payable with respect to the Leased Property to and
including the date of such termination.
(a) Lessor shall not be deemed to have terminated this Lease
unless Lessor delivers written Notice to Lessee of such election. If Lessee
voluntarily elects to terminate this Lease upon an Event of Default, then in
addition to all remedies available to Lessor, Lessor may recover the sum of:
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(i) the worth at the time of award of the unpaid Rent
which had been earned at the time of termination;
(ii) the worth at the time of award of the amount by which
the unpaid Rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Lessee proves could have been
reasonably avoided;
(iii) the worth at the time of award of the amount by
which the unpaid Rent for the balance of the Term after the time of award
exceeds the amount of such rental loss that Lessee proves could be reasonably
avoided; and
(iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would
be likely to result therefrom.
The "worth at the time of award" of the amounts referred to
in subparagraphs (i) and (ii) above is computed by allowing interest at the
Overdue Rate. The worth at the time of award of the amount referred to in
subparagraph (iii) is computed by discounting such amount at the discount rate
of the Federal Reserve Bank of Kansas City at the time of award plus one percent
(1%).
(b) Without limiting Lessor's other remedies provided herein and
provided by law, Lessor may continue the Lease in effect after Lessee's breach
and abandonment and recover Rent as it becomes due, provided that, in such
event, Lessee has the right to sublet or assign subject only to reasonable
conditions imposed by Lessor. Accordingly, without termination of Lessee's
right to possession of the Leased Property, Lessor may demand and recover each
installment of Minimum Rent and other sums payable by Lessee to Lessor under the
Lease as the same becomes due and payable, which Minimum Rent and other sums
shall bear interest at the maximum interest rate permitted in accordance with
the laws of the State (or the Overdue Rate, whichever is lower), from the date
when due until paid, and Lessor may enforce, by action or otherwise, any other
term or covenant of this Lease. If Lessor elects to recover each installment of
Rent as it becomes due, then Lessor may file any number of lawsuits for the
recovery of the amounts due hereunder.
16.4 WAIVER. If this Lease is terminated pursuant to Paragraph 16.1,
Lessee waives, to the extent permitted by applicable law, the benefit of any
laws now or hereafter in force exempting property from liability for rent or for
debt.
16.5 APPLICATION OF FUNDS. Any payments received by Lessor under any
of the provisions of this Lease during the existence or continuance of any Event
of Default shall be applied to Lessee's obligations in the order which Lessor
may determine or as may be prescribed by the laws of the State.
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ARTICLE XVII
17. LESSOR'S RIGHT TO CURE LESSEE'S DEFAULT. If Lessee fails to make any
payment or to perform any act required to be made or performed under this Lease,
and to cure the same within the relevant time periods, if any, provided under
this Lease, Lessor, after fifteen (15) days' Notice to and demand upon Lessee,
and without waiving or releasing any obligation of Lessee or default, may (but
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of Lessee, and may, to the
extent permitted by law, enter upon the Leased Property, in person, by agent or
by court-appointed receiver, for such purpose and take all such action thereon
as, in Lessor's opinion, may be necessary or appropriate therefor. Provided,
however, that should Lessor reasonably determine that the giving of such Notice
would risk loss to the Leased Property, or cause damage to Lessor, then Lessor
shall give such written Notice as is practical under the circumstances. No such
entry shall be deemed an eviction of Lessee. In exercising any remedy under
this Article XVII, Lessor shall use its good faith efforts not to violate any
rights of residents of the Building. All sums so paid by Lessor and all costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses, in each case) so incurred, together with a late charge thereon (to the
extent permitted by law) at the Overdue Rate from the date on which sums or
expenses are paid or incurred by Lessor, shall be paid by Lessee to Lessor on
demand. The obligations of Lessee and rights of Lessor contained in this
Article shall survive the expiration or earlier termination of this Lease.
