EXHIBIT 10.20
AGREEMENT OF LEASE, made as of this day of November 1996, by and
between ACKRIK ASSOCIATES, (hereinafter the "Landlord"), a New Jersey
Partnership, having an office at c/o Xxxxx Xxxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, X.X. 00000 Suite 16-M, and ROOM PLUS, INC., a New York Corporation having
an office at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx (hereinafter the
"Tenant").
W I T N E S E T H
WHEREAS, Landlord is the owner of the Shopping Center located on
Route 38, in the Township of Cherry Hill, Camden County, New Jersey, known as
The Plaza at Cherry Hill, as shown on the Plot Plan annexed hereto and made a
part hereof as Exhibit A (the "Shopping Center"); and
WHEREAS, the parties hereto desire that a portion of the Shopping
Center (the "Demised Premises") be leased to Tenant by Landlord, for a term and
upon the covenants, conditions and provisions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual premises herein
contained, and other good and valuable considerations, the receipt and
sufficiency of which are hereby mutually acknowledged, Landlord and Tenant
hereby mutually agree as follows:
Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, for the term, at the rental, and subject to the provisions herein set
forth, certain store premises, containing approximately 5,000 square feet of
enclosed building with approximate dimensions of 40 feet in frontage by 125 feet
in depth, as shown cross-hatched on Exhibit A. All measurements are made from
center to center of shared interior walls; provided however that a wall not
shared is measured from outside its exterior. The floor area of the Demised
Premises, as determined by Landlord pursuant to this paragraph, shall be binding
on the parties hereto.
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TOGETHER WITH:
The right, in common with Landlord, other tenants of Landlord and
their customers, employees and invitees to the use by Tenant and Tenant's
customers, employees and invitees of the "Common Areas" of the Shopping Center,
as hereinafter defined, for the purposes of pedestrian and vehicular access,
ingress and egress, and the parking of cars, subject to such reasonable
non-discriminatory rules and regulations as Landlord may from time to time
impose. The "Common Areas" shall be those portions of the Shopping Center
intended for use of all tenants, including parking areas, roadways, driveways,
entrances, exits, landscaped areas, loading areas, ramps, sidewalks, steps,
malls, promenades, lighting and drainage facilities, utility lines, pipes and
installations of every kind serving the Shopping Center. Landlord reserves full
right to use portions of the Shopping Center for future construction with the
effect of withdrawing such areas from the Common Areas, provided such use does
not materially interfere with access to or visibility of the Demised Premises.
Landlord agrees with Tenant that, subject to the provisions of Article VI,
during the term of this Lease, the Common Areas shall contain not less than the
number of parking spaces required pursuant to applicable zoning regulations in
effect from time to time.
SUBJECT TO:
1. The terms, covenants, conditions and provisions hereof.
2. Liens, encumbrances, easements, reservations, covenants
and conditions, of record.
3. All federal, state and local laws, ordinances, rules and
regulations affecting the Demised Premises including but not limited to zoning
regulations and ordinances now existing, or hereafter enacted, by any applicable
governmental authority in which the Demised Premises lie. If future laws or
regulations prohibit Tenant's Permitted Use, Tenant has the right on a minimum
of ninety (90) days prior written notice to Landlord, to terminate this lease.
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4. Any state of facts a physical inspection of the Shopping
Center, the Demised Premises or the Common Areas would disclose.
This Lease is made upon the foregoing and following terms,
provisions, conditions and limitations, and the parties respectively covenant
and agree as follows:
ARTICLE I
Term, Renewal Options and Construction
Section 1.1. The term of this Lease (the "Term") shall commence
on the date Landlord substantially completes its work ("Landlord's Work") set
forth on Exhibit B and delivers possession of the Demised Premises to Tenant
(the "Term Commencement Date"), and shall expire at midnight on the last day of
the month in which the fifth (5th) anniversary of the Term Commencement Date
shall occur, subject to earlier termination as herein elsewhere provided.
Landlord agrees to give Tenant a minimum of ten (10) days prior notice before it
delivers possession of the Demised Premises to Tenant. Tenant shall commence
paying Rent and Additional Rent on that date which is the earlier of: (i)
forty-five (45) days from the Term Commencement Date; or (ii) the date Tenant
opens all or any portion of the Demised Premises for business (the "Rent
Commencement Date"). Tenant shall deposit with Landlord its first monthly
installment of rent due hereunder upon the execution of this Lease.
Landlord's Work shall be deemed substantially completed in
accordance with Exhibits B notwithstanding the following: (i) items that cannot
be completed until Tenant first completes its work, and (ii) minor items, either
such as mechanical adjustments or are cosmetic in nature, all which are known as
"punch list items", which items shall be completed reasonably promptly after
said punch list is furnished Landlord by Tenant.
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Section 1.2. Renewal Option.
(A) Provided this Lease then be in full force and effect and Tenant
shall not be in default beyond the expiration of any applicable grace period
hereunder, Tenant shall have the option to extend the term of this Lease for one
(1) additional term of five (5) years commencing at the end of the original
Term, upon the same terms and conditions hereof, except: (i) as hereinafter
provided with respect to Fixed Rent, and (ii) that Tenant shall have no further
option to renew or extend the term hereof. The option to extend must be
exercised by Tenant by giving notice to Landlord not later than six (6) months
prior to the expiration of the original Term. In the event such notice of
exercise shall not be given as aforesaid, Tenant shall be deemed to have waived
and forfeited all rights to extend the term of this Lease as time is "of the
essence" with regard to the giving of such notice.
(B) The Annual Fixed Rent for the option term shall be as follows:
1st year: $72,500.00 per annum, $6,041.67 per month figured at $14.50 per
square foot per annum;
2nd year: $74,700.00 per annum, $6,225.00 per month figured at $14.94 per
square foot per annum;
3rd year: $76,950.00 per annum, $6,412.50 per month figured at $15.39 per
square foot per annum;
4th year: $79,250..00 per annum, $6,604.17 per month figured at $15.85 per
square foot per annum; and
5th year: $81,650.00 per annum, $6,804.17 per month figured at $16.33 per
square foot per annum.
Section 1.3. This Lease shall terminate at the end of the Term
without the necessity of any notice from either Landlord or Tenant to terminate
the same, and Tenant hereby waives notice to vacate or quit the Demised Premises
and agrees that Landlord shall be entitled to the benefit of all provisions of
law respecting the summary recovery of possession of the Demised Premises from a
tenant holding over to the same extent as if
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statutory notice had been given. For the period of three (3) months prior to the
expiration of the Term , Landlord shall have the right to display on the
exterior of the Demised Premises a "For Rent" sign (not to exceed one foot by
one foot in size) and during such period Landlord may show the Demised Premises
and all parts thereof to prospective tenants duringnormal business hours and in
a manner not to interfere with Tenant's business.
Section 1.4. If the Tenant retains possession of the Demised
Premises or any part thereof after the termination of the Term or any extension
thereof, by lapse of time or otherwise, the Tenant shall pay the Landlord rent
at double the rate payable for the year immediately preceding said holdover,
computed on a per month basis, for the time the Tenant remains in possession.
The provisions of this Section do not waive the Landlord's right of reentry or
any other right hereunder. Any retention of the Demised Premises after the
termination of this Lease or any extension thereof shall be considered as a
month to month holdover unless otherwise agreed to in writing by both parties.
Section 1.5. Tenant has been given full opportunity to inspect
and examine the Demised Premises and Shopping Center, and has so inspected and
examined them to its complete satisfaction, and thus does hereby accept them in
their present "AS IS" condition as of the date hereof, subject to Landlord's
completion of its work set forth on Exhibit B.
Section 1.6. All betterments and improvements in or upon the
Demised Premises, made by either party (except Tenant's personal property,
equipment, stock in trade, furniture and furnishings, signs and trade fixtures
provided at Tenant's expense - collectively "Tenant's Personal Property")
including, without limitation, all lighting fixtures, heating, ventilating and
air conditioning equipment and all pipes, ducts, conduits, wiring, paneling,
partitions, railings and the like shall remain upon and be surrendered with the
Demised Premises as a part thereof at the expiration or sooner termination of
the Lease Term, and shall become the property of Landlord at such time,
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provided, however, with respect to any alterations Tenant may make, Landlord may
elect to have all or portions thereof removed by Tenant (which election shall be
made by Landlord not less than forty five (45) days prior to the expiration or
sooner termination of the Lease Term), and Tenant shall repair any damage such
removal may cause. Tenant's Personal Property may be removed by Tenant at the
termination of this Lease, provided Tenant repairs any damage caused by said
removal. Tenant's obligation to repair the Demised Premises as aforesaid shall
survive the termination of this Lease.
