LEASE AGREEMENT
THIS LEASE made and entered into this 14th day of July 1998, between
EAGLE VALLEY REALTY, a Pennsylvania general partnership (hereinafter called
"Landlord") and PENN NATIONAL GAMING, INC., a Pennsylvania corporation
(hereinafter called "Tenant").
DEMISED PREMISES; DEMISE
Landlord is the owner of shopping center known as the Eagle's Xxxx
Shopping Plaza (the "Shopping Center") located in East Stroudsburg Borough (the
"Borough"), Monroe County, Pennsylvania. The current configuration and location
of the improvements constituting the Shopping Center are depicted on the site
plan (the "Current Site Plan") attached hereto as Exhibit "A". Landlord will
seek approval from the relevant governmental bodies to expand the Shopping
Center (the "New Plan Approval") by constructing an additional building
containing approximately 28,000 square feet (the "Additional Building") and
related parking and site improvements (together with the Additional Building,
the "Additional Improvements"), which Additional Improvements are depicted on
the site plan attached hereto as Exhibit "B" (the "New Site Plan"). Landlord
desires to lease to Tenant, and Tenant desires to rent from Landlord,
approximately 14,000 square feet of space in the Shopping Center (the "Demised
Premises") for use by Tenant as a restaurant and off-track wagering facility, as
more particularly described herein.
Landlord has leased approximately 45,600 square feet of the Shopping
Center, in the space designated on the Current Site Plan as "Supermarket" (the
"BiLo Space"), to a tenant operating a BiLo supermarket ("BiLo"). Subject to the
terms of this Article, Landlord shall use its best efforts to enter into an
agreement with BiLo, within sixty (60) days after Tenant notifies Landlord that
it has satisfied or waived all of the Conditions Precedent (as hereinafter
defined) set forth in Article 40 (such date is hereinafter referred to as the
"Satisfaction Date"), pursuant to which BiLo and Landlord agree to terminate the
existing lease between BiLo and Landlord, which termination and BiLo's vacation
of the BiLo Space must occur within four (4) months after the execution of such
agreement (the "BiLo Termination Agreement"). The date by which Landlord is
obligated to enter into a BiLo Termination Agreement as provided in the previous
sentence is hereinafter referred to the "BiLo Termination Date". If the
Termination Agreement is executed by Landlord and BiLo, and BiLo vacates the
BiLo Space within four (4) months after the execution of the BiLo Termination
Agreement, the Demised Premises shall be comprised of approximately 14,000
square feet of the BiLo Space in the location shown cross-hatched on the Current
Site Plan. If Tenant satisfies or waives the Conditions Precedent, but Landlord
is unable, despite using its best efforts, to enter into a Termination Agreement
with BiLo before the BiLo Termination Date, or if BiLo has not vacated the BiLo
Space within four (4) months after the execution of the BiLo Termination
Agreement, Landlord will be obligated to commence construction of the Additional
Improvements as provided in Article 3, in which case the Demised Premises shall
be comprised of approximately 14,000 square feet of the Additional Building in
the area shown cross-hatched on the New Site Plan. Landlord shall not be
obligated to execute a BiLo Termination date until the occurrence of the
Satisfaction Date. In addition, Landlord's "best efforts" in entering into a
BiLo Termination Agreement shall not be interpreted to require Landlord to make
any payments of money to BiLo.
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In consideration of the covenants and conditions set forth herein,
Landlord does hereby demise and lease to Tenant (for the Term hereinafter
stipulated) the Demised Premises, the location of which shall be determined in
accordance with the foregoing terms, together with the right to use all parking
areas, driveways, roads, alleys, means of ingress and egress and other portions
of the Common Areas (as hereafter defined) as reflected on the New Site Plan, in
common with the other tenants and occupants of the Shopping Center, and Landlord
and Tenant, intending to be legally bound, further agree as follows:
ARTICLE 1
TERM AND USE
A. The primary term (the "Primary Term") shall begin on (the
"Commencement Date") the earlier of (a) the date on which Tenant opens for
business in the Shopping Center and (b) one hundred fifty (150) days after the
later to occur of (x) the date on which Landlord completes Landlord's Work and
(y) the Satisfaction Date, and such Primary Term shall expire on the last day of
the month in which the tenth (10th) anniversary of the Commencement Date occurs.
As used herein, the term "Lease Year" shall mean the twelve (12) month period
beginning on the Commencement Date and ending twelve (12) months thereafter, and
each twelve (12) month period thereafter, except that, if the Commencement Date
is other than the first day of the month, the first Lease Year shall commence on
the Commencement Date and end on the last day of the month in which the one (1)
year anniversary of the Commencement Date occurs.
B. Provided Tenant is not in default of any term, condition or covenant
contained in this Lease at the time of exercise of an option to renew the Lease
Term beyond any period for curing same, Tenant shall have the option of renewing
this Lease for two (2) additional terms of five (5) years each ("Renewal Terms")
on the same terms and conditions as provided herein except for the rental as
shown in Article 3 and Article 13.
Notice of the exercise of such option shall be given by Tenant
to Landlord in writing not later than six (6) months prior to expiration of the
Primary Term or the previous Renewal Term.
C. The Demised Premises may be used and occupied for the purpose of
operating an off-track wagering facility and restaurant that sells and serves
alcoholic beverages, or for any other use permitted under applicable law (the
"Permitted Use"), provided that Tenant's use of the Demised Premises (other than
as an off-track wagering facility and restaurant) does not violate the exclusive
uses currently in existence at the Shopping Center, which are attached hereto as
Exhibit "C". Notwithstanding the exclusives set forth in Exhibit "C", Tenant
shall be permitted to sell and serve Italian cuisine and pizza as an incidental
part of its business. In addition, if Tenant intends to change its then current
use of the Demised Premises, Tenant shall notify Landlord of the use that Tenant
intends to make of the Demised Premises (the "Changed Use"), and Tenant shall
have the right to operate such use unless Landlord notifies Tenant that it has
entered into a lease or a binding letter of intent with an unrelated party
pursuant to which Landlord has agreed to give the tenant under such lease or
letter of intent the exclusive right to operate the Changed Use in the Shopping
Center. If Tenant fails to commence operating the Changed Use within six (6)
months after Tenant notifies Landlord of the same, Tenant may not operate the
Changed Use without repeating the foregoing procedure. Tenant shall have no
obligation to open for business or to operate a business in the Demised
Premises. Landlord represents and warrants to Tenant that there is no tenant or
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other occupant of the Shopping Center that has the right to object to Tenant's
use of the Demised Premises as on off-track wagering facility and restaurant,
and Landlord shall defend, at Landlord's expense, any actions brought against
Landlord or Tenant to enjoin such use. If any such action to enjoin or otherwise
interrupt such use is successful in a manner that prohibits, interrupts or
affects in any way Tenant's right to use the Demised Premises as an off-track
wagering facility and restaurant, Tenant shall have the right to terminate this
Lease.
D. Notwithstanding anything herein to the contrary, including
subsection C. above, Landlord covenants and agrees that during the Primary Term
and any Renewal Term, Tenant shall have the exclusive right to conduct a
business operating an off-track wagering facility in the Shopping Center. This
covenant shall run with the land on which the Shopping Center is located.
Landlord agrees to enforce this exclusive use covenant against other tenants in
the Shopping Center using all reasonable legal means. In the event of a breach
by Landlord of this covenant, Tenant shall have the right to terminate this
Lease, in addition to any other remedy permitted at law or in equity.
E. Tenant has entered into this Lease in reliance upon representations
by Landlord that the Shopping Center is and will remain primarily retail in
character, and, further, no part of same shall be used as a massage parlor,
adult book or adult video tape store.
ARTICLE 2
EXHIBITS AND ORIGINAL CONSTRUCTION
A. The exhibits listed below and attached to this Lease are
incorporated herein by reference:
EXHIBIT "A" - Current Site Plan
EXHIBIT "B" - New Site Plan
EXHIBIT "C" - Existing Exclusives
EXHIBIT "D" - Landlord's Work
B. Promptly after the execution of this Lease, Landlord shall file
applications and submit plans to the necessary governmental bodies to obtain the
following, all of which shall be pursued simultaneously by Landlord:
(i) the New Plan Approval;
(ii) approval for the additional parking spaces added to the
Shopping Center by Landlord's recent restriping of the parking lot; and
(iii) approval to increase the number of parking spaces shown
on the New Site Plan to the amount of spaces that will be required if Tenant
operates the Permitted Use at the Shopping Center.
