ASSIGNMENT
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, F & N
Cinema, Inc. of 00 Xxxxxx Xxxxx, P.O. Box 648, Succasunna, NJ 07876, Assignor:
hereby assign all of their right, title and interest and estate in a certain
Lease (said Lease and any amendments thereto hereinafter referred to as the
"Lease) dated May 12, 1993, as amended July 11, 1994 and December 19, 1994 which
Lease was originally made by The Trustees of Net Realty Holding Trust as
Landlord/Lessor, and F & N Cinema, Inc. as Tenant/Lessee, for premises located
at Xxxxxx Hills Shopping Center, Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx
UNTO
CCC Parsippany Cinema Corp., Inc. of 0 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000
(Assignee) together with the security deposited thereunder and subject to all of
the terms and conditions of the Lease, including the payment of rent, and
without affecting the liability of the Assignors herein for the faithful
performance thereof. The Assignors' liability shall survive any further
assignments, modifications or extensions of the Lease. Assignors waive any and
all suretyship defenses and rights of redemption and agree that service of any
notice required by the Lease on the Tenants then in possession shall be
sufficient.
IN WITNESS WHEREOF, the Assignor hereby sets its hand and seal this 7th
day of November, 1997
/s/ Illegible A: F & N Cinema, Inc.
------------------------- --------------------------
Witness
By: /s/ Xxxx Xxxxxx
----------------------
Xxxx Xxxxxx, President
ASSUMPTION
For value received, the sufficiency of which is hereby acknowledged, the
Assignee named above, namely, CCC Parsippany Cinema Corp., Inc. residing at 0
Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000 does hereby assume the Lease and agree
to be jointly and severally liable with the Assignor for the faithful
performance of all of the covenants of the Lease, including the payment of rent
and other charges as fully set forth therein all with full force and effect as
if the Assignee had signed the lease originally as Tenant named herein.
IN WITNESS WHEREOF, the Assignee hereby sets its hand and seal this 7th
day of November, 1997.
/s/ Xxxxxx X. Tell CCC Parsippany Cinema Corp., Inc.
--------------------- ----------------------------------
Witness
By: /s/ X. Xxxx Xxxx
------------------------------
X. Xxxx Xxxx, President
CONSENT TO ASSIGNMENT
The undersigned, Net Realty Holding Trust, present holder of the
Landlord's interest in the Lease hereby consents to the within Assignment of
Lease.
LANDLORD
NET REALTY HOLDING TRUST
Date: 11/12/97 By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxxxxx
Authorized Representative
ASSIGNOR
STATE OF NEW JERSEY )
COUNTY OF XXXXXX ) SS:
On this 7th day of November, 1997, before me personally came Xxxx Xxxxxx to me
known, who being by me duly sworn did depose and say that he is the President of
the corporation described in and which executed the foregoing instrument as
Assignor; That he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation; and that he signed his name thereto by
like order.
/s/ Xxxxxxxxx X. Xxxxx
------------------------
Xxxxxxxxx X. Xxxxx
A Notary Public of New Jersey
My Commission Expires 9/23/98
ASSIGNEE
STATE OF NEW JERSEY )
COUNTY OF XXXXXX ) SS:
On this 7th day of November, 1997, before me personally came X. Xxxx Xxxx to me
known, who being by me duly sworn did depose and say that he is the President of
the corporation described in and which executed the foregoing instrument as
Assignee; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation; and that he signed his name thereto by
like order.
/s/ Xxxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxxx X. Xxxxx
A Notary Public of New Jersey
My Commission Expires 9/23/98
GROUND LEASE
THIS LEASE made and entered into this 12th day of May, 1993, by and
between THE TRUSTEES OF NET REALTY HOLDING TRUST, a trust organized pursuant to
a Declaration of Trust dated July 1, 1970 whose address is: c/o Net Properties
Management, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, hereinafter called
"Landlord", and F & N Cinema, Inc., a New Jersey corporation with its principal
place of business at 00 Xxxxxx Xxxxx, XX Xxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000
(hereinafter called "Tenant").
W I T N E S S E T H:
1. PREMISES: That Landlord, for and in consideration of the rents
and covenants hereinafter contained and made on the part of the Tenant, does
hereby demise and lease to Tenant, and Xxxxxx does hereby take subject to the
conditions hereinafter set forth, the following described premises in
Parsippany-Xxxx Hills, County of Xxxxxx, State of New Jersey, to-wit:
The approximately 32,000 square feet of land and 32,000 square foot
building to be erected by Tenant thereon (subject to adjustment if Landlord and
Tenant agree to a reduced building size pursuant to Article 3 hereof) and
located in the Xxxxxx Hills Shopping Center, Xxxxxx 00 xxx 000 Xxxxxxxxxx-Xxxx
Xxxxx, Xxx Xxxxxx as shown crosshatched in red on the attached plan labelled
Exhibit "A" and as more fully described on Exhibit "B" (legal description)
(hereinafter referred to as the "Premises").
Together with all existing Landlord's easements and appurtenances in
adjoining and adjacent land, highways, roads, streets, lanes, whether public or
private, for the use and benefit of the above-described parcel of real estate,
and subject to zoning regulations and zoning ordinances of the city, town or
village in which the premises lie.
2. TERM: Tenant shall have and hold the Premises for:
(1) An interim term, without payment of rent therefor, commencing on the
date of last execution of this Lease and ending 180 days after
receipt by Tenant of required building permits and approvals, or the
date Tenant opens for business, whichever is earlier.
(2) A primary term commencing upon the expiration of the interim term
and ending 21 years thereafter.
3. (A) RENT; SIZE OF PREMISES: During the primary term and any
extension thereof, Tenant shall pay to Landlord an annual rent as follows for
the following periods:
For the period: from the commencement of the primary term through the end
of the eighth lease year: $130,000.00 per year - $l0,833.33 per month;
For the period: ninth lease year through the end of the fifteenth lease
year: $143,000.00 per year - $11,916.66 per month;
For the period: sixteenth lease year through the end of the twenty-first
lease year: $157,300.00 per year - $13,108.33 per month;
For the period: twenty-second lease year through the end of the
twenty-sixth lease year (if the first option to renew is exercised): $173,030.00
per year - $14,419.17 per month;
For the period: twenty-seventh lease year through the end of the
thirty-first lease year (if the first option to renew is exercised): $190,333.00
per year - $15,861.08 per month;
For the period: thirty-second lease year through the end of the
thirty-sixth lease year (if the second option to renew is exercised):
$209,366.30 per year - $l7,447.19 per month;
For the period: thirty-seventh lease year through the end of the
forty-first lease year (if the second option to renew is exercised): $230,302.90
per year - $19,191.91 per month.
2
Said rent shall be paid to the Landlord in equal monthly installments on
or before the first day of each month, in advance, without offset or deduction
whatsoever, together with all applicable sales and revenue taxes imposed by the
State of New Jersey or local governmental authorities, with rent pro-rated for
any portion of a month at the commencement of the primary term. The annual and
monthly rent set forth above shall be effective provided the Tenant obtains a
building permit to construct a 32,000 square foot building on the Premises. In
the event the Tenant, despite best efforts, fails to obtain a permit to
construct a 32,000 foot building but obtains a building permit to construct a
building of at least 20,000 square feet, this Lease shall remain in full force
and effect and the rent payments shall be as follows for the following periods:
FOR THE PERIOD DECREASE IN ANNUAL RENT
PER SQUARE FOOT
Lease Years 1 through 8 $2.50
Lease Years 9 through 15 $2.75
Lease Years 16 through 21 $3.03
Lease Years 22 through 26 $3.33
Lease Years 27 through 31 $3.66
Lease Years 32 through 36 $4.03
Lease Years 37 through 41 $4.43
(B) SIZE OF PREMISES: In the event Tenant obtains a building permit to
construct a building of less than 20,000 square feet, Landlord and Tenant shall
each have the right to terminate this Lease by giving the other party written
notice within fifteen (15) days of Tenant's notification to Landlord that it has
obtained a building permit and designating the square footage allowed by the
building permit. In the event neither Landlord or Tenant elect to terminate this
Lease, this Lease shall remain in full force and effect except that the annual
and monthly rentals shall be decreased as provided above. In no event shall the
building exceed 32,000 square feet or be less than 20,000 square feet in ground
floor area. Notwithstanding anything in this Lease to the contrary, in the event
the Premises are less than 32,000 square feet, the number of screens shall be
proportionately reduced.
4. PREPARATION OF PREMISES BY LANDLORD AND TENANT: Xxxxxx agrees to
accept the Premises in "as-is" condition. Tenant acknowledges it has conducted a
physical inspection of the Premises and accepts same, without representation or
warranty, in fact or by law, by the Landlord and without recourse to the
Landlord as to the condition thereof or the use to which the Premises may be
applied. Landlord shall not be liable for any defects in the Premises or any
limitation on their use.
Tenant's Installations: Any and all work and installations required to
construct on the Premises a modern one-story 32,000 square foot movie theater
building, with twelve separate theaters and screens for the operation of
first-class movie theater shall be performed by Xxxxxx at its own cost and
expense and Tenant shall fully equip the Premises with all trade equipment,
lighting fixtures, furniture, operating equipment, furnishings, fixtures, floor
coverings, ventilation equipment and exterior signs and any other equipment
necessary for the proper operation of Tenant's business. All fixtures installed
by Tenant shall be new or completely reconditioned. Tenant shall not perform any
construction work or install any equipment without first obtaining Landlord's
written approval and consent. Tenant shall present to Landlord detailed plans
and specifications for such work at the time approval is sought. Landlord
reserves the right before approving any work to require Tenant to furnish
Landlord with a completion bond issued by a surety company approved by Landlord.
All construction shall be performed in accordance with the provisions of the
"Alterations and Improvements" Article of this Lease.
Xxxxxx agrees to indemnify and hold harmless Landlord from any damages
which are a direct result of Xxxxxx's construction, and Xxxxxx agrees to
promptly repair and otherwise correct any such damages. Tenant further agrees
that its construction shall be carried out in a manner that (i) will minimize
interference with the operation of the shopping center and (ii) will not
obstruct access to said shopping center. Xxxxxx agrees to diligently commence
and perform the construction of the theatre building and to diligently pursue
construction to completion during the interim term of this Lease.
3
Tenant shall procure all necessary approvals [ ] applicable government
agencies and from utility companies for adequate sewerage, electric current,
gas, water and other utilities service and tenant identification and attraction
signs to the Premises. In the event, despite its diligent good faith efforts,
Xxxxxx is unable to secure planning board approval and required sign permits
within one hundred and eighty (180) days of the date of this Lease, this Lease
shall terminate without further liability to Landlord or Tenant.
5. COVENANT OF TITLE AND QUIET ENJOYMENT: Landlord covenants and
warrants that it has full right and lawful authority to enter into this lease
for the full term hereof; that it is lawfully seized of the premises in fee
simple and has good title thereto, free and clear of all tenancies,
restrictions, and encumbrances except as to rights of other Tenants of the
shopping center to common use of parking facilities encumbrances and
restrictions of record and that at all times during the term of this lease and
any extensions of said term Tenant's quiet and peaceful enjoyment of the
premises shall not be disturbed or interfered with by Landlord or anyone
claiming under Landlord.