Section 1.7. Tenant may commence its work during the progress of
Landlord's Work, provided however, that while Landlord's Work is continuing: (i)
Tenant's work shall comply with all legal requirements and the approved plans,
and shall not interfere with nor delay Landlord's Work; (ii) Landlord shall have
no liability to Tenant for damage to any of Tenant's property stored in the
Demised Premises, unless caused by willful acts or gross negligence of Landlord
or its employees or agents; and (iii) Tenant shall indemnify Landlord, and hold
Landlord harmless from and against any claims, losses, damages or expenses
arising out of the acts or omissions of Tenant, or of its employees or agents.
Tenant shall obtain temporary and permanent certificates of
occupancy, and other governmental approvals which may be required to permit
Tenant's use and occupancy of the Demised Premises. Landlord represents that the
Demised Premises is presently zoned for Tenant's Permitted Use as provided in
3.1(A).
Tenant agrees that it will not at any time prior to or during the
term hereof, either directly or indirectly, employ or permit the employment of
any contractor, mechanic or laborer, or permit any materials in the Demised
Premises, if the use of such contractor, mechanic or laborer or such materials
would, in Landlord's reasonable opinion, create any difficulty, strike or
jurisdictional dispute with other contractors, mechanics or laborers engaged by
Landlord or others, or would in any way disturb the construction, maintenance,
cleaning, repair, management, security or operation of the
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Shopping Center or any part thereof. In the event of any interference or
conflict, Tenant, upon demand of Landlord, shall cause all contractors,
mechanics or laborers, or all materials causing such interference, difficulty or
conflict, to leave or be removed from the Demised Premises and Shopping Center
immediately. Tenant shall be liable to Landlord for all extra costs and damages
resultant from Tenant's failure to comply herewith.
ARTICLE II
Fixed Rent, Free Rent,
Additional Rent, and Other Charges
Section 2.1.
(A) Fixed Rent and Additional Rent (as hereinafter defined) shall
be payable to Landlord at the address hereinabove first set forth, or to
such address as Landlord may from time to time otherwise designate, in
lawful money of the United States which shall be legal tender for the
payment of all debts, public and private, without any counterclaim,
set-off or deduction whatsoever, and without any prior demand therefor.
(B) "Additional Rent" shall be deemed to consist of all sums of
money which shall become due from and payable by Tenant hereunder
(excluding Rent), including but not limited to Tenant's Tax Charge,
Tenant's Common Area Charge and any other payments made by Landlord on
behalf of Tenant or otherwise payable by Tenant hereunder. If Tenant
defaults in the payment of Additional Rent, Landlord shall have the same
remedies as for a default in the payment of Fixed Rent.
Section 2.2. Tenant shall pay to Landlord during the Lease Term
commencing on the Rent Commencement Date the Fixed Rent as hereinafter set forth
in equal monthly installments, in advance, on the first day of each and every
calendar month
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throughout the balance of the Lease Term. In the event the Rent
Commencement Date is other than the first day of a calendar month, the Fixed
Rent for the portion of the then current calendar month shall be prorated and
shall be paid immediately upon the Rent Commencement Date. The Fixed Rent
commencing on the Rent Commencement Date is as follows:
(i) for the first year of the Lease Term (figured from the Term
Commencement Date): $62,500.00 per annum, $5,208.33 per month, figured
at $12.50 per square foot per annum;
(ii) for the second year of the Lease Term: $64,400.00 per annum,
$5,366.67 per month, figured at $12.88 per square foot per annum;
(iii) for the third year of the Lease Term: $66,350.00 per annum,
$5,529.17 per month figured at $13.27 per square foot per annum;
(iv) for the fourth year of the Lease Term: $68,350.00 per annum,
$5,695.83 per month figured at $13.67 per square foot per annum; and
(v) for the fifth year of the Lease Term: $70,400.00 per annum,
$5,866.67 per month, figured at $14.08 per square foot per annum.
Section 2.3. If Tenant shall fail to pay any Fixed Rent or
Additional Rent within ten (10) days of the due date thereof, such unpaid
amounts shall bear interest at a rate of 2% above the prime rate set by Citibank
N.A., but in no event more than the highest legal rate, from the due date
thereof to the date of payment of the default rent.
Section 2.4 Additional Rent - Real Estate Taxes.
Landlord agrees to pay, before they become delinquent, all real
estate taxes and special assessments lawfully levied or assessed against the
Shopping Center; however, Landlord may, at its expense, contest and dispute the
same and in such case the disputed item need not be paid by Landlord until
finally adjudged to be valid. Tenant
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agrees to pay to Landlord, from and after the Rent Commencement Date, as
additional rent within fifteen (15) days after written demand from the Landlord,
and at least ten days prior to Landlord's due date, its pro rata share of all
real estate taxes lawfully levied or assessed against the Shopping Center (land,
building and improvements). If an assessment covers a period outside of the
Lease Term, it will be prorated so that Tenant is charged for only that portion
falling within the Lease Term. Landlord's demand shall be accompanied by a copy
of the tax xxxx(s) for the Shopping Center, together with a computation as to
the amount of Tenant's pro rata share. For the purposes of this Section and
Section 2.4, Tenant's pro rata share is 2.7% and is based upon the ratio which
the ground floor square feet of the premises leased to Tenant (i.e. 5,000 square
feet) bears to the leasable ground floor square feet of all buildings (including
the Demised Premises, i.e.,186,248 square feet), as the same may be increased or
decreased from time to time in the Shopping Center. In the event any proceeding
is instituted for the reduction of assessed valuation which results in a refund
of taxes, Tenant shall be entitled to its pro rata share (less any expenses in
connection therewith), including any refund after the expiration/termination of
this Lease relating to a period prior to such expiration/ termination. As used
herein "real estate taxes" shall include but shall not be limited to, betterment
and other assessments, water and sewer rents, if any, and other charges and for
otherwise levied, assessed or imposed, general or special, ordinary or
extraordinary, for land or improvements.
Section 2.5 Additional Rent -Common Area Maintenance Costs.
(A) The term "Common Area Maintenance Costs" shall mean the cost
paid or incurred for the operation, maintenance and repairs of the
Common Areas, and of any installations therein or thereon, including,
without limitation, cleaning, snow and ice removal (including salting
and sanding); striping, patching, seal coating and repaving of all paved
areas including parking areas and roadways; planting, replanting and
replacing flowers and landscaping; maintaining and cleaning sidewalks
and curbs; maintenance and repair of utility systems (including all
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common lighting, stantions, poles and fixtures); premiums for liability, fire
(including all additional and extended coverages thereunder) and workmen's
compensation insurance; salaries (including employee benefits) of employees
performing service in connection with the Shopping Center; management fees;
accounting fees; unemployment taxes; social security taxes, personal property
taxes if any; sales and use taxes on material and equipment; supplies; operation
of loudspeakers and other equipment, if any; generic advertising the Shopping
Center; supply of music to the Common Area or any part thereof; policing,
security, and patrolling the Common Areas (including costs relating to
controlling traffic thereto and/or therefrom); reasonable straight line
depreciation of movable equipment (and rental thereof) used in the operation,
repair and maintenance of the Common Areas, but in any such case without
duplication as to depreciation charges on any such movable equipment (as to the
rental of such movable equipment, Landlord agrees to rent such equipment only if
the rental thereof will, in the good faith judgment of Landlord, be less
expensive to Tenant than depreciation on owned equipment would be in assessing
common area maintenance costs to Tenant); and other similar direct costs
properly chargeable to such operation.
(B) From and after the Rent Commencement Date, Tenant shall pay
to Landlord as additional rent, Tenant's pro rata share (i.e.,2.7%, as
defined in Section 2.4) of the Common Area Maintenance Costs. Landlord
shall in the first instance, and prior to the beginning of each Calendar
Year, estimate Tenant's pro rata share of the Common Area Maintenance
Costs for each year and shall give notice thereof to Tenant. Tenant
shall be required to pay Landlord on the first day of each calendar
month during the Lease Term, one-twelfth of the annual estimated pro
rata share for such year. Within ninety (90) days after the end of each
Calendar Year, Landlord shall furnish to Tenant a statement ("Landlord's
Statement") in reasonable detail of the actual Common Area Maintenance
Costs paid or incurred by Landlord for said year, and thereupon there
shall be an adjustment between Landlord and Tenant. In the event (a) the
aggregate of Tenant's monthly contributions in any year
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shall be less than the Tenant's actual annual pro rata share as shown on
Landlord's Statement, Tenant shall pay the Landlord the difference within
fifteen (15) days from receipt of Landlord's statement, or (b) the aggregate of
Tenant's monthly contributions are in excess of Tenant's actual annual pro rata
share, the amount of such excess shall be credited against Tenant's next ensuing
monthly common area contribution.