The foregoing approvals referred to in (ii) and (iii) are hereinafter referred
to as the "Parking Approvals", and the New Plan Approval and Parking Approvals
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are hereinafter collectively referred to as the "Landlord Approvals". If the
Landlord has not obtained the Landlord Approvals on or before the Permit Date
(as defined in Article 40), the Tenant shall have the right to terminate this
Lease.
C. Landlord agrees, at Landlord's expense, to construct the Demised
Premises as necessary to deliver to Tenant a "vanilla shell," with the
dimensions and configuration shown on Exhibit "A" (if the Demised Premises will
be located in the BiLo Space) or Exhibit "B" (if the Demised Premises will be
located in the New Building) ("Landlord's Work"). Landlord's Work is described
more particularly in Exhibit "D" attached hereto. Landlord shall not remove any
existing piping, duct-work or other similar facilities that may be used to
furnish HVAC, plumbing and electric service in the Demised Premises.
D. Landlord shall substantially complete Landlord's Work within 90 days
after the "Landlord's Construction Commencement Date", in the case that the
Demised Premises will be located in the BiLo Space, and within one (1) year in
the event that the Demised Premises is located in the New Building (such date of
substantial completion is hereinafter referred to as the "Completion Date"). The
term "Landlord's Construction Commencement Date" shall be determined as follows:
(i) If Landlord enters into a BiLo Termination Agreement, and
BiLo vacates the Existing Building within four (4) months after execution
thereof, "Landlord's Construction Commencement Date" shall be ten (10) days
after BiLo vacates the Existing Building;
(ii) If Landlord enters into a BiLo Termination Agreement, and
BiLo does not vacate the Existing Building within four (4) months after
execution thereof, "Landlord's Construction Commencement Date" shall mean the
date that is ten (10) days after the expiration of such four (4) month period;
(iii) If Landlord is unable to enter into a BiLo Termination
Agreement before the BiLo Termination Date, "Landlord's Construction
Commencement Date" shall be the date that is ten (10) days after the BiLo
Termination Date.
Notwithstanding anything herein to the contrary, if Landlord has not obtained
the Landlord Approvals by Landlord's Construction Commencement Date, as
determined above, and Tenant has not terminated this Agreement, Landlord's
Construction Commencement Date shall be extended until the date on which
Landlord obtains the Landlord Approvals.
E. Upon completion of Landlord's Work, Tenant may commence Tenant's
Work, as described herein, in accordance with Tenant's Plans (hereinafter
defined). Prior to commencing Tenant's Work, Tenant shall submit a detailed set
of plans and drawings ("Tenant's Plans") to Landlord depicting the work that may
be performed by Tenant in order to renovate the Demised Premises for Tenant's
use ("Tenant's Work"). Within ten (10) days after receipt of Tenant's Plans,
Landlord shall notify Tenant of whether it approves of the same. Landlord's
approval right, however, shall only apply to changes to the structure of the
Demised Premises and the building in which the Demised Premises are located.
Landlord shall have no right to consent or otherwise comment on interior
renovations or renovations that do not affect the structure of the building. If
Landlord fails to reject or approve Tenant's Plans within such ten (10) day
period, Tenant's Plans shall be deemed approved. If Landlord rejects Tenant's
Plans within the time period described above, and provided
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Landlord has the right to object to such plans as described herein, Landlord
shall notify Tenant of the reasons for such disapproval, and Tenant shall revise
such plans within ten (10) days after receipt of Landlord's rejection notice.
The foregoing procedure shall be repeated until Landlord and Tenant agree on
Tenant's Plans. Notwithstanding the foregoing, if Landlord and Tenant are unable
to agree on Tenant's Plans within sixty (60) days after Tenant's first
submission of such plans, Tenant shall have the right to terminate this Lease.
Tenant may not commence Tenant's Work unless and until Landlord approves
Tenant's Plans as provided in this section. If Landlord has not substantially
completed Landlord's Work in accordance with Exhibit "D" on or before the
Completion Date, Tenant shall have the right, but not the obligation, to either
(i) terminate this Lease or (ii) perform Landlord's Work, in which latter event,
Tenant may offset Tenant's reasonable costs in completing the same against the
next payments of Annual Base Rent.
F. The term "substantially complete", "substantial completion" and
words of similar import shall mean that Landlord's Work is completed in
accordance this Exhibit "D", except minor punch list items that do not adversely
affect Tenant's ability to open and operate its business in the Demised Premises
without interruption or interference. If a punch list is generated, Landlord
shall use its best efforts to complete the items on such punch list within
thirty (30) days after substantial completion.
ARTICLE 3
DATE ON WHICH RENT BEGINS
A. The Annual Base Rent (as defined herein) and all additional charges
shall begin to accrue on the Commencement Date. If the Commencement Date is
other than the first day of the month, Annual Base Rent shall commence on the
first day of the following month, and rent for the initial partial month shall
be paid at that time.
B. Tenant does hereby covenant and agree to pay to Landlord, for the
use and occupancy of the Demised Premises, at the times and in the manner
hereinafter provided, the following sums of money ("Annual Base Rent"):
YEARS PER SQUARE FOOT
1-5 $ 8.50
6-10 $ 9.00
11-15 $10.00
16-20 $11.00
to be paid in U.S. dollars, in advance, without notice or invoice from Landlord,
on the first day of each and every month during the Term hereof, commencing upon
the date on which rental is determined to commence under the provisions of this
Article 3 hereof and ending upon the termination date of this Lease. Within ten
(10) days after Landlord completes Landlord's Work, Landlord shall cause its
architect to measure the Demised Premises in accordance with the following
criteria: measurements shall be taken from the exterior face of exterior walls,
and from the center of demising walls; and mezzanine space, basement space and
other space not designed for usable square footage shall be excluded from the
calculation of the size of the Demised Premises. If Tenant disputes such
measurement, Tenant shall have the right to confirm such measurement by its
architect. If Tenant's architect calculates a different square footage, and the
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parties cannot resolve any differences, then Landlord and Tenant shall select a
third, neutral architect to measure the Demised Premises, whose costs will be
shared by Landlord and Tenant, and such third architect's measurement shall
govern. The square footage of the Demised Premises as determined in accordance
with this Section shall be used for the purpose of calculating Annual Base Rent
and other charges due under this Lease. In the event such rental shall be
determined under the provisions of Article 3 hereof to commence on a day other
than the first day of a month, then the Annual Base Rent for the period from
such rent Commencement Date until the first day of the month next following
shall be prorated accordingly. All payments in this Lease provided for (those
hereinafter stipulated as well as Annual Base Rent) shall be paid or mailed to:
Eagle Valley Realty
X.X. Xxx 000
Xxxxxxxxxxx, XX 00000
or to such other payee or address as Landlord may designate, in writing to
Tenant.
ARTICLE 4
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
A. Tenant's obligations hereunder shall be contingent upon, among other
things, Landlord causing any existing mortgagee and/or ground lesser to enter
into a non-disturbance agreement with Tenant in form and substance acceptable to
Tenant. In addition, upon written request of Landlord, or any future mortgagee
or beneficiary of Landlord, Tenant will in writing, subordinate its rights
hereunder to the interest of any future ground lessor of the land upon which the
Demised Premises are situated and to the lien of any future mortgage or deed of
trust now or hereafter in force against the land and building of which the
Demised Premises are a part, and upon any building hereafter placed upon the
land of which the Demised Premises are a part and to all advances made or
hereafter to be made upon the security thereof; provided, however, that such
subordination shall not be effective unless the ground lessor, or the mortgagee
or trustee named in said mortgage or deed of trust shall enter into a
non-disturbance agreement with Tenant in form and substance that is commercially
reasonable and satisfactory to Tenant and Landlord's lender.
B. In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deed of trust
upon any such foreclosure or sale Tenant agrees to recognize such beneficiary or
purchaser as the Landlord under this Lease, provided Tenant's rights under this
Lease continue unabated.
