Exhibit 10.03
ASSIGNMENT, ASSUMPTION AND CONSENT TO ASSIGNMENT
OF LEASE
This Assignment, Assumption of Assignment and Consent to Assignment
of Lease is made this 12th day of December, 1997 between XXXXX XXXXXX, an
individual residing at 00 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter
referred to as the "Assignor"), and CCC Cedar Grove Cinema Corp., a Delaware
corporation organized and existing under the laws of Delaware, whose principle
office is located at 0 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter
collectively referred to as the "Assignee"), Xxxxxxx Xxxxxx Investment Company,
a New Jersey Partnership, hereinafter referred to as the ("Landlord"), and
Clearview Cinema Group, Inc., a Delaware Corporation, with offices at 0 Xxxxxxx
Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000, (hereinafter referred to as "Guarantor").
WITNESSETH:
WHEREAS, Assignor entered into a Lease with XXXXXXXX XXXXXX, d/b/a
XXXXXXX XXXXXX INVESTMENT COMPANY, dated May 29, 1990, a true copy is annexed
hereto (hereinafter referred to as Lease Agreement"); and
WHEREAS, the Assignor wishes to assign to Assignee all of its right,
title and interest under and pursuant to the Lease Agreement; and
WHEREAS, the Assignee wishes to accept this Assignment of Lease as
of December 12, 1997, and agrees to assume, perform and abide by all of the
terms, provisions and obligations of Assignor under the Lease Agreement; and
WHEREAS, XXXXXXX XXXXXX INVESTMENT COMPANY (hereinafter the
"Landlord") hereby consents to assignment of the Lease Agreement to the Assignee
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and intending to
be legally bound hereby, the Assignor and Assignee hereby agree as follows:
1. Assignor hereby assign all of its right, title and interest under
and pursuant to the Lease Agreement from and after December 12, 1997 to
Assignee, and its respective successors and/or assigns.
2. Assignee hereby accepts this Assignment of Lease, and agrees from
and after December 12, 1997 to assume, perform and abide by all of the terms,
provisions and obligations of the Assignor under the Lease Agreement.
3. Notwithstanding anything in this Assignment and Acceptance of
Assignment of Lease that may be to the contrary, Assignor expressly agrees that
nothing herein shall relieve the Assignor from any liability under and pursuant
to the Lease Agreement.
4. This Assignment and Acceptance of Assignment of Lease shall be
binding upon the parties hereto and their respective heirs, successors and
assigns.
5. This Assignment and Acceptance of Assignment of Lease shall not
be modified or amended without the written consent of the parties hereto and the
Landlord.
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6. By its signature below, Clearview Cinema Group, Inc., a
Delaware corporation and the parent of the assignee ("Clearview"), for valuable
consideration and in order to induce the Landlord to execute the consent, hereby
guarantees the payment of rent and performance of all tenant obligations during
the term of the Lease as set forth in the Lease Agreement for a period of one
year, commencing as of the date CCC Cedar Grove Cinemas Corp. assumes all of the
tenant obligation under the Lease Agreement.
7. The Landlord agrees to give notice of any default in the Lease
to Provident Bank, as Agent, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000.
[Remainder of this page is intentionally left blank]
Signature pages follow
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of
the date and year hereinabove first written.
WITNESS:
/s/ Illegible /s/ Xxxxx Xxxxxx
--------------------- ------------------------
Witness Xxxxx Xxxxxx, Assignor
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On this 12th day of December in the year 1997, before me personally came
Xxxxx Xxxxxx who, I am satisfied, signed, sealed and delivered the same as his
act and deed for the purpose therein expressed.
/s/ Xxxxxxx Xxxx Xxxxxxxx
----------------------------
Notary Public
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ATTEST: CCC Cedar Grove Cinema Corp.
Assignee
/s/ Xxxxxxx X. Xxxxx By: /s/ A. Xxxx Xxxx
-------------------------- -------------------------
Asst. Secretary A. Xxxx Xxxx, President
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
I CERTIFY that on December 12, 1997 A. Xxxx Xxxx personally came before me
and this person acknowledged under oath to my satisfaction, that;
(a) this person signed and delivered the attached document as President of
CCC Cedar Grove Cinema Corp. the company named in this document;
(b) this document was signed and made by the company as its voluntary act
and deed by virtue of authority from CCC Cedar Grove Cinema Corp.
/s/ Xxxxxxx Xxxx Sheridan
-------------------------
Notary Public
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ATTEST: Clearview Cinema Group, Inc.
Guarantor
/s/ Xxxxxxx X. Xxxxx By: /s/ A. Xxxx Xxxx
----------------------- -----------------------
Assistant Secretary A. Xxxx Xxxx, President
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
I CERTIFY that on December 12, 1997 A. Xxxx Xxxx personally came before me
and this person acknowledged under oath to my satisfaction, that;
(a) this person signed and delivered the attached document as
President of Clearview Cinema Group, Inc. the company named in this document;
(b) this document was signed and made by the Company as its voluntary act
and deed by virtue of authority from CCC Cedar Grove Cinema Corp.
/s/ Xxxxxxx Xxxx Xxxxxxxx
---------------------------
Notary Public
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CONSENT TO ASSIGNMENT
Xxxxxxx Xxxxxx Investment Company hereby consents to the assignment of the
Lease Agreement to the above-named Assignee on the express condition that the
Assignor shall remain liable for the prompt payment of the rent and the
performance of all obligations and covenants provided in the Lease Agreement,
that Clearview Cinema Group, guarantees the payment of rents and performances of
all tenant obligations in accordance with Paragraph #6 of the Assignment,
Assumption and Consent to Assignment of Lease to which this Consent to
Assignment is attached and that no further assignment or sub-lease of any part
of the devised premises shall be made without the prior written consent of the
undersigned Landlord. WITNESS: Landlord: Xxxxxxx Xxxxxx Investment Co.