6. USE: The Premises shall be used by Tenant solely for the operation of
a first-run motion picture theater with no less than 10 separate theater rooms
and screens, subject to reduction if the Premises are less than 32,000 square
feet, including the incidental operation of concessions and video games
associated therewith. Tenant shall not show any film rated more restrictive than
"NC-17" or its equivalent if the rating system is modified by the Motion Picture
Association of America or its successor. Tenant shall obtain all required
licenses and approvals for such use. In occupying the Premises, Tenant shall
comply with all laws, ordinances, orders and regulations of any lawful authority
and shall keep the Premises in a neat and clean condition. Tenant acknowledges
that: (i) this Lease is a Lease of real property in the shopping center; (ii)
Landlord has executed this Lease in reliance on the Lessee's use restriction;
(iii) any deviation from the permitted use shall constitute a substantial breach
of the terms of this Lease.
7. OPERATION OF BUSINESS: Tenant shall (a) conduct its business in the
entire Premises; (b) remain open for business during customary business days and
hours for movie theaters in the city or trade area where the Shopping Center is
located; (c) adequately staff its store with sufficient employees; (d) maintain
displays of movies; (e) keep the display windows and signs, if any, well-lighted
during the hours from sundown to 12 midnight; (f) keep the Premises and exterior
and interior portions of windows, doors and all other glass or plate glass
fixtures in a neat, clean, sanitary and safe condition; (g) warehouse, store or
stock only such goods, wares, and merchandise as Tenant intends to offer for
sale at retail; (h) use for office or other non-selling purposes only such space
as is reasonably required for Tenant's business but in no event shall the space
used for such purposes exceed fifteen percent (15%) of the square foot area of
the Premises; (i) neither solicit business nor distribute advertising matter in
the parking or other common areas, (j) not place any weight upon the floor which
shall exceed the floor load capacity.
8. MAINTENANCE AND REPAIRS: Tenant, at its sole cost and expense, shall
maintain and keep in good repair, and replace, as may be required, all buildings
and improvements (which includes signs, sidewalks, landscaping, pavement and
parking areas within the Premises, if any) including repairs and replacements of
all structural and non-structural portions of the Premises.
9. XXXXXX'S FAILURE TO REPAIR: If Tenant (a) refuses or neglects to make
repairs, or (b) if Landlord is required to make exterior or structural repairs
by reason of Tenant's negligent acts or omissions, Landlord shall have the
right, but shall not be obligated, to make such repairs on behalf of and for the
account of Tenant. In such event, such work shall be paid by Xxxxxx as
additional rent promptly upon receipt of a bill therefor.
10. UTILITY PAYMENTS: Tenant shall pay for all sewer, water, gas,
electric current, telephone and other utilities used or consumed in or at the
Premises.
4
11. ADDITIONAL RENT: (a) Tenant shall, during the term, as additional
rent (hereinafter sometimes referred to as the "additional rent"), pay and
discharge, except as hereinafter provided in sub-paragraph (c), within ten (10)
days after the same shall become due and payable, all real property taxes,
assessments, water rents, rates, and charges, sewer rents and sewer access fees
or like charges, and other governmental impositions and charges of every kind
and nature whatsoever, extraordinary as well as ordinary, and each and every
installment thereof, and all fees and charges of public and governmental
authorities for construction, maintenance, occupation or use during the term, of
any passageway or space in, over or under any sidewalk or street on or adjacent
to The Premises, or for construction, maintenance or use during the term of any
part of any building covered hereby within the limits of any street, which shall
or may during the term be charged, laid, levied, assessed, imposed, become due
and payable, or liens upon or for the Premises or any part thereof, or any
buildings, appurtenances or equipment thereon or therein or any part thereof, or
the sidewalks or streets in front of or adjoining the Premises, and all taxes
charged, levied, assessed or imposed in lieu of the foregoing, together with all
interest and penalties thereon, under or by virtue of all present or future
laws, ordinances, requirements, orders, directions, rules or regulations of
Federal, State, County and City Governments and of all other governmental
authorities whatsoever. To the extent that the same may be permitted by law,
Tenant shall have the right to apply for the conversion of any assessment for
local improvements in order to cause the same to be payable in annual
installments, and upon such conversion Tenant shall pay and discharge punctually
said installments, as they shall become due and payable during the term,
provided, however, that Tenant shall be required to pay and discharge the
prorated share of all of the items enumerated in the first sentence of this
sub-paragraph (a) due and payable upon the expiration of the term of any renewal
term hereof. Tenant shall also pay, within ten (10) days after the same shall be
due and payable, all charges for water, gas, electricity, and any other service
or services furnished to The Premises or the occupants thereof during the term
of this Lease provided that any such charge or service shall have become a lien
against The Premises. Tenant shall be deemed to have complied with the covenants
of this sub-paragraph (a) if payment of such tax, assessment, water rent, rate
or charge, sewer rent, or other governmental imposition or charge shall have
been made, either within any grace period allowed by law or by the governmental
authority imposing the same during which payment is permitted without penalty or
interest, or before the same shall become a lien upon The Premises, whichever is
later, and Tenant shall, after notice by Xxxxxxxx, within twenty (20) days after
the time above provided for the payment by Tenant of the items enumerated in the
first sentence of sub-paragraph (a) above, produce and exhibit to Landlord
receipted bills or sufficient and adequate copies of same, as proof of such
payment.
(b) Tenant shall have the right to contest or review by legal proceedings,
or in such other manner as it may deem suitable (which, if instituted, Tenant
shall conduct promptly at its own expense, and free of any expense to Landlord,
and, if in Tenant's opinion necessary, in the name of Landlord), any tax,
assessment, water rent, rate or charge, sewer rent, or other public or
governmental imposition, fee or charge aforementioned, on the Premises only,
provided that such contesting or review will not subject Landlord to criminal
penalties or any nature, and, upon condition that before instituting any such
proceedings, if the contested items shall not have been paid, Tenant shall
furnish to Landlord security satisfactory to Landlord, sufficient to cover the
amount of the contested items, with interest and penalties for the period which
such proceedings may reasonably be expected to take, securing payment of such
contested items, interest and penalties, and all costs in connection therewith,
and upon the furnishing of such security satisfactory to Landlord, Tenant shall
not be deemed to be in default in the payment of such contested items.
Notwithstanding the provisions of the foregoing sentence or the furnishing of
any such security, Tenant shall promptly pay all such items if any any time The
Premises or any part thereof shall be in danger of being forfeited or lost by
reason of such nonpayment, and upon such payment any such deposit or security
shall be forthwith returned to Tenant and any such bond cancelled and
discharged. The legal proceedings herein referred to shall include appropriate
certiorari proceedings and appeals from orders therein and appeals from any
judgments, decrees or orders, but all such proceedings shall be begun as soon as
it is reasonably possible after the imposition or assessment of any contested
items and shall be prosecuted to final adjudication with reasonable dispatch. In
the event of any reduction,
5
cancellation or discharge of any such contested item, Tenant shall pay the
amount finally levied or assessed against The Premises or adjudicated to be due
and payable on any such contested items and upon such payment any such bond
cancelled and discharged, and if there shall be and refund with respect thereto,
Tenant shall be entitled to the same.
(c) Nothing herein contained shall require or be construed to require
Tenant to pay any inheritance, estate, succession, transfer, gift, franchise,
capital levy, income or profit tax, any corporate income or gross receipts tax,
that is or may be imposed upon Landlord, its successors or assigns, unless such
taxes shall be levied upon the rent reserved herein instead and in lieu of real
estate taxes upon the real property hereby demised nor shall Tenant be required
to pay any judgments or liens against The Premises created by Landlord, or
principal, interest, or other charges in respect of any mortgage covering The
Premises, all of which shall be the sole and exclusive responsibility of the
Landlord.
(d) In the event the Premises are not separately assessed and billed,
Xxxxxx agrees to pay to Landlord as additional rent, any and all real estate
taxes attributable to the building, land and improvements on the Premises, as
determined by Landlord based upon information obtained by the tax assessor's
office and Tenant shall pay its pro-rata share, as hereinafter defined, of the
real estate taxes assessed against the land of the Shopping Center. In the event
Landlord is unable to ascertain the assessment of the Premises, Tenant shall pay
its pro-rata share of the real estate taxes assessed against the shopping center
land and buildings. In addition, Tenant shall pay any fees or charges imposed by
governmental authorities against the Premises such as sewer access fees,
betterment assessments and similar charges. Tenant's pro-rata share shall be a
fraction, the numerator of which shall be the gross leaseable area of the
Premises and the denominator of which shall be the gross leasable area of the
buildings in the shopping center or tax parcel in which the Premises are
located, from time to time.
Landlord shall submit to Tenant a copy of the tax bill and/or bills for
the taxes assessed, levied, or imposed upon the land and/or building for such
tax year, together with a statement which shall indicate the amount, if any,
required to be paid by Xxxxxx as additional rent hereunder.
Within ten (10) days after the issuance of the statement, Tenant shall pay
such additional rent, if any, as set forth on such statement.
In the event Landlord shall receive a refund of taxes for any tax year for
which Xxxxxx has paid any additional rent under the provisions of this Section,
the proceeds of such refund less legal fees and other expenses incurred in
obtaining such refund, shall be applied and allocated to the periods for which
the refund was obtained and proper adjustment shall be made by the Landlord and
the Tenant.
Any payments or refunds due hereunder for any period of less than a full
tax year, at the commencement or end of the term of this Lease, shall be
equitably pro-rated to reflect such event.
Any tax upon land and/or building or other tax levied or imposed by any
taxing authority in lieu of the present method of real estate taxing shall be
deemed to be the taxes referred to in the Article.
12. COMMON AREAS: (a) The Landlord agrees to maintain parking areas,
sidewalks, roadways, exits and entrances of the shopping center. The Tenant
shall have the right, as an appurtenance to the Premises, to use the parking
areas, roadways, sidewalks, entrances and exits and other common facilities
within the shopping center in common with others entitled to the use thereof, in
accordance with and subject to the provisions of this lease and such reasonable
regulations with respect to the use thereof as the Landlord shall from time to
time establish. The Landlord may make from time to time reasonable changes in
any of the common facilities in the shopping center, which in the sole judgment
of the Landlord, will not detract from the usefulness or attractiveness of such
common facilities, except Landlord will not construct any new buildings in the
area designated the "No Build Area" on Exhibit "A". The Tenant agrees not to
cause or permit any obstruction or other interference with any roadway,
sidewalk, or other common facility appurtenant to the Premises. No trucks or
other delivery vehicles shall park or be permitted to park in the parking areas
6
within the shopping center, and all loading or unloading of merchandise,
supplies, fixtures, equipment and furniture shall be done at and through the
proper service entrance or entrances in the rear or the side of the Premises.
(b) The Landlord agrees during the term hereof to operate, manage and
maintain all such parking areas, roads, and other common facilities within the
Shopping Center, exclusive of the parking areas and landscaping in the Premises,
if any, and to maintain the landscaping, drainage and lighting facilities
therefor, all in such manner and at such cost as the Landlord in its sole
judgment may determine, it being understood and agreed that the Landlord shall
not be liable for any inconvenience or interruption of business or other
consequence resulting from the making of repairs, replacements, improvements,
alterations or additions or by doing of any other work with respect to such
common facilities, where such delay or failure is attributable to strikes or
other labor conditions, inability to obtain labor or materials or services, or
to any other cause beyond the Landlord's reasonable control.