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ARTICLE 5
REPAIRS AND MAINTENANCE
Landlord covenants and agrees, at its expense without reimbursement or
contribution by Tenant, to keep, maintain, repair and replace, if necessary, the
foundations, the exterior, structural systems including, without limitation, the
roof, roof covering (including interior ceiling if damaged by leakage) and
load-bearing walls and floor slabs and exterior masonry walls in good condition
and repair, and Landlord shall replace the same as and when necessary. Except
for Landlord's obligations, Tenant shall be responsible for all interior
maintenance and repairs in the Demised Premises which are required throughout
the Term, including, without limitation, all mechanical, plumbing and electrical
repairs and maintenance which are required to fixtures or systems located wholly
within the Demised Premises. In the event the Demised Premises become or are out
of repair and not in good condition due to the failure of Landlord to comply
with the terms of this Article 5, and if such repairs are not completed within
ten (10) days after Landlord has received written notice from Tenant of such
state of disrepair or if such repairs cannot reasonably be completed within such
ten (10) day period and Landlord shall fail to commence such repairs within ten
(10) days after notice and proceed diligently thereafter, then Tenant may
prosecute such repairs itself and apply the cost of such repairs against the
next maturing monthly installment or installments of rent due hereunder.
Notwithstanding the foregoing, in the case of an emergency, Tenant shall have
the right to immediately prosecute any and all necessary repairs and shall
deliver contemporaneous notification to Landlord of the emergency and related
repairs, provided further that if contemporaneous notice is not practicable, as
determined by Tenant in its sole judgment, then Tenant shall provide such notice
as soon thereafter as reasonably practicable.
ARTICLE 6
ENVIRONMENTAL MATTERS
A. Landlord represents and warrants that any handling, transportation,
storage, treatment or usage of hazardous or toxic substances that has occurred
or will occur on the Shopping Center has been and shall be in compliance with
all applicable federal, state and local laws, regulations and ordinances.
Landlord further represents and warrants that there is no asbestos or asbestos
containing materials in the Demised Premises, and no leak, spill, discharge,
emission or disposal of hazardous or toxic substances has occurred or will occur
on the Shopping Center, and that the soil and groundwater on or under the
Shopping Center is and will continue to be free of toxic or hazardous
substances. Landlord agrees to indemnify, defend and hold Tenant and its
officers, employees and agents harmless from any claims, judgments, damages,
fines, penalties, costs. liabilities (including sums paid in settlement of
claims) or loss suffered or incurred by Tenant, including attorney's fees,
consultant's fees, and expert fees, which arise during or after the Term or any
Renewal Term, or in connection with the presence or suspected presence of toxic
or hazardous substances in the soil or groundwater, on or under the Shopping
Center, except to the extent that such toxic or hazardous substances are present
as the result of the negligence or wilful misconduct of Tenant, its officers,
employees or agents. Without limiting the generality of the foregoing, this
indemnification specifically covers costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental agency or
political subdivision because of the presence or suspected presence of toxic or
hazardous substances in the soil or groundwater on or under the Shopping Center,
unless the toxic or hazardous substances are present as the result of the
negligence or wilful misconduct of Tenant, its officers, agents or employees.
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Without limiting the generality of the foregoing, this indemnification shall
also specifically cover costs in connection with:
1. Toxic or hazardous substances present or suspected
to be present in the soil or ground water on or under the Shopping Center before
the date hereof; or
2. Toxic or hazardous substances that migrate, flow,
percolate, diffuse or in any way move onto or under the Shopping Center after
the date hereof; or
3. Toxic or hazardous substances present on or under the
Shopping Center as a result of any discharge, dumping, spilling (accidental or
otherwise) onto the Shopping Center during or after the Term or any Renewal Term
by any person or entity.
B. If Tenant discovers any asbestos or other hazardous materials
present on or under the Demised Premises during Tenant's Work or the Primary
Term or any Renewal Term, and the presence of the same is not caused by Tenant,
Landlord shall promptly remove the same in accordance with all applicable laws,
at Landlord's sole cost and expense. If Tenant's use of the Demised Premises is
interrupted or affected in any way during such removal, rent and all other
charges due hereunder shall xxxxx until full use of the Demised Premises is
restored to Tenant. If any of Tenant's personal property, furniture, fixtures or
equipment is damaged or removed during such removal, Landlord shall be
responsible for reimbursement to Tenant for all such damages and for restoring
any such furniture, fixtures, equipment and property.
ARTICLE 7
ALTERATIONS
Except as hereinafter set forth and except for Tenant's Work, Tenant
shall not make structural alterations in any portion of the Demised Premises
without, in each instance, first obtaining the written consent of Landlord which
shall not be unreasonably withheld or delayed. Tenant shall have the right to
make any and all interior non-structural alterations or additions as deemed
appropriate by Tenant, all without Landlord's consent. Tenant shall have the
right to install satellite dishes, antennae and other equipment on the roof of
the Demised Premises, and Tenant may make roof penetrations for the purpose of
installing and maintaining the same. Tenant shall have access to the roof at all
times for the purpose of operating and maintaining any roof structures. Tenant
shall have the right to make a "roof cut" for the purpose of obtaining access to
the roof from the interior of the Demises Premises. Tenant shall be responsible
for any damage caused directly by Tenant's use of the roof. Tenant shall notify
Landlord forty-eight (48) hours prior to making any roof penetrations, and
Landlord shall have the right to have its roofing contractor present during any
such work. Tenant shall perform work on the roof in a manner that does not
violate any roof warranty that Landlord possesses, so long as Landlord has
provided Tenant, in advance, a copy of any such warranties.
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ARTICLE 8
FIXTURES AND PERSONAL PROPERTY
Any trade fixtures, lifts, equipment, inventory, trademarked items,
signs, decorative soffit, counters, shelving, showcases, kitchen equipment and
other removable personal property installed in or on the Demised Premises by
Tenant, at its expense, shall remain the property of the Tenant. Landlord agrees
that Tenant shall have the right, at any time or from time to time, to remove
any and all of such items, and Tenant shall be obligated to remove all such
items upon the expiration or earlier termination of this Lease. Tenant at its
expense shall immediately repair any damage occasioned by the removal of its
fixtures, signs and other personal property, and upon expiration or earlier
termination of this Lease, shall leave the Demised Premises in a neat and clean
condition, free of debris, normal wear and tear excepted. Tenant shall pay
before delinquency all taxes, assessments, license fees and public charges
levied, assessed or imposed upon its business operation in the Demised Premises
as well as upon its trade fixtures, merchandise and other personal property in,
or upon the Demised Premises. If any such items of property are assessed with
property of Landlord, then such assessment shall be equitably divided between
Landlord and Tenant to the end that Tenant shall pay only its equitable portion
of such assessment. Landlord shall determine the basis of so prorating any such
assessments and such determination shall be binding upon both Landlord and
Tenant.
ARTICLE 9
SIGNAGE
It is expressly understood and agreed that as an inducement for Tenant
to enter into this Lease, Tenant shall have the right, at Tenant's sole cost and
expense, to install, subject to applicable law, Tenant's exterior signage. The
size, design and location of Tenant's signage shall be determined by Tenant in
its sole discretion, so long as the same complies with applicable law. In
addition, although there is presently no space available on the existing pylon
sign for the Shopping Center, Tenant shall have the right to install a sign
panel on any new or additional pylon or monument signs hereafter serving the
Shopping Center. Such panel shall be located in the highest position on the
pylon or monument sign. Upon expiration or termination of this Lease, all of
Tenant's signs shall be removed at Tenant's sole cost and expense and all damage
caused by such removal shall be repaired at Tenant's sole cost and expense.
