FULLY NET LEASE
THIS IS AN AGREEMENT OF LEASE, made this ________ day of ______________________,
1997, between XXXXXX X. BEER, being located at Xxxxx 000, Xxx Xxxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx, 00000, Party of the First Part (hereinafter referred to
as "LANDLORD"), and U.S. GOLF AND ENTERTAINMENT, INC., a New Jersey Corporation,
being located at 000 Xxxxx 0 Xxxx, Xxxxxxxxx, Xxx Xxxxxx, 00000, Party of the
Second Part (hereinafter referred to as "TENANT").
W I T N E S S E T H:
Landlord, in consideration of the rents, covenants and agreements
hereinafter reserved, mentioned and contained on the part of Tenant, its
successors and assigns, to be paid, kept and performed, has leased, rented, let
and demised unto Tenant, and Tenant does hereby lease, take and rent, subject to
the conditions hereinafter expressed, the premises known as Tax Xxx 0, Xxxxx
0000, Xxxxx 0 Xxxx, Xxxxxxxxx, Xxx Xxxxxx, and more particularly described on
Schedule "A" annexed hereto and made a part hereof (hereinafter referred to as
"The Premises"). This is a Fully Net Lease. The Landlord will pay no charges and
assume no burdens regarding these premises. Premises are leased subject to the
following:
a. Municipal Ordinance and Regulations, and Zoning Ordinances and
Regulations of the City of Englewood;
b. All covenants, reservations, restrictions, agreements and
easements, whether of record or not;
c. The liens of real estate taxes, municipal assessments, water rates,
water meter charges, ground lease, water courses, tideland claims, sewer
taxes, utilities and charges, accrued or unaccrued, fixed or not fixed,
known or unknown;
d. Any state of facts an accurate survey and title search of the
premises may disclose.
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TO HAVE AND TO HOLD The Premises unto Tenant, its successors and assigns,
for a term of twenty-five (25) years, to commence on the 1st day of May, 1997,
and to expire at midnight on the 30th day of April, 2022, or until said term
shall sooner cease and expire under the provisions hereof.
This Lease and Agreement is made on the following additional covenants,
agreements, terms, provisions, conditions and limitations, all of which Landlord
and Tenant covenant and agree to perform and observe:
ARTICLE 1
RENT AND PERCENTAGE RENT
1.01 Tenant covenants and agrees to pay to Landlord by a good and
sufficient check at the address of Landlord herein specified, or at such address
as Landlord may furnish as herein provided during the aforesaid term or any
renewal term thereof, a minimum net rental (hereinafter sometimes referred to as
the "Minimum Rent", "Net Rent", "Base Rent", or "Annual Rent") in equal monthly
installments, each payable in advance on the first day of each month during the
term hereof and any renewal term. Said minimum rent shall be paid to Landlord
without notice or demand and without abatement, deduction or set-off. The total
minimum rent for the term of the Lease, not including the Option, is
$5,775,000.00. The rent payable for the years one (1) and two (2) shall be
$200,000.00 per year payable at a monthly rate of $16,666.66. The rental for the
years three (3) and four (4) shall be $210,000.00 per year payable at the rate
of $17,500.00 per month. In like manner, the rent will increase by $10,000.00
every two years through the term of the Lease, and the Option, should it be
exercised by the Tenant. The Lease shall expire on April 30, 2022. The Tenant
will enter into occupancy of The Premises on May 1, 1997, and the first month's
rent shall be due on May 1, 1997. The rent is as follows:
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MONTHLY
YEARS YEARLY RENT RENT BEGINNING
5/1/97 thru 4/30/1999 $200,000.00 $16,666.66 5/1/97
5/1/99 thru 4/30/2001 $210,000.00 $17,500.00 5/1/99
5/1/2001 thru 4/30/2003 $220,000.00 $18,333.33 5/1/2001
5/1/2003 thru 4/30/2005 $230,000.00 $19,166.66 5/1/2003
5/1/2005 thru 4/30/2007 $240,000.00 $20,000.00 5/1/2005
5/1/2007 thru 4/30/2009 $250,000.00 $20,833.33 5/1/2007
5/1/2009 thru 4/30/2011 $260,000.00 $21,666.66 5/1/2009
5/1/2011 thru 4/30/2013 $270,000.00 $22,500.00 5/1/2011
5/1/2013 thru 4/30/2015 $280,000.00 $23,333.33 5/1/2013
5/1/2015 thru 4/30/2017 $290,000.00 $24,166.66 5/1/2015
5/1/2017 thru 4/30/2019 $300,000.00 $25,000.00 5/1/2017
5/1/2019 thru 4/30/2021 $310,000.00 $25,833.33 5/1/2019
5/1/2021 thru 4/30/2022 $315,000.00 $26,250.00 5/1/2021
LEASE ENDS
OPTION, IF EXERCISED
5/1/2022 thru 4/30/2023 $320,000.00 $26,666.66 5/1/2022
5/1/2023 thru 4/30/2025 $330,000.00 $27,500.00 5/1/2023
5/1/2025 thru 4/30/2027 $340,000.00 $28,333.33 5/1/2025
5/1/2027 thru 4/30/2029 $350,000.00 $29,166.66 5/1/2027