(c) The Tenant agrees to require its employees to park their cars
only in such areas as the Landlord may from time to time designate as employees'
parking areas.
(d) Common area shall mean all service areas, parking areas,
accessways, sidewalks, common area lighting systems, landscape areas, common
area utility systems, directional and pylon signs and like items. Tenant, as
additional rent, agrees to pay to Landlord, without offset or deduction, in
equal monthly installments on the first day of each and every calendar month
during the primary term hereof and any extension periods, (pro-rata for that
portion of the calendar month in which the term hereof shall commence, if such
portion is shorter than a full month) as its share of the cost to Landlord of
keeping and maintaining the parking areas and other common facilities, the
annual amount equal to Tenant's pro-rata share as defined hereinafter of all
costs and expenses of every kind and nature as may be paid, incurred or
amortized by Landlord in operating, managing, equipping, lighting, repairing,
replacing and maintaining the common areas including but not limited to, parking
areas, common facilities and related services, properly identification and
traffic signs, and in policing the Shopping Center and affording protection
thereof against fire (if and to the extent that such policing and/or fire
protection is provided) as determined in accordance with generally accepted
accounting principles and allocated to any particular fiscal year on the accrual
method of accounting. Such costs and expenses shall include, but shall not be
limited to: maintaining, cleaning, snow plowing, sanding, salting, and lighting
the parking area and other common areas; costs and expenses of planting,
replanting and replacing flowers and landscaping; water and sewerage charges;
premiums for liability, property damage, fire and workmen's compensation
insurance including an allocation by Landlord's insurance advisor for claims
paid or to be paid by Landlord under Landlord's retention (beneath Landlord's
insurance deductible); wages, unemployment taxes; social security taxes;
personal property taxes; fee for required licenses and permits; supplies,
operation of loud speakers and any other equipment used in the operation, repair
and maintenance of the common areas, common facilities and related services; and
administrative costs equal to fifteen percent (15%) of the total costs paid or
incurred by Landlord under this Paragraph, but there shall be excluded
depreciation of the original costs of constructing, erecting and installing the
common areas, common facilities and related services.
Tenant's pro-rata share of the costs and expenses referred to herein shall
be that same percentage as set forth hereinbefore relating to Tenant's share of
Real Estate Taxes. During the first lease year, the Tenant shall pay Landlord
the annual sum of $36,480.00, payable monthly in advance, together with the
payments of rent due hereunder, in the sum of $3,040.00 per month. These amounts
are based on the Premises consisting of 32,000 square feet and shall be
proportionately reduced if the Premises are reduced in size. If Landlord shall
determine that any sums are owed it after the end of Landlord's fiscal year,
Landlord shall furnish to Tenant a statement in reasonable detail of the actual
common area costs and expenses paid or incurred by Landlord during such period
prepared in accordance with generally accepted accounting principles by
Landlord, and thereupon there shall be an adjustment between Landlord and Tenant
in the event that such pro-rata share shall be greater or less than the amount
paid by Tenant as
7
the case may require to the end that Landlord shall receive the entire amount of
Tenant's pro-rata share of such costs and expenses. At the end of each fiscal
year during the term hereof, Landlord may adjust Tenant's monthly common area
maintenance payment so that the amount shall equal one-twelfth of Tenant's
annual pro-rata share as set forth in Landlord's most recent statement. Such
statement shall be conclusive between the parties. Landlord reserves the right
to change its fiscal year.
13. DESTRUCTION AND DAMAGE: (a) If during the term of this Lease, the
buildings, improvements or the equipment on, in, or appurtenant to the Premises
at the commencement of such term or thereafter created thereon or therein shall
be destroyed in whole or in part by fire or any other cause, Tenant shall give
to Landlord immediate notice thereof, and Tenant, at its own cost and expense,
shall, promptly repair, replace, and rebuild the same with a structure of
substantially the same character and condition as existed immediately prior to
such occurrence, and Landlord shall, in no event, be called upon to repair,
replace or rebuild any such buildings, improvements, or equipment, nor to pay
any of the cost or expenses thereof, beyond or in excess of the insurance
proceeds as herein provided.
(b) For the purpose of paying towards the cost of such repairs,
replacements or rebuilding, Landlord shall make available and pay from time to
time, all net sums received under insurance policies covering such loss or
losses as provided for herein at the request of or at the direction of Tenant to
the parties whom Tenant may employ to repair, replace, or rebuild the same, as
such repairs, replacements or rebuilding shall progress, or to Tenant if the
Tenant shall make or pay for such repairs, replacement, or rebuilding, in
reimbursement for work and materials actually incorporated in the Premises. Such
payment shall be made by Landlord upon written request from an officer of
Tenant, or in the event that an architect has been retained to supervise said
work, then said payments by Landlord shall be made upon appropriate requisition
certificate of the architect in charge of such work, provided, however, that in
each instance of requisition, prior to the completion of such work, said officer
of Tenant or the architect, if any, shall also certify to Landlord, and at
Landlord's request, to the holder of any mortgage to which this lease is
subordinate, that the cost of the then remaining work necessary for completion
thereof does not exceed ninety percent (90%) of the balance of said insurance
proceeds as will remain after payment over the sum so requisitioned, and that
such work has been prosecuted in accordance with the plans and specifications
therefor. If in the course of such work, any mechanics or other lien or order
for the payment of money shall be filed against the Premises or against Landlord
or Tenant or any contractor of Tenant or if Tenant shall be in default in the
payment of any net rent or additional rent then due and payable or if there are
any existing and unremedied defaults on the part of Tenant under the agreements,
terms, covenants and conditions of this lease as to which Landlord has served
notice upon Tenant and with respect to which Tenant has failed to cure within
the time provided for herein, Landlord shall not be obligated to make any
payment of such insurance proceeds until and unless such lien or order shall
have been fully bonded, satisfied, cancelled, discharged of record, or complied
with and/or until such default shall have been cured.
(c) If the net amount of such insurance proceeds shall be
insufficient for the proper and effective repair, replacement or rebuilding of
such damaged or destroyed buildings, improvements or equipment, Tenant shall pay
the additional sums required, and if the amount of such insurance proceeds shall
be in excess of the cost thereof, the excess shall be paid to and retained by
Tenant.
(d) Unless the repairs, replacement or rebuilding to be performed by
Tenant is delayed by Landlord's failure to make the insurance proceeds available
for such work, or unless a delay occurs by reason of Tenant's inability to
adjust the amount of insurance to be paid, Tenant shall proceed to repair,
replace, or rebuild the structures, improvements and equipment promptly and, in
the event that such work shall not be commenced within thirty (30) days from the
date of payment to Landlord or Tenant of the insurance proceeds by the company
or companies insuring such loss or damage and shall not be expeditiously
prosecuted to completion, Landlord shall have the right to cancel and terminate
this lease by giving to Tenant not less than sixty (60) days notice of intention
to do so and, if upon the expiration of the time fixed in such notice, such work
shall not have been commenced and the other agreements, terms, covenants and
conditions herein
8
complied with, or if after commencement thereof, the work shall not have been
expeditiously prosecuted as the case may be, this Lease and the term hereof
shall terminate and all such insurance proceeds shall belong to and shall be
retained by Landlord.
(e) Such work and the performance thereof shall be subject to and
shall be performed in accordance with the provisions of the paragraph of the
lease headed "ALTERATIONS AND IMPROVEMENTS".
(f) The thirty (30) day period mentioned in the foregoing
subparagraph (d) shall be extended by such period as Tenant may be delayed by
strikes, labor or material shortages, embargos, governmental restrictions or
priorities, or other causes beyond Tenant's reasonable control, including
obtaining insurance proceeds.
14. ALTERATIONS AND IMPROVEMENTS: Subject to the compliance with and
observance of all of the terms, conditions, covenants and agreements provided
for in this Lease, Tenant shall have the right, to be exercised at Tenant's
option at any time during the term of this Lease, to make alterations,
improvements, but not building additions, in and to the Premises, provided
however, that Tenant notify Landlord of its intention to make such alterations
and improvements in writing prior to the commencement of any such work, together
with detailed plans and specifications, and obtains the prior written approval
of the Landlord, such approval not to be unreasonably withheld. Upon approval of
Landlord of such work, Tenant shall, prior to the commencement of work in excess
of thirty (30) percent of the appraised value of the building, procure and
deliver to Landlord, adequate security in an amount equal to the estimated cost
of construction of such alterations and improvements, reasonably satisfactory to
Landlord. Tenant shall comply with the following provisions:
(a) Make, erect and complete the proposed improvement substantially
in accordance with such plans and specifications therefor, and in compliance
with the building code and all laws, ordinances, rules, regulations and orders
of any governmental bureau, body or officer having competent authority to make
the same and which may be applicable to the erection or construction of said
improvement.
(b) Complete said improvement within the time to be therein specified
and fully pay for the same at the times and in the manner as fixed by contracts
therefor.
(c) Perform any and all duties which are or may be legally imposed on
Landlord as owner of the Premises in connection with the construction and obtain
any necessary certificate of occupancy therefor.
15. EMINENT DOMAIN: In the event the Premises shall be taken by or
pursuant to any governmental authority or through the exercise of the right of
eminent domain, Landlord and Tenant shall join and cooperate in resisting such
proceeding if such resistance is feasible and desirable, and if it is not, shall
join and cooperate in prosecuting their respective claims for damages incurred
from the successful exercise of such right or proceeding. Any condemnation award
shall be paid as follows: To the Landlord for the then value of its land and
building, except Landlord and Tenant shall apportion any value for the building
so that Tenant shall receive 95% of the building value in lease year 1, to be
reduced at the rate of 5% per year for each lease year thereafter so that Tenant
shall receive no award if the condemnation occurs after the 20th lease year.
If the whole of the Premises shall be taken or condemned by any competent
authority for any public use or purpose during the term of this Lease, all
obligations of Tenant shall cease upon the date of the taking and any unearned
rent paid by Tenant shall be refunded.
In the event that a part of the Premises shall be taken or condemned, and:
(a) The part so taken includes the building on the Premises or any part
thereof; or
(b) The part so taken shall remove from the Premises forty percent (40%)
or more of the frontage of depth of the parking area thereof; or
9
(c) Such partial taking shall result in cutting _____ direct access from
the Premises to any adjacent public street or highway without an
alternate access acceptable to Tenant, or
(d) Such partial taking in any other way reduces or damages the Premises
to an extent that the same may not be effectively used for the
purposes hereof;
Then and in any such event, the Tenant may at any time either prior to or
within a period of sixty (60) days after the date when possession of the
Premises shall be required by the condemning authority, elect to terminate this
Lease. In the event that Tenant shall fail to exercise this option to terminate
this Lease or, in the event that a part of the premises shall be taken or
condemned under circumstances under which the Tenant will have no such option,
then in either such event, this Lease shall continue in effect with respect to
the portion of the Premises not so taken, and Tenant will, with all due
diligence and at its own cost and expense, repair and restore the Premises or
what remains thereof to their former condition. The monthly rent due Landlord
under this Lease shall be adjusted to compensate Tenant for any loss sustained
in area and usability, in proportion to the percentage of the Premises which is
taken.