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxxx Xxxxxx
----------------------- -----------------------
Xxxxxxxx Xxxxxx
State of New Jersey )
) SS:
County of Bergen )
On this 11th day of December in the year 1997, before me personally came
Xxxxxxxx Xxxxxx who, I am satisfied, signed, sealed and delivered the same as
his act and deed for the purpose therein expressed.
/s/ Xxxx X. Xxxxxx
-----------------------
Notary Public of New Jersey
Xxxx X. Xxxxxx
My commission expires: 7/30/98
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LEASE AGREEMENT
BETWEEN
XXXXXXXX XXXXXX
AND
XXXXX XXXXXX
DATED: May 29, 1990
Landlord THIS LEASE AGREEMENT, made this 29th day of May, 1990, between
XXXXXXXX XXXXXX, D/B/A XXXXXXX XXXXXX COMPANY, located at 00
Xxxxxxxx Xxxxxx in the Township of Springfield in the County of
Union and State of New Jersey, herein designated as the Landlord,
Tenant and XXXXX X. XXXXXX, located at 000 X. 00xx Xxxxxx in the
Borough of Prospect Park in the County of Passaic and State of
New Jersey, herein designated as the Tenant;
Premises WITNESSETH THAT the Landlord does hereby lease to the Tenant and
the Tenant does hereby rent from the Landlord the following
described premises: Premises consisting of movie theater known as
Cinema 23 and located at Pilgrim Shopping Plaza, Pompton Avenue,
Route 23, Verona, New Jersey,
Term For a term of twenty (20) years commencing on June 1, 1990, and
ending on May 31, 2010, to be used and occupied only and for no
other purpose than as a theater for the presentation of
performances on film,
UPON THE FOLLOWING CONDITIONS AND COVENANTS:
Payment of Rent
1st: The Tenant covenants and agrees to pay to the Landlord, as
fixed rent for and during the term hereof, a guaranteed minimum annual rent as
follows: for the period from June 1, 1990 until August 15, 1990, or until Tenant
opens for business, whichever is sooner, the sum of $3,333.33 per month; for and
during the remainder of the first lease year of the term the sum of $6,666.67
per month; for and during the second lease year of the term the sum of $80,000
($6,666.67 per month); for and during each lease year from the third lease year
through the fifteenth lease year of the term the sum of $103,000 per annum
($8,583.33 per month), for and during each lease year from the sixteenth lease
year through the twentieth lease year of the term the sum of $125,000 per annum
($10,416.67 per month).
All rents are payable in advance without set-off or deduction of
any kind, upon the first day of each calendar month of the Tenancy at the office
of the Landlord, or such other place as the Landlord may from time to time
designate.
Percentage Rent
Tenant agrees to pay to Landlord as rent, in addition to the
foregoing fixed rent, percentage rent as follows: 10% of the annual gross sales
(as hereinafter defined) of the demised premises in excess of $800,000.00 for
and during each of the first and second lease years of the term hereof; 10% of
the annual gross sales of the demised premises in excess of $1,030,000 for and
during each lease year from the third through the fifteenth lease years of the
term hereof; 10% of the annual gross sales of the demised premises in excess of
$1,250,000 for and during each lease year from the sixteenth through the
twentieth lease years of the term hereof.
On or before the 25th day after the expiration of each
three-month's period, Tenant shall submit to Landlord a statement signed by an
Officer of Tenant showing, in reason able detail, the amount of gross sales of
the demised premises during the preceding three-month period. Within thirty (30)
days after the end of each lease year, Tenant shall deliver to Landlord a
statement of gross sales made in, at, on or from the demised premises for such
lease year, certified by an Officer of Tenant that the same truly reports
Tenant's gross sales. Tenant shall simultaneously with the delivery of said
statement, make payment of any percentage rent due for such lease year.
Each lease year during the term hereof shall be considered as an
independent accounting period for the purposes of computing and determining the
amount of percentage rent if any payable hereunder. The amount of gross sales in
any lease year shall not be carried over into any other lease year.
The term "gross sales" includes gross paid box office receipts
defined as the amounts actually paid to Tenant by patrons of all of the theaters
at the demised premises for admission thereto, less any admissions taxes paid by
such patrons and received by the Tenant or included in the admission prices and
which taxes are to be transmitted to any governmental authority or collector
entitled to receive payment thereof (however, Tenant shall not deduct any
corporate income, gross receipts or franchise or property tax imposed on Tenant
or its income in determining gross box office receipts and shall include any
amounts received on passes for admission to the said theaters). "Gross sales"
shall also include money received from the sale of candies, confections,
beverages, popcorn, food products, souvenir programs, souvenir books,
cigarettes, tobacco and merchandise, novelties and records normally sold and
incidental to the exhibition of motion pictures. There shall be excluded
therefrom any sums collected and paid out for any sales tax or tax based upon
the sale or sales of merchandise and required
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by law, whether now or hereafter in force to be paid by Tenant or collected from
its customers, to the extent that such taxes are to be charged separately and to
be remitted by Tenant to the taxing authorities.
Tenant shall and hereby agrees to keep in the demised premises
during the term hereof, for a period of two (2) consecutive years following the
end of each lease year, a permanent, complete and accurate record of all gross
sales of merchandise and services, as heretofore defined, and all revenue
derived from business conducted in the demised premises for such lease year.
Tenant further agrees to keep, retain and preserve for at least one (1) year
after the expiration of each lease year all original sales records and all
original sales records and sale slips or sales checks and other pertinent
original sales records. Accurate non-reset/able cash registers or other modern
systems shall be installed and kept, or caused to be installed and kept, by the
Tenant within the demised premises which shall show, record and preserve, in
complete detail, all items making up gross sales, as hereinabove defined. All
such records, including sales tax reports and business and occupation tax
reports, shall be open to the inspection and audit of Landlord and its agents at
all reasonable times during ordinary business hours, excluding only those tax
returns preprepared on a consolidated basis with any other operation not subject
to this Agreement. Tenant shall also submit to Landlord on or before the
thirtieth (30th) day following the end of each lease year at the place then
fixed for the payment of rent, a complete audited statement made and certified
by duly authorized officer of Tenant, showing accurately and in reasonable
detail the amount of gross sales made by Tenant, and its sublessees,
concessionaires, or licensees, if any, upon and within the demised premises,
during the preceding lease year or fractional lease year, if any, and shall
submit on or before the 30th day following the expiration or termination of the
term a like statement covering the preceding lease year, or fractional lease
year, if any.
