FIRST AMENDMENT TO AGREEMENT OF LEASE
THIS FIRST AMENDMENT TO AGREEMENT OF LEASE is made and dated the 18th day
of December, 1996 by and between Xxxxxx County Improvement Authority, its
successors and\or assigns as their interests may appear, a public body corporate
and politic duly organized and validly existing under the laws of the State of
New Jersey, having a mailing address of 000 Xxxxx Xxxx Xxxxxxxxx Xxxx, Xxxxxxx,
Xxx Xxxxxx 00000 ("Lessor") and T-KAT Urban Renewal Corporation, a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Jersey, having a mailing address c/o Xxxxxx X. Xxxxxx, Esq.,
Kozlov, Seaton, Xxxxxxxx & Xxxxxx, 0000 Xxxxx 00 Xxxx, Xxxxxx Xxxx, Xxx Xxxxxx
00000, its successors and/or assigns as their interests may appear ("Lessee").
BACKGROUND:
A. On June 18, 1996, Lessor and Lessee executed and delivered a certain
Agreement of Lease (the "Lease") pursuant to the provisions of which the Lessor
leased to the Lessee all that certain land and improvements thereon consisting
of the former Xxxxxx Iron Works Building, situate, lying and being in the City
of Trenton, County of Xxxxxx and State of New Jersey, and defined in the Lease
as the "Leased Premises".
B. Simultaneously herewith, the Lessee has subleased the
Leased Premises to T-Kat Corp. ("Sublessee"), a New Jersey
corporation, pursuant to the provisions of a certain Sublease
between the Lessee and the Sublessee (the "Sublease").
C. In connection with the financing of the construction of certain
improvements upon the Leased Premises by the Sublessee, Lessee and the Sublessee
have or are about to borrow certain funds from Equity National Bank (the
"Lender"), and have or are about to grant to the Lender, as partial security for
the repayment of such sums, a Leasehold Mortgage encumbering the Lessee's and
the Sublessee's respective interest in the Lease.
D. The Lender has required, as a condition to the making of
the aforementioned loan, that certain revisions be made to the
Lease.
E. The parties hereto now desire to amend the Lease
pursuant to the provisions of this First Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and
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intending to be legally bound hereby, the parties agree as follows:
1. Except as specifically defined herein, all initially capitalized terms
herein shall have the meaning ascribed to such terms in the Lease.
2. Lessor hereby consents to the execution and delivery of the Sublease
from the Lessor to the Lessee pursuant to the provisions of the Sublease, and
neither Lessee nor the Sublessee shall have any obligation to pay to the Lessor
75% of any rents collected under said Sublease pursuant to the provisions of
Section 28.1 of the Lease.
3. Lessor hereby confirms and acknowledges that Lessor has approved of the
plans and specifications for the construction of the improvements at the Leased
Premises in accordance with Section 10.2 of the Lease, and Lessee has complied
with all of the provisions of Section 10.3 of the Lease.
4. Notwithstanding anything contained in Section 12 or 13 of the Lease to
the contrary, all insurance proceeds resulting from any fire or other casualty
shall be paid to and held by the Lender, and applied in accordance with the
provisions of the Leasehold Mortgage.
5. Notwithstanding anything contained in the Lease to the contrary, Lessor
shall not terminate the Lease or otherwise exercise any remedy under the Lease
by reason of the Lessee's, Sublessee's or Leasehold Mortgagee's failure to keep
the Leased Premises open and operated as a restaurant, bar, and nightclub with
indoor/outdoor entertainment, music and dancing for a continuous period of
forty-five cumulative days during the term of the Lease if:
(a) Lessor has provided to Leasehold Mortgagee notice of default and
intention to exercise the remedies set forth in the Lease, or Leasehold
Mortgagee is otherwise in possession of the Premises; and
(b) the Leasehold Mortgagee, subject to any stay in any proceedings
involving the insolvency of the Lessee or the Sublessee, commences to proceed
within sixty (60) days of such notice, and thereafter diligently proceeds to
obtain possession of the Leased Premises either through foreclosure proceedings
or other action determined by the Leasehold Mortgagee in the Leasehold
Mortgagee's reasonable discretion to obtain possession of the Leased Premises;
and
(c) during the pendency of such proceedings by the Leasehold Mortgagee
to obtain possession of the Leased Premises, and after such time as the
Leasehold Mortgagee has obtained such possession, the Leasehold Mortgagee shall
be actively pursuing the sale or assignment of the Lease to an entity or person
to use
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and operate the Leased Premises for the purposes set forth in the Lease.
6. Notwithstanding anything contained in the Lease to the contrary, from
and after the later to occur of (i) the date that the Leasehold Mortgagee
obtains possession of the Leased Premises, either as the tenant under the Lease,
or as a Mortgagee-in-Possession and (ii) the date that the Leased Premises is
not continuously operating as a restaurant/bar as set forth in the Lease (the
"Nonoperating Commencement Date"), the rental obligations under the Lease shall
be deemed to be modified as follows:
a. For the period commencing on the Nonoperating Commencement Date and
continuing thereafter for a period of 120 days, the Leasehold Mortgagee as
tenant or Mortgagee-in-Possession shall have no obligation to pay any amount of
Fixed Net Rent;
b. From and after 120 days after the Nonoperating Commencement Date
and continuing for a period expiring on the day the Leased Premises is
continuously operating as a restaurant/bar as set forth in the Lease (the
"Nonoperating Termination Date"), the monthly Fixed Net Rent payable by the
Leasehold Mortgagee shall be determined by the average Fixed Net Rent payable by
the Tenant during the six month period immediately preceding the Nonoperating
Commencement Date.
c. Nothing contained herein shall be deemed to modify or amend the
obligation of the Tenant or the Leasehold Mortgagee from the period commencing
on the Nonoperating Commencement Date and terminating on the Nonoperating
Termination Date to make any payment required under Article Third of the Lease.
7. During the time period commencing on the Nonoperating Commencement Date,
the Lessor may, subject to the provisions of the Lease and the Leasehold
Mortgage, seek requests for proposals and/or bids to operate the Premises for
the purposes set forth in the Lease.
8. Except as expressly set forth herein, the Lease remains
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in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Agreement of Lease on the date and year first above written.
XXXXXX COUNTY IMPROVEMENT AUTHORITY
WITNESS:
/s/ Xxxxxxx XXXXXXX, Esquire BY: /s/ XXXXXXXXXXXXXXXX
----------------------------- ---------------------------------
Xxxxxxx XXXXXXXXX, Esquire
Attorney-at-Law of New Jersey
ATTEST: T-KAT URBAN RENEWAL DEVELOPMENT
CORPORATION
/s/ Xxxxxx X. Xxxxxxx BY: /s/ XXXXXX Silver
------------------------ ---------------------------------
Xxxxxx X. Xxxxxxx XXXXXXX Silver
President
ATTEST: T-KAT CORP.
/s/ Xxxxxx X. Xxxxxxx BY: /s/ XXXXXX Silver
------------------------ ---------------------------------
Xxxxxx X. Xxxxxxx XXXXXXX Silver
President