16. MORTGAGING OF LANDLORD'S ESTATE: Landlord shall have the right at
any time or from time to time during the continuance of this Lease, as security
for any indebtedness owed by it, to create an encumbrance against its estate in
the premises or any part hereof, and this Lease shall be automatically
subordinate thereto, provided if Tenant is in full compliance with its
obligations hereunder, Landlord shall obtain a Non-disturbance, Recognition and
Attornment Agreement recognizing this Lease.
17. ASSIGNMENT AND SUBLETTING: Tenant shall not assign, mortgage or
encumber this Lease, in whole or in part, or sublet all or any part of the
Premises except as provided in this Lease. In addition, for the purposes of this
Article, an assignment shall be deemed to include any consolidation, merger or
transfer of controlling interest in ownership. Notwithstanding the foregoing,
Tenant may assign its interest in the Lease to family members of its principals,
Xxxx Xxxxxx and Xxxxxx Xxxxxx only and Tenant may grant a licence* for the
operation of the refreshment concession area on the Premises. In addition,
Tenant may assign its interest in the Lease to an experienced and reputable
operator of movie theaters, operating at least 5 other theater locations and
having a net worth of at least $10,000,000.00. In connection with any such
assignments, the Tenant shall furnish Landlord with a copy of the executed
assignment within ten (10) days of the assignment and the assignment shall be in
a form reasonably acceptable to Landlord and shall provide, amongst other
things, that the assignee shall assume all of the Tenant's obligations under the
Lease, without limitation. In no event shall Tenant be released from its primary
liability under this Lease in connection with any lease assignment.
18. DEFAULT OF TENANT: If the Tenant shall fail to make any payment of
rent within ten (10) days after Xxxxxx has received written notice of such
default or if Tenant shall fail to keep and perform any other covenant of this
Lease and shall continue in default for a period of thirty (30) days after
Xxxxxx has received written notice of such default and demand of performance
from Landlord, Landlord may declare the term ended and enter upon the premises
and expel Tenant therefrom without prejudice to other remedies available to
Landlord. No such entry by Landlord shall bar Landlord from the recovery of
damages [or the breach of any of the covenants hereof by Tenant, and, Tenant
shall remain liable for the payment of rent and other charges under the Lease,
including brokerage commissions and expenses to prepare the Premises for
re-rental, and all costs of maintaining the Premises until a new Tenant
commences payment of rent, and thereafter, Tenant shall remain liable for any
deficiencies after application of rent payments received by Landlord, but Tenant
shall not be entitled to excess payments received by Landlord, if any. Provided,
however, if any default shall occur (other than in the payment of rent) which
cannot with diligence be cured within a period of thirty (30) days and Tenant,
prior to the expiration of thirty (30) days from and after the giving of notice
as aforesaid, commences to eliminate such default and proceeds diligently to
take steps to cure the same, Landlord shall not have the right to declare the
term ended by reason thereof. In addition to Xxxxxxxx's rights hereunder, in the
event Landlord does not receive rent payments within ten (10) days of the date
required by this Lease, Tenant
10
shall pay Landlord an amount equal to 5% of the payment past due, as additional
rent, together with the next payment of rent by Xxxxxx.
Landlord shall be entitled to recover from Tenant other all reasonable
costs and legal fees incurred in connection with any default by Tenant.
19. SECURITY DEPOSIT: In lieu of a security deposit, the principals
of the Tenant corporation, Xxxx Xxxxxx and Xxxxxx Xxxxxx personally and jointly
guarantee rent and additional charges up to a maximum of $50,000.00, for a
period of five (5) years from the commencement of the primary term of this
Lease. On the execution date of this Lease, Xxxx Xxxxxx and Xxxxxx Xxxxxx,
hereinafter collectively referred to as the Guarantors, shall execute and
deliver the Guarantee of Lease attached hereto as Exhibit C.
20. NOTICE: All notices authorized or required to be given to Landlord
shall be sent by Certified Mail or by Federal Express or comparable next day
mail service providing a receipt, with prepaid postage addressed to Landlord at
the address set forth in this Lease and those authorized or required to be given
to Tenant shall be sent in the same manner to Tenant at the Premises, subject to
the right of either party to designate by written notice a new address to which
said notices nay be sent.
21. RECORDING: Tenant may, at its option, record a Short Form Memorandum
of Lease executed by all parties and the cost of all documentary stamps, or
conveyancing, transfer tax and recording fees shall be paid by Xxxxxx. Landlord
covenants and agrees, after receipt of the Short Form Memorandum of Lease and
other documents and agreements, as may be required herein, to have same properly
executed, attested and acknowledged and to return same to Tenant.
22. MODIFICATION: No modifications, alterations, or amendments of this
Lease or any agreements in connection therewith shall be binding or valid unless
in writing and duly executed by both Landlord and Tenant herein.
23. BINDING ON SUCCESSORS AND ASSIGNS: It is further expressly agreed
and understood that all the covenants and agreements herein made, shall extend
to and be binding upon the heirs, devises, executors, administrators, successors
in interest, and assigns of Landlord, and of Tenant as permitted above, and
shall run with the land. Where more than one party shall be Landlord under this
lease, the word Landlord whenever used in this Lease shall be deemed to include
said parties hereto jointly and severally.
24. SEVERABILITY: If any Term or provision of' this Lease or the
application hereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this lease, or the application of
such term or provision to persons whose circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby.
25. CLOSED PREMISES: If Tenant shall abandon the Premises, or cease to
conduct business and allow the Premises to remain vacant for a consecutive
period of sixty (60) days, except for any period the Premises are closed due to
fire or casualty, Landlord shall have the option to declare the term ended,
terminate this Lease and relet the Premises. Upon exercising said option by
Xxxxxxxx, Tenant shall remain liable under this Lease.
26. UTILITIES: Landlord hereby grants to Tenant, its successors and
assigns, non-exclusive easements appurtenant to the Tenant's Premises for the
purpose of installing, operating, maintaining, repairing, replacing and renewing
any and all utility lines and related facilities over, above, along, and under
the Premises. For such utilities now installed, Landlord hereby grants to
Tenant, its successors and assigns, the right and easement to tie in and use
such existing utilities without any interference to the Shopping Center and
Tenant shall indemnify Landlord from all claims and damages arising from
Tenant's installation of utility services to the Premises.
27. INSURANCE: (a) Tenant shall, throughout the term of this Lease, at
its own cost and expense, provide and keep in force for the benefit of
11
Landlord, insurance against loss or damage or injury or destruction of any
building or buildings now or hereafter erected on the Premises resulting from
fire, or from any hazard included in the so-called extended coverage
endorsement, (including sprinkler leakage, collapse, earthquake and vandalism
and malicious mischief). In addition to the foregoing, Tenant shall, at its own
cost and expense, provide and keep in force for the benefit of Landlord,
insurance against loss or damage or injury or destruction of any building or
buildings now or hereafter erected on the Premises resulting from water damage.
Tenant shall provide and keep in force all such insurance in an amount equal to
the full replacement cost of the building, including the fixtures and equipment
therein. If, at any time, Landlord and Tenant cannot agree as to the full
replacement cost of the building, and the fixtures and equipment, the value of
same shall be determined by the insurance company by whom the policy or policies
of insurance are being maintained, and the amount of insurance so determined
shall be the amount of insurance to be carried. Such insurance policies to be
provided for and kept in force by Tenant shall provide that the loss, if any, be
payable to Landlord and Tenant as their respective interests may appear, except
as herein provided, and such insurance policies shall exclude foundations,
excavation, and the usual items customarily excluded in such insurance policies.
Where reference is made to fixtures and equipment hereto intend that the same be
fixtures and equipment appurtenant to and used in connection with the operation
of the building. Landlord may require that the interest of any mortgagee under a
mortgage to which this lease is subordinate, be protected by proper endorsements
to any such policies of insurance, and that the originals of such policies of
insurance be delivered either to such mortgagee or to Landlord.
(b) Tenant shall provide and maintain general liability insurance
(including personal injury and property damage) in the usual form in the amounts
of $1,000,000/$1,000,000 and such policies shall inure to both Landlord and
Tenant; and Tenant shall pay the premium on all said policies from time to time;
and Tenant shall deliver to Landlord certificates for said policies.
(c) In the event of the occurrence of a default as defined in the
paragraph of this Lease headed "DEFAULT OF TENANT", whether or not such default
shall have been waived by Landlord, Landlord shall have the option of requiring
Tenant to provide and maintain rent insurance in an amount equal to the sum of
the annual rent as provided for herein, and any increases in the annual rent,
plus the amount of any additional rent that Tenant is required to pay, for a
period of one (l) year, which policies may be payable to Tenant, or may be
payable to Landlord and Tenant, as their interest may appear, if procurable in
that form. Said policies of insurance shall be deposited with Landlord and
Tenant shall and does hereby assign to Landlord the proceeds of such insurance,
if, as and when collected, and said proceeds shall be applied by Landlord on
account of the annual rent or any increased annual rent or any additional rent
accruing under the terms of this Lease, the balance, if any, to be paid to
Tenant and Tenant shall pay the premium on all said policies from time to time.
It is agreed that the annual rent or the increased annual rent payable hereunder
shall xxxxx to the extent of the proceeds of such insurance policies as may be
received by Landlord, but that Tenant shall remain fully responsible for such
rents which exceed the amount of the proceeds of such insurance.
(d) Each such policy or certificate therefor issued by the insurer
shall, to the extent obtainable, contain an agreement by the insurer that such
policy shall not be cancelled without at least thirty (30) days prior written
notice to Landlord and to any such mortgagee named as loss payee thereunder.
Tenant shall have the right to take out such insurance under a blanket insurance
policy or policies which can cover other properties owned or occupied by Tenant,
as well as the Premises.
(e) Upon the failure at any time on the part of Tenant to procure and
deliver to Landlord any of the policies of insurance or certificates as
hereinabove provided, at least twenty (20) days before the expiration of the
prior insurance policies, if any, or to pay the premiums therefor, Landlord may
from time to time, as often as such failure shall occur, procure such insurance
for a term not exceeding three (3) years and pay the premiums therefor, and any
sums paid for insurance by Landlord shall be and become and are hereby declared
to be rent under this Lease forthwith due and payable, and shall be collectible
accordingly.
12
(f) Tenant shall procure an appropriate clause in, or endorsement on,
any fire or extended coverage insurance policy covering the Premises and the
building and personal property, fixtures and equipment located thereon or
therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery, and having obtained such clauses and/or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, Tenant agrees that it will not make any claim against or seek to
recover from the Landlord for any loss or damage to its property or the property
of others resulting from fire or other perils covered by such fire and extended
coverage insurance; provided, however, that the release, discharge, exoneration
and covenant not to sue herein contained shall be limited by the terms and
provisions of the waiver of subrogation clauses and/or endorsements or clauses
and/or endorsements consenting to a waiver of right of recovery and shall be
co-extensive therewith.