5/1/2029 thru 4/30/2031 $360,000.00 $30,000.00 5/1/2029
5/1/2031 thru 4/30/2032 $365,000.00 $30,416.66 5/1/2031
1.02 Notwithstanding the minimum rent reserved in Paragraph 1.01 of this
Lease, the parties agree that there are other sums that will become due that
will be deemed rent, but which will not be applied against the rents reserved in
Paragraph 1.01. The minimum rent will be the higher of either the amount stated
as due under Paragraph 1.01, or twenty-five (25%) percent of the gross income
attributable to The Premises. That is to say, the Tenant shall pay to the
Landlord a sum equal to twenty-five (25%) percent of the gross income
attributable to The Premises, or the minimum rent set forth in the above
schedule whichever is more. For example, if 25% of the gross income for the
lease year from 5/1/1997 to 4/30/98 is $250,000.00, and the Tenant has paid
$200,000.00 for that lease year, then the Tenant will pay an additional sum of
$50,000.00 within the time provided below. Each year of the lease will be
subject to the same calculations, to determine if the percentage of gross rent
provision is applicable.
1.03 Gross income shall be defined as all income derived from
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The Premises and any business thereon, including sales receipts and other money
earned by the Tenant or any other entity which is attributable to The Premises.
Each lease year shall be considered as an independent accounting period for the
purpose of computing the gross income attributable to The Premises. The Lease
year runs from May 1st through April 30th of each year.
1.04 The gross income shall be determined within thirty (30) days after the
last day of each lease year during the term of the Lease. The gross income shall
be determined, and the calculation of 25% thereof shall be made, and if that sum
is more than the current annual rent for that year, the Tenant shall forthwith
pay to the Landlord the additional sum due. If 25% of the gross income is less
than the Tenant's then current annual rent, there will be no reduction in rent,
for it is intended that the rent set forth in the schedule in Paragraph 1.01
shall be the minimum rent to be received by the Landlord.
1.05 In the event that the gross income for any year after the 3rd year of
this Lease is less than $1,000,000.00, the Landlord may, at his option, by
giving Tenant at least ninety (90) days written notice, terminate this Lease, by
which date the Tenant will vacate The Premises in accordance with the terms of
this Lease.
1.06 The term "gross income" as used herein, shall be construed to include
the entire amount charged by Tenant or related entity and any sub-tenant, on all
sales, rentals, sales of goods or merchandise, services rendered in, at, from,
or attributable to the Demised Premises, and sales wherever made, of services
and merchandise stored on the Demised Premises, or any business conducted from
the Demised Premises, whether on a cash basis, or on credit, paid or unpaid,
collected or uncollected, including deposits not refunded to customers and the
amount of any orders received at, or solicited from the Demised Premises,
although such services may be provided elsewhere. No deduction may be taken from
gross income, including for ATM charges or debit cards. Said term shall not
include:
(a) Any sales or excise tax imposed by any governmental authority, and
added to the price of a sale or service, and collectible from the customer,
and in turn payable by Tenant to
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such governmental authority.
1.07 Tenant shall prepare and keep, for a period of not less than four (4)
years following the end of each lease year, adequate books and records including
but not limited to inventories, purchases, and receipts of sales and
merchandise, and all sales and other transactions by Tenant. Tenant shall record
at the time of sale each receipt from sales or other transactions, whether for
cash or on credit, in a sealed cash register or registers having a cumulative
total. Tenant shall keep, for at least four (4) years following the end of each
lease year, all pertinent original sales records, which records shall include
(a) cash register tapes; (b) serially numbered sales slips; (c) mail orders; (d)
telephone orders; (e) transactions with sub-tenants; (f) rental receipts; (g)
receipts or other records of merchandise taken off premises; (h) such other
records which would normally be examined and required to be kept by an
independent accountant pursuant to generally accepted auditing standards in
performing an audit of Tenant's gross income; and (i) all income, sales, use and
occupation tax returns.