Section 2.6. From and after the Term Commencement Date, Tenant
agrees to pay, within fifteen (15) days after receipt of an invoice, all charges
for heat, air conditioning, water, gas, electricity, sprinkler charges and other
utilities used in its operations in the Demised Premises. Landlord shall provide
separate meters to measure such utilities, and Tenant shall pay the charge
therefor directly to the utility company; provided, however, if separate meters
are not furnished, then and in such event, Tenant agrees to pay its pro rata
share of such utilities determined by multiplying the amount charged by a
fraction, the numerator of which shall be the ground floor square footage
contained in the Demised Premises, and the denominator of which shall be the
total leased ground floor square footage of all premises (including the Demised
Premises) serviced by such meter(s). Landlord represents that the Demised
Premises presently has separate utility meters.
Section 2.7. Landlord reserves the right to interrupt any of the
foregoing services when necessary by reason of accident, damage by the elements,
strikes, laws, orders or regulations, or any other reason beyond the control of
Landlord, and Landlord's sole responsibility or liability in the event of
interruption in the supplying of any such services shall be to use its
reasonable efforts to repair or restore the same as promptly as reasonably
possible.
ARTICLE III
Use, Operation,and Maintenance
Section 3.1 Tenant agrees:
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(A) To use the Demised Premises, and operate therein, solely for
the retail sale of formica and wood furniture and home furnishings (the
"Permitted Use") and for any other use or purpose incidental or similar
thereto and for no other use or purpose.
(B) Except when, and to the extent that, as elsewhere in this
Lease provided, the Demised Premises may be untenantable by reason of
damage by fire or other casualty, to continuously and uninterruptedly
occupy and use during the Lease Term the entire Demised Premises for the
Permitted Use, and to conduct Tenant's business therein in a reputable
manner; to remain open for business during all hours and all days when
the Shopping Center is open for business, but no earlier than 9:30 a.m.
or later than 9:30 p.m., and including Sundays from 10:00a.m. to 6:00
p.m.; to adequately staff its store with a sufficient number of
employees to handle the maximum business possible therein, and to carry
sufficient stock, character and quality to accomplish same; to keep the
display windows, if any, and all signs well lighted during such hours
and days that the Common Areas are lighted by Landlord; to keep and
maintain the Demised Premises and Tenant's Personal Property and signs
therein or thereon, and the exterior and interior portions of all
windows, doors and all glass or plate glass, in a neat, clean,
sanitary and safe condition; to apply for, secure, maintain and comply
with all licenses or permits which may be required for the conduct by
Tenant of the Permitted Use, and to pay, if, as and when due, all
required license, permit fees and charges of a similar nature pertaining
to Tenant's Use.
(C) To store all trash and refuse (including but not limited to
grease, which must be stored in its own labeled container) in
appropriate containers within the Demised Premises prior to permanent
disposal so as not to be visible to the public, and to attend to the
daily disposal thereof in the manner and by the agency designated by
Landlord. Tenant may make its own arrangements to dispose of its trash.
If Tenant utilizes any compactor installed by Landlord, Tenant shall pay
its
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pro rata share of the operating cost thereof, including Tenant's pro rata share
of the cost of removal of such compacted garbage by an independent collector
designated by Landlord and whose prices shall be competitive. Tenant shall keep
all drains inside the Demised Premises open; and
(D) To comply with any local, state or federal laws, rules or
regulations regarding the storage and disposal of hazardous waste and
environmental protection. In connection with the foregoing, Tenant shall
promptly complete and deliver to Landlord any requests for information
concerning the nature and conduct of its business.
Section 3.2. Tenant shall comply with all laws and requirements
of all governmental authorities applicable to the Demised Premises, excluding
the requirement of making structural changes to the Demised Premises, unless
such changes are required by reason of Tenant's use. Notwithstanding the
foregoing, Tenant may, in good faith (and wherever necessary, in the name of,
but without expense to, Landlord, and having secured Landlord to its reasonable
satisfaction by cash, securities or a surety company bond against loss or
damage), contest the validity or application in whole or in part, of any such
legal requirements; and, pending the final determination of such contest, may
postpone compliance therewith, but not so as to subject Landlord to any fine or
penalty or to prosecution for a crime, or to cause the Demised Premises, or any
part thereof, to be placed in danger of forfeiture, sale or condemnation.
Section 3.3.
(A) Tenant shall keep the Demised Premises and improvements in
good and substantial order and repair at the sole cost and expense of
Tenant, and shall make all repairs, renewals and replacements necessary
to that end, except for repairs expressly required to be made by
Landlord as hereinafter provided.
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(B) Landlord shall, at its own cost and expense, make all
necessary structural repairs and replacements to the building of which
the Demised Premises forms a part, including the roof, and exterior
walls (excluding store front, signs, window glass, plate glass and all
doors and door frames), exterior pipes and equipment, all electric and
plumbing systems up to the point of entry into the Demised Premises and
foundation; excepted from the foregoing obligations are (i) any repairs
or replacements to alterations or improvements made by Tenant, and (ii)
any repairs or replacements required by reason of the negligence of
Tenant, its agents or employees, unless, however, if such damage is
covered by Landlord's insurance, then Landlord will either make the
repairs or give Tenant such insurance proceeds to effect the repairs. As
used herein, the expressions "roof" and "exterior walls" do not include
roof top heating and/or air conditioning units which service the Demised
Premises exclusively, the maintenance, repair and replacement of which
shall be done by Landlord throughout the Term at Tenant's sole cost and
expense. HVAC maintenance, repair and replacement charges shall be paid
by Tenant, as Additional Rent, within fifteen days of billing by
Landlord. Notwithstanding the foregoing, if the HVAC system needs
replacement within the last three (3) years of the Lease Term (provided
said term is not being extended), Tenant will only be billed its prorata
share of the cost thereof determined by taking the cost thereof and
multiplying it by a fraction as follows: the remainder of the base term
over the useful life of said equipment according to generally accepted
accounting principals.
Section 3.4. Tenant shall not permit (i) the extermination of
vermin to be performed in, on or about the Demised Premises except by a person
or company, if any, approved by Landlord; or (ii) window cleaning or janitorial
services or any other cleaning or maintenance service in or for the Demised
Premises, or on the exterior of the Demised Premises to be performed except by
its own employees or an outside person or company designated or approved by
Landlord during reasonable hours designated from time to time for such purposes
by Landlord; in each of the aforesaid Landlord designated
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services, the prices to be charged shall be competitive.
Section 3.5. Landlord represents that the HVAC system will be
delivered in working order on the Commencement Date of the Lease.
Section 3.6. Landlord represents that at the Commencement Date of
the Lease, the Demised Premises shall be delivered free of hazardous and toxic
materials including, but not limited to, asbestos. Further, the electrical and
plumbing systems will be in working order, and roof free of leaks.
ARTICLE IV
Indemnity & Insurance
Section 4.1. Tenant agrees to protect, indemnify and save
harmless Landlord from time to time, from and against any and all claims,
demands and causes of action of any nature whatsoever, and any expenses
(including reasonable attorneys' fees and disbursements) incident to defense of
Landlord therefrom, for injury to or death of persons or loss of or damage to
property (i) occurring in, on, or about the Demised Premises unless caused by
Landlord, Landlord's employees agents or guest, or (ii) in any manner growing
out of or connected with Tenant's use and occupancy of the Demised Premises, or
the condition thereof, or (iii) occurring anywhere on the Shopping Center if
caused by or resulting from any act, omission or negligence of Tenant, or anyone
claiming under Tenant.
Section 4.2. Tenant shall also maintain for the mutual benefit of
Landlord and Tenant, as their respective interests may appear, insurance against
claims for personal injury or property damage, under a policy of general public
liability insurance of not less than a combined single limit of Three Million
($3,000,000.00) Dollars in respect of bodily injury and property damage.
Landlord shall accept a general blanket policy covering the Demised Premises and
any of Tenant's other stores.
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Section 4.3. Landlord agrees to carry fire and extended coverage
insurance on the buildings located in the Shopping Center, including the Demised
Premises. Such insurance shall not cover Tenant's inventory, fixtures,
equipment, furnishings and installations which Tenant must separately insure at
its own cost and expense. Tenant shall not permit any operations to be conducted
in the Demised Premises which would cause suspension or cancellation of the fire
and extended coverage insurance policies carried by Landlord.