28. INDEMNITY: (a) Tenant shall indemnify Landlord and save it harmless
from suits, actions, damages, liability and expense in connection with loss of
life, bodily or personal injury or property damage arising from or out of any
occurrence in, upon, or at or from the Premises or the occupancy or use by
Tenant of said Premises or any part thereof, or occasioned wholly or in part by
any act or omission of Tenant, its agents, contractors, employees, servants,
invitees, licensees or concessionaires, including the sidewalks and common areas
and facilities within the Shopping Center; and (b) Tenant shall store its
property in and shall occupy the Premises and all other portions of the Shopping
Center at its own risk, and releases Landlord, to the full extent permitted by
law, from all claims of every kind resulting in loss of life, personal or bodily
injury or property damage; (c) Landlord shall not be responsible or liable at
any time for any loss or damage to Tenant's merchandise or equipment, fixtures
or other personal property of Tenant or to Tenant's business; and (d) Landlord
shall not be responsible or liable to Tenant or to those claiming by, through or
under Tenant for any loss or damage to either the person or property of Tenant
that may be occasioned by or through the acts or omissions of persons occupying
adjacent, connecting or adjoining premises; and (e) Landlord shall not be
responsible or liable for any defect, latent or otherwise, in any building in
the Shopping Center or any of the equipment, machinery, utilities, appliances or
apparatus therein nor shall it be responsible or liable for any injury, loss or
damage to any person or to any property of Tenant or other person caused by or
resulting from bursting, breakage or by or from leakage, steam or snow or ice,
running or the overflow of water or sewerage in any part of said Premises or for
any injury or damage caused by or resulting from acts of God or the elements, or
for any injury or damage caused by or resulting from any defect or negligence in
the occupancy, construction, operation or use of any of said Xxxxxxxx, building,
machinery, apparatus or equipment by any person or by or from the acts or
negligence of any occupant of the Premises; (f) Tenant shall give prompt notice
to Landlord in case of fire or accidents in the Premises or of defects therein
or in any fixtures or equipment; (g) In case Landlord shall without fault on its
part be made a party to any litigation commenced by or against Tenant, then
Tenant shall protect and hold Landlord harmless and shall pay all costs,
expenses and reasonable attorneys' fees.
29. REPAYMENT TO LANDLORD: In case Landlord shall pay or be compelled to
pay any sum of money or do any act which shall require the expenditure or
payment of any sum by reason of the failure of Tenant to perform any one or more
of the covenants herein contained, Tenant shall immediately repay the same to
Landlord upon demand, with interest thereon at ten (10%) percent per annum, and
in default hereof, the sum or sums so paid by the Landlord together with all
interest, costs, and damages, shall or may be added as additional rent to the
next installment of rent becoming due on the next rent day, or on any subsequent
rent day fixed by this lease, and shall for all purposes whatsoever be deemed to
be rent due and payable on such rent day, or on any subsequent rent day, as
Landlord may, at Landlord's option, elect, and shall be payable as such, but it
is expressly covenanted and agreed that payment by Landlord of any such sums of
money or the doing of any such acts shall not be deemed to waive or release the
default in the payment or doing thereof by Xxxxxx, or the right of Landlord to
recover possession, at Landlord's election, of the Premises by reason of
Tenant's default with respect to any such payment of act.
13
30. LIENS: If any mechanic's or other lien or order for the payment of
money shall be filed against the Premises or any building or improvement thereon
by reason of any change, alteration, addition, or new building or the cost or
expense thereof, or any contract relating to the same, or against Landlord as
owner thereof as a result of or arising out of any labor or material furnished,
or alleged to have been furnished, or to be furnished, to or for the Tenant at
the Premises, Tenant shall, within twenty (20) days after notice to Tenant of
the filing thereof, cause the same to be cancelled and discharged of record by
bond or court order at the election of Tenant, but in a manner to the reasonable
satisfaction of Landlord and shall also defend for Landlord, at Xxxxxx's sole
cost and expense, any action, suit or proceeding which may be brought thereon,
or for the enforcement of the same, and will pay any damages and satisfy and
discharge any judgment entered therein and save harmless Landlord from any
liability, claim, or damage resulting therefrom.
31. BROKER'S COMMISSION. Landlord and Tenant represent and warrant that
there are no claims for brokerage commissions or finders fees in connection with
the execution of this Lease, except as set forth below and each party agrees to
indemnify the other against and hold it harmless from all liabilities arising
from any such claims, including cost of counsel fees. Xxxxxxxx agrees to pay an
agreed upon brokerage commission to the following broker only: NO BROKER
32. LANDLORD'S LIABILITY: Tenant shall look solely to the estate and
property of the Landlord in the land and building comprising the Premises for
the collection of any judgment (or other judicial process) requiring the payment
of money by Landlord in the event of any default breach by Landlord with respect
to any of the terms, covenants and, and conditions of this Lease to be observed
and/or performed by Landlord, and no other property or assets of the Landlord
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies.
33. NO WAIVER: Failure of Landlord or Tenant to insist upon the strict
performance of any provision or to exercise any option or any rules and
regulations shall not be construed as a waiver for the future of any such
provisions, rule or option. The receipt by Landlord of rent with knowledge of
the breach of any provision of this lease shall not be deemed a waiver of such
breach. No provision of this Lease shall be deemed to have been waived unless
such waiver be in writing signed by each party. No payment by Tenant or receipt
by Landlord of a lesser amount than the monthly rent shall be deemed to be other
than on account of the earliest rent then unpaid nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as 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 provided, and no waiver by
Landlord in respect to any other Tenant shall constitute a waiver in favor of
Xxxxxx.
34. INDEMNIFICATION OF LANDLORD: Tenant shall hold Landlord harmless
against any and all claims, damages, suits or causes of action for damages
arising after the commencement of any during the term hereof, or any renewal
term hereof, and any orders, decrees or judgments which may be entered therein,
brought for damages or alleged damages resulting from any injury to person or
property or from loss of life sustained in or about the Premises and the
buildings and improvements thereon, except for those attributable to Landlord's
negligence.
35. NET LEASE: This Lease shall be deemed and constituted to be a net
lease of unimproved land and the Tenant shall pay absolutely net during the
lease term, the rent and all the payments required hereunder, free of any
deductions without abatement, deduction or set off, unless expressly otherwise
provided in this Lease.
36. BANKRUPTCY OR INSOLVENCY: If at any time during the term of this
Lease, or any renewal or extension of this Lease, Tenant shall voluntarily
petition or file for reorganization under the Bankruptcy Laws, or shall take
advantage of any insolvency act by voluntary petition or assignment for the
benefit of creditors, then and in any such event, unless Tenant accepts or
rejects this Lease within sixty (60) days of the filing date or any applicable
time limit set by the bankruptcy laws, Landlord may, at its option, upon at
least ten (10) days notice, declare this Lease terminated
14
and of no further force or effect and pay to Tenant an amount equal to six (6)
months rent together with said termination notice.
37. SIGNS: (a) Tenant shall purchase an identification sign and install it
above the canopy or elsewhere in front of the Premises. The design and location
of said sign shall be subject to the approval of Landlord. (b) At Tenant's
expense and subject to Tenant's compliance with all applicable codes, laws and
ordinances and to Tenant's obtaining all required permits and approvals, Tenant
shall have the right to install a tenant identification pylon sign in the area
designated (Proposed Tenant Pylon Sign) on Exhibit A attached hereto. The size,
design and construction of said signs shall be subject to the approval of
Landlord, not to be unreasonably withheld or delayed. Other than the foregoing,
the Tenant shall not place or suffer to be placed or maintain any exterior sign,
awning or canopy, upon or outside the Premises or in the Shopping Center. Tenant
shall maintain any such signs or other installation as may be approved, by
Landlord, in good condition and repair.
38. RULES AND REGULATIONS: Xxxxxx agrees as follows: (a) All deliveries or
shipments of any kind to and from the Premises, including loading and unloading
of goods, shall be made only by way of the rear of the Premises or at any other
location designated by Landlord, and only at such times designated for such
purpose by Landlord;
(b) Garbage and refuse shall be kept in the kind of container
specified by Landlord and shall be placed at the rear or side of the Premises,
for collection at the times specified by Landlord; Tenant to pay the cost of
removal;
(c) No radio, television, phonograph or other similar devices, or
aerial attached thereto (inside or outside) shall be installed without first
obtaining in each instance the Landlord's consent in writing, and if such
consent is given, no such device shall be used in a manner so as to be heard or
seen outside the Premises. No consent shall be required if Tenant is showing
movies on television or other visual display rather than screens;
(d) Tenant shall keep the Premises at a temperature sufficiently
high to prevent freezing of water in pipes and fixtures;
(e) the outside area immediately adjoining the Premises, including
the sidewalk and loading area, shall be kept clean and free from snow, ice, dirt
and rubbish by Tenant, and Tenant shall not place, suffer or permit any
obstructions or merchandise in such areas;
(f) Tenant shall not use the public or common areas in the Shopping
Center for business purposes;
(g) Plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no foreign substance of any kind shall
be permitted therein;
(h) Tenant shall keep the Premises free of pests and insects and
Tenant shall use, at Tenant's cost, a pest extermination contractor at such
intervals as reasonably necessary;
(i) Tenant shall not burn trash or garbage in or about the Premises
on the Shopping Center;
(j) Tenant shall not place, suffer or permit displays, (except Tenant
may maintain advertisement display windows or portable displays for cinema
attractions) decorations or shopping carts on the sidewalks in front of the
Premises or on or upon any of the common areas of the Shopping Center;
(k) Landlord may amend or add new reasonable rules and regulations
for the use and care of the Premises, the buildings of which the Premises are a
part, and the common areas and facilities.
39. TENANT'S RESPONSIBILITY FOR HAZARDOUS WASTE: Tenant shall not use the
Premises for the generation, storage, treatment or disposal of Hazardous Waste,
and hereby certifies that its operations on or other use of the Premises will
not involve same. For purposes of this lease, the term "Hazardous Waste" is
defined by cumulative reference to the following
15
sources as amended from time to time: (1) The Resource Conservation and Recovery
Act of 1976, 42 USC 901 et seq. (RCRA); (2) the Comprehensive Environmental
Resource, Compensation and Liability Act of 1980, Public Law 96-610; and (3) any
federal, state or municipal regulations, rules or orders issued or promulgated
under or pursuant to any of the foregoing by any agency, department or other
administrative, regulatory or judicial body. Tenant shall indemnify Landlord for
any liability imposed should the provisions of this section be or become untrue.
The warranty of this section shall survive the expiration or termination of this
Lease.
40. FORCE MAJEURE: Landlord shall be excused for the period of any
delay in the performance of any obligations hereunder when prevented from so
doing by cause or causes beyond Landlord's control which shall include, without
limitation, all labor disputes, civil commotion, war, war-like operations,
invasion, rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or controls, fire or other casualty, inability to
obtain any material, services or financing or through acts of God.
41. HOLDING OVER: If the Tenant remains in the Premises beyond the
expiration of this Lease, such holding over shall not be deemed to create any
tenancy, but the Tenant shall be a Tenant at Sufferance only at a daily rate
equal to twice the Rent and other charges under this Lease.
42. ESTOPPEL CERTIFICATES: Xxxxxx agrees, at any time during the lease
term and within twenty (20) days of any request from the Landlord, to execute,
acknowledge and deliver to the Landlord a written statement, certifying that
this Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect as modified, and
stating the modifications), and the dates to which minimum rent and other
charges have been paid in advance, if any; whether or not there are any existing
set-offs or defenses against the enforcement of the agreements, terms or
conditions hereof upon the part of Tenant or Landlord to be performed or
complied with (and, if so, specifying the same), it being intended that any such
statement delivered pursuant to this Article may be relied upon by any party
dealing with Landlord.