ARTICLE XVIII
18.1 OPTIONS TO EXTEND. Provided there exists no uncured Event of
Default under this Lease at the time Lessee exercises any option to extend (in
accordance with this Article XVIII), Lessee will have the right to extend this
Lease for two (2) periods of five (5) years each (each such additional term
shall be referred to herein as an "Extended Term"), commencing immediately
following the end of the Initial Term or the immediately preceding Extended
Term, as the case may be. The Lease during any Extended Term shall be on the
same terms and conditions as during the Initial Term, except that the Minimum
Rent shall be determined as set forth in Paragraph 18.2 below. In the event
Lessee desires to exercise any option to extend granted in this Article XVIII,
Lessee shall give Landlord written notice ("Notice to Extend") not less than one
hundred eighty (180) days prior to the expiration of the Initial Term or the
immediately preceding Extended Term, as the case may be. If Lessee fails to
give Landlord any such notice, then such option to extend and all future options
to extend granted in this Article XVIII shall be null and void and of no further
force or effect.
18.2 MINIMUM RENT DURING EXTENDED TERMS. The Minimum Rent at the
commencement of each Extended Term shall be the annual sums as stated in
Schedule 1 attached hereto and incorporated herein.
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ARTICLE XIX
19. HOLDING OVER. If Lessee shall for any reason remain in possession of
the Leased Property after the expiration of the Term or earlier termination of
the Term hereof, such possession shall be as a month-to-month tenant during
which time Lessee shall pay as rental each month, one and one-half times the
aggregate of (i) one-twelfth of the aggregate Minimum Rent payable with respect
to the last Lease Year of the Term; (ii) all Additional Rent accruing or
otherwise payable during the month; (iii) all Additional Charges accruing during
the month; and (iv) all other sums payable by Lessee pursuant to the provisions
of this Lease. During such period of month-to-month tenancy, Lessee shall be
obligated to perform and observe all of the terms, covenants and conditions of
this Lease, but shall have no rights hereunder other than the right, to the
extent given by law to month-to-month tenancies, to continue its occupancy and
use of the Leased Property. Nothing contained herein shall constitute the
consent, express or implied, of Lessor to the holding over of Lessee after the
expiration or earlier termination of this Lease.
ARTICLE XX
20. RISK OF LOSS. During the Term of this Lease, the risk of loss or of
decrease in the enjoyment and beneficial use of the Leased Property in
consequence of the damage or destruction thereof by fire, the elements,
casualties, thefts, riots, wars or otherwise, or in consequence of foreclosures
(to the extent caused by or through Lessee), attachments, levies or executions
(other than those caused by or through Lessor) is assumed by Lessee, and Lessor
shall in no event be answerable or accountable therefor, nor shall any of the
events mentioned in this Paragraph entitle Lessee to any abatement of Rent
except as specifically provided in this Lease, or any right to terminate this
Lease, except as provided in Articles XIV or XV, above. Without limiting the
foregoing, Lessor shall not be liable for injury or damage to the person or
goods, wares, merchandise or other property of Lessee, Lessee's employees,
contractors, invitees, customers, or any other person in or about the Leased
Property, whether such damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, fire sprinklers, wires, appliances,
plumbing, air conditioning, or lighting fixtures, or from any other cause,
whether the said injury or damage results from conditions arising upon the
Leased Property, or upon other portions of the Land, or any part thereof, or
from other sources or places, and regardless of whether the cause of such damage
or injury or the means of repairing the same is accessible or not. Lessor shall
not be liable for any damages arising from any act or neglect of Lessee, or any
other party named above. Lessor shall, however, remain liable for any damages
arising from Lessor's own gross negligence or willful misconduct.