The receipt by Landlord of any statement or any payment of
percentage rent for any period or the failure of Landlord to make an audit for
said period shall not bind Landlord as to the correctness of the statement or
the payment, nor bar Landlord from collecting at any time thereafter the
percentage rent due for said period. If any audit by Landlord or its agents of
Tenant's records shall reveal a deficiency in any payment of percentage rent,
Tenant shall forthwith pay to Landlord the amount of the deficiency together
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with interest at the rate of twelve (12%) percent per annum from the date when
said payment should have been made, together with the Reasonable cost of such
audit.
It is agreed that nothing contained in this Lease shall be deemed
or construed as creating a partnership or joint venture between Landlord and
Tenant, or between Landlord and any other party, or cause Landlord to be
responsible in any way for the debts or obligations of Tenant, or any other
party.
The term "lease year" as used herein shall mean a period of
twelve (12) calendar months commencing on any anniversary date of the
commencement of the term of this Lease. The "first lease year" as used herein
shall mean a period of twelve (12) calendar months commencing upon the
commencement date of the term of this Lease.
Repairs and Care
2ND: The Tenant has examined the premises and has entered into
this lease without any representation on the part of the Landlord as to the
condition thereof. The Tenant shall take good care of the premises and shall at
the Tenant's own cost and expense, make all replacements and repairs, including
painting and decorating, and shall maintain the premises in good condition and
state of repair, and at the end or other expiration of the term hereof, shall
deliver up the rented premises in good order and condition, wear and tear from a
reasonable use thereof, and damage by the elements not resulting from the
neglect or fault of the Tenant, excepted. The Tenant shall neither encumber nor
obstruct the sidewalks, driveways, yards, entrances, hallways, stairs and rear,
but shall keep and maintain the same in a clean condition, free from debris,
trash, refuse, snow and ice.
Damage & Repairs
3RD: The Tenant agrees to be responsible for any damage to the
property of the Landlord which may result from any use of the demised premises,
or any act done thereon by the license of the Tenant, express or implied. The
Tenant shall repair the said damage or replace or restore any destroyed parts of
the premises, as speedily as possible, at the Tenant's own cost and expense.
Tenant agrees to replace all glass broken, damaged or destroyed in any manner
whatever, the Tenant assuming all responsibility for the glass in the premises
herein demised, and to cause such liability to be protected by plate glass
insurance at Tenant's expense, and further to deposit the plate glass insurance
policy or certificate showing such insurance in effect with Landlord during the
term of this Lease.
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Alterations and Improvements
4TH: No alterations, additions or improvements shall be made
without the written consent of the Landlord Improvements which shall not be
unreasonably withheld. Any such alterations, additions or improvements must be
done in a xxxxxxx like manner in keeping with all building codes and regulations
and in no way harm the structure of the demised premises. It is understood that
Tenant intends to subdivide the one existing theater at the demised premises
into five separate theaters. Tenant shall comply with the conditions contained
in a letter from the Township of Cedar Grove Director of Community Development
dated April 17, 1990, as modified by letter of April 30, 1990. At the expiration
of this Lease or any extension thereof, Tenant, at its expense, upon written
request from Landlord must restore the within demised premises to its original
condition, except as shall have been modified by the above permitted subdivision
and alterations made pursuant thereto. The Landlord reserves the right, before
approving any such alterations, additions or improvements to require the Tenant
to furnish him a good and sufficient bond, conditioned that it will save
Landlord harm less from the payment of any claims either by way of damages or
liens. All of such alterations, additions or improvements shall be made solely
at the expense of the Tenant; and the Tenant agrees to protect, indemnify and
save harmless the Landlord on account of any injury to third persons or
property, by reason of any such alterations, additions or improvements, and to
protect, indemnify and save harmless Landlord from the payment of any claim of
any kind or character on account of bills for labor or material in connection
therewith.
Signs
5TH: The Tenant shall not place nor allow to be placed any signs
of any kind whatsoever, upon, in or about the said premises or any part thereof,
except of a design and structure and in or at such places as may be indicated
and consented to by the Landlord in writing which shall not be unreasonably
withheld. In case the Landlord or the Landlord's agents, employees or
representatives shall deem it necessary to remove any such signs in order to
paint or make any repairs, alterations or improvements in or upon said premises
or any part thereof, they may be so removed but shall be replaced at true
Landlords expense when said repairs, alterations or improvements shall have been
completed. Any signs permitted by the Landlord shall at all times conform with
all municipal ordinances or other laws and regulations applicable thereto.
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Utilities
6TH: Tenant shall, at its own cost and expense, pay all charges
for water, gas, electricity, heat, sewer rentals or charges and any other
utility charges, including sprinkler charges, incurred by or as a result of
Tenant in the use of the demised premises.
Compliance with Laws, etc.
7TH: The Tenant shall promptly comply with all laws, ordinances,
rules, regulations, requirements and orders at any etc. time issued or in force
applicable to the demised premises or to the Tenant's use and occupancy thereof,
of the City, County, State and Federal Governments and Landlord, and of each and
every department, bureau and official thereof, and of the Board of Fire
Underwriters having jurisdiction thereof.