ARTICLE 10
LIENS
Tenant shall not permit to be created nor to remain undischarged any
lien, encumbrance or charge arising out of any work or claim of any contractor,
mechanic, laborer or material supplied by a materialman which might be, or
become, a lien or encumbrance or charge upon the Demised Premises or the
Shopping Center of which the Demised Premises is a part and Tenant shall not
suffer any other matter or thing whereby the estate, right and interest of
Landlord in the Demised Premises or in the Shopping Center of which the Demised
Premises is a part might be impaired. If any lien or notice of lien on account
of an alleged debt of Tenant or any notice of contract by a party engaged by
Tenant or Tenant's contractor to work in the Demised Premises shall be filed
against the Demised Premises or the Shopping Center of which the Demised
Premises is a part, Tenant shall, within thirty (30) days after notice of the
filing thereof, cause the same to be discharged of record by payment, deposit or
bond. If Tenant shall fail to cause such lien or notice of lien to be discharged
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by either paying the amounts claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings, Landlord shall, in addition to
such other remedies as may exist under this Lease by reason of a default by
Tenant, be entitled, if Landlord so elects, to defend any prosecution of an
action for foreclosure of such lien by the lienor. Any money paid by Landlord
and all costs and expenses, including attorney's fees, incurred by Landlord in
connection therewith, together with ten percent (10%) interest thereon from the
respective dates of Landlord's payment or incurring of the cost or expense,
shall be paid by Tenant to Landlord on demand. In the event Tenant diligently
contests any such claim, Tenant agrees to indemnify, defend, and hold harmless
Landlord from any and all costs, liability and damages, including reasonable
attorney's fees resulting therefrom, and, if requested, upon demand, immediately
to deposit with Landlord cash or surety bond in form and with a company
satisfactory to Landlord in an amount equal to the amount of such contested
claim.
ARTICLE 11
LAWS AND ORDINANCES
A. Tenant and Landlord agree to comply with all laws, ordinances orders
and regulations affecting the use and occupancy of the Demised Premises and the
cleanliness, safety or operation thereof, provided that Tenant shall not be
obligated to make any structural repairs or replacements to the Demised
Premises. Tenant agrees to comply with the reasonable regulations and
requirements of any insurance underwriter, inspection bureau or similar agency
with respect to that portion of the Demised Premises for which Tenant is
responsible to make necessary repairs, provided that Tenant shall not be
obligated to make any structural repairs or replacements to the Demised
Premises. Tenant also agrees to permit Landlord to comply with such
recommendations and requirements with respect to that portion of the Demised
Premises for which Landlord is responsible to make necessary repairs. Landlord
shall, at its sole cost and expense, comply with all laws and governmental
requirements affecting the Common Area and the building of which the Demised
Premises are a part.
B. Tenant agrees not to (i) permit any illegal practice to be carried
on or committed on the Demised Premises; (ii) make use of or allow the Demised
Premises to be used for any purpose that might invalidate or increase the rate
of insurance therefor over and above the rates customarily applicable to
Tenant's business (iii) use the Demised Premises for any purpose whatsoever
which might create a nuisance; (iv) deface or injure the building of the Demised
Premises; (v) overload the floor; (vi) commit or suffer any waste; or (vii)
install any electrical equipment that overloads lines; it being agreed by
Landlord that Tenant's use of the Demised Premises as an off-track wagering
facility and restaurant shall not cause a violation of this section.
C. In connection with the installation of any electrical equipment,
Tenant shall, at Tenant's own expense, make from time to time whatever changes
are necessary to comply with the requirements of the insurance inspectors,
underwriters, government authorities and codes.
ARTICLE 12
SERVICES
A. Landlord agrees to cause the necessary mains, conduits and other
facilities to be provided to make water, sewer, gas, phone and electricity
available to the exterior of the Demised Premises and other occupied space in
the Shopping Center so that Tenant can tie into such facilities to obtain
service for the Demised Premises.
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B. Tenant shall be solely responsible for and shall promptly pay all
charges which are separately metered to the Demised Premises for the use and
consumption of sewer, gas, electricity, water, phone and all other utility
services used within the Demised Premises.
C. Tenant shall contract for and pay for collection and disposal of
trash and refuse from the Demised Premises.
D. Landlord shall not be liable to Tenant in damages or otherwise if
the said utilities or services are interrupted or terminated because of
necessary repairs, installations, or improvements, or any cause beyond the
Landlord's reasonable control, unless such interruption is caused by Landlord's
negligence, nor shall any such interruption or termination relieve Tenant of the
performance of any of its obligations hereunder, except that if Tenant is unable
to operate its business in whole or in part as a result thereof, there shall be
an abatement of Tenant's rental obligations hereunder so long as and to the
extent that Tenant is unable to operate its business. Tenant shall operate the
Demised Premises in such a manner as not to waste electricity, water, heating or
air conditioning.
ARTICLE 13
COMMON AREAS
A. Landlord covenants and agrees that it shall maintain, repair and
replace Common Areas in good order and repair at all times. The "Common Areas"
as herein referred to, shall consist of all parking areas, landscaped areas,
streets, sidewalks, driveways, loading platforms, washrooms, lounges and
shelters and other facilities available for joint use of all the tenants in the
Shopping Center, their employees, agents, customers, licensees and invitees. If
Landlord fails to perform its oblations hereunder within thirty (30) days after
written notice from Tenant, or such longer time as may be reasonable under the
circumstances so long as Landlord is diligently pursuing such repair, Tenant may
make such repair or replacement and deduct its costs in connection therewith
against the next payments of rent due hereunder. Notwithstanding the foregoing,
in the event a repair is necessary in the Common Area to cure an emergency or to
xxxxx a condition that materially and adversely affects Tenant's use of the
Premises, Tenant may make such repair without giving prior notice to Landlord it
its intent to do so.
B. Landlord agrees to provide adequate lighting of the Common Areas
including the parking lot from thirty (30) minutes before dusk until thirty (30)
minutes after Tenant's normal close of business. Landlord acknowledges and
agrees that Tenant may remain open until 2:00 A.M. to the extent permitted by
applicable law.
C. Tenant shall pay to Landlord, as additional rent, its proportionate
share (as defined below) of Landlord's CAM Costs (as hereinafter defined) (such
amount is hereinafter referred to as the "CAM Sum"). The CAM Sum shall be
payable on an annual basis, in equal monthly installments payable with each
monthly installment of Annual Base Rent. Notwithstanding the foregoing, until
the end of the fifth (5th) Lease Year, Tenant's CAM Sum payable in any year
shall not exceed an amount equal to $2.00 for each square foot of space in the
Demised Premises. Within 120 days after the end of each calendar year, Landlord
shall furnish to Tenant a detailed statement (the "Statement"), certified by
Landlord to be true, complete and correct, which itemizes (i) the actual CAM
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Costs incurred by Landlord in the previous year, (ii) the difference between the
actual CAM Sum paid by Tenant during such previous year and the amount of
payments actually made by Tenant and (iii) Landlord's estimate of Tenant's
proportionate share of CAM Costs for following year. If the Statement reflects
that Tenant has overpaid or underpaid the CAM Sum for the previous year, any
overpayments shall be credited against future payment, or any underpayments
shall be paid by Tenant within thirty (30) days after receipt of the Statement,
as the case may be. Until Tenant receives the Statement, it shall continue to
pay the CAM Sum payable during the previous year. After receipt of the
Statement, Tenant shall pay any underpayments with, or shall deduct any
overpayments from, the next payments of the CAM Sum, based upon the new CAM Sum
determined as provided above. "Tenant's proportionate share" shall mean a
fraction, the numerator of which is the leasable square footage of the Demised
Premises, and the denominator of which is the leasable square footage of the
Shopping Center. Landlord shall maintain its books and records for the CAM Costs
for the previous three (3) years, and Tenant shall have the right to audit and
copy Landlord's books and records. If Tenant determines that Landlord has
overcharged Tenant, such overcharge shall be credited against future payments of
the CAM Sum, and if Landlord overcharged Tenant by more than seven percent (7%),
Landlord shall pay the costs of Tenant's audit.