Section 4.4. All insurance provided for under this Lease shall be
effected under valid enforceable policies issued by insurers of recognized
responsibility, and licensed or authorized to do business in the State of New
Jersey. The original policies or certificates thereof of any insurance required
to be obtained by Tenant shall be delivered to Landlord, at least ten (10) days
prior to the Term Commencement Date. If Tenant enters the Demised Premises
before the Term Commencement Date, policies or certificates must be delivered to
Landlord prior to entry. At least ten (10) days prior to the expiration date of
any policy, the original renewal policy for such insurance or certificates
thereof shall be delivered by Tenant to Landlord together with satisfactory
evidence of payment of the premium on such policy. Each policy shall name
Landlord as an additional insured. Each policy shall contain the insurer's
agreement that it shall not be canceled without at least ten (10) days' prior
written notice to all parties who are insured thereunder other than Tenant.
Insofar as, and to the extent that, the following provisions may be effective
without invalidating or making it impossible to secure insurance coverage
obtainable from responsible insurance companiesdoing business in the State of
New Jersey (even though extra premiums may result therefrom), Landlord and
Tenant mutually agree that with respect to any loss which is covered by
insurance then being carried by them respectively, the one carrying such
insurance and suffering said loss releases the other of and from any and all
claims with respect to such loss, and they further mutually agree that their
respective insurance companies shall have no right of subrogation against the
other on account thereof. In the event that extra premiums are
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payable by either party as a result of this provision, the other party shall
reimburse the party paying the amount of such extra premium. If, at the written
request of one party, this release and nonsubrogation provision is waived, then
the obligation of reimbursement shall cease for such period or time as such
waiver shall be effective, but nothing contained in this Section shall be deemed
to modify or otherwise affect releases elsewhere herein contained for claims of
either party.
Section 4.5. That neither Landlord nor Landlord's agents shall be
liable for, and Tenant waives all claims for any and all loss, cost, liability,
damage and expense (including attorney's fees and disbursements), penalties and
fines incurred in connection with or arising from any injury to Tenant or to any
other person or for any damage to, or loss (by theft or otherwise) of, any of
Tenant's property and/or of the property of any other person, irrespective of
the cause of such injury, damage or loss (including the acts or negligence of
any tenant or occupant of the Shopping Center or of any owners or occupants of
adjacent or contiguous property) and whether occasioned by or from explosion,
falling plaster, broken glass, electricity, smoke, wind, water, snow or ice
being upon or coming through or from the street, roof, subsurface, skylight,
trapdoor or windows, electric wiring, plumbing, dampness, water, gas, steam or
other pipes or sewage, or the failure of the air-conditioning or refrigeration
system, or the breaking of any electric wire, the bursting, leaking or running
of water from any tank, washstand, water closet, wastepipe, sprinkler system,
radiator, or any other pipe in, above, upon or about the Demised Premises or the
Building, or which may at any time hereafter be placed therein, or from any
other cause whatsoever, excluding, however, if any of the foregoing results from
the negligence of Landlord or its servants, agents, and/or employees.
ARTICLE V
Damage - Destruction
Section 5.1. If the Demised Premises shall be damaged by fire or
other cause, the damage shall be repaired by, and at the expense of, Landlord
promptly and with due diligence after Landlord receives the insurance proceeds
(i.e. commenced within
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thirty (30) days after said receipt), but in all events, not more than three (3)
months after the occurrence of the damage, and the rent until such repairs shall
be made shall be apportioned according to the part of the Demised Premises which
is usable by Tenant. Notwithstanding anything to the contrary herein, in the
event the Demised Premises are substantially damaged by fire or other causes so
that the Demised Premises cannot be operated by Tenant, then the rent and
additional rent (except taxes) shall be fully abated until (a) Landlord
completes repairs to the Demised Premises and same may be lawfully occupied by
Tenant for the purposes set forth in Section 3.1 hereof, and (b) the earlier of
the date Tenant opens for business or thirty (30) days after (a) occurs. Tenant
acknowledges that Landlord is not obligated to carry insurance on Tenant's
furniture and/or furnishings or any fixtures or equipment, improvements,
alterations or appurtenances owned, made or installed by Tenant, and agrees that
Landlord is not obligated to repair any damages thereto or replace the same.
Landlord's obligation to repair and restore the Demised Premises is limited to
the condition of the Demised Premises as it was immediately preceding the
damage. No penalty shall accrue for unavoidable delays, or any other cause
beyond Landlord's control; provided, Landlord uses due diligence to complete the
required repairs. Notwithstanding anything to the contrary herein, in the event
the premises are substantially damaged by fire or other cause during the last
two (2) years of the initial or any extended term, Tenant and Landlord shall
each have the right to terminate this Lease by giving thirty (30) days notice to
the other party of its election to terminate this Lease, and thereupon the term
of this Lease shall expire upon the date set forth in said notice, and Tenant
shall surrender possession of the Demised Premises to Landlord on or before said
date, and the rent and additional rent shall be apportioned and paid to said
date. If neither party elects to terminate this Lease, then Rent shall xxxxx
until the Demised Premises are restored.
Section 5.2. If fifty percent (50%) or more of the gross leasable
area of the Shopping Center shall be damaged or destroyed by fire or other
cause, Landlord and Tenant shall each have the right, to be exercised by giving
written notice to the other, within sixty (60) days after said occurrence to
elect to cancel and terminate this Lease.
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Upon the giving of such notice, the Lease term hereof shall expire upon the
thirtieth (30th) day after such notice is given, and Tenant shall vacate the
Demised Premises and surrender the same to Landlord.
ARTICLE VI
Condemnation
Section 6.1. If, at any time during the term of this Lease there
shall be a total permanent taking of the Shopping Center, or the buildings
comprising same, in condemnation proceedings, or by any right of eminent domain,
or police power, this Lease shall terminate on the date of vesting of title in
the taking authority, and the Rent, Additional Rent and other charges Payable by
Tenant hereunder shall be apportioned and paid to said date. If fifty percent
(50%) or more of the Shopping Center is taken, Landlord may cancel this Lease on
thirty (30) days notice to Tenant. If the Demised Premises are taken or the
taking reduces parking below the amount required by the zoning regulations, and
Landlord cannot replace such Demised Premises and/or the parking, then Landlord
or Tenant shall, at any time prior to sixty (60) days after the date of vesting
of title in and to said parking or Demised Premises, have the option of
terminating this Lease upon giving written notice to the other party. Said
termination shall be effective as of the date possession of the part so taken
shall vest in the taking authority.
Section 6.2. In the event of any such total taking or partial
taking resulting in termination of the Lease as aforesaid, Landlord shall be
entitled to receive and retain the entire amount of any award, except as
provided in Section 6.5.
Section 6.3. In the event of a taking not resulting in a
termination of this Lease as set forth in this Article VI, this Lease shall not
be affected in any way, except as provided in Section 6.4, and Landlord shall
proceed within thirty (30) days after receipt of the award monies, but no more
than one hundred twenty (120) days after the taking, subject to unavoidable
delays, to restore, repair, replace or rebuild the Demised Premises to their
former condition as nearly as may be reasonably possible. The Rent and
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Additional Rent provided hereunder shall xxxxx to the extent to which the
Demised Premises are no longer available to Tenant.
Section 6.4. In the event of a partial taking of the Demised
Premises not resulting in termination of this Lease, this Lease shall terminate
as to the portion of the Demised Premises so taken, and the Rent and Additional
Rent payable for the balance of the term of this Lease shall be equitably and
proportionately reduced from the date of such taking.
Section 6.5. Notwithstanding anything in this Article VI to the
contrary, Tenant shall have the right, in connection with any taking of all or a
portion of the Demised Premises, provided such awards are made by the
condemnation court (in addition to, and do not result in a reduction of any
award made by it for the land and buildings taken) to claim, prove and receive
such awards as may be allowed for furnishings, movable trade fixtures and other
items of personalty owned by Tenant, as well as moving expenses. In no event
shall Tenant, as a result of any condemnation referred to in this Article VI,
have or make any claim for the value of the unexpired term of this Lease.
Section 6.6. Tenant Kickout - If at any time during the term
hereof more than fifty (50%) percent of the Shopping Center is unleased for
three (3) months or more, over a period of time, Tenant has right to terminate
the lease on a minimum of sixty (60) days prior written notice to Landlord.