ARTICLE XXI
21. INDEMNIFICATION. Notwithstanding the existence of any insurance
provided for in Article XIII, and without regard to the policy limits of any
such insurance, Lessee will protect, indemnify, hold harmless and defend Lessor
from and against all liabilities, obligations, claims, demands, damages,
penalties, causes of action, costs, and expenses (including, without limitation,
26
actual reasonable attorneys' fees and expenses), to the extent permitted by law,
imposed upon or incurred by or asserted against Lessor by reason of any of the
following: (a) any accident, injury to or death of persons or loss of or damage
to property occurring on or about the Leased Property or adjoining sidewalks,
whether occurring prior to or after the Commencement Date provided however, that
if any such liability, obligation, demand, claim or cause of action is covered
by liability insurance pursuant to Article XIII, and if the insurance carrier is
providing a defense acceptable to Lessor in the reasonable exercise of Lessor's
discretion, or has otherwise acknowledged coverage for same, then Lessee shall
not be obligated to duplicate the defense, investigation, adjustment, or other
steps being taken by the insurer; (b) any occupancy, use, misuse, non-use,
condition, maintenance, or repair by Lessee of the Leased Property; (c) any
Impositions (which are the obligations of Lessee to pay pursuant to the
applicable provisions of this Lease, which include any Impositions arising prior
to the Commencement Date); (d) any failure on the part of Lessee to perform or
comply with any of the terms of this Lease; (e) the non-performance of any of
the terms and provisions of any and all existing and future subleases of the
Leased Property to be performed by the landlord (Lessee) thereunder; (f) any
Hazardous Materials, as defined in Paragraph 10.2, above that now or hereafter
during the Term may be located in, on or around, or may potentially affect, any
part of the Land or Leased Improvements; and (g) any and all other matters
pertaining to the Leased Property or the operation of the Building after the
date of this Lease or otherwise during the Term. Any amounts which became
payable by Lessee under this Paragraph shall be paid within ten (10) days of the
date the same becomes due and if not timely paid, shall bear a late charge (to
the extent permitted by law) at the Overdue Rate from the date of such
determination to the date of payment. Lessee, at its expense, shall contest,
resist and defend any such claim, action or proceeding asserted or instituted
against Lessor or may compromise or otherwise dispose of the same as Lessee sees
fit, at Lessee's sole cost, but after consultation with and approval by Lessor.
Nothing herein shall be construed as indemnifying Lessor against its own gross
negligence or willful misconduct. Lessee's liability for a breach of the
provisions of this article arising during the Term hereof shall survive any
termination of this Lease.
ARTICLE XXII
22.1 SUBLETTING AND ASSIGNMENT. Lessee may not assign, sublease or
sublet, encumber, appropriate, pledge or otherwise transfer, the Lease or the
leasehold or other interest in the Leased Property without the prior written
consent of Lessor, which consent shall not be unreasonably withheld or delayed.
Upon Lessor's consent, in the case of any assignment, any such assignee shall
assume in writing and agree to keep and perform all of the terms of this Lease
on the part of Lessee to be kept and performed and shall be, and become, jointly
and severally liable with Lessee for the performance thereof. In the case of
either an assignment or a subletting, (i) an original counterpart of each
sublease and assignment and assumption, duly executed by Lessee and such
sublessee or assignee, as the case may be, in form and substance satisfactory to
Lessor, shall be delivered promptly to Lessor, and (ii) Lessee shall remain
primarily liable, as principal rather than as surety, for the prompt payment of
the Rent and for the performance and observance of all of the covenants and
conditions to be performed by Lessee hereunder.
27
22.2 ATTORNMENT. Lessee shall insert in each sublease permitted under
Paragraph 22 provisions to that effect that (i) such sublease is subject and
subordinate to all of the terms and provisions of this Lease and the rights of
Lessor hereunder; (ii) in the event this Lease shall terminate before the
expiration of such sublease, the sublessee thereunder will, at Lessor's option,
attorn to Lessor and waive any right the sublessee may have to terminate the
sublease or to surrender possession thereunder, as a result of the termination
of this Lease; and (iii) in the event the sublessee receives a written Notice
from Lessor or Lessor's assignees, if any, stating that Lessee is in default
under this Lease, the sublessee shall thereafter be obligated to pay all rentals
accruing under said sublease directly to the party giving such Notice, or as
such party may direct. All rents received from the sublessee by Lessor or
Lessor's assignees, if any, as the case may be, shall be credited against
amounts owing by Lessee under this Lease.