D. The term "CAM Costs" shall mean Landlord's actual and reasonable
out-of-pocket expenses incurred in operating, maintaining, repairing and
insuring the Common Areas, including, but not limited to, cleaning and
repairing; lighting, snow, ice, rubbish and garbage removal; painting and
striping; landscaping; maintenance, paving, repair of utilities systems
(including septic) and parking lots; sign maintenance; the providing of
security, including security personnel; the providing of public liability,
property damage, fire and extended coverage insurance (except as otherwise
provided herein) and such other insurance as Landlord reasonably deems
appropriate; fire protection charges; licenses and permit fees; rent paid for
the leasing of any such equipment, and an administrative charge equal to five
percent (5%) of the total amount paid by Tenant for common area costs for
Landlord in maintaining and operating the common area and facilities, not
including, however, real estate taxes and insurance costs. CAM Costs shall not
include (i) any capital expenses incurred by Landlord, including any expenses
incurred in Landlord's planned renovation of the Shopping Center, (ii)
administrative expenses, home office expenses, management fees or other similar
expenses, (iii) salaries, wages or other payments to Landlord's employees,
except to the extent (based upon the percentage of time employed with respect to
the Shopping Center) such employees work for the Shopping Center, (iv) repairs
for which Landlord is obligated to maintain insurance, or for which Landlord is
eligible to receive condemnation awards, (v) repairs or replacements necessary
to comply with applicable laws, (vi) repairs made for the benefit of particular
tenants or which are required to be made under tenant leases, (vii) legal fees,
leasing commissions, accounting fees and other professional fees and payments,
(viii) debt service payments or ground lease payments, (ix) real estate taxes,
(x) depreciation, or (xi) any other payments or expenses not typically treated
as reimbursable common area maintenance costs in community shopping centers in
the geographic area of the Shopping Center. In addition, CAM Costs shall
specifically include real estate taxes levied or assessed upon the Demises
Premises, the Shopping Center and the land on which the same are located, but in
no event shall the CAM Sum include Landlord's income taxes, franchise taxes,
gross rent taxes, inheritance tax, capital stock tax or estate tax. If Landlord
obtains any tax abatements, refunds or reduction in real estate taxes, Tenant
shall receive a credit for the same to the extent such taxes were included in
the CAM Sum. Landlord shall include copies of all tax bills for the most recent
tax year with any Statements (as hereinafter defined) delivered to Tenant.
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E. The Common Areas as shown on the New Site Plan are a material
consideration for Tenant entering into this Lease, and no structures shall be
erected, and no changes shall be made (except landscaping required by the
Borough, which will be completed simultaneously with Landlord's Work), by
Landlord within that portion of the Common Areas of the Shopping Center which
are designated by cross-hatching on the Current Site Plan if the Demised
Premises will be located in the BiLo Space, or in the area cross-hatched on the
New Site Plan in the event the Demised Premises are located in the New Building.
In addition, Landlord shall not change the existing driveways, curb-cuts and
entrance-ways to the Shopping Center without the prior written consent of
Tenant. However, Landlord may make other changes to the Common Areas, including
but not limited to the configuration of the Common Areas, lighting, curbing,
building heights and stories, and the height of landscaping, without the consent
of Tenant, provided that such changes do not substantially affect Tenant's
visibility, access or parking availability.
ARTICLE 14
DAMAGE TO PREMISES
In the event the Demised Premises are hereafter damaged or destroyed or
rendered partially untenantable for their accustomed use, by fire or other
casualty insured or which should have been insured under the coverage which
Landlord is obligated to carry pursuant to Article 15(A) hereof, then Landlord
shall within sixty (60) days after such casualty commence repair of said Demised
Premises and within one hundred eighty (180) days after commencement of such
repair restore the same to substantially the condition in which it was delivered
to Tenant in accordance with Article 2 above, except that Landlord shall also
restore any work performed by Tenant to the extent the same is covered by
Landlord's insurance policy. In no event shall Landlord be required to repair or
replace Tenant's stock in trade, fixtures, equipment, furniture, furnishings,
wall covering, carpeting and drapes (except as provided in the foregoing
sentence). From the date of such casualty until the Demised Premises are so
repaired and restored, Annual Base Rent payments and all other charges and items
payable hereunder shall xxxxx in such proportion as the part of the Demised
Premises thus destroyed or rendered untenantable bears to the total Demised
Premises. In the event that fifty percent (50%) or more of the Demised Premises
is destroyed or rendered untenantable by fire or other casualty (based upon the
cost to replace the Demised Premises damaged or destroyed as compared with the
market value of the improvements on said premises immediately prior to such fire
or other casualty as shown by certificate of Landlord's architect), or if the
Demised Premises cannot be fully restored within 240 days after such casualty,
or if the Demised Premises are damaged or destroyed in the last two (2) years of
the Primary Term or any Renewal Term, Tenant shall have right to terminate this
Lease effective as of the date of the casualty, by giving Landlord, within
thirty (30) days of such casualty, written notice of termination. Furthermore,
Tenant shall have the right to terminate this Lease in the event of a fire or
other casualty which destroys fifty percent (50%) or more of the leasable square
footage in the Shopping Center by giving written notice of such termination
within thirty (30) days after such casualty, and such termination shall be
effective as of the date of the casualty. If said notice of termination is given
within this thirty (30) day period, the Lease shall terminate and Annual Base
Rent and all other charges shall xxxxx as aforesaid from the date of such
casualty, and Landlord shall promptly repay to Tenant any rent paid in advance
which has not been earned as of the date of such casualty. If said notice is not
given and Landlord is required or elects to repair or rebuild the Demised
Premises as herein provided, then Tenant shall repair and replace its
merchandise, trade fixtures, furnishings and equipment to at least their
condition prior to the damage or destruction. Except as herein expressly
provided to the contrary, this Lease shall not terminate nor shall there be any
abatement of rent or other charges or items of additional rent as the result of
a fire or other casualty.
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ARTICLE 15
INSURANCE
A. Landlord agrees to carry, or cause to be carried, during the term
hereof, Comprehensive General Liability insurance on the Common Areas, providing
coverage of not less than Three Million Dollars ($3,000,000.00), combined bodily
injury and property damage liability, naming Tenant as an additional insured.
Landlord also agrees to carry, during the term hereof, all
risk property insurance covering fire and extended coverage, vandalism and
malicious mischief, sprinkler leakage and all other perils of direct physical
loss or damage insuring the improvements and betterments located in the Shopping
Center, including the Demised Premises and all appurtenances thereto (excluding
Tenant's merchandise, trade fixtures, furnishings, equipment and personal
property) for the full replacement value thereof.
B. Tenant agrees to carry Comprehensive General Liability insurance on
the Demised Premises during the term hereof covering both Tenant and Landlord as
their interest may appear. Such insurance shall be for limits of not less than
One Million Dollars ($l,000,000.00) combined bodily injury and property damage
liability.
Tenant further agrees to carry all risk property insurance
covering fire and extended coverage, vandalism and malicious mischief, sprinkler
leakage and all other perils of direct physical loss or damage for at least
eighty percent (80%) of the replacement value of all of Tenant's merchandise,
trade fixtures, furnishings, wall coverings, carpeting, drapes, equipment, and
all other items of personal property of Tenant located on or within the Demised
Premises.
C. Landlord and Tenant and all parties claiming under them mutually
release and discharge each other from all claims and liabilities arising from or
caused by any casualty or hazards covered or required hereunder to be covered in
whole or in part by insurance, even if caused by the negligence of either party,
and Landlord and Tenant waive any right of subrogation which might otherwise
exist in or accrue to any person on account thereof.
D. Tenant shall be responsible for the maintenance and replacement of
the plate glass in or on the Demised Premises.
E. The company or companies writing any insurance which either party is
required to carry and maintain or cause to be carried or maintained pursuant to
this Lease, shall be licensed to do business in Pennsylvania and shall have an
A.M. Best Rating of A or better and a size class of VII or larger. Comprehensive
general liability insurance policies evidencing such insurance shall name the
other party and/or its designee(s) as additional insured. All policies shall be
primary and non-contributory, and shall also contain a provision by which the
insurer agrees that such policy shall not be cancelled, materially changed or
not renewed without at least thirty (30) days' advance notice to the other
party. Each such policy, or a certificate thereof, shall be deposited with the
other party promptly upon commencement of this Lease.
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ARTICLE 16
INDEMNIFICATION
A. Tenant hereby indemnifies and holds Landlord harmless from and
against any and all claims, demands, liabilities, and expenses, including
attorney's fees, arising from Tenant's obligations or use of the Demised
Premises or from any act permitted, or any omission to act, in or about the
Demised Premises by Tenant or its agents, employees, or contractors, or from any
breach or default by Tenant of this Lease, except to the extent the same is
caused by Landlord's negligence or willful misconduct. In the event any action
or proceeding shall be brought against Landlord by reason of any such claim,
Tenant shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord.