Liability Insurance
8TH: The Tenant, at Tenant's own cost and expense, shall obtain
or provide and keep in full force for the benefit of the Landlord, during the
term hereof, general public liability insurance insuring the Landlord against
any and all liability or claims of liability arising out of, occasioned by or
resulting from any accident or otherwise in or about the leased premises, for
injuries to any person or person, for limits of not less than $1,000,000 for
injuries to one person and $3,000,000 for injuries to more than one person, in
any one accident or occurrence, and for loss or damage to the property of any
person or persons, for not less than $500,000. The policy or policies of
insurance shall be of a company or companies authorized to do business in this
State and shall be delivered to the Landlord, together with evidence of the
payment of the premiums therefor, not less than fifteen (15) days prior to the
commencement of the term hereof or of the date when the Tenant shall enter into
possession, whichever occurs sooner. At least fifteen (15) days prior to the
expiration or termination date of any policy, the Tenant shall deliver a renewal
or replacement policy with proof of the payment of the premium therefor. The
Tenant also agrees to and shall save, hold and keep harmless and indemnify the
Landlord from and for any and all claims and liability for losses or damage to
property or injuries to persons occasioned wholly or in part by or resulting
from any acts or omissions by the Tenant or the Tenant's agents, employees,
guests, licensees, tees, subtenants, assignees or successors, or for any cause
or reason whatsoever arising out of or by reason of the occupancy by the Tenant
and the conduct of the Tenant's business.
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Assignment
9TH: This Lease shall not be assigned, or the demised premises
underlet in whole or in part, without the written consent of the Landlord in
each instance and such consent having been given, the Tenant shall nevertheless,
remain primarily liable to perform all covenants and conditions hereto and to
guarantee such performance by his assignee or subtenant. Landlord's consent
shall not be unreasonably withheld.
Restriction on Use
10TH: The Tenant shall not occupy or use the leased premises or
any part thereof, nor permit or suffer the same to be occupied or used for any
purposes other than as herein limited, nor for any purpose deemed unlawful,
disreputable, or extra hazardous, on account of fire or other casualty. Tenant
shall not exhibit any X-rated or unrated motion pictures at the demised
premises.
Subordination
11TH: This Lease shall be subject and subordinate at all times,
to the lien of the mortgages now or hereafter on the demised premises, and to
all advances made or hereafter to be made upon the security thereof, and subject
and subordinate to the lien of any mortgage or mortgages which at any time may
be made a lien upon the premises, and subject and subordinate to any lease or
other arrangement or right to possession under which Landlord is in control of
the demised premises and to the rights of the owner or owners of the demised
premises and of the land or buildings of which the demised premises are a part.
The Tenant will execute and deliver such further instrument or instruments
subordinating this Lease to the lien in accordance with the foregoing. The
Tenant hereby appoints the Landlord the attorney-in-fact of the Tenant,
irrevocable, to execute and deliver any such instrument or instruments for the
Tenant, in the event Tenant fails to return such instrument or instruments to
Landlord within ten (10) days of receipt of same from Landlord. Notwithstanding
the above, the Tenant's right to possession of the premises shall not be
disturbed if the Tenant is not in default and as long as the Tenant shall pay
the rent and other amounts required to be paid to the Landlord or the Landlord's
successor in interest as same are due pursuant to the terms hereof, and has
observed and performed all the provisions of this Lease unless and until the
Lease is otherwise terminated pursuant to its terms.
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Condemnation and Eminent Domain
12TH: If the land and premises leased herein, or of which the
leased premises are a part, or any portion thereof, shall be taken under eminent
domain or condemnation proceedings or if suit or other action shall be
instituted for the taking or condemnation thereof, or if in lieu of any formal
condemnation proceeding or actions, the Landlord shall grant an option to
purchase and or shall sell and convey the said premises or any portion thereof,
to the governmental or other public authority, agency, body or public utility
seeking to take said land and premises or any portion thereof, then this Lease,
at the option of the Landlord, shall terminate and the term hereof shall end as
of such date as the Landlord shall fix by notice in writing; and the Tenant
shall have no claim or right to claim or be entitled to any portion of any
amount which may be awarded as damages or paid as the result of such
condemnation proceedings or paid as the purchase price for such option, sale or
conveyance in lieu of formal condemnation proceedings; and all rights of the
Tenant to damages, if any are hereby assigned to the Landlord. The Tenant agrees
to execute and deliver any instruments as may be deemed necessary or required to
expedite any condemnation proceedings or to effectuate a proper transfer of
title to such governmental or other public authority, agency, body or public
utility seeking to take or acquire the said lands and premises or any portion
thereof. If Tenant shall fail to execute such instruments as may be required to
Landlord, or to undertake such steps as may be requested as herein stated,
within ten (10) days of written notice from Landlord, Landlord shall be deemed
the duly authorized irrevocable agent and attorney-in-fact of Tenant to execute
such instruments and undertake such steps in as herein stated in and on behalf
of Tenant. It is agreed and understood, however, that Landlord does not reserve
to itself, and the Tenant does not assign to Landlord, any damages payable for
trade fixtures installed by Tenant at its own cost and expense and which are not
part of the realty. Notwithstanding anything herein to the contrary, Landlord
shall allocate to Tenant out of Landlord's condemnation award an amount
reasonably related to Tenant's fair share of leasehold improvements installed by
Tenant to prepare same for its use and occupancy. If the parties cannot agree on
the amount to be allocated to Tenant, this issue shall be submitted by the
parties to arbitration for resolution. Nothing herein contained shall prevent
Tenant from pursuing any separate relocation assistance award to which Tenant is
entitled under applicable law.
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Fire & Other Casualty
13TH: In case of fire or other casualty, the Tenant shall give
immediate notice to the Landlord. If the premises shall be partially damaged by
fire, the elements or other casualty, the Landlord shall repair the same as
speedily as practicable, but the Tenant's obligation to pay the rent hereunder
shall not cease. However, if one-third (1/3) or more of the premises shall be
damaged, Tenant shall be entitled to a proportionate abatement of rent. If the
premises be so extensively and substantially damaged as to render them
untenantable, then rent shall cease until such time as the premises shall be
made tenantable by Landlord. However, if in the opinion of the Landlord, the
premises be totally destroyed or so extensively and substantially damaged as to
require practically a rebuilding thereof, then the rent shall be paid up to the
time of such destruction and then and from thenceforth this Lease shall come to
an end. In no event, however, shall the provisions of this clause become
effective or be applicable if the fire or other casualty and damage shall be the
result of the carelessness, negligence or improper conduct of the Tenant or the
Tenant's agents, employees, guest, licensees, invitees, subtenants, assignees or
successors. In such case, the Tenant's liability for the payment of the rent and
the performance of all the covenants, conditions and terms hereof on the
Tenant's part to be performed shall continue and the Tenant shall be liable to
the Landlord for the damage and loss suffered by the Landlord. If the Tenant
shall have been insured for its interest in property of the Landlord against any
of the risks herein covered, then the proceeds of such insurance shall be paid
over to the Landlord to the extent of the Landlord's actual costs and expenses
to make the repairs hereunder, and such insurance carriers shall have no
recourse against the Landlord for reimbursement. The Landlord shall have no
claim against any insurance proceeds under any policy of the Tenant insuring the
Tenant's own property or business interruption, but only against such proceeds
as relate to building alterations becoming part of the real estate but paid for
by the Tenant.