ARTICLE VII
Changes and Alterations by Tenant
Section 7.1. Tenant shall have the right to make all
non-structural alterations, additions or improvements, to any part of the
Demised Premises without Landlord's priorwritten consent provided advance
written notice of such work is given Landlord. Landlord's prior written consent
is required for all structural alterations,
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additions or improvements. All alterations, additions or improvements are
subject to the following conditions, which Tenant covenants to observe and
perform:
(a) No change or alteration shall be undertaken until Tenant
shall have procured and paid for, so far as the same may be required,
all municipal and other governmental permits and authorizations of the
various municipal departments and governmental subdivisions having
jurisdiction, and Landlord agrees to join in the application for such
permits or authorizations whenever such action is necessary. Landlord
shall be responsible for the removal of any violation(s) affecting the
Demised Premises which exist as of the Commencement Date of the Lease.
(b) All work done in connection with any alteration, addition or
improvement shall be done in a good and workmanlike manner, without
impairing the structural soundness of the building of which the Demised
Premises forms a part and without lessening the value thereof, and in
compliance with all laws, ordinances, orders and requirements of all
federal, state and municipal governments, and the appropriate
departments, commissions, boards and officers thereof. Before commencing
any such work, Tenant shall obtain from its contractor(s) Workmen's
compensation insurance covering all persons employed in connection with
the work and with respect to whom death or bodily injury claims could be
asserted against Landlord, Tenant, or the Demised Premises, and general
liability and property damage insurance for the mutual benefit of Tenant
and Landlord with limits of not less than those required to be carried
pursuant to Section 4.2., including Workmen's Compensation or similar
insurance in form and amounts required by law. An insurance certificate
or copy of said policy shall be delivered to Landlord before the
commencement of any such work at the Demised Premises.
(c) In the performance of said alterations, additions or
improvements Tenant shall not unreasonably interfere with the use and
enjoyment of the Shopping Center by others entitled thereto, and at the
request of Landlord shall make such
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reasonable provisions as may be required so as to minimize any interference or
annoyance to other tenants in the Shopping Center arising out of or in
connection with such work.
(d) Tenant shall furnish Landlord with copies of all drawings,
including "as built", as Landlord may reasonably request in connection
with Tenant's alterations, additions or improvements.
ARTICLE VIII
Mechanic's Liens
Section 8.1. Tenant shall not suffer or permit any mechanic'S
liens to be filed against the Demised Premises, or the building or any part of
the Shopping Center, nor against Tenant's leasehold interest in the Demised
Premises by reason of work, labor, services or materials supplied, or claimed to
have been supplied, to Tenant, or anyone holding any interest in the Demised
Premises. If any such mechanic's lien shall at any time be filed against such
property, Tenant shall, within thirty (30) days after notice of the filing
thereof, proceed to cause the same to be discharged of record by payment,
deposit, bond, or order of a court of competent jurisdiction. If Tenant shall
fail to proceed to cause such lien to be discharged within the period aforesaid,
then in addition to any other right or remedy of Landlord, Landlord may, but
shall not be obligated to, discharge the same either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit or by
bonding proceedings. Tenant shall promptly, on demand, and as Additional Rent,
reimburse Landlord for all costs incurred in discharging said lien, including
but not limited to reasonable attorney's fees and interest at the rate provided
for in Section 2.3 hereof.
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ARTICLE IX
Lawful Use; Surrender of the Demised Premises;
Inspection of the Demised Premises
Section 9.1. Tenant shall not use or allow the Demised Premises,
or any part thereof, to be used or occupied for any unlawful purpose or for any
dangerous or noxious trade or business, or in violation of any certificate of
occupancy affecting the use of the Demised Premises. No auction, fire,
bankruptcy, going out of business or similar sale will be conducted, or be
advertised as being conducted, in the Demised Premises, without the prior
written consent of Landlord, which shall not be unreasonably withheld, provided
it is in fact a fire, bankruptcy or going out of business sale. No merchandise
shall be displayed or stored outside the Demised Premises.
Section 9.2. Tenant shall, upon the expiration or termination of
this Lease, surrender the Demised Premises to Landlord without delay, in broom
clean condition, and, subject to the provisions of Article V, in good order,
condition and repair, reasonable wear and tear excepted. All installations,
alterations, additions and improvements made to, or upon, the Demised Premises,
whether made by Landlord or Tenant (except only permitted signs, trade fixtures
and movable equipment installed in the Demised Premises during the term of this
Lease at Tenant's cost) shall be deemed part of the Demised Premises, and, upon
the expiration or earlier termination of this Lease, shall be surrendered with
the Demised Premises, in the condition as aforesaid. Said signs, movable
equipment and trade fixtures shall not be deemed part of the Demised Premises,
and may be removed by Tenant at any time or times during the term hereof. Upon
the termination of this Lease, all signs, movable equipment and trade fixtures
shall be removed by Tenant, and Tenant will promptly repair and restore any
damage caused by such removal. Any such property not so removed may be deemed,
at Landlord's option, abandoned by Tenant, and may be removed or otherwise
disposed of by Landlord at Tenant's expense, and Landlord shall have no
liability therefor; provided, however, nothing herein shall be deemed to waive
Tenant's obligation to remove said property.
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Section 9.3. Tenant agrees to permit Landlord and the authorized
representatives of Landlord and of the holder of any fee or leasehold mortgage
to enter the leased premises (upon notice unless in the event of an emergency)
at all reasonable times during usual business hours for the purpose of
inspecting the same or exhibiting the same to purchasers or mortgagees of
Landlord's interest in the Shopping Center and to prospective lessees during the
last six (6) months of the Lease term. Landlord shall also have the right to
enter the Demised Premises during said hours (and, in case of emergency, at any
time) to make or facilitate repairs or alterations including to install and
maintain in, and remove from the Demised Premises, pipes, wires and other
conduits, the same to be in locations within the Demised Premises as will not
unreasonably deny Tenant's use thereof. All of the foregoing shall be performed
at such time and in a manner as not to unreasonably interfere with Tenant's
business.
ARTICLE X
Assignment and Subletting
Section 10.1.
(A) Except as herein expressly provided, neither this Lease nor
any interest of Tenant hereunder shall be assigned, mortgaged, pledged
or otherwise encumbered, or the Demised Premises sublet, in whole or in
part, or used or occupied, by anyone other than Tenant without
Landlord'S prior written consent.
(B) If Tenant desires to assign all of its interest in this
Lease, or to sublet all of the Demised Premises for the then unexpired
term thereof (an assignment or subletting of a portion of the Demised
Premises being prohibited hereunder), Tenant shall so advise Landlord in
writing. Within thirty (30) days from the date of receipt of said
notice, Landlord shall have the option to recapture the Demised Premises
and terminate this Lease by notice to Tenant of its intention to so
recapture the Demised Premises.
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(C) Should Landlord elect to recapture the Demised Premises as
aforesaid, the
resultant termination shall be effective sixty (60) days following
Landlord's notice of election to recapture.
(D) Solely in connection with the sale of Tenant's entire
business (including the sale of a majority or controlling interest of
the stock ownership of Tenant) Tenant shall have the right, without
triggering the aforesaid recapture provision, to assign, only for the
Permitted Use hereunder, all, but not part, of Tenant's interest in this
Lease; subject, however, to the provisions set forth in Subparagraph (E)
(i) through (iv) of this Article X.
(E) In the event Landlord elects not to recapture the Demised
Premises, as provided above, then the following shall apply. During the
first two (2) years of the Lease Term, Landlord can withhold its consent
to an assignment/subletting request by Tenant for any or no reason
whatsoever, excluding, however, an assignment permitted under
Subdivision (D) hereof. Subsequent to the second (2nd) anniversary of
the Term Commencement Date, Landlord's consent to an
assignment/subletting request by Tenant cannot be unreasonably withheld
or delayed, provided that: (i) the intended use does not vary from the
Permitted Use; (ii) the assignee's or subleasee's net worth at such time
is the same or better than Tenant'S net worth as of the date hereof;
(iii) Tenant remains liable on the Lease; and (iv) one hundred percent
(100%) of any and all excess profits, as hereinafter defined, resulting
from such subletting or assignment shall be the property of, and be
delivered monthly to, Landlord ("excess profits" shall mean the amount
Tenant receives exceeding its Rent, Additional Rent, and other money
obligations hereunder, minus reasonable brokerage commissions and other
reasonable expenses incurred in connection with such subletting or
assignment, which expenses must be substantiated by Tenant). If the
proposed assignee's or sublessee's use should vary from the Permitted
Use, Landlord can withhold its consent for any reason in its sole
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discretion.
(F) In the case of any assignment or subletting permitted
pursuant to this Article X, Tenant shall in each case comply with each of the
following conditions:
(1) A duplicate original executed copy of any such
assignment or sublease shall be delivered to Landlord
thirty (30) days prior to the commencement date thereof;
and, in the case of any assignment, an assumption
agreement by Assignee of all obligations of Tenant
thereafter arising, reasonably satisfactory in form and
substance to Landlord;
and
(2) Each sublease shall provide that, in the event of
cancellation of this Lease, the subtenant under said
sublease shall, at the option of Landlord, attorn to and
become the direct subtenant of Landlord on the same terms
and conditions as are provided in said sublease, except
that Landlord shall not be liable for defaults of Tenant
as sublandlord occurring prior to such attornment.