ARTICLE XXIII
23. OFFICERS' CERTIFICATES. At any time from time-to-time upon not less
than twenty (20) days Notice by Lessor, Lessee will furnish to Lessor an
Officers' Certificate certifying that this Lease unmodified and in full force
and effect (or that this Lease is in full force and effect as modified and
setting forth the modifications), the date to which the Rent has been paid and
such other information concerning this Lease as may be reasonably requested by
Lessor. Any such certificate furnished pursuant to this Paragraph may be relied
upon by Lessor and any prospective purchaser or lender of the Leased Property.
ARTICLE XXIV
24. LESSOR'S RIGHT TO INSPECT. Lessee shall permit Lessor and its
authorized representatives to inspect the Leased Property on at least one
Business Day's prior notice during usual business hours subject to any security,
health, safety, or confidentiality requirements of Lessee or any governmental
agency or insurance requirement relating to the Leased Property, or imposed by
law or applicable regulations.
ARTICLE XXV
25. NO WAIVER. The waiver by Lessor or Lessee of any term, covenant or
condition in this Lease shall not be deemed to be a waiver of any other term,
covenant or condition or any subsequent waiver of the same or any other term,
covenant or condition contained in this Lease. The subsequent acceptance of
rent hereunder by Lessor or any payment by Lessee shall not be deemed to be a
waiver of any preceding default of any term, covenant or condition of this
Lease, other than the failure to pay the particular amount so received and
accepted, regardless of the knowledge of any preceding default at the time of
the receipt or acceptance.
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ARTICLE XXVI
26. REMEDIES CUMULATIVE. To the extent permitted by law, each legal,
equitable or contractual right, power and remedy of each party now or hereafter
provided either in this Lease or by statute or otherwise shall be cumulative and
concurrent and shall be in addition to every other right, power and remedy and
the exercise or beginning of the exercise by each party of any one or more of
such rights, powers and remedies shall not preclude the simultaneous or
subsequent exercise by such party of any or all of such other rights, powers and
remedies.
ARTICLE XXVII
27. ACCEPTANCE OF SURRENDER. No surrender to Lessor of this Lease or of
the Leased Property or any part thereof, or of any interest therein, shall be
valid or effective unless agreed to and accepted in writing by Lessor and no act
by Lessor or any representative or agent of Lessor, other than such a written
acceptance by Lessor, shall constitute an acceptance of any such surrender.
ARTICLE XXVIII
28. NO MERGER OF TITLE. There shall be no merger of this Lease or of the
leasehold estate created hereby by reason of the fact that the same person,
firm, corporation, or other entity may acquire, own or hold, directly or
indirectly, (a) this Lease or the leasehold estate created hereby or any
interest in this Lease or such leasehold estate; and (b) the fee estate in the
Leased Property.
ARTICLE XXIX
29. CONVEYANCE BY LESSOR. If Lessor or any successor owner of the Leased
Property shall transfer or assign Lessor's title or interest in the Leased
Property or this Lease other than as security for a debt, then, subject to the
provisions of this Article XXIX and provided the new owner has agreed in writing
for the benefit of Lessee to recognize this Lease and be bound by all of the
terms and conditions hereof, Lessor shall thereupon be released from all future
liabilities and obligations of Lessor under this Lease arising or accruing from
and after the date of such transfer or assignment and all such future
liabilities and obligations shall thereupon be binding upon the new owner.