Reimbursement of Landlord
14TH: If the Tenant shall fail or refuse to comply with and
perform any condition and covenants of the within Lease within 15 days after
written notice from Landlord, the Landlord may, if the Landlord so elects, carry
out and perform such conditions and covenants, at the cost and expense of the
Tenant, and the said cost and expense shall be payable
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on demand, or at the option of the Landlord shall be added to the installment of
rent due immediately thereafter but in no case later than one month after such
demand, whichever occurs sooner, and shall be due and payable as such. This
remedy shall be in addition to such other remedies as the Landlord may have
hereunder by reason of the breach by the Tenant of any of the covenants and
conditions in this Lease contained.
Inspection & Repair
15TH: The Tenant agrees that the Landlord and the Landlord's
agents, employees or other representatives, shall have the right to enter into
and upon the said premises or any part thereof, at all reasonable hours, upon
reasonable notice, for the purpose of examining the same or making such repairs
or alterations therein as may be necessary for the safety and preservation
thereof. This clause shall not be deemed to be a covenant by the Landlord nor be
construed to create an obligation on the part of the Landlord to make such
inspection or repairs.
Right to Exhibit
16TH: The Tenant agrees to permit the Landlord and the Landlord's
agents, employees or other representatives to show the premises to persons
wishing to rent or purchase the same, upon reasonable notice to Tenant, and
Tenant agrees that on and after six months next preceding the expiration of the
term hereof, the Landlord or the Landlord's agents, employees or other
representatives shall have the right to place notices on the front of said
premises or any part thereof, offering the premises for rent or for sale; and
the Tenant hereby agrees to permit the same to remain thereon without hindrance
or molestation.
Increase of Insurance Rates
17TH: If due to Tenant's occupancy it shall be impossible to
obtain fire and other hazard insurance on the buildings and improvements on the
leased premises, in an amount and in the form and in insurance companies
acceptable to the Landlord, the Landlord may, if the Landlord so elects at any
time thereafter, terminate this Lease and the term hereof, upon giving to the
Tenant thirty (30) days notice in writing of the Landlord's intention so to do,
and upon the giving of such notice, this Lease and the term thereof shall
terminate. If by reason of the use to which the premises are put by the Tenant
or character of or the manner in which the Tenant's business is carried on, the
insurance rates for fire and other hazards shall be increased, the Tenant shall
upon demand pay to the Landlord, as rent, the amounts by which the
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premiums for such insurance are increased. Such payment shall be paid with the
next installment of rent but in no case later than one month after such demand,
whichever occurs sooner.
Removal of Tenant's Property
18TH: Any equipment, fixtures, goods or other property of the
Tenant, not removed by the Tenant upon the termination of this Lease, or upon
any quitting, vacating or abandonment of the premises by the Tenant, or upon the
Tenant's eviction, shall be considered as abandoned and the Landlord shall have
the right, without any notice to the Tenant, to sell or otherwise dispose of the
same, at the expense of the Tenant, and shall not be accountable to the Tenant
for any part of the proceeds of such sale, if any.
Remedies upon Tenant's Default
19TH: If there should occur any default on the part of the Tenant
in the performance of any conditions and covenantsherein contained, and said
default continues for five (5) days after written notice from Landlord in the
case of non-payment of rent and for fifteen (15) days in the case of any other
default, or if during the term hereof the premises or any part thereof shall be
or become abandoned or deserted, vacated or vacant or should the Tenant be
evicted by summary proceedings or otherwise, the Landlord, in addition to any
other remedies herein contained or as may be permitted by law, may either by
force or otherwise, without being liable for prosecution therefor, or for
damages, re-enter the said premises and the same have and again possess and
enjoy; and as agent for the Tenant or otherwise, re-let the premises and receive
the rents therefor and apply the same, first to the payment of such expenses,
reasonable attorney fees and costs, as the Landlord may have been put to in
re-entering and repossessing the same and in making such repairs and alterations
as may be necessary; and second to the payment of the rents due hereunder. The
Tenant shall remain liable for such rents as may be in arrears and also the
rents as may accrue subsequent to the re-entry by the Landlord, to the extent of
the difference between the rents reserved hereunder and the rents, if any,
received by the Landlord during the remainder of the unexpired term hereof,
after deducting the aforementioned expenses, fees and costs; the same to be paid
as such deficiencies arise and are ascertained each month.
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Termination on Default
20TH: Upon the occurrence of any of the contingencies set forth
in the preceding clause, or should the Tenant be adjudicated as bankrupt,
insolvent or placed in receivership, or should proceedings be instituted by or
against the Tenant for bankruptcy, insolvency, receivership, agreement of
composition or assignment for the benefit of creditors, or if this Lease or the
estate of the Tenant hereunder shall pass to another by virtue of any court
proceedings, writ of execution, levy, sale, or by operation of law, the Landlord
may, if the Landlord so elects, at any time thereafter, terminate this Lease and
the term hereof, upon giving to the Tenant or to any trustee, receiver, assignee
or other person in charge of or acting as custodian of the assets or property of
the Tenant, five (5) days' notice in writing, of the Landlord's intention so to
do. Upon the giving of such notice, this Lease and the term hereof, shall end on
the date fixed in such notice as if the said date was the date originally fixed
in this Lease for the expiration hereof; and the Landlord shall have the right
to remove all persons, goods, fixtures and chattels therefrom, by force or
otherwise, without liability for damage.