43. TENANT'S OPTIONS TO EXTEND THE LEASE: Provided that when Tenant
exercises the rights hereinafter set forth, Tenant is not then in default of any
material term or provision of this Lease and further provided that Tenant is
operating its permitted use in the Premises, Tenant shall have the option to
extend the term of this Lease for two (2) consecutive periods of ten (10) years
each subject to and upon all of the terms and conditions contained in this
Lease. Each option period shall be deemed exercised by Tenant unless Xxxxxx
delivers written notice to Landlord at least six months prior to the expiration
of the primary term in the case of the first option to renew or of the expiring
renewal period, in the case of the remaining option to renew, of its intention
not to extend the lease term.
44. PERCENTAGE RENT: During the option periods only, if exercised by
Tenant, (a) The Tenant agrees to pay to Landlord during each year of any
extension or renewal of this Lease, as additional rent, a percentage rent with
respect to each lease year (as hereinafter defined) in the amount equal to five
percent (5%) of Tenant's gross sales (as hereinafter defined) in excess of the
following amounts:
For the period: lease years 22 through 26: $ 8,000,000.00
For the period: lease years 27 through 31: $ 8,800,000.00
For the period: lease years 32 through 36: $ 9,680,000.00
For the period: lease years 37 through 41: $10,648,000.00
(b) The phrase "lease year" as used herein shall mean the twelve full
calendar months immediately following commencement of the term hereof, ending on
the last day of the month in which the Commencement Date occurs, and thereafter
"lease year" shall mean each twelve calendar month period following the
expiration of the first lease year of the term hereof.
(c) Said percentage rent shall be pro-rated and paid
quarter-annually. The first payment of percentage rent shall be paid on or
before the fifteenth (15th) day after the last day of the first three (3)
calendar months of the first lease year of the extended term hereof, and another
payment of percentage rent shall be paid on or before the fifteenth (15th) day
after the end of each successive 3-month-calendar-period
16
thereafter. If, at the end of any lease year, the total amount of percentage
rent required to be paid by Tenant exceeds the total amount of percentage rent
required to be paid by Tenant during such lease year, Tenant shall receive a
credit equivalent to such excess which may be deducted by Tenant from the next
payment of minimum rent due under this Lease.
(d) For the purpose of computing the percentage rent payable
hereunder with respect to the first lease year of the extended term hereof, the
gross sales received during the first fractional calendar month, if any, of the
term hereof shall be added to the gross sales for the first 3-month period of
the first lease year of the term hereof.
(e) The term "gross sales" as used herein is hereby defined to mean
the sum of all sales of Tenant and of all licensees, concessionaires and
subtenants of Tenant, from all business conducted upon or from the Premises
whether such sales be evidenced by check, credit, charge account, exchange or
otherwise, and shall include, but not be limited to, the amounts received from
the sale of goods, wares and merchandise and for services performed on or at the
Premises together with the amount of all orders taken or received at the
Premises whether such orders be filled from the Premises or elsewhere, and
whether such sales be made by means of merchandise or other vending devices in
the Premises. If any one or more departments or other divisions of Tenant's
business shall be sublet or conducted by any person, firm or corporation other
than Tenant, (which reference as used in this Article and elsewhere in this
Lease shall not be construed to grant the Tenant any permission to sublease or
permit others to occupy any portion of the Premises other than as hereinafter
expressly provided), then there shall be included in gross sales for the purpose
of fixing the percentage rent payable hereunder all the gross sales of such
departments or divisions, for sales made at the Premises in the same manner and
with the same effect as if the business or sales of such departments and
divisions of Tenant's business had been conducted by Tenant itself. Gross sales
shall not include the amount of any sales, use or gross sales tax imposed by any
federal, state, municipal or governmental authority directly on sales and
collected from customers, provided that the amount thereof is added to the
selling price or absorbed therein and paid by the Tenant to such governmental
authority. No franchise or capital stock tax and no income or similar tax based
upon income or profits as such shall be deducted from gross sales in any event
whatever. Each charge or sale upon installment or credit shall be treated as a
sale for the full price in the month during which such charge or sale shall be
made, irrespective of the time when Tenant shall receive payment (whether full
or partial) therefore.
(f) The Tenant shall deliver to the Landlord monthly reports of its
gross sales within fifteen (15) days after the end of each calendar month during
the extended term hereof. At the end of each lease year, the Tenant shall
deliver to the Landlord a complete statement, certified by a certified public
accountant, showing the gross sales made by the Tenant and by each of its
subtenants, licensees and concessionaires if any, during the period for which
such payment is made, and the Tenant agrees to keep on the Premises or at its
principal office, in accordance with recognized sound accounting practices,
accurate and detailed records and accounts of its gross sales for such periods,
and to require its subtenants, licensees and concessionaires, if any, to keep on
the Premises similar records and accounts. All such records and accounts and all
supporting date shall be retained and preserved by the Tenant and by its
subtenants, licensees and concessionaires, if any, for a period of at least
three (3) years. The Landlord shall have the right to have its auditors, from
time to time and at reasonable times during the Tenant's business hours, make a
special audit of the records and accounts on which such statements are based,
for the purpose of verifying the amount of percentage rent due hereunder. If any
such statement is found to be incorrect by more than three percent (3%) of the
amount shown thereon, the Tenant shall pay for such special audit, but if such
audit proves the statement to be correct within three percent (3%) of the amount
shown thereon, the expense of the special audit shall be borne by the Landlord.
Any deficiency determined by such audit shall, together with interest thereon at
eighteen percent (18%) per annum from the date such additional amount should
have been paid, be forthwith paid to the Landlord upon Landlord furnishing
Tenant a statement thereof. Failure to audit the gross sales for any year shall
not waive the Landlord's right at any time to collect any additional rent which
Landlord may at any time ascertain to be due it. The furnishing by Tenant to the
Landlord of any
17
grossly incorrect statement of gross sales shall constitute a breach of this
Lease.
45. END OF TERM: Tenant shall and will on the last day of the term
hereof, or upon any earlier termination of this Lease, or upon any re-entry by
Landlord upon the Premises pursuant to the provisions of this Lease, will and
truly surrender and deliver up, into the possession and use of the Landlord,
without delay, the Premises with the building and other leasehold improvements
including all pipes, plumbing, electric wires, light fixtures, boilers and
heating air-conditioning equipment, and all machinery, in good repair, order and
condition, and broom clean, except for: (i) reasonable wear and tear. Furniture,
trade fixtures and business equipment and merchandise (not constituting part of
the Premises or buildings on the Premises) may be removed by Tenant upon or
prior to termination of this Lease. Any structural injury to the building or
other injury which necessitates fundamental changes in or repairs to the
building caused by such removal shall be repaired by Tenant. Any personal
property of Tenant which shall remain in the building after the termination of
this Lease and/or the removal of Tenant from the building, may, at the option of
Landlord, be deemed to have been abandoned by Tenant and either may be retained
by the Landlord as the property of Landlord or be disposed of, without
accountability in such manner as Landlord sees fit and at Tenant's expense.
Tenant shall not remove building plumbing, heating, ventilation, air
conditioning equipment or lighting fixtures or other leasehold improvements
affixed to the building.
46. TENANT'S RIGHT TO MORTGAGE ITS LEASEHOLD INTEREST:
A. MORTGAGE OF LEASE: The Tenant is given and has the absolute right
without the Landlord's consent to mortgage its interest in this Lease provided
the holder is a reputable institutional lender, and further provided that no
such mortgage shall extend to or affect the fee, the reversionary interest, or
the estate of the Landlord in an to any land or building and improvements now or
hereafter erected on the Premises.
B. NONBINDING EFFECT ON LANDLORD: No mortgage or assignment of this
Lease shall be binding upon the Landlord in the enforcement of its rights under
this Lease, nor shall the Landlord be deemed to have any notice thereof, unless
and until a fully confirmed copy of such instrument affecting such mortgage or
assignment, in form proper for record, shall have been delivered to the
Landlord.
C. NOTICE OF LEASE DEFAULT: If the holder of any such mortgage
shall give the Landlord, before any default shall have occurred in this Lease, a
written notice containing the name and post office address of such holder, the
Landlord shall thereafter give to such holder a copy of each notice of default
by the Tenant at the same time as any such notice of default shall be given by
the Landlord to the Tenant. The copy of such notice of default shall, in each
instance, be deemed duly given to the holder of such mortgage when deposited
with any United States Post Office enclosed in securely sealed envelope,
postpaid, and addressed to such holder at the post office address of such holder
last furnished to the Landlord.
D. CURE OF DEFAULT: The Landlord will accept performance by the holder
of any such mortgage of any term of this Lease required to be performed by the
Tenant, with the same force and effect as though performed by the Tenant, if at
the time of such performance the Landlord shall be furnished with evidence
satisfactory to the Landlord of the interest in the Premises claimed by the
person, firm, or corporation tendering such performance or payment. The holder
of such mortgage shall have ten days after receipt of any such notice of default
within which to cure any default in the payment of rent or additional rent
required to be paid under this Lease and a period of 30 days within which to
cure any other default.
E. SUBORDINATION PROVISION: The Tenant shall have the right to mortgage
this Lease, provided that at no time shall there be more than one such mortgage.
The holder of any mortgage of the Tenant's interest hereunder, shall not acquire
any greater rights hereunder than the Tenant has (except the same right to cure
or remedy the Tenant's default as Tenant), and shall not become entitled to a
new lease in the event of the termination of this Lease. No mortgage of the
Tenant's interest hereunder by the Tenant or by the Tenant's successors or
assigns shall be valid unless:
18
(i) At the time of the creation of such mortgage this Lease shall
be in full force and effect;
(ii) Such mortgage shall be subject to all the agreements, terms,
covenants, and conditions of this Lease;
(iii) The Landlord shall receive written notice of the creation of
such mortgage within ten (10) days after the execution and delivery thereof and
such mortgage shall be recorded within twenty (20) days after the execution and
delivery thereof.
(iv) A duplicate original or certified copy of the recording date
of such mortgage shall be served upon the Landlord within ten (10) days after
the return thereof from the office of the recorder.
47. MISCELLANEOUS: Neither the Landlord nor the Tenant nor any of their
agents have made any statement, promise or agreements verbally or in writing in
conflict with the terms of this Lease. Any and all representations by either of
the parties or their agents made during negotiations prior to execution of this
Lease and which representations are not contained in the provisions hereof shall
not be binding upon either of the parties hereto. It is further agreed that this
Lease contains the entire Agreement between the parties, with respect to the
premises and no rights are to be conferred upon the Landlord until this Lease
has been executed by the Tenant.
All terms and words used in this Agreement, regardless of the number and
gender in which they are used, shall be deemed and construed to include any
other number, singular or plural, and any other gender, masculine, feminine or
neuter, as the context or sense of this Agreement or any paragraph or clause
herein may require, the same as if such words had been fully and properly
written in number and gender.
This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but such
counterparts together shall constitute but one and the same instrument.
The Landlord and Tenant are not and shall not be considered joint
venturers or partners and neither shall have the power to bind or obligate the
other except as set forth herein.
The headnotes to the sections of this Agreement are inserted only as a
matter of convenience and for reference and in no way confine, limit or describe
the scope or intent of any section of this Agreement, nor in any way affect this
Agreement.
The submission of this Lease for examination does not constitute a
reservation of or option for the Premises or any other space within the Shopping
Center and shall vest no right in either party. The Lease shall become effective
as a Lease only upon execution and legal delivery thereof by the parties hereto.