ARTICLE XXX
30. QUIET ENJOYMENT. So long as Lessee shall pay all Rent as the same
becomes due and shall comply with all of the terms of this Lease and perform its
obligations hereunder, and except for any claims, actions, liens or encumbrances
arising from the acts or omissions of Lessee or otherwise from events occurring
prior to the Commencement Date here under, Lessee shall peaceably and quietly
have, hold and enjoy the Leased Property for the Term hereof, free of any claim
or other
29
action by Lessor or anyone claiming by, through or under Lessor, but subject
to all liens and encumbrances of record as of the date hereof or hereafter
consented to by Lessee. Except as otherwise provided in this Lease, no
failure by Lessor to comply with the foregoing covenant or any covenant of
this Lease shall give Lessee any right to cancel or terminate this Lease or
xxxxx, reduce or made a deduction from or offset against the Rent or any
other sum payable under this Lease, or to fail to perform any other
obligation of Lessee hereunder.
ARTICLE XXXI
31. NOTICES. All notices, demands, requests, consents, approvals, and
other communications ("Notice" or "Notices") hereunder shall be in writing and
personally served upon an Executive Officer of the party being served or mailed
(by registered or certified mail, return receipt requested and postage prepaid),
overnight delivery service addressed to the respective parties, as follows:
If to Lessee: New York Bagel Enterprises, Inc.
300 I.M.A. Plaza
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
Attention: Xx. Xxxx X. Xxxxxx
Vice President - Strategic Planning
with a copy to: Klenda, Mitchell, Xxxxxxxxx & Xxxxxxxx, L.L.C.
1600 Epic Center
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxx
If to Lessor: Commercial Equity, Inc.
300 I.M.A. Plaza
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, President
with a copy to: Foulston & Siefkin L.L.P.
000 XxxxxxxXxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxx XX
30
or to such other address as either party may hereafter designate by a Notice
pursuant to this Paragraph. Personally delivered Notice (including Notices sent
by overnight delivery service) shall be effective upon receipt, and Notice given
by mail shall be completed three (3) Business Days after the time of deposit in
the U.S. Mail system. For the purposes hereof, the term "Executive Officer"
shall mean the Chairman of the Board of Directors, the Chief Executive Officers,
the President, any Vice President, or the Secretary of the corporation upon
which service is to be made.
ARTICLE XXXII
32.1 LESSOR MAY GRANT LIENS. Lessor may, subject to the terms and
conditions set forth below in this Paragraph 32.1, from time-to-time, directly
or indirectly, create or otherwise cause to exist any lien or encumbrance or any
other change of title ("Encumbrance") upon the Leased Property, or any portion
thereof or interest therein, whether to secure any borrowing or other means of
financing or refinancing. Any such Encumbrance shall contain the right to
prepay (whether or not subject to a prepayment penalty) and shall provide that
it is subject to the rights of Lessee under this Lease, provided that any holder
of an Encumbrance shall (a) give Lessee the same notice, if any, given to Lessor
of any default or acceleration of any obligation underlying any such mortgage or
any sale in foreclosure under such mortgage; (b) permit Lessee to cure any such
default on Lessor's behalf within any applicable cure period, and Lessee shall
be reimbursed by Lessor or shall be entitled to offset against Minimum Rent
payments next accruing or coming due for any and all costs incurred in effecting
such cure, including, without limitation, out-of-pocket costs incurred to effect
any such cure (including reasonable attorneys' fees); (c) permit Lessee to
appear and to bid at any sale in foreclosure made with respect to, and/or any
sale by virtue of the exercise of the power of sale contained in, any such
mortgage, and (d) provide that in the event of foreclosure or other possession
of the Leased Property by the Mortgagee, that the Mortgagee (or other purchaser)
shall be bound by the terms and provisions of this Lease. Upon the reasonable
request of Lessor, Lessee shall execute an agreement to the effect that this
Lease shall be subject and subordinate to the lien of a new mortgage on the
Leased Property, and that in the event of any default or foreclosure under such
mortgage, Lessee shall attorn to the new mortgagee, and as otherwise requested
by Lessor on the condition that the mortgagee execute a non-disturbance
agreement recognizing this Lease and agreeing, for itself and its successor and
assigns, to comply with the provisions of this Article XXXII.