(G) No assignment or sublease shall operate to release or
discharge Tenant from liability hereunder, it being distinctly
understood and agreed that the liability of Tenant shall survive any
such assignment or sublease, and shall continue with the same force and
effect as if no such assignment or sublease had been made.
ARTICLE XI
Subordination
Section 11.1. This Lease is, and all of Tenant's rights hereunder
are, and shall be subject and subordinate at all times to all covenants,
restrictions, easements and
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encumbrances now or hereafter affecting the fee title of the Shopping Center and
to all ground and underlying leases, if any, and mortgages or any other method
of financing in any amounts, and all advances thereon, which may now or
hereafter be placed against or affect any or all of the land or the Demised
Premises, or any or all of the buildings and improvements now or at any time
hereafter constituting a part of or adjoining the Shopping Center, and to all
renewals, modifications, consolidations, participations, replacements, spreaders
and extensions thereof. The term "mortgages" as used herein shall be deemed to
include trust indentures and deeds of trust, and the term "mortgagees" as used
in this Lease shall be deemed to include trustees or beneficiaries under trust
indentures and deeds of trust. The aforesaid provisions shall be self-operative
and no further instrument of subordination shall be necessary unless required by
any such ground or underlying lessors or mortgagees. Should Landlord or any
ground or underlying lessors or mortgagees desire confirmation of such
subordination, Tenant within fifteen (15) days following Landlord's request
therefor, agrees to execute, acknowledge and deliver, without charge, any and
all documents (in form acceptable to such ground or underlying lessors or
mortgagees) subordinating this Lease and Tenant's rights hereunder. However,
should any such ground or underlying lessors or any mortgagees request that this
Lease be made superior, rather than subordinate, to any such ground or
underlying lease or mortgage, then Tenant within fifteen (15) days following
Landlord'S request therefor, agrees to execute, acknowledge and deliver, without
charge, any and all documents (in form acceptable to such ground or underlying
lessors or mortgagees) effectuating such priority. In the event Tenant fails to
execute, acknowledge and deliver any of such documents within ten (10) days
after Landlord's request, Tenant shall be deemed to be in default under this
Lease. If, in connection with the obtaining, continuing or receiving of
financing for which all or any part of the Shopping Center, in whole or in part,
represents collateral, any such mortgagee, trustee or lessor shall request
reasonable modifications of this Lease as a condition of such financing, Tenant
shall not unreasonably withhold or delay its consent thereto, provided that such
modifications do not materially and adversely affect the rights of Tenant under
this Lease.
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ARTICLE XII
Default Provisions - Conditional Limitation
Section 12.1. In case one or more of the following events (herein
called an "Event of Default") shall have occurred, and shall not have been
remedied within the time, and in the manner, hereinafter set forth:
(a) default shall be made in the payment of the Fixed Rent, or of
Additional Rent, and such default shall continue for a period of seven
(7) days after written notice, specifying such default, shall have been
given to Tenant; or
(b) default shall be made in the performance of any other
covenant or agreement on the part of Tenant to be performed hereunder,
and such default shall continue for a period of twenty (20) days after
written notice specifying such default shall have been given to Tenant;
provided, however, in the case of a default which is of such a nature
that it cannot, with due diligence, be remedied by Tenant within a
period of twenty (20) days, so long as Tenant commences, as promptly as
may reasonably be possible within said twenty (20) days after the
service of such notice, to cure the default, and thereafter to prosecute
such cure with all due diligence to completion, the twenty (20) day
period aforesaid within which to remedy the default shall be extended
for such period as may be necessary to cure the same with all due
diligence;
(c) (i) if a receiver, trustee or liquidator of Tenant, or of
all, or a substantial part of Tenant's assets, shall be appointed; or
(ii) Tenant shall be adjudicated a bankrupt or insolvent; or (iii)
Tenant shall make an assignment of its property for the benefit of
creditors, or shall file a petition seeking reorganization or an
arrangement with creditors, or seek to take advantage of any insolvency
law; or (iv) an involuntary petition shall be filed against Tenant under
any bankruptcy, reorganization or insolvency law, and Tenant has not
proceeded to take the necessary steps to discontinue the petition within
ninety (90) days from the filing
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thereof;
Then, and in any of such events set forth in subparagraphs (a),
(b) and (c) above, Landlord may, at its option, give to Tenant a notice
of election to end the term of this Lease at the expiration of ten (10)
days from the date of such notice; and, if said notice is given, then at
the expiration of said ten (10) days the term of this Lease and all
right, title and interest of Tenant hereunder, shall expire as fully and
completely as if that day were the date herein specifically fixed for
the expiration of the term of this Lease, and Tenant will then quit and
surrender the Demised Premises to Landlord; provided, however, that
Tenant shall nevertheless remain liable to Landlord as hereinafter
provided.
Section 12.2.
(A) Upon any such expiration or termination of this Lease
pursuant to Section 12.1 above, or any termination by summary
proceedings or otherwise, Landlord may, without further notice, re-enter
upon the Demised Premises, and possess and repossess itself thereof, by
force, summary proceedings, ejectment or otherwise, and may dispossess
Tenant, and remove Tenant and all other persons and property from the
Demised Premises, and may have, hold and enjoy the Demised Premises, and
the right to receive all rental income of and from the same.
(B) At any time, or from time, after any such expiration or
termination of this Lease, Landlord may relet the Demised Premises, or
any part thereof, in the name of Landlord or otherwise, for such term or
terms (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Lease) and on
such conditions as Landlord, in its uncontrolled discretion, may
determine, and may collect and receive the rents therefor. Landlord
shall in no way be responsible or liable for any failure to relet the
Demised Premises, or any part thereof, or for any failure to relet the
Demised Premises, or any part thereof, or for any failure to collect any
rent due upon any such reletting.
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(C) No expiration or termination of this Lease pursuant to
Section 12.1 above, shall relieve Tenant of its liability and
obligations under this Lease, and such liability and obligations shall
survive any such expiration, termination or reentry. In the event of any
such expiration, termination or reentry, whether or not the Demised
Premises or any part thereof shall have been relet, Tenant shall pay to
Landlord the rent, and all other charges required to be paid by Tenant,
up to the time of such expiration or termination of this Lease; and
thereafter Tenant, until the end of what would have been the term hereof
in the absence of such expiration, termination or reentry, shall be
liable to Landlord and shall pay to Landlord, as and for agreed upon
liquidated damages resulting from Tenant's default, and not as a
penalty, the equivalent of the amount of Fixed Rent and Additional Rent
and charges, which would be payable by Tenant under this Lease if were
still in effect, less the net proceeds of any reletting effected
pursuant to the provisions of (B) above, after deducting all of
Landlord's expenses in connection therewith, including, without
limitation, all repossession costs, brokerage and management
commissions, operating expenses, reasonable attorneys' fees, alteration
costs and expenses of preparation for such reletting.
Tenant shall pay such liquidated damages (hereinafter
"Deficiency") to Landlord monthly, on the days on which the Fixed Rent
would have been payable hereunder if this Lease were still in effect,
and Landlord shall be entitled to recover from Tenant each monthly
Deficiency as the same shall arise.
Section 12.3. Tenant hereby expressly waives any and all right to
redemption in case Tenant shall be dispossessed by a judgment, or by warrant of
any court or judge. Tenant hereby waives the right to interpose any counterclaim
in a summary proceeding or in any action based on non-payment by Tenant of Fixed
Rent or Additional Rent.
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Section 12.4. If Tenant shall default in the observation or
performance of any of the terms, covenants or conditions upon its part to be
observed or performed under the terms of this Lease, the Landlord after fifteen
(15) days' written notice, and provided Tenant has not proceeded to cure said
default (except in cases of emergency, where only notice reasonable under the
circumstances need be given), may, but shall not be required to, perform the
same for the account and on behalf of the Tenant and, if Landlord makes any
expenditure or incurs any obligations in connection with the default of Tenant,
then the amount thereof shall be paid by Tenant to Landlord on demand. The term
"expenditure" or "obligation", as used in this Section, shall include reasonable
attorneys' fees, and interest at the prime rate of Landlord'S bank, on any
monies advanced for, or on account of Tenant.