Non-Liability of Landlord
21ST: The Landlord shall not be liable for any damage or injury
which may be sustained by the Tenant or any other person, as a consequence of
the failure, breakage, leakage or obstruction of the water, plumbing, steam,
sewer, waste or soil pipes, roof, drains, leaders, gutters, valleys, downspouts
or the like or of the electrical, gas, power, conveyor, refrigeration,
sprinkler, air conditioning or heating systems, elevators or hoisting equipment;
or by reason of the elements; or resulting from the carelessness, negligence or
improper conduct on the part of any other Tenant or this or any other Tenant's
agents, employees, guests, licensees, invitees, subtenants, assignees or
successors; or attributable to any interference with, interruption of or
failure, beyond the control of the Landlord, of any services to be furnished or
supplied by the Landlord.
Non-Waiver by Landlord
22ND: The various rights, remedies, options and elections of the
Landlord, expressed herein, are cumulative, and the failure of the Landlord to
enforce strict performance by the Tenant of the conditions and covenants of this
Lease or to exercise any election or option or to resort to have recourse to any
remedy herein conferred or the acceptance by
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the Landlord of any installment of rent after any breach by the Tenant, in any
one or more instances, shall not be construed or deemed to be a waiver or a
relinquishment for the future by the Landlord of any such conditions and
covenants, options, elections or remedies, but the same shall continue in full
force and effect.
Non-Performance by Landlord
23RD: This Lease and the obligation of the Tenant to pay the rent
hereunder and to comply with the covenant and conditions hereof, shall not be
affected, curtailed, impaired or excused because of the Landlord's inability to
supply any service or material called for herein, by reason of any rule, order,
regulation or preemption by any governmental entity, authority, department,
agency or subdivision or for any delay which may arise by reason of negotiations
for the adjustment of any fire, or other casualty loss or because of strikes or
other labor trouble or for any cause beyond the control of the Landlord.
Validity of Lease
24TH: The terms, conditions, covenants and provisions of this
Lease shall be deemed to be severable. If any clause or provision herein
contained shall be adjudged to be invalid or unenforceable by a court of
competent jurisdiction or by operation or any applicable law, it shall not
affect the validity of any other clause or provision herein, but such other
clauses or provisions shall remain in full force and effect.
Notices
25TH: All notices required under the terms of this Lease shall be
given and shall be complete by mailing such notices by certified or registered
mail, return receipt requested, to the address of the parties as shown at the
head of this Lease, or to such other address as may be designated in writing,
which notice of change of address shall be given in the same manner.
Title and Quiet Enjoyment
26TH: The Landlord covenants and represents that the Landlord is
the owner of the premises herein leased and has the right and authority to enter
into, execute and deliver this Lease; and does further covenant that the Tenant
on paying the rent and performing the conditions and covenants herein contained,
shall and may peaceably and quietly have, hold and enjoy the leased premises for
the term aforementioned.
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Entire Contract
27TH: This Lease contains the entire contract between the
parties. No representative, agent or employee of the Landlord has been
authorized to make any representations or promises with reference to the within
letting or to vary, alter or modify the terms hereof. No additions, changes or
modifications, renewals or extensions hereof, shall be binding unless reduced to
writing and signed by the Landlord and the Tenant.
Attorney's Fees
28TH: If the Tenant shall at any time be in default hereunder,
and if the Landlord shall institute an action or summary proceeding against the
Tenant based upon such default, or if the Landlord shall cure such default or
defaults for the act of Tenant, then the Tenant will reimburse the Landlord for
the expense of attorney's fees and disbursements thereby incurred by the
Landlord, so far as the same are reasonable in amount. Also, so long as the
Tenant shall be a Tenant hereunder the amount of such expense shall be deemed to
be "additional rent" hereunder and shall be due from the Tenant to the Landlord
on the first day of the month following the incurring of such respective
expenses.
Real Estate Taxes
29TH: Tenant covenants and agrees to pay as additional rent its
proportionate share of all real estate taxes, assessments, water rates and
charges, and other governmental charges, general and special, ordinary and
extraordinary, unforeseen as well as foreseen of any kind or nature whatsoever,
including, but not limited to assessments for public improvements or benefits
which shall be laid, assessed, levied or imposed upon and become due and
payable, and a lien upon the land and building of the demised premises or the
shopping center of which the demised premises forms a part, for any and all tax
years during the term hereof (all of which real estate taxes, assessments,
charges, levies or other governmental charges are referred to as "Impositions").
The sum of the impositions assessed against the shopping center for any tax year
during the term hereof shall be deemed to be the impositions assessed against
the shopping center for said tax year. Tenant's proportionate share of any and
all impositions assessed against the demised premises or the shopping center
premises of which same form a part for any tax year shall be the product of (a)
the amount of the impositions assessed against the shopping center for said tax
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year and (b) a fraction the numerator of which is the square footage of the
floor area of the demised premises (11,000 sq. ft.) and the denominator of which
is the total square footage of the floor area of all stores in the shopping
center (47,700 sq. ft.) determined as of the commencement of the said tax year.
From the commencement date hereof and thereafter, during each
period during which real estate taxes are being paid by Landlord based on
preliminary tax bills, Tenant shall pay to Landlord, on the first day of each
and every month during such period, one twelfth (l/12th) of Tenant's pro rata
share of the annualized preliminary applicable taxes then being paid by
Landlord. Open receipt by Landlord of final real estate tax bills and bills for
additional taxes or assessments, Tenant shall pay to Landlord any unpaid portion
of its pro rata share of such taxes in equal monthly installments on the first
day of each and every month during the balance of the calendar year.
All real estate taxes which shall become payable for the first
and last tax years of the term hereof shall be apportioned pro rata between
Landlord and Tenant in accordance with the respective number of months during
which each party shall be in possession of the demised premises in said
respective tax year.