B. Landlord hereby indemnifies and holds Tenant harmless from and
against any and all claims, demands, liabilities and expenses, including
attorney's fees, arising from Landlord's obligations or use of the Shopping
Center or Common Areas or from any act permitted, or any omission to act, in or
about the Shopping Center or Common Areas by Landlord or its agents, employees,
contractors, or invitees, or from any breach or default by Landlord of this
Lease, except to the extent the same is caused by Tenant's negligence or willful
misconduct. In the event any action or proceeding shall be brought against
Tenant by reason of any such claim, Landlord shall defend the same at Landlord's
expense by counsel reasonably satisfactory to Tenant.
ARTICLE 17
ASSIGNMENT, SUBLETTING AND OWNERSHIP
Tenant shall have the right to assign, mortgage, pledge, encumber or
otherwise transfer its interest in this Lease, and/or sublet, license or
concession all or any part of the Demised Premises, to any party, with
Landlord's approval, which approval shall not be unreasonably withheld, delayed
or conditioned. Notwithstanding the foregoing, Tenant shall have the right to
assign this Lease or sublease all or any part of the Demised Premises to
Tenant's parent, subsidiary or affiliated corporations or entities, or in
connection with (i) a sale by Tenant of all or substantially all of its stock or
assets or (ii) the merger, consolidation or other reorganization of Tenant, as
long as Tenant remains fully liable for full performance of all its obligations
under this Lease. In the event of any assignment hereunder, the assignee shall
be bound by all of the terms of this Lease, including Article 1.
ARTICLE 18
ACCESS TO PREMISES
Upon reasonable prior notice, but in no event less than twenty four
(24) hours (except in the case of an emergency), Landlord may enter the Demised
Premises during Tenant's business hours for purposes of inspection, to show the
Demised Premises to prospective purchasers and lenders, or to perform
maintenance and repair obligations imposed upon Landlord by this Lease. Should
Landlord unreasonably interfere with Tenant's business by such entry so as to
render the Tenant unable to use the Demised Premises for a period in excess of
twenty-four (24) hours, then in addition to any other rights Tenant may have,
Tenant shall be entitled to an abatement in rent and other charges proportionate
to the degree of interference with its business in connection with Landlord's
entry into the Demised Premises.
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ARTICLE 19
DEFAULTS BY TENANT
A. The occurrence of any of the following shall constitute a
material default and breach of this Lease by Tenant:
(i) Any failure by Tenant to pay the rental or make any other
payment required to be made by Tenant hereunder within ten (10) days after
receipt of written notice from the Landlord.
(ii) A failure by Tenant to observe and perform any other
material provision of this Lease to be observed or performed by the Tenant,
where such failure continues for thirty (30) days after written notice thereof
by Landlord to Tenant, except that this thirty (30) day period shall be extended
for a reasonable period of time if the alleged default is not reasonably capable
of cure within said thirty (30) day period and Tenant proceeds to diligently
cure the default.
(iii) The making by Tenant of any general assignment for the
benefit of creditors, the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt, or a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within sixty (60) days); the appointment
of a trustee or receiver to take possession that is not restored to Tenant
within thirty (30) days, or the attachment, execution or other judicial seizure
that is not discharged within thirty (30) days.
B. In the event of any such default by Tenant, thereupon at the option
of Landlord, this Lease shall be terminated and become absolutely void without
any right on the part of Tenant to reinstate the Lease by the payment of any sum
due or by other performance of any condition, term or covenant broken, whereupon
Landlord shall be entitled to recover damages for such breach in an amount equal
to the present value of the amount of rent reserved for the balance of the term
of this Lease less the fair rental value of the Demised Premises for the
remainder of the term, except that if Tenant shall continue to pay Landlord on a
monthly basis all rentals and charges due hereunder, Landlord shall not have the
right to terminate this Lease. In the alternative, if Landlord elects to not
terminate this Lease, Landlord shall have the right to xxx Tenant for rents and
other charges due hereunder as and when the same become payable under this
Lease, without the right to accelerate rents.
C. In the event of default as above set forth, Landlord, or anyone
acting on Landlord's behalf, at Landlord's option:
(i) May rent the Demised Premises or any part thereof to such
person or persons as Landlord may determine in its sole discretion, and Tenant
shall be liable for the loss of rent for the balance of the then current term.
Any such re-entry or re-letting by Landlord under the terms hereof shall be
without prejudice to Landlord's claim for actual damages and shall under no
circumstances release Tenant from liability for such damages arising out of the
breach of any of the covenants, terms and conditions of this Lease;
43
(ii) May have and exercise any and all other rights and/or
remedies granted or allowed landlords by any existing or future statute, act or
other law of this state in cases where a landlord seeks to enforce rights
arising out of a lease agreement against a tenant who has defaulted or otherwise
breached the terms of such lease agreement, subject, however, to all other
rights granted or created by any such statute, act or other law of its state
existing for the protection and benefit of such tenants and subject to the terms
of this Lease to the contrary; and
(iii) May have and exercise any and all other rights and
remedies to which Landlord may be entitled at law or in equity, subject to the
terms of this Lease to the contrary.
D. If Landlord obtains possession of the Demised Premises as a result
of the Tenant's abandonment of same or by a decree from a court of competent
jurisdiction, this shall not be construed as an election to terminate this Lease
unless Landlord provides Tenant with a written notice of this election.
E. Notwithstanding anything herein to the contrary, in the event of a
default by Tenant and Landlord terminates this Lease or Tenant's right to
possession of the Demised Premises, Landlord shall use reasonable efforts to
re-let the Demised Premises.
ARTICLE 20
DEFAULTS BY LANDLORD
If Landlord should be in default in the performance of any of its
obligations under this Lease, which default continues for a period of more than
thirty (30) days after receipt of written notice from Tenant specifying such
default, or if such default is of a nature to require more than thirty (30) days
for remedy and continues beyond the time reasonably necessary to cure (and
Landlord has not undertaken procedures to cure the default within such thirty
(30) day period and diligently pursued such efforts to complete cure), Tenant
may terminate this Lease and/or, in addition to any other remedy available at
law or in equity, at its option, upon written notice, incur any expense
necessary to perform the obligation of Landlord specified in such notice and
deduct such expense from the rents or other charges next becoming due. Tenant
may not terminate this Lease, however, unless an arbitration panel appointed as
provided below determines that Tenant's use of the Demised Premises is
materially and adversely affected, which may include, without limitation,
inability of Tenant or its customers to obtain access to the Shopping Center or
the Premises, or a material obstruction of parking in or visibility of the
Premises. In the event that Tenant elects to terminate this Lease as provided
herein, Tenant shall notify Landlord, whereupon Landlord or Tenant shall file
formal demand for arbitration with the office of the American Arbitration
Association ("AAA") in the county in which the Shopping Center is located. Each
party shall thereafter conform with the schedule for the selection of
arbitrators (who shall be three in number unless the parties otherwise agree)
imposed by AAA; and thereafter the parties shall conform with such schedule and
rules of procedure as shall be determined by AAA or such selected arbitrators,
including without limitation such schedule as may be determined for any and all
discovery, and for the presentation of the case by each. The scope of permitted
discovery, and the rules of discovery and procedure to be followed by the
parties, shall be determined exclusively by the arbitrators, after consultation
with the parties; and the judgment of such arbitrators concerning such rules and
scope shall be final. Such arbitrators shall render their determination whether
Tenant's use of the Demised Premises has been materially and adversely affected.
If so, Tenant may terminate this Lease. If such arbitrators determine that use
of the Demised Premises has not been materially and adversely affected, Tenant
may not terminate this Lease, and Tenant's remedies shall be limited to those
available under this Lease (except termination) or those available at law or in
equity.
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ARTICLE 21
SURRENDER OF PREMISES
Tenant shall, upon expiration of the Term granted herein, or any
earlier termination of this Lease for any cause, surrender to Landlord the
Demised Premises, including, without limitation, all building apparatus and
equipment then upon the Demised Premises, and all alterations, improvements and
other additions which may be made or installed by either party to, in, upon or
about the Demised Premises, other than trade fixtures, signs, and other personal
property which, remain the property of Tenant as provided in Article 8 hereof,
without any damage, injury or disturbance thereto, or payment therefor.