ARTICLE XIII
Limitation of Landlord's Liability
Section 13.1. The term "Landlord" as used in this Lease shall be
limited to mean, and include only, the owner or owners at the time in question
of Landlord's interest in the Demised Premises, and in the event of any transfer
or transfers of the title to such interest, Landlord herein named (and in case
of any subsequent transfers or conveyances the then transferor) shall be
automatically freed and relieved, from and after the date of such transfer or
conveyance, of all personal liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed; provided that, any funds in the hands of such
Landlord, or the then transferor at the time of such transfer, in which Tenant
has an interest, shall be turned over and/or assigned to the transferee, and any
amount then due and payable to Tenant by Landlord, or the then transferor under
any provisions of this Lease, shall be paid to the new Landlord; and provided
further, that upon such transfer, the transferee shall be deemed to expressly
assume, subject to the limitations of this Article XIII, all of the terms,
covenants and conditions in this Lease contained on the part of Landlord
thereafter to be performed; it being intended hereby that the covenants and
obligations contained in this Lease on the part of the Landlord shall, subject
as aforesaid, be binding on Landlord, its
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successors and assigns, only during,and in respect of, their respective
successive periods of ownership.
Section 13.2. Waiver of Liability. Anything contained in this
Lease to the contrary notwithstanding, Tenant agrees that Tenant shall look
solely to the estate and property of Landlord in the land and buildings
comprising the Shopping Center of which the Demised Premises forms a part and
the rentals therefrom for the collection of any judgment requiring the payment
of money by Landlord in the event of any default or breach by Landlord with
respect to any of the terms, covenants and conditions of this Lease to be
observed and performed by Landlord, subject, however, to the prior rights of any
ground or underlying lessor or the holder of any mortgage covering the Shopping
Center. No other assets of Landlord shall be subject to levy, execution or other
judicial process for the satisfaction of Tenant'S claim.
ARTICLE XIV
Invalidity of Particular Provisions
Section 14.1. If any term or provision of this Lease, or the
application thereof, to any person or circumstance, shall to the any extent to
be held to be invalid or unenforceable by any court having jurisdiction
hereover, the remainder of this Lease (or the application of such term or
provision to persons or circumstances other than those as to which it has been
held invalid or unenforceable), shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforceable to the fullest extent
permitted by law.
ARTICLE XV
Certificates of Tenant
Section 15.1. Tenant agrees at any time, and from time to time,
within fifteen (15) days after notice by Landlord, or any fee mortgage, to
execute, acknowledge and deliver to such requesting party, a statement in
writing, certifying that this Lease is
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unmodified and in full force and effect (or if there have been modifications,
that the Lease is in full force and effect, as modified, and stating the
modification), and the dates to which the Rent and Additional Rent has been
paid; and stating whether or not to the best knowledge of Tenant, Landlord is in
default in keeping, observing or performing any term, covenant, or provision,
contained in this Lease and, if in default, specifying each such default; it
being intended that any such statement delivered pursuant to this Section 15.1
may be relied upon by Landlord, or any prospective purchaser of Landlord'S
interest in the Demised Premises, or any mortgage thereof, or any assignee of
any such mortgage, but reliance on such statement may not exceed to any default
as to which Tenant shall have had no actual knowledge.
ARTICLE XVI
Notices
Section 16.1. Any notice, demand or request which, under the
terms hereof, or under any statute, must or may be given the parties hereto,
must be in writing, by mailing thesame: (A) If to Landlord: then to Landlord at
its address as set forth on page 1 hereof, to the attention of Xx. Xxxxx
Xxxxxxxx; and, (B) If to Tenant: a certified or registered copy to Tenant at its
address set forth on Page 1 hereof. All notices given hereunder shall be made by
depositing same in a United States general or branch post office, by certified
or registered mail, return receipt requested. The date of delivery shall be
deemed to be either (a) the date shown on the return receipt; or (b) in the
event the addressee refuses delivery, then two (2) days after said mailing date.
If requested in writing by any mortgagee of Landlord's interest in the Demised
Premises, Tenant agrees that notice shall also be given to such mortgagee.
Either party, and any mortgagee may designate by notice in writing, given as
herein specified, a new or other address to which such notice or demand shall
thereafter be so given or made.
ARTICLE XVII
Cumulative Remedies
No Waiver - No Oral Change
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Section 17.1. The specified remedies to which Landlord or Tenant
may resort under the terms of this Lease are cumulative, and are not intended to
be exclusive of any other remedies or means of redress to which Landlord or
Tenant may be lawfully entitled, in case of any breach or threatened breach by
Tenant or Landlord, as the case may be, of any provisions of this Lease. The
failure of Landlord or Tenant to insist upon the strict performance of any of
the covenants of this Lease, shall not be construed as a waiver for the future
of such covenant. No waiver by Landlord or Tenant of any provision of this Lease
shall be deemed to have been made, unless expressed in writing, and signed by
the other party. The receipt and retention by Landlord of any Fixed Rent or
Additional Rent with the knowledge of the breach of any covenant, agreement,
term provision or condition contained in this Lease, shall not be deemed a
waiver of such breach. In addition to the other remedies in this Lease provided,
Landlord and Tenant shall be entitled to an injunction against any violation, or
threatened violation, of any of the covenants, conditions or provisions of this
Lease.
ARTICLE XVIII
Quiet Enjoyment
Section 18.1. Landlord covenants and agrees that Tenant, upon
paying the Rent, Additional Rent and all other charges herein provided for, and
upon observing and keeping all of the covenants, agreements and provisions
hereof on its part to be observed and kept, shall lawfully and quietly hold,
occupy and enjoy the Demised Premises during the term hereof, without hindrance
or molestation by, or from anyone claiming by, through or under Landlord,
subject to the terms, covenants and conditions hereof.
ARTICLE XIX
Waiver of Jury Trial
Section 19.1. The parties hereto waive a trial by jury on any or
all issues arising in any action or proceeding between them, or their
successors, arising hereunder, or resulting from the Tenant's use or occupancy
of the Demised Premises.
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ARTICLE XX
Sign Provisions
Section 20.1. Subject to compliance by Tenant with provisions of
this Lease, and with applicable laws and regulations of governmental
authorities, Landlord agrees that it will not unreasonably withhold its consent
to the installation by Tenant of: (i) an illuminated sign designating Tenant's
name and business affixed flush to the front facade of the Demised Premises; and
(ii) a sign on the Route 38 and Church Road Pylons in the area shown
crosshatched on Exhibit C, which is attached hereto and made a part hereof.
Tenant agrees to deliver, in advance of installation, a detailed drawing of any
such signs for Landlord's consent, such consent not be unreasonably withheld or
delayed. The withholding of consent shall not be deemed unreasonable for any
proposed sign that includes flashing or blinking lights in its design. Tenant is
required to maintain its sign(s) in good condition and repair, to remove the
same at the end of the Term hereof, and to promptly repair any damage caused by
said removal. Tenant agrees to pay its pro rata share of the operation,
maintenance and repair of the Xxxxx 00 xxx Xxxxxx Xxxx Xxxxxx. Xxxxxxxx
represents that there is available space on the pylon for Tenant's sign as set
forth in Exhibit "C".
ARTICLE XXI
Deposit on Signing
Section 21.1. Upon the execution of this Lease, Tenant shall
deposit with Landlord the sum of $5,208.33 to be applied to the first rents
coming due under this Lease.
ARTICLE XXII
Miscellaneous
Section 22.1. Accord and Satisfaction. No payment by Tenant or
receipt by Landlord of a lessor amount than the monthly Rent and Additional Rent
herein stipulated shall be deemed to be other than on account and no endorsement
or statement
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on any check or any letter accompanying any check or payment of any
rent or charge shall be deemed an accord and satisfaction, and Landlord shall
accept such check or payment without prejudice to Landlord's rights to recover
the balance of such rent or charge or pursue any other remedy provided in this
Lease.
Section 22.2. Tenant agrees not to generate, store, manufacture,
refine, transport, treat, dispose of or otherwise permit to be present on or
about the Demised Premises, any Hazardous Substances. As used herein, Hazardous
Substances shall be defined as any "hazardous chemical", "hazardous substance",
or similar term as defined in the Comprehensive Environmental Responsibility
Compensation and Liability Act, as amended (42 U.S.C. S9601, et. seq.), any
rules or regulations promulgated thereunder, or in any other applicable federal,
state or local law, rule or regulation dealing with environmental protection. It
is understood and agreed that the provisions contained in this Section shall be
applicable notwithstanding the fact that any substance shall not be deemed to be
a Hazardous Substance at the time of its use by the Tenant but shall thereafter
be deemed to be a Hazardous Substance. Tenant agrees to indemnify and hold
Landlord harmless for all costs, expenses (including reasonable attorneys'
fees), actions, damages, claims, and the like arising out of, or in connection
with, the presence or use of Hazardous Substances at the Shopping Center caused
by Tenant or its agents, employees, contractors, and invitees.