32.2 LESSEE'S RIGHT TO CURE. Subject to the provisions of Paragraph
32.3, if Lessor breaches any covenant to be performed by it under this Lease,
Lessee, after Notice to and demand upon Lessor, without waiving or releasing any
obligation hereunder, and in addition to any other remedies available to Lessee,
may (but shall be under no obligation at any time thereafter to) make such
payment or perform such act for the account and at the expense of Lessor. All
sums so paid by Lessee and all costs and expenses (including, without
limitation, reasonable attorneys' fees) so incurred, together with interest
thereon from the date on which such sums or expenses are paid or incurred by
Lessee, shall be paid by Lessor to Lessee on demand, but may not be offset by
Lessee against payments of Rent hereunder.
31
32.3 BREACH BY LESSOR. It shall be a breach of this Lease if Lessor
fails to observe or perform any term, covenant or condition of this Lease on its
part to be performed, and such failure shall continue for a period of thirty
(30) days after Notice thereof from Lessee unless such failure cannot with due
diligence be cured within a period of thirty (30) days, in which case such
failure shall not be deemed to continue if Lessor, within said thirty (30) day
period, proceeds promptly, continuously and with due diligence to cure the
failure and diligently completes the curing thereof. The time within which
Lessor shall be obligated to cure any such failure shall also be subject to
extension of time due to the occurrence of any Unavoidable Delay.
ARTICLE XXXIII
33.1 SURVIVAL OF OBLIGATIONS. Anything contained in this Lease to the
contrary notwithstanding, all claims against, and liabilities of, Lessee or
Lessor arising prior to, or in connection with any event occurring prior to, the
date of any expiration or termination of this Lease or the date of Lessee's
surrender of possession, whichever is later, shall survive such termination or
surrender of possession.
33.2 LATE CHARGES; INTEREST. If any interest rate provided for in any
provision of this Lease is based upon a rate in excess of the maximum rate
permitted by applicable law, the parties agree that such charges shall be fixed
at the maximum permissible rate.
33.3 LIMITS OF LESSOR'S LIABILITY. Lessee specifically agrees to look
solely to the assets of Lessor for recovery of any judgment against Lessor, it
being specifically agreed that no constituent shareholder, officer or director
of Lessor shall ever be personally liable for any such judgment or the payment
of any monetary obligation to Lessee. The provision contained in the foregoing
sentence is not intended to, and shall not, limit any right that Lessee might
otherwise have to obtain injunctive relief against Lessor or Lessor's successors
in interest, or any action not involving the personal liability of Lessor
(original or successor). Additionally, Lessor shall be exonerated from any
further liability under this Lease upon Lessor's transfer or other divestiture
of its ownership of the Leased Property, provided that the assignee or grantee
shall expressly assume in writing the obligations of Lessor hereunder.
Furthermore, in no event shall Lessor (original or successor) ever be liable to
Lessee for any indirect or consequential damages suffered by Lessee from
whatever cause.
33.4 ADDENDUM, AMENDMENTS AND EXHIBITS. Any addendum, amendments and
exhibits attached to this Lease are hereby incorporated in this Lease and made a
part of this Lease.
33.5 HEADINGS. The headings and paragraph titles in this Lease are
not a part of this Lease and shall have no effect upon the construction or
interpretation of any part of this Lease.
33.6 TIME. Time is of the essence of this Lease and each and all of
its provisions.
33.7 DAYS. Unless otherwise expressly indicated herein, any reference
to "days" in this Lease shall be deemed to refer to calendar days.
32
33.8 RENT. Each and every monetary obligation under this Lease shall
be deemed to be "Rent" under this Lease and for all other purposes under law.
33.9 APPLICABLE LAW. This Lease shall be governed by and construed
in accordance with the laws of the State, but not including its conflicts of
laws rules; thus the law that will apply is the law applicable to a
transaction solely within the State, including parties solely domiciled in the
State.
33.10 SUCCESSORS AND ASSIGNS. The covenants and conditions
contained in this Lease shall, subject to the provisions regarding assignment
(Article XXII), apply to and bind the heirs, successors, executors,
administrators, and assigns of Lessor and Lessee.