19
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
XXXXXXXX'S WITNESSES: LANDLORD:
NET REALTY HOLDING TRUST
/s/ Xxxx Xxxx
------------------------
BY: /s/ Xxxxx X. Xxxxx
------------------------
/s/ Xxxxx X. Xxxxxx XXXXX X. XXXXX
------------------------ AUTHORIZED REPRESENTATIVE
ATTEST: TENANT:
F & N CINEMA, INC.
/s/ Xxxx Xxxxxx
------------------------
XXXX XXXXXX, Secretary
BY: /s/ Xxxx Xxxxxx
------------------------
XXXX XXXXXX
ITS: President
20
ACKNOWLEDGEMENTS
For Lessor:
STATE OF MASSACHUSETTS )
COUNTY OF SUFFOLK ) ss.:
On this 12th day of May, 1993, before me personally came Xxxxx X. Xxxxx to me
known who being by me duly sworn, did depose and say that he is the Authorized
Representative, as Lessor of Net Realty Holding Trust, the Trust described in
and which executed the foregoing instrument, as Lessor.
/s/ Xxxxx X. Xxxxxxx
---------------------------
My commission expires: 12/23/99
STATE OF NEW JERSEY )
COUNTY OF XXXXXX ) ss.:
For Lessee:
On this 11th day of May, 1993, before me personally came Xxxx Xxxxxx & Xxxx
Xxxxxx to me known, who being by me duly sworn did depose and say that they the
President & Secretary of the corporation described in and which executed the
foregoing instrument, as Lessee: that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that he
signed his name thereto by like order.
/s/ Xxx X. Xxxxxxxxx
------------------------
NOTARY PUBLIC OF NEW JERSEY
XXX X. XXXXXXXXX
A Notary Public of New Jersey
My Commission Expires
December 5, 1996
STATE OF )
COUNTY OF ) ss.:
On this day of , 19 , before me personally came
to me known to be the individual described in and
who, as Xxxxxx, executed the foregoing instrument and acknowledged to me that
he executed the same.
------------------------
21
Property Parcel ________________ is intersected by a division line between
la____ herein described and lands, now or formerly of Tivoli Gardens and running
THENCE:
(1) along said division line, North 62 degrees 24 minutes 20 seconds West,
734.01 feet to an angle in same; thence,
(2) South 26 degrees 56 minutes 00 seconds West, 70.81 feet to an angle in
same; thence,
(3) North 61 degrees 45 minutes 00 seconds West 823.71 feet to a point in
the line of lands of the Township of Parsippany-Xxxx Hills; thence,
(4) along the lands of the Township, North 35 degrees 53 minutes 00
seconds East, 421.14 feet to a point; thence,
(5) South 61 degrees 45 minutes 00 seconds East, 650.26 feet to an angle
in the line of lands, now or formerly of Garden State Propane; thence,
(6) North 35 degrees 46 minutes 00 seconds East, 325.00 feet to a point in
the sideline of U.S. Route 46, also known as Bloomfield Avenue, as shown on "New
Jersey Department of Transportation, General Property Parcel Map Route U.S. 46
(1953) Section 9"; thence,
(7) along Route 46, South 61 degrees 45 minutes 00 seconds East, 58.00
feet to a point where the same is intersected by the northwesterly line of
lands, now or formerly of City Federal Savings and Loan Association; thence,
(8) along lands of City Federal, South 26 degrees 56 minutes 00 seconds
West, 150 feet to an angle in same; thence,
(9) South 61 degrees 45 minutes 00 seconds East, 266.67 feet to an angle
in same; thence,
(10) North 26 degrees 56 minutes 00 seconds East, 135.64 feet to a point
in the aforementioned sideline of Route 46; thence,
(11) along Route 46, South 61 degrees 46 minutes 20 seconds East, 241.59
feet to a point of curvature; thence,
(12) southerly along a curve to the right, leading into Parsippany
Boulevard, as shown on the Route 46 map, having a radius of 102.00 feet for an
arc length of 89.91 feet to a point of tangency in Parsippany Boulevard; thence,
(13) along Parsippany Boulevard, South 11 degrees 15 minutes 59 seconds
East, 321.24 feet to a point of curvature in same; thence,
(14) southerly on a curve to the right, having a radius of 190.00 feet,
for an arc length of 141.60 feet to a point; thence,
(15) southwesterly along Parsippany Boulevard on a non-tangent (broken
back) curve to the right, having a radius of 220.00 feet, for an arc length of
44.29 feet the chord for which bears South 45 06 minutes 12 seconds West, 44.21
feet to a point where the same is intersected by the aforementioned sideline of
Parsippany Boulevard as shown on the Route 287 map; thence,
(16) along Parsippany Boulevard, South 50 degrees 52 minutes 13 seconds
West, 40.96 feet to an angle in same; thence,
(17) South 39 degrees 07 minutes 47 seconds East, 5.00 feet to an angle in
same; thence,
(18) South 50 degrees 52 minutes 13 seconds West, 160.07 feet to the place
of BEGINNING.
This description was prepared by Xxxxxxx X. Xxxxx, Xx., Professional Land
Surveyor of Morristown, N.J. in accordance with his survey of same dated
August 18, 1989.
EXHIBIT C
LEASE GUARANTY
Lease dated May 12, 1993 between Net Realty Holding Trust, as Lessor
and F & N Cinema, Inc., as Lessee.
For value received and in consideration of, and as an inducement for
the execution and delivery of the within Lease, the undersigned, Xxxx Xxxxxx &
Xxxxxx Xxxxxx (together hereinafter referred to as the Guarantor) hereby
guarantees to Lessor, its heirs, executors, administrators, successors and
assigns, the full and prompt payment of rent, including, but not limited to, the
annual rent and additional rent and any and all other sums and charges payable
by Xxxxxx, its heirs, executors, administrators, successors and assigns, under
the Lease, and hereby further guarantees the full and timely performance and
observance of all the covenants, terms, conditions and agreements therein
provided to be performed and observed by Lessee under the Lease, and Guarantor
hereby covenants and agrees to and with Lessor, subject to the limitations
hereinafter provided, that if default shall at any time be made by Xxxxxx, in
the payment of the minimum annual rent and/or additional rent and/or any other
such sums and charges payable by Lessee under the Lease, or if Lessee should
default in the performance and observance of any of the terms, covenants,
provisions or conditions contained in the Lease, Guarantor shall and will
forthwith pay such rent and other such sums and charges to Lessor, and any
arrears thereof, and shall, and will, forthwith pay to Lessor all damages that
may arise in consequence of any default by Lessee under the Lease, including,
without limitation, all reasonable attorneys' fees and disbursements incurred by
Lessor or caused by any such default and/or by the enforcement of this Guaranty.
This Guaranty is an absolute and unconditional irrevocable Guaranty
of payment and of performance. It shall be enforceable against Guarantor,
without the necessity for any suit or proceedings on Lessor's part of any kind
or nature whatsoever against Lessee, and without necessity of any notice of
non-payment, non-performance or non-observance or of any notice of acceptance of
this Guaranty or of any other notice or demand to which Guarantor might
otherwise be entitled, all of which Guarantor hereby expressly waives and
Guarantor hereby expressly agrees that the validity of this Guaranty and the
obligations of the Guarantor hereunder shall not be terminated, affected,
diminished or impaired by reason of the assertion, or the failure to assert, by
Lessor against Lessee, of any of the rights or remedies reserved to Lessor
pursuant to the provisions of the Lease.
This Guaranty shall be a continuing Guaranty, and the liability of
Guarantor hereunder shall in no way be affected, modified, or diminished by
reason of an assignment or subletting of the Lease or by reason of any renewal,
modification or extension of the Lease or by reason of any modification or
waiver of or change in any terms, covenants, conditions or provisions of the
Lease between Lessor and Lessee or by reason of an extension of time that may be
granted by Lessor to Lessee, or by reason of any dealings or transactions
between Lessor and Lessee, whether or not notice thereof is given to Guarantor.
All of Xxxxxx's rights and remedies under the Lease or under this
Guaranty are intended to be distinct, separate and cumulative, and no such right
and remedy therein or herein mentioned is intended to be in exclusion of or a
waiver of any of the others.
1
Notwithstanding anything in this Guaranty to the contrary, the
Guarantor obligations as set forth in the Lease and further guarantees payment
of rent, additional rent and other charges due pursuant to the Lease in the
total amount of $50,000.00 for Guarantor and, with respect to the guaranty of
rent, additional rent and other charges, this Guaranty shall terminate and be
null and void after the fifth lease year of the primary term, provided Tenant is
not then in default of the Lease.
Xxxx Xxxxxx and Xxxxxx Xxxxxx are jointly and severally liable for
the total $50,000.00 guaranteed hereunder.
WITNESS: GUARANTOR:
/s/ Xxx X. Xxxxxxxxx /s/ Xxxx Xxxxxx
----------------------- -----------------------
XXX X. XXXXXXXXX XXXX XXXXXX
A Notary Public of New Jersey c/o Cinema 10
My Commission Expires P.O. Box 648, Succasunna, NJ 07876
December 5, 1996 -----------------------------------
ADDRESS
WITNESS: GUARANTOR:
/s/ Xxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxx
----------------------- -----------------------
XXX X. XXXXXXXXX XXXXXX XXXXXX
A Notary Public of New Jersey c/o Cinema 10
My Commission Expires P.O. Box 648, Succasunna, NJ 07876
December 5, 1996 -----------------------------------
ADDRESS
2
FIRST AMENDMENT TO GROUND LEASE
THIS AGREEMENT made and entered into this 11th day of July, 1994
BY AND BETWEEN: THE TRUSTEES OF NET REALTY HOLDING TRUST, a
trust organized pursuant to a Declaration of Trust dated
July 1, 1970, whose address is c/o Net Properties
Management, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (hereinafter referred to as "Landlord")
AND: F & N CINEMA, INC., a New Jersey corporation, with
its principal place of business at 00 Xxxxxx Xxxxx,
P.O. Box 648, Xxxxxxxxxx, New Jersey 07876
(Hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Xxxxxxxx and Xxxxxx entered into a Ground Lease agreement dated
May 12, 1993 ("Lease"); and
WHEREAS, said Lease provides in part that a building to be constructed by
the Tenant approximately 32,000 square feet in size is to be located on land as
described in said Lease; and
WHEREAS, the term of lease, rent, and other provisions have been mutually
agreed upon as set forth in said Lease; and
WHEREAS, during the course of construction by the Tenant of said building,
Xxxxxx made a determination that an increase in the lobby area of the structure
would result in a more comfortable and esthetically pleasing business operation;
and
WHEREAS, Landlord and Tenant are agreeable to allow the expansion in
accordance with the terms set forth herein;
NOW, THEREFORE, in consideration of the sum of One ($1.00) Dollar and
other good and valuable consideration, the parties hereto agree as follows:
1
1. INCREASE IN SIZE OF STRUCTURE. The Landlord hereby agrees that Tenant
may seek all municipal, state and federal approvals as may be necessary for the
construction of up to an additional 2,315 square feet of building to be used as
additional lobby space. If said approvals are secured, Tenant shall construct
upon the land described in Exhibit A attached hereto (hereinafter referred to as
the "Premises"), the theater building as described in the Ground Lease as
modified by the additional 2,315 square feet building space as set forth in this
First Amendment to Ground Lease which shall be used to expand the lobby area
only.