Section 22.3. Corporate and Partnership Authority. If Tenant is a
corporation, the persons executing this Lease on behalf of Tenant hereby
covenant and warrant that: (a) they are duly authorized by appropriate
resolution and/or the articles and bylaws of the corporation to execute this
Lease and thereby bind Tenant to all the terms and conditions thereof, (b)
Tenant is a duly qualified corporation and all steps have been taken prior to
the execution of this Lease to qualify Tenant to do business in the state where
the Shopping Center is situated, (c) all franchise and corporate taxes have been
paid as of the date of execution, and (d) all future forms, reports, fees and
other documents necessary to comply with applicable laws will be filed when due.
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Section 22.4. This instrument shall not be recorded by either
party hereto. Each party agrees to execute, at the request of the other, a
memorandum of this Lease to be recorded at the expense of the party requesting
it.
Section 22.5. Each party hereto represents that it has had no
dealings with any broker or agent in connection with this Lease other than
Xxxxxxx Xxxxxx of Xxxxxx Xxxxxxxx Real Estate Inc., and Xxxxx Xxxxxx of
Commercial Real Estate (the "Brokers"), whose brokerage commission will be paid
by Landlord in accordance with its separate agreement with said Brokers. Tenant
agrees to indemnify and hold Landlord harmless from the claims of any other
broker or agent whom Tenant, and not Landlord, has dealt with or employed.
Section 22.6. The agreements herein contained shall bind and
inure to the benefit of the parties hereto, their respective heirs, successors
and assigns except that no assignment, subletting, or transfer by Tenant shall
operate to grant, transfer, or vest any rights unless the prior written consent
of Landlord in accordance with the provisions of this Lease has been obtained in
each instance.
Section 22.7. The captions herein are inserted only as a matter
of convenience and for reference and in no way define, limit, construe or
describe the scope of this Sublease or the meaning or intent of any provision
hereof.
Section 22.8. This Lease shall not be considered in force,
binding or in effect in any way until duly executed and delivered by Landlord
and Tenant, and at all times prior to such execution and delivery by Landlord
and Tenant, either party shall be absolutely free to terminate discussions with
the other party and Landlord shall be free to dispose of or retain its interest
in the Demised Premises in any manner Landlord deems desirable.
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Section 22.9. This Lease (i) supersedes all prior negotiations,
representations, understandings and agreements of, by or between the parties,
which are fully merged herein; (ii) contains the entire agreement of the
parties; (iii) shall be construed and governed by the laws of the State of New
Jersey; and (iv) may not be changed or amended except by a written instrument
duly executed by the party sought to be bound.
Section 22.10. Additions and Relocations of Improvements by
Landlord Notwithstanding anything set forth in this Lease to the contrary, it is
agreed that Landlord reserves the right, without invalidating this Lease or
modifying any provisions thereof, at any time, once or more often as long as
additions and relocations do not materially interfere with Tenant's Use and
Occupancy: (i) to make alterations, changes and additions to the other buildings
and other improvements in the Shopping Center, (ii) to add and permit to be
added additional areas to the Shopping Center, (iii) to construct and to permit
to be constructed additional buildings and other improvements in the Shopping
Center, and (iv) to remove or relocate the whole or any part of any building or
other improvements in the Shopping Center so long as neither the ingress and
egress nor visibility of the Demised Premises is materially hindered or
restricted and as long as construction, additions and relocations of Landlord
improvements do not increase Tenant's common area charges.
Section 22.11. Late Charge. Anything in this Lease to the
contrary notwithstanding, at Landlord's option and in addition to interest
charges, Tenant shall pay a "Late Charge" of five percent (5%) of any
installment of Rent (or any other sum payable to Landlord under the terms of
this Lease) that is paid more than fifteen (15) days after the due date hereof,
to cover the extra expense involved in handling delinquent payments.
Section 22.12. Legal Expense. In case suit shall be brought for
recovery of
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possession of the Demised Premises, for the recovery of rent or any
other amount due under the provisions of this Lease, or because of the breach of
any other covenant herein contained on the part of Tenant to be kept or
performed, and a breach shall be established, Tenant shall pay to Landlord all
expense incurred thereof, including a reasonable attorney's fee.
Section 22.13. Personal Property Taxes. Tenant shall pay before
delinquency all personal taxes and assessments on the furniture, fixtures,
equipment and other property of Tenant located in the Demised Premises and on
additions and improvements in the Demised Premises belonging to Tenant.
Section 22.14. Rules and Regulations. Tenant agrees to comply
with and observe the rules and regulations which are provided by Landlord
simultaneous with the execution and delivery of this Lease attached hereto as
Exhibit D. Landlord may, by written notice to, amend or supplement said rules
and regulations in a reasonable manner.
Section 22.15. Exclusivety. From and after the date hereof
Landlord agrees not to lease premises within the Shopping Center to any tenant
whose primary use would be the sale of (i) laminated youth and adult bedroom
sets, or (ii) x-rated adult videos or similar adult material. The foregoing
restriction shall in no way be deemed to apply to any tenant existing as of the
date of this Lease, or to prevent any future tenant from selling the exclusive
items provided said sale is not their primary use.
Section 22.16. Condition of Premises. Landlord shall deliver the
Demised Premises in a vacant broom clean condition and with Landlord's work set
forth on Exhibit B substantially completed. Landlord represents to Tenant that
to the best of its knowledge thereare no violations of record filed against the
Demised Premises.
IN WITNESS WHEREOF, the parties hereto duly executed this
Agreement as of the day and year first above written.
WITNESS: ACKRIK ASSOCIATES, Landlord
By:_______________________ By: ______________________________
Xxxxx Xxxxxxxx, General Partner
ATTEST: ROOM PLUS, INC., Tenant
By:
Secretary (Title)
[SEAL]
ACKNOWLEDGMENTS
LANDLORD
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the day of , 1996, before me came Xxxxx Xxxxxxxx, to me known,
who, being by me duly sworn did depose and say that he resides in New York, New
York; that he is the General Partner of Ackrik Associates, the partnership
described in, and which executed the foregoing instrument.
------------------------
Notary Public
TENANT
STATE OF )
) ss.:
COUNTY OF )
On the________day of______________________, 1996, before me personally came, __________
to me known, who being by me duly sworn, did depose and say that he
resides at ;that he is the of
---------------------------------------------------------------------------------------- ----------
ROOM PLUS, INC., the corporation described in, and which executed, the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was affixed by order of the Board of Directors of said
corporation; and that he signed his name thereto by like order.
Notary Public
EXHIBIT B
LANDLORD'S WORK
1. Take down all partitions.
2. Remove slot boards.
3. Replace existing ceiling tiles.
4. Remove platform and office in front of store.
5. Take up all carpet.
(Note: Tenant responsible for all other work not mentioned above to fit \
the premises for their use)
INDEX
ARTICLE CAPTION PAGE
I. Term, Renewal Options and Construction ...............................3
II. Rent, Additional Rent and Other Charges ..............................7
III. Use, Operation and Maintenance ......................................11
IV. Indemnity & Insurance ...............................................14
V. Damage - Destruction ................................................17
VI. Condemnation ........................................................18
VII. Changes and Alterations by Tenant ...................................19
VIII. Mechanic's Liens ....................................................21
IX. Lawful Use; Surrender of the Demised Premises;
Inspection of the Demised Premises ..................................22
X. Assignment and Subletting ...........................................23
XI. Subordination .......................................................25
XII. Default Provisions - Conditional Limitation .........................26
XIII. Limitation of Landlord's Liability ..................................30
XIV. Invalidity of Particular Provisions .................................31
XV. Certificate of Tenant ...............................................31
XVI. Notices .............................................................31
XVII. Cumulative Remedies-No Waiver-No Oral Change ........................32
XVIII. Quiet Enjoyment .....................................................33
XIX. Waiver of Jury Trail ................................................33
XX. Sign Provisions .....................................................33
XXI. Deposit on Signing...................................................34
XXII. Miscellaneous .......................................................34
Exhibit A Plot Plan/Demised Premises
Exhibit B Landlord's Work
Exhibit C Pylon Signs
Exhibit D Rules and Regulations
AGREEMENT of LEASE
by and between
ACKRIK ASSOCIATES
as Landlord
and
ROOM PLUS, INC.
as Tenant
Premises: The Plaza at Cherry Hill
0000 Xxxxx 00
Xxxxxx Xxxx, Xxx Xxxxxx