If Landlord shall obtain a remission or a refund of all or any
part of the real estate taxes heretofore paid by Tenant for any year, Landlord
shall promptly refund to Tenant (or credit Tenant with) its proportionate share
of such remission or refund, after deduction of all expenses incurred in
connection therewith.
If at any time during the term of this Lease the methods of
taxation prevailing at the commencement of the term hereof shall be altered so
that in lieu of or as a supplement to or a substitute for the whole or any part
of the real estate taxes or assessments now levied, assessed or imposed, there
is imposed (i) a tax, assessment, levy, imposition or a charge, wholly or
partially as a capital levy or otherwise, on the rents received therefrom or
(ii) a tax, assessment, levy (including but not limited to any municipal, state
or federal levy), imposition or charge measured by or based in whole or in part
upon the premises and imposed upon the Landlord, or (iii) a license fee measured
by the rent payable under this Lease, then all such taxes, assessments, levies,
impositions and charges, or the part thereof so measured or based shall be
deemed to be included in the
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general real estate taxes and assessments payable by the Tenant pursuant to this
paragraph and the Tenant shall pay and discharge the same as herein provided in
respect of the payment of general real estate taxes and assessments. As employed
in this Article, "shopping center" shall be deemed to include that portion of
Landlord's shopping center property located within the Township of Cedar Grove,
New Jersey.
Common Area Maintenance
30TH: Tenant shall pay to Landlord, as additional rent, its pro
rata share of the total annual Common Area Maintenance Cost, (hereinafter called
"CAM") incurred in the shopping center. Tenant's pro rata share shall, in each
instance, be determined by multiplying each year's CAM by a fraction, the
numerator of which shall be the number of square feet of floor area of the
demised premises (11,000 sq. ft.), and the denominator of which shall be the
total square footage of the floor area of all stores in the shopping center
(195,370 sq. ft.).
On the first day of each and every month of the term of this
Lease or any extensions or renewals thereof, Tenant shall pay to Landlord, on
account of and as part of its share of CAM, one twelfth (1/12th) of Landlord's
reasonably estimated share of Tenant's annual pro rata share of CAM, as such sum
shall be adjusted annually to reflect that year's actual expense.
Within ninety (90) days of the end of any calendar year, Landlord
shall compute the annual CAM for said year and forward to Tenant a schedule in
reasonable detail setting forth said CAM and the computation of Tenant's pro
rata share for the period of Tenant's occupancy during said year. Tenant shall
be entitled to a credit against its pro rata share for the total amount received
by Landlord from Tenant during said year on account of CAM (other than payments
against prior years). In the event Tenant's payments on account have exceeded
Tenant's pro rata share, Landlord's statement shall be accompanied by its check
for the amount due Tenant; in the event there remains any unpaid balance due
Landlord from Tenant, said balance shall be due and payable within twenty (20)
days of receipt of Landlord's statement, and if not so paid, the amount thereof
shall be added to the next accruing monthly installment of fixed rent, and shall
be collectible as such.
For the purposes hereof, CAM shall mean the total cost and
expense incurred by Landlord in operating, maintaining and repairing the common
areas of the shopping center, including without limitation, all costs and
expenses of operating, main-
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taining, refurbishing, redecorating, repairing and replacing the lighting and
drainage systems in and for the common areas; paving, curbs, islands and
walkways; all equipment and facilities used in and for maintenance; cleaning;
landscaping and gardening; removal of snow, ice, debris, garbage or other
rubbish and refuse; the costs of personnel to implement such service, to direct
parking and police the Shopping Center.
CAM which shall become payable during the first and last calendar
years of the term hereof shall be apportioned pro rata between Landlord and
Tenant in accordance with the respective number of months during which each
party shall be in possession of the demised premises in such respective calendar
years.
As employed in this Article, "shopping center" shall be deemed to
include Landlord's entire shopping center property located within the Townships
of Verona and Cedar Grove, New Jersey.
Mechanics'Liens
31ST: If any mechanics' or other liens shall be created or filed
against the leased premises by reason of labor performed or materials furnished
for the Tenant in the erection, construction, completion, alteration, repair or
addition to any building or improvement, the Tenant shall within ten (10) days
thereafter, at the Tenant's own cost and expense, cause such lien or liens to be
satisfied and discharged of record together with any Notices of Intention that
may have been filed. Failure so to do, shall entitle the Landlord to resort to
such remedies as are provided herein in the case of any default of this Lease,
in addition to such as are permitted by law.
Waiver of Subrogation Rights
32ND: The Tenant waives all rights of recovery againstthe
Landlord or Landlord's agents, employees or other representative, for any loss,
damages or injury of any nature whatsoever to the property or persons for which
the Tenant is insured. The Tenant shall obtain from the Tenant's insurance
carriers and will deliver to the Landlord waivers of the subrogation rights
under the respective policies, if available. Waivers of subrogation shall be
mutual by both Landlord and Tenant, provided same can be done without cost.
Security
33RD: Tenant has this day deposited with the Landlord the sum of
$25,000 as security for the payment of the
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rent hereunder and the full and faithful performance by the Tenant of the
covenants and conditions on the part of the Tenant to be performed. Said sum
shall be returned to the Tenant, without interest, after the expiration of the
term hereof, provided that the Tenant has fully and faithfully performed all
such covenants and conditions and is not in arrears in rent. During the term
hereof, the Landlord may, if the Landlord so elects, have recourse to such
security, to make good any default by the Tenant, in which event the Tenant
shall, on demand, promptly restore said security to its original amount.
Liability to repay said security to the Tenant shall run with the reversion and
title to said premises, whether any change in ownership thereof be by voluntary
alienation or as the result of judicial sale, foreclosure or other proceedings,
or the exercise of a right of taking or entry by any mortgagee. The Landlord
shall assign or transfer said security, for the benefit of the Tenant, to any
subsequent owner or holder of the reversion or title to said premises, in which
case the assignee shall become liable for the repayment thereof as herein
provided, and the assignor shall be deemed to be released by the Tenant from all
liability to return such security. This provision shall be applicable to every
alienation or change in title and shall in no wise be deemed to permit the
Landlord to retain the security after termination of the Landlord's ownership of
the reversion or title. The Tenant shall not mortgage, encumber or assign said
security without the written consent of the Landlord.