2. CONSTRUCTION OF BUILDING. Except as provided in this First Amendment
to Ground Lease, the building, including the additional space provided for
herein, shall be constructed in accordance with the terms of the Lease.
3. RENT. In the event that all approvals are received and the building is
constructed with the additional square footage for the expanded lobby area, the
rent during the primary term and any extensions of the Ground Lease as set forth
in Paragraph 3 of the Ground Lease, shall be increased by the following amounts
to cover the additional 2,315 square feet of building space:
A. For the period from the commencement of the primary term through
the end of the 8th lease year, $9,398.90 per year;
B. For the period from the 9th lease year to the end of the 15th
lease year, $10,348.05 per year;
C. For the period from the 16th lease year to the end of the 21st
lease year, $11,389.80 per year;
D. For the period from the 22nd lease year to the end of the 26th
lease year, $12,524.15 per year;
E. For the period from the 27th lease to the end of the 31st lease
year, $13,774.25 per year;
F. For the period from the 32nd lease year to the end of the 36th
lease year, $15,140.10 per year;
G. For the period from the 37th lease year to the end of the 41st
lease year, $16,668.00 per year.
Said rent shall be paid to the Landlord in equal monthly installments on
or before the first day of each month, in advance, without offset or deduction
whatsoever together with all
2
applicable sales and revenue taxes imposed by the State of New Jersey or local
governmental authorities, with rent prorated for any portion of a month at the
commencement of the primary term.
4. SUBJECT TO TENANT'S APPROVALS. Xxxxxxxx's approval to permit Tenant
to construct the additional square footage is subject to receiving written
approval from the department stores, Marshall's and XxXxxxx'x, which are located
in the Xxxxxx Hills Shopping Center. Notwithstanding the above, Tenant may
immediately apply for such municipal, state and federal approvals as may be
necessary to construct the additional square footage in the theater building and
Landlord will grant its consent and sign such applications as may be necessary
to go forward with the applications for approval. In the event, that written
approval is not obtained from Marshall's and XxXxxxx'x for this additional
square footage, this First Amendment to Ground Lease shall be declared null and
void and shall have no further effect. Landlord and Tenant shall then be
obligated by the terms of the original Ground Lease agreement, without
modification.
5. ADDITIONAL REPRESENTATIONS OF TENANT. Tenant represents that the
additional 2,315 square feet of the building space for which it is seeking
approval and which is the subject of this First Amendment to Ground Lease, will
only be used for additional lobby area. As a result of this additional space,
there shall be no increase in the number of theaters beyond the 12 previously
approved. Furthermore, there will be no additional seats nor any decrease in the
number of parking spaces available in the shopping center over and above those
previously approved.
6. RENT COMMENCEMENT DATE. Notwithstanding anything contained in the
Ground Lease to the contrary, the commencement date of the primary term of the
Ground Lease shall be the earlier of (a) November 18, 1994 or (b) when F & N
Cinema, Inc. opens the building to the public for the normal conduct of
business.
7. VALIDITY OF ORIGINAL GROUND LEASE TERMS. Except as specifically
modified by the terms of this First Amendment to Ground Lease, all terms of the
original Ground Lease are hereby ratified and in full force and effect from both
the Landlord and Tenant. The terms of this First Amendment to Ground Lease shall
only supersede over any inconsistent terms and provisions of the Ground Lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals or
caused these present to be signed by their
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proper corporate officers and caused their proper corporate seals to be affixed
hereto, the day and year first above written.
WITNESS/ATTEST: LANDLORD:
NET REALTY HOLDING TRUST
By: /s/ Xxxxx X. Xxxxx
------------------------- --------------------------
Xxxxx X. Xxxxx
Authorized Representative
TENANT:
F & N CINEMA, INC.
/s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------- ---------------------------
XXXXXX XXXXXX, XXXX XXXXXX, President
Acting Secretary
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LESSEE: F & N Cinema, Inc.
LESSOR: Net Realty Holding Trust
c/o Net Properties Management, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
PROPERTY: Xxxxxx Hills Shopping Center
TABLE OF CONTENTS
PARAGRAPH TITLE PARAGRAPH NUMBER
Premises 1
Term 2
Rent 3
Preparation of Premises by Landlord and Tenant 4
Covenant of Title and Quiet Enjoyment 5
Use 6
Operation of Business 7
Maintenance and Repairs 8
Lessee's Failure to Repair 9
Utility Payments 10
Additional Rent 11
Common Areas 12
Destruction and Damage 13
Alterations and Improvements 14
Eminent Domain 15
Mortgaging of Landlord's Estate 16
Assignment and Subletting 17
Default of Tenant 18
Security Deposit 19
Notice 20
Recording 21
Modification 22
Binding on Successors and Assigns 23
Severability 24
Closed Premises 25
Utilities 26
Insurance 27
Indemnity 28
Repayment to Landlord 29
Liens 30
Broker's Commission 31
Landlord's Liability 32
No Waiver 33
Indemnification of Landlord 34
Net Lease 35
Bankruptcy or Insolvency 36
Signs 37
Rules and Regulations 38
Tenant's Responsibility for Hazardous Waste 39
Force Majeure 40
Holding Over 41
Estoppel Certificates 42
Tenant's Option to Extend the Lease 43
Percentage Rent 44
End of Term 45
Tenant's Right to Mortgage Its Leasehold Interest 46
Miscellaneous 47
SECOND AMENDMENT TO GROUND LEASE
THIS AGREEMENT is made and entered into on December 19, 1994,
BY AND BETWEEN: THE TRUSTEES OF NET REALTY HOLDING TRUST, a
trust organized pursuant to a Declaration of Trust dated
July 1, 1970, whose address is c/o Net Properties
Management, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (hereinafter referred to as "Landlord")
AND: F & N CINEMA, INC., a New Jersey corporation, with its
principal place of business at 00 Xxxxxx Xxxxx, P.O. Box
648, Xxxxxxxxxx, New Jersey 07876 (Hereinafter referred
to as "Tenant").
W I T N E S S E T H:
WHEREAS, Xxxxxxxx and Xxxxxx entered into a Ground Lease agreement dated
May 12, 1993 ("Lease"); and
WHEREAS, said Lease provides in part that a building to be constructed by
the Tenant, approximately 32,000 square feet in size, is to be located on land
as described in said Lease; and
WHEREAS, the term of lease, rent, and other provisions have been mutually
agreed upon as set forth in said Lease; and
WHEREAS, during the course of construction by the Tenant of said building,
Xxxxxx made a determination that an increase in the lobby area of the structure
would result in a more comfortable and esthetically pleasing business operation;
and
WHEREAS, Landlord and Xxxxxx entered into a First Amendment to Ground
Lease dated July 11, 1994 permitting the increase of 2315 square feet in size of
the building for a total of 34,315 square feet; and
WHEREAS, upon completion of the building, it has been determined that the
actual size of the structure is 34,328.88 square feet; and
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WHEREAS, Landlord and Tenant are agreeable to allow modification of the
Lease to reflect the increase in square footage in accordance with the terms set
forth herein;
NOW, THEREFORE, in consideration of the sum of One ($1.00) Dollar and
other good and valuable consideration, the parties hereto agree as follows:
1. INCREASE IN SIZE OF STRUCTURE. Tenant represents to Landlord that
Tenant has obtained all municipal, state and federal approvals necessary for the
construction of a 34,328.88 square feet building on the premises.
2. CONSTRUCTION OF BUILDING. Except as provided in the First and Second
Amendments to Ground Lease, the building, including the additional space
provided for herein, is constructed in accordance with the terms of the Lease.
3. ADDITIONAL REPRESENTATIONS OF TENANT. Tenant represents that the
additional 2,328.88 square feet of building space, which is the subject of the
First and Second Amendment to Ground Lease, will only be used for additional
lobby area. As a result of this additional space, there shall be no increase in
the number of theaters beyond the 12 previously approved. Furthermore, there
will be no additional seats nor any decrease in the number of parking spaces
available in the shopping center over and above those previously approved.
4. RENT. Paragraph 3 of the First Amendment To Ground Lease is hereby
deleted and replaced with the following:
The rent during the primary term and any extensions of the Ground Lease as
set forth in Paragraph 3 of the Ground Lease, shall be increased by the
following amounts to cover the additional 2,328.88 square feet of building
space:
A. For the period from the commencement of the primary term through
the end of the 8th lease year, $9,455.25 per year;
B. For the period from the 9th lease year to the end of the 15th
lease year, $10,410,09 per year;
C. For the period from the 16th lease year to the end of the 21st
lease year, $11,458.09 per year;
D. For the period from the 22nd lease year to the end of the 26th
lease year, $12,599.24 per year;
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E. For the period from the 27th lease year to the end of the 31st
lease year, $13,856.84 per year;
F. For the period from the 32nd lease year to the end of the 36th
lease year, $15,230.88 per year;
G. For the period from the 37th lease year to the end of the 41st
lease year, $16,767.94 per year.
Said rent shall be paid to the Landlord in equal monthly installments on
or before the first day of each month, in advance, without offset or deduction
whatsoever together with all applicable sales and revenue taxes imposed by the
State of New Jersey or local governmental authorities, with rent prorated for
any portion of a month at the commencement of the primary term.
5. VALIDITY OF ORIGINAL GROUND LEASE TERMS. Except as specifically
modified by the terms of the First Amendment to Ground Lease and this Second
Amendment to Ground Lease, all terms of the original Ground Lease are hereby
ratified and in full force and effect from both the Landlord and Tenant. The
terms of this Second Amendment to Ground Lease shall supersede any inconsistent
terms and provisions of the Ground Lease and First Amendment to Ground Lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
or caused these present to be signed by their proper corporate officers and
caused their proper corporate seals to be affixed hereto, the day and year first
above written.
WITNESS/ATTEST: LANDLORD:
NET REALTY HOLDING TRUST
/s/ Illegible By: /s/ Xxxxx X. Xxxxx
-------------------------- -----------------------------
Xxxxx X. Xxxxx
Authorized Representative
TENANT:
F & N CINEMA, INC.
/s/ Xxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxx
-------------------------- ------------------------------
XXXXXX XXXXXXXX, XXXX XXXXXX, President
Assistant Secretary
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ACKNOWLEDGMENTS
FOR LANDLORD:
STATE OF MASSACHUSETTS )
COUNTY OF SUFFOLK ) ss.:
On this 23rd day of December 1994, before me personally came Xxxxx X.
Xxxxx to me known who being by me duly sworn, did depose and say that he is the
Authorized Representative of the Trustees of Net Realty Holding Trust, the Trust
described in and which executed the foregoing instrument, as Landlord.
/s/ Xxxxx X. Xxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxx
Notary Public
My Commission Expires February 16, 2001
FOR TENANT:
STATE OF NEW JERSEY )
COUNTY OF XXXXXX ) ss.:
On this 29th day of December 1994, before me personally came XXXX Xxxxxx
AND XXXXXX XXXXXXXX to me known who being by me duly sworn did depose and say
that they are the President and Assistant Secretary of the corporation described
in and which executed the foregoing instrument, as Tenant; that they know the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation; and that they signed their names thereto by like order.
/s/ Xxx X. Xxxxxxxxx
--------------------------------
NOTARY PUBLIC OF NEW JERSEY
XXX X. XXXXXXXXX
(seal) A Notary Public of New Jersey
My Commission Expires December 5, 1996
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