33.11 RECORDATION. Lessor and Lessee shall execute with
appropriate acknowledgments and record in the Official Records of the applicable
county, that certain Short Form Lease in the form and content of Exhibit "C"
attached hereto. Lessor and Lessee shall equally share the cost of recording
the Memorandum of Lease.
33.12 PRIOR AND FUTURE AGREEMENTS. This Lease contains all of the
agreements of Lessor and Lessee with respect to any matter covered or mentioned
in this Lease, and no prior agreements or understanding pertaining to any such
matters shall be effective for any purpose. No provision of this Lease may be
amended or supplemented except by an agreement in writing signed by both Lessor
and Lessee or their respective successors in interest. This Lease shall not be
effective or binding on any party until fully executed by both Lessor and
Lessee.
33.13 PARTIAL INVALIDITY. Any provision of this Lease which shall
be held by a court of competent jurisdiction to be invalid, void or illegal
shall in no way affect, impair or invalidate any other provision or term of this
Lease, and such other provision or terms shall remain in full force and effect.
33.14 ATTORNEYS' FEES. In the event of any action or proceeding
brought by one party against the other under this Lease, the prevailing party
shall be entitled to recover its attorneys' fees in such action or proceeding
from the other party, including all attorneys' fees incurred in connection with
any appeals, and any post-judgment attorneys' fees incurred in efforts to
collect on any judgment.
33.15 AUTHORITY OF LESSOR AND LESSEE. Lessor and Lessee each
hereby represent and warrant that the individuals signing on its behalf are duly
authorized to execute and deliver this Lease on behalf of the corporation, in
accordance with the bylaws of the corporation, and that this Lease is binding
upon the corporation.
33.16 RELATIONSHIP OF THE PARTIES. Nothing contained in this
Lease shall be deemed or construed by Lessor or Lessee, nor by any third party,
as creating the relationship of principal and agent or a partnership, or a joint
venture by Lessor or Lessee, it being understood and agreed that
33
no provision contained in this Lease nor any acts of Lessor and Lessee shall
be deemed to create any relationship other than the relationship of landlord
and tenant.
33.17 COUNTERPARTS. This Lease may be executed in one or more
separate counterparts, each of which, once they are executed, shall be deemed to
be an original. Such counterparts shall be and constitute one and the same
instrument.
33.18 BROKERS. Lessor and Lessee each warrants that it has had no
dealings with any real estate broker or agent in connection with the negotiation
of this Lease and it knows of no real estate broker or agent who is entitled to
a commission in connection with this Lease. Lessor and Lessee hereby agree to
indemnify the other and to hold the other harmless from and against any and all
costs, expenses, claims, damages, suits, including attorneys' fees, in any way
resulting from claims or demands for commissions or other compensation from any
real estate brokers claiming through such party with respect to this Lease.
33.19 COMPUTER DISC. In order to facilitate the electronic filing
of this document with the United States Securities Exchange Commission and other
governmental agencies, Lessor shall provide or cause to be provided to Lessee a
computer disc containing all exhibits, schedules and ancillary documents related
to this Lease, formatted in WordPerfect 5.1 Times New Roman Font 12, upon
Lessee's one-time request for same.
WHEREFORE, each of the parties has accepted and agreed by affixing their
respective authorized signatures below as of the date first above written.
"LESSEE" NEW YORK BAGEL ENTERPRISES, INC.,
a Kansas corporation
By:
------------------------------------------
Xxxxxx X. Xxxxxx, Chief Executive Officer
"LESSOR" COMMERCIAL EQUITY, INC.,
a Kansas corporation
By:
------------------------------------------
Xxxxx X. Xxxxxx, President
34
EXHIBIT "A"
LEGAL DESCRIPTION
________________, ____________________
35
EXHIBIT "B"
ENVIRONMENTAL REPORT
[attached hereto]
36
EXHIBIT "C"
SHORT FORM LEASE
[attached hereto]
37
SHORT FORM LEASE
THIS SHORT FORM LEASE is made as of ___________, 1997, by and between
_____________________, a __________ corporation ("Lessor") and New York Bagel
Enterprises, Inc., a Kansas corporation ("Lessee").