Sidewalks, etc., Tenant Parking
34TH: Tenant shall not permit to exist in the demised premises or
any part of the common area:
a. The use of sidewalks, parking areas, roadways, means of
ingress or egress, or other common areas for the sale, display or storage of any
merchandise or any property of the Tenant; all business shall be conducted
within the demised premises;
b. The parking of any vehicle by the Tenant or any of its
employees in the shopping center, except in such area as may be designated
"employee parking" from time to time by Landlord.
Limitation of Landlord's Liability
35TH: Anything contained in this Lease to the contrary
notwithstanding Tenant agrees that it shall look solely to the estate and
property of the Landlord in the demised premises, and subject to prior rights of
any mortgagee of the premises, for the collection of any judg-
18
ment (or other judicial process) 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/or performed by
Landlord, and no other assets of the Landlord shall be subject to levy,
execution or other procedures for the satisfaction of Tenant's remedies. In the
event Landlord transfers this Lease, except as collateral security for a loan,
Landlord will, upon such transfer, be released from all liability and
obligations hereunder.
Attornment
36TH: Tenant agrees neither the cancellation nor the termination
of any ground or underlying Lease, nor any foreclosure of a mortgage affecting
the fee title of the demised premises, nor any foreclosure proceedings brought
by the holder of any such mortgage to recover possession of the demised premises
shall, by operation of law or otherwise, result in the cancellation or
termination of this Lease or the obligations of the Tenant hereunder, and Tenant
covenants and agrees to attorn to any successor to the Landlord's interest in
the demised premises or to such holder of such mortgage or to the purchaser of
the demised premises in foreclosure, provided that in any such case this Lease
and Tenant's interest is not disturbed and is recognized by any successor to
Landlord's interests hereunder or by any such mortgagee or purchaser.
Estoppel Letter
37TH: Tenant agrees upon request from Landlord or
Landlord's mortgagee(s) to furnish either or both of same with evidence setting
forth the following:
a. This Lease is in full force and effect;
b. Possession of the premises is accepted by the Tenant;
c. All work required to be performed by Landlord in the premises
has been fully completed and/or constructed in a good and workmanlike manner in
accordance with all governmental regulations applicable thereto to the best of
Tenant's knowledge;
d. Confirmation of the commencement of the Lease term;
e. Confirmation that Tenant is in occupancy of the demised
premises, is paying rent on a current basis with no rental offsets or claims,
and that no rent has been prepaid except as specifically set forth in the Lease.
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Lesser Amount of Rent
38TH: No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly minimum rent and additional rent herein stipulated shall
be deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment of rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease or at law
provided.
Real Estate Broker
39TH: Tenant warrants and represents that it has not dealt or
negotiated with any real estate broker or salesman in connection with this Lease
Agreement other than Alexander Summer Co., and that it shall indemnify and hold
Landlord harmless of any real estate commissions, fees, charges or the like
arising out of this transaction not occasioned by Landlord's acts. Landlord
shall pay any real estate brokerage commission due Alexander Summer Co. pursuant
to and in accordance with a separate agreement by and between said Alexander
Summer Co. and Landlord.
Landlord's Repairs
40TH: Landlord shall maintain the roof and outside wallsof the
premises, unless due to any acts of omission or commission of Tenant, its
agents, servants or employees.
Continuous Use
41ST: Tenant shall, during the term of this Lease, continuously
use the demised premises for the purpose stated in this Lease, carrying on
therein Tenant's business under taking diligently, assiduously and
energetically. Tenant shall keep the premises open and available for business
activity therein during all usual days and hours for such business in the
vicinity and during such periods and hours as are customary in the shopping
center except when prevented by strikes, fire, casualty or other causes beyond
Tenant's reasonable control.
Submission of Lease
42ND: The submission of this Lease for examination does not
constitute a reservation of or option for the premises and this Lease becomes
effective as a Lease only upon execution and delivery thereof by Landlord and
Tenant.
Opening for Business
43RD: In the event Tenant fails to open the demised premises for
business within 150 days after this Lease Agreement is signed by the parties,
Landlord may, at its sole election, terminate the within Lease Agreement.
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In the event Landlord exercises its option to terminate the Lease Agreement
pursuant to this paragraph, Landlord shall be entitled to recover from Tenant,
in addition to any other remedies provided for in this Lease Agreement or
available at law or in equity, rent and additional rent through to and including
the last day of the month in which it exercises its option to terminate. This
paragraph 43rd shall not be operative for delays caused by factors beyond the
Tenant's control provided that the Tenant has exercised commercially reasonable
diligence and substantively performed all commercially reasonable acts necessary
to actively pursue in good faith the opening of the Tenant's operation.
Notwithstanding anything herein to the contrary, if Tenant fails, for any reason
whatsoever, to open the demised premises for business within 240 days after this
Lease Agreement is signed by the parties, Landlord may, at its sole election,
terminate the within Lease Agreement.
Conformation with Laws and Regulations
44TH: The Landlord may pursue the relief or remedy sought in any
invalid clause, by conforming the said clause with the provisions of the
statutes or the regulations of any governmental agency in such case made and
provided as if the particular provisions of the applicable statutes or
regulations were set forth herein at length.
In all references herein to any parties, persons, entities or
corporations, the use of any particular gender or the plural or singular number
is intended to include the appropriate gender or number as the text of the
within instrument may require. All the terms, covenants and conditions herein
contained shall be for and shall inure to the benefit of and shall bind the
respective parties hereto, and their heirs, executors, administrators, personal
or legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals, the day and year first above written. WITNESS:
WITNESS: By /s/Xxxxxxxx Xxxxxx
-------------------------
By /s/ Xxxxxxxx X. Xxxxxx
------------------------- -------------------------
Attorney in Fact
XXXXXXXX XXXXXX
WITNESS:
/s/ Xxxxx Xxxxxx
------------------------- -----------------------
XXXXX XXXXXX
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