ARTICLE 22
EMINENT DOMAIN
A. (i) In the event that any portion of the Demised Premises shall be
appropriated or taken under the power of eminent domain by any public or
quasi-public authority, then at the election of Tenant, this Lease shall
terminate and expire as of the date of such taking, and both Landlord and Tenant
shall thereupon be released from any liability thereafter accruing hereunder.
(ii) In the event that more than ten percent (10%) of the
square footage of the parking area within 300 feet of the Demised Premises is
taken under the power of eminent domain by any public or quasi-public authority,
or if Tenant shall not have access to at least 200 parking spaces directly in
front of or adjacent to the Demised Premises, or if any accessway or driveway to
the Shopping Center is condemned, or if more than thirty percent (30%) of the
leasable square footage of the Shopping Center is taken, then in any of such
events Tenant shall have the right to terminate this Lease as of the date of the
taking. If less than thirty percent (30%) of the applicable parking is so taken
by eminent domain, then the Landlord shall provide adequate substitute parking
to the Tenant that is reasonably satisfactory to the Tenant.
(iii) Notice of any termination relating to such eminent
domain proceeding must be made by the party electing to terminate the Lease
within sixty (60) days after receipt of written notice of such taking.
(iv) In the event of such termination, both Landlord and
Tenant shall thereupon be released from any liability thereafter accruing
hereunder.
B. Whether or not this Lease is terminated, nothing herein shall be
deemed to affect Tenant's right to receive compensation or damages separately
awarded to Tenant for its fixtures and personal property. If this Lease is
terminated as herein above provided, all items of rent, additional rent and
other charges for the last month of Tenant's occupancy shall be prorated and
Landlord agrees to refund to Tenant any rent, additional rent or other charges
paid in advance.
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C. If both Landlord and Tenant elect not to so terminate this Lease,
Tenant shall remain in that portion of the Demised Premises which shall not have
been appropriated or taken as herein provided, and Landlord agrees, at
Landlord's cost and expense, to, as soon as reasonably possible, restore the
remaining portion of the Demised Premises to a complete unit of like quality and
character as existed prior to such appropriation or taking, and thereafter all
rental and payment obligations of Tenant shall be adjusted on an equitable
basis, taking into account the relative value of the portion taken as compared
to the portion remaining. For the purpose of this Article, a voluntary sale or
conveyance in lieu of condemnation, but under threat or condemnation shall be
deemed an appropriation or taking under the power of eminent domain.
D. Tenant shall have the right to pursue its own claim for damages in
connection with any eminent domain proceeding.
ARTICLE 23
ATTORNEY'S FEES
In the event that at any time during the term of this Lease either
Landlord or Tenant shall institute any action or proceeding against the other
relating to the provisions of this Lease, or any default hereunder, the
unsuccessful party in such action or proceeding agrees to reimburse the
successful party for the reasonable expenses of attorney's fees and paralegal
fees and disbursements incurred therein by the successful party. Such
reimbursement shall include all legal expenses incurred prior to trial, at trial
and at all levels of appeal and post judgment proceedings.
ARTICLE 24
NOTICES
Notices and demands required, or permitted, to be sent to those listed
hereunder shall not be effective unless sent in writing by certified mail,
return receipt requested, postage prepaid, or by Federal Express or other
reputable overnight courier service and shall be deemed to have been given upon
the date the same is postmarked if sent by certified mail or the day deposited
with Federal Express or such other reputable overnight courier service, but
shall not be deemed received until one (l) business day following deposit with
Federal Express or other reputable overnight courier service or three (3) days
following deposit in the United States Mail if sent by certified mail to the
address shown below, and addressed to:
If to TENANT:
Penn National Gaming, Inc.
000 Xxxxxxxxx Xxxx.
Xxxxxxxxxx, XX
With a copy to:
Xxxxxxx X. Xxxxxxxxx, Esquire
XXXXXX XXXXXXX XXXXXX XXXXXX & XXXXX, P.C.
P. O. Xxx 0000
Xxxx Xxxx, XX 00000
If to LANDLORD:
EAGLE VALLEY REALTY
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
With a copy to:
X.X. Xxxxx
X.X. Xxx 000
Xxxxxxxxxxx, XX 00000
or at such other address requested in writing by either party upon thirty (30)
days notice to the other party.
ARTICLE 25
REMEDIES
All rights and remedies of Landlord and Tenant herein created or
otherwise extending at law are cumulative, and the exercise of one or more
rights or remedies may be exercised and enforced concurrently or consecutively
and whenever and as often as deemed desirable.
ARTICLE 26
SUCCESSORS AND ASSIGNS
All covenants, promises, conditions, representations and agreements
herein contained shall be binding upon, apply and inure to the parties hereto
and their respective heirs, executors, administrators, successors and assigns;
it being understood and agreed, however, that the provisions of Article 17 are
in nowise impaired by this Article 26.
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ARTICLE 27
WAIVER
The failure of either Landlord or Tenant to insist upon strict
performance by the other of any of the covenants, conditions, and agreements of
this Lease shall not be deemed a waiver of any subsequent breach or default in
any of the covenants, conditions and agreements of this Lease. No surrender of
the Demised Premises by Tenant shall be affected by Landlord's acceptance of
rental or by other means whatsoever unless the same is evidenced by Landlord's
written acceptance of the surrender.
ARTICLE 28
HOLDING OVER
If Tenant or any party claiming under Tenant remains in possession of
the Demised Premises or any part thereof after any termination or expiration of
this Lease, Landlord, in Landlord's sole discretion, may treat such holdover as
an automatic renewal of this Lease for a month to month tenancy subject to all
the terms and conditions of this Lease provided herein on the terms that existed
immediately prior to such holdover.
ARTICLE 29
INTERPRETATION
The parties hereto agree that it is their intention hereby to create
only the relationship of Landlord and Tenant, and no provision hereof, or act of
either party hereunder, shall ever be construed as creating the relationship of
principal and agent, or a partnership, or a joint venture or enterprise between
the parties hereto.
ARTICLE 30
COVENANT OF TITLE AND QUIET ENJOYMENT
Landlord covenants that it has full right, power and authority to make
this Lease, subject to the rights of beneficiaries of deeds of trust or
mortgagees for which non-disturbance and attornment agreements have been
executed, and that Tenant or any permitted assignee or sublessee of Tenant, upon
the payment of the rentals and performance of the covenants hereunder, shall and
may peaceably and quietly have, hold and enjoy the Demised Premises and
improvements thereon during the Term or any renewal or extension thereof.
Additionally, Landlord shall take no action that will
interfere with Tenant's intended usage of the Demised Premises.
ARTICLE 31
ESTOPPEL
At any time and from time to time either party, upon request of the
other party, will execute, acknowledge and deliver an instrument, stating, if
the same be true, that this Lease is a true and exact copy of the Lease between
the parties hereto, that there are no amendments hereof (or stating what
amendments there may be), that the same is then in full force and effect and
that, to the best of its knowledge, there are no offsets, defense or
counterclaims with respect to the payment of rent reserved hereunder or in the
performance of the other terms, covenants and conditions hereof on the part of
Tenant or Landlord, as the case may be, to be performed, and that as of such
date no default has been declared hereunder by either party or if not,
specifying the same. Such instrument will be executed by the other party and
delivered to the requesting party within fifteen (15) days of receipt, or else
the statements made in the proposed estoppel request shall be deemed to be
correct.
ARTICLE 32
RECORDING
Tenant shall not record this Lease. The parties shall join in the
execution of a memorandum or so-called "short-form" of this Lease for the
purposes of recordation. Any recording costs associated with the memorandum or
short form of this Lease shall be borne by the party requesting recordation.
ARTICLE 33
FORCE MAJEURE
In the event that either party hereto shall be delayed or hindered in
or prevented from performance required hereunder by reason of strikes, lockouts,
labor troubles, failure of power, riots, insurrection, war, acts of God, or
other reason of like nature not the fault of the party delayed in performing
work or doing the acts, such party shall be excused for the period of delay. The
period for the performance of any such act shall then be extended for the period
of such delay. The foregoing shall not apply to the "DEMISED PREMISES; DEMISE"
section of this Lease or Article 1 hereof.