W I T N E S S E T H:
1. In consideration of the covenants of Lessee, Lessor leases to Lessee,
and Lessee leases from Lessor, all of Lessor's right, title and interest in and
to that certain real property and improvements thereon located in the City of
__________, __________ County, ____________________ ("Building"), as more
particularly described in Exhibit "A," attached hereto.
2. This is a short form lease relating to that certain Lease dated as of
___________, 1997 ("Lease"). The Lease has been executed by the parties and
each party has a full copy thereof.
3. The term of the Lease shall be for a period of time commencing on
December _____, 1997, and shall continue to and include the 31st day of
December, _____, unless the Lease is sooner terminated according to the terms of
the Lease or extended according to specific extension rights set forth in the
Lease.
4. The Lease provides, and Lessor and Lessee hereby confirm, that neither
Lessee nor anyone claiming by, through or under Lessee, including contractors,
subcontractors, materialmen, mechanics and laborers, shall have any mechanics',
materialmen's or construction liens of any sort whatsoever upon the interest of
Lessor in the Building, and, to the contrary, any such lien is specifically
prohibited. All parties with whom Lessee may deal are hereby put on notice that
Lessee has no power to subject the interest of Lessor in the Building to any
claim or lien of any kind or character, and all such persons dealing with Lessee
must look solely to Lessee for payment and not to Lessor's interest in the
Building or any other asset of Lessor.
5. The terms, conditions, provisions, covenants and agreements set forth
in the Lease shall be binding upon the Lessor and Lessee, their respective
heirs, legal representatives, successors and assigns, shall be deemed to be
covenants running with the Building, and the entire Lease is hereby incorporated
herein by this reference. In addition to those terms referred to herein, the
Lease contains numerous other terms, conditions and provisions. In the event of
any conflict between the provisions of this Short Form Lease and the Lease, the
provisions of the Lease shall govern, control and prevail.
6. This Short Form Lease may be executed in one or more separate
counterparts, each of which, once they are executed, shall be deemed to be an
original. Such counterparts shall be and constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Short Form Lease to
be signed as of the date first above written.
"LESSEE" NEW YORK BAGEL ENTERPRISES, INC.,
a Kansas corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"LESSOR" COMMERCIAL EQUITY, INC.,
a Kansas corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
ACKNOWLEDGMENT
STATE OF ___________)
) SS
COUNTY OF _________ )
This instrument was acknowledged before me on ______________, 1997 by
____________________ as ____________________ of New York Bagel Enterprises, Inc.
(Seal) By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
My Appointment expires____________________
2
ACKNOWLEDGMENT
STATE OF KANSAS )
) SS
COUNTY OF SEDGWICK )
This instrument was acknowledged before me on ______________, 1997 by
____________________ as ____________________ of Commercial Equity, Inc.
(Seal) By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
My Appointment expires____________________
3
Schedule 1
Lessor: Commercial Equity, Inc.
Lessee: New York Bagel Enterprises, Inc.
Date of Lease: November 1, 1997
Location: ____________________________
1.1 TITLE COMPANY. For purposes of the Lease, the title company is
_______________________.
2. STATE. For purposes of the Lease, the term "State" shall mean the State of
____________.
3.1 MINIMUM RENT DURING INITIAL TERM. The Minimum Rent during the Initial Term
shall be at the following annual rates and times:
Years 1-5 $__________
Years 6-10 $__________
Years 11-15 $__________
13.2 REPLACEMENT COST. $__________
18.2 MINIMUM RENT DURING EXTENDED TERMS. The Minimum Rent during each of the
following Extended Terms shall be at the following annual rates:
Years 16-20 $__________
Years 21-25 $__________