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ARTICLE 34
CONSENT
Wherever in this Lease Landlord or Tenant is required to give its
consent or approval, such consent or approval shall not be unreasonably
withheld, conditioned or delayed. Except as otherwise provided in this Lease, if
no written response to a consent or request for approval is provided within ten
(10) days from the receipt of the request, then the consent shall be presumed to
have been given. Any such request for approval or consent shall be accompanied
by a statement that Article 34 is being invoked and a failure to respond within
ten (10) days shall result in the approval or request being granted by the other
party.
ARTICLE 35
ZONING, DEED RESTRICTIONS, ETC.
Landlord further covenants, warrants, represents and agrees to fully
cooperate and provide assistance which shall include, but not be limited to,
assistance in obtaining certificates of occupancy, building permits, sign
permits and any variances.
ARTICLE 36
SEVERABILITY
Any provision of this Lease which shall prove to be invalid, void or
illegal shall in no way affect, impair or invalidate any other provisions hereof
and such other provisions shall remain in full force and effect.
ARTICLE 37
GOVERNING LAW AND VENUE
This Lease shall be governed by the laws of the state in which the
Shopping Center is located.
ARTICLE 38
BROKERS
Tenant and Landlord represent that they have had no dealing with any
real estate brokers or agents in connection with the negotiation of this Lease.
Landlord and Tenant will indemnify and hold each other harmless from and against
any and all liability and cost which Landlord or Tenant may suffer in connection
with real estate brokers claiming by, through, or under either party seeking any
commission, fee or payment in connection with this Lease.
ARTICLE 39
ENTIRE AGREEMENT
This Lease contains all of the agreements of the parties hereto with
respect to matters covered or mentioned in this Lease and no prior agreement,
letters, representations, warranties, promises, or understandings pertaining to
any such matters shall be effective for any such purpose. The Lease may be
amended or added to only by an agreement in writing signed by the parties hereto
or their respective successors in interest.
ARTICLE 40
CONDITIONS PRECEDENT
Tenant's obligation to lease the Demised Premises is contingent, in its
entirety, on the satisfaction by Tenant of the conditions set forth in this
Article 40, subparagraphs A. through H., inclusive ("Conditions Precedent").
A. Variances, Waivers and Special Exceptions. The Tenant shall have
obtained all final and unappealable variances, approvals of conditional uses,
special exceptions, and/or waivers required to lawfully improve and operate the
Demised Premises. If the Tenant is unable to obtain any such variance, waiver,
approval of conditional use or special exception, the Tenant may either lease
the Demised Premises despite not having obtained such variance, waiver, approval
of conditional use or special exception or terminate this Lease.
B. Zoning Permit. Landlord and Tenant submitted an application to the
Borough's zoning officer (the "Zoning Officer") to obtain a zoning permit to
operate the Permitted Use in the portion of the BiLo Space proposed to be leased
to Tenant. By letter dated May 20, 1998 from the Zoning Officer to Landlord and
Tenant, the Borough rejected the zoning application and stated that the parties
require a special exception from the Borough to operate the Permitted Use.
Tenant has appealed the Zoning Officer's decision to the Borough's Zoning
Hearing Board ("ZHB"). A hearing is scheduled for Thursday, July 16, 1998 to
consider such appeal. If the appeal is rejected, Tenant shall appeal such
decision to the Monroe County Court of Common Pleas, and Tenant shall have the
right to prosecute such other actions to obtain the zoning permits necessary to
operate the Permitted Use.
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In addition, the parties are aware that the Borough is contemplating an
amendment to its zoning ordinance to regulate off-track wagering facilities in a
manner that would prohibit the operation of the Permitted Use at the Shopping
Center (the "Ordinance Amendment"). If the Ordinance Amendment is used a basis
on which to interfere with the operation of the Permitted Use at the Shopping
Center, Tenant shall file suit in the Court of Common Pleas contesting the
authority of the Borough to regulate the location of off-track wagering
facilities or the number of parking spaces required for off-track wagering
facilities.
Accordingly, it shall be a condition of Tenant's obligations hereunder
that Tenant obtains the final and unappealable zoning permits necessary to
operate the Permitted Use in the Shopping Center.
C. Building Permits. The Tenant shall have obtained all final and
unappealable building permits from the Borough necessary to permit the
renovation of the Demised Premises for Tenant's Permitted Use.
D. Department of Labor and Industry Approval. The Tenant shall have
obtained final and unappealable use and occupancy certificates and approvals
from the Pennsylvania Department of Labor and Industry to construct Tenant's
Work and to operate and occupy the improvements on the Demised Premises for the
Permitted Use.
E. Utility Service. The Tenant shall have obtained written confirmation
that electric, cable television, telephone, sanitary sewer, water and all other
utility services are readily available with adequate capacity to serve the
Demised Premises at standard costs and rates of the companies serving that
portion of East Stroudsburg Borough in which the Demised Premises is located.
F. Harness Racing Commission Approval. The Tenant shall have obtained
final and unappealable approvals and permits from the Pennsylvania State Harness
Racing Commission to operate the Permitted Use at the Demised Premises.
G. Other Approval and Permits. The Tenant shall have obtained all other
final and unappealable permits, approvals, and agreements required to be
obtained in order to construct and operate the Permitted Use in the Demised
Premises. For purposes of this Lease, the approvals and permits shall not be
deemed final and unappealable, unless and until 35 days have elapsed without an
appeal of any kind having been filed, or if an appeal has been filed, it has
been dismissed.
H. 1. Due Diligence. Commencing upon the execution of this Lease and
for a period of sixty (60) days consecutive days thereafter ( the "Due Diligence
Period") Tenant shall have the right at Tenant's sole cost and expense, to enter
upon the Demised Premises at all times to conduct engineering studies, insurance
inspections, surveys, soil borings, and other examinations of the Demised
Premises, and to determine the feasibility of operating the Permitted Use at the
Demised Premises. Tenant acknowledges that Landlord may not be able to provide
access to the BiLo Space during the time that BiLo's lease is in effect, but
Landlord agrees to use diligent efforts to obtain BiLo's permission to give
Tenant access to the BiLo Space.
2. Cooperation of Landlord and Tenant. The Landlord shall
reasonably cooperate with the Tenant and will not act in any manner to hinder,
obstruct, delay or prevent Tenant from obtaining all necessary permits and
approvals for the Permitted Use upon the Demised Premises. The Landlord agrees
to join with the Tenant as a petitioner or applicant whenever required on any
applications to obtain the approvals and permits described above, provided that
the Landlord shall not be obligated to incur any material costs or expenses in
connection therewith. The Landlord hereby grants to Tenant the necessary
permission to execute on behalf of Landlord such applications as may be required
to obtain such approvals and permits as are necessary for the project.
3. Right to Terminate. If the Tenant is not able to obtain the
satisfaction of all Conditions Precedent within 180 days after the date hereof
(the "Permit Period"), in Tenant's sole discretion, then and in such event,
Tenant may terminate this Lease at any time before the expiration of the Permit
Period by written notice to Landlord, whereupon this Lease shall terminate and
the parties shall have no further rights or obligations hereunder. If all of the
Conditions Precedent have not been satisfied within twenty-four (24) months
after the date hereof, either Landlord or Tenant may terminate this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
day and year first mentioned, the corporate party or parties by its or their
proper officers thereto duly authorized.
LANDLORD:
EAGLE VALLEY REALTY
By: /S/ Xxxxxxx Xxxxxxxx
TENANT:
PENN NATIONAL GAMING, INC., a Pennsylvania
corporation
By: /S/ Xxxxxx Xxxxxxxxx
Attest:/S/Xxxx Xxxxx
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LIST OF EXHIBITS
EXHIBIT "A" - Current Site Plan
EXHIBIT "B" - New Site Plan
EXHIBIT "C" - Existing Exclusives
EXHIBIT "D" - Landlord's Work
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EXHIBIT "A"
CURRENT SITE PLAN
See Attached
51
EXHIBIT "B"
NEW SITE PLAN
SEE ATTACHED
52
EXHIBIT "C"
EXCLUSIVES
SEE ATTACHED
53
EXHIBIT "D"
LANDLORD'S WORK
SEE ATTACHED
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