1.08 Tenant shall submit to Landlord on or before the 15th day following
the end of each month during the term hereof a written statement signed by
Tenant and certified by it to be true and correct showing the amount of gross
income during the preceding month. Tenant shall submit to Landlord on or before
the 30th day following the end of each lease year, payment for additional
percentage rents due, along with a written statement signed by Tenant and
certified by it to be true and correct, setting forth the amount of gross income
during the preceding percentage year, which statement shall also be duly
certified by an independent certified public accountant. The statements referred
to herein shall be in such form and style and contain such details and
breakdowns as Landlord may reasonably require. If the Tenant does not deliver
such reports as required by this paragraph, Tenant shall pay to the Landlord, as
additional rent, a late charge of $100.00 per day, for each day until the same
is received by the Landlord, for all such failures to submit sales reports as
due. The date of submission or delivery is deemed to be the date the document is
received by the Landlord. In addition, Landlord shall
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be entitled to all other remedies provided in this Lease, including
injunctive relief.
1.09 The acceptance by Landlord of payments of percentage rent, or reports
thereon, shall be without prejudice and shall in no case constitute a waiver of
Landlord's right to examination of Tenant's books and records of its gross
income and inventories, nor a waiver of tenants duty to remain fully staffed and
open for calendar seven (7) days per week.
1.10 Landlord shall have the right to cause, upon five (5)days notice to
Tenant, a complete audit to be made of Tenant's entire business affairs and of
all records including those specified in the preceding paragraphs, and Tenant
shall make all such records available for said examination at the Demised
Premises. If the results of such audit shall show that Tenant's statement of
gross income as required for any period has been understated then Tenant shall
pay Landlord the cost of such audit, and Landlord's reasonable legal fees
related thereto, in addition to any deficiency payment required. A report of the
findings of Landlord's accountant shall be binding and conclusive upon Landlord
and Tenant. The furnishing by Tenant of any statement that is inaccurate by
seven (7%) percent shall constitute a breach of, and an event of default of,
this Lease.
ARTICLE 2
ADDITIONAL RENT
2.01 Tenant shall, during the term, as additional rent (hereinafter
sometimes referred to as the "additional rent") discharge, as the same shall
become due and payable (or, if the bills therefore are directed to Landlord
rather than Tenant, within ten (10) days after Tenant's receipt of such bills
from Landlord), all charges and costs related to the premises of any and every
type whatsoever, including all real property taxes, assessments, ground lease
payments, water rents, utility bills, rates and charges, sewer rents and other
governmental impositions and charges of every kind and nature whatsoever,
extraordinary as well as ordinary, known or unknown, and each and every
installment thereof, and all fees and charges of private, public or governmental
authorities for
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construction, maintenance, occupation or use during the term, of The Premises or
of the water and sewer pipes or connections thereto, or for any sidewalk or
street on or adjacent to The Premises, 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 Tenant shall pay all taxes charged,
laid, 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 the
Federal, State, County and City governments and of all other governmental
authorities whatsoever, and of all public utility companies which may service
The Premises. To the extent that the same may be permitted by law, Tenant shall
pay all charges aforesaid immediately when they are due and payable, without
converting those charges to periodic payments and Tenant shall pay and discharge
punctually said sums as they shall become due and payable during the term; and
Tenant shall pay all water, gas, electric and sewer charges in full without
proration or delay; and such prior payment shall be a condition of exercise of
Tenant's Option to extend this Lease.
2.02 Tenant shall also pay, within ten (10) days after the same shall
become due and payable, all charges for taxes, assessments, ground lease,
municipal improvements, water, steam heat, gas, hot water, electricity, light
and power, garbage collection, and any other service or services furnished to
The Premises or the occupants thereof during the term of this lease. Tenant
shall be deemed to have complied with the covenants of this Article if payment
of such tax, assessment, ground lease payment, 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
(provided, however, that the loss of an available discount shall not be deemed
to constitute a penalty or interest charge) or before the same
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shall become a lien upon The Premises, whichever is earlier, and Tenant shall,
within twenty (20) days after the time above provided for the payment by Tenant
as enumerated above, produce and exhibit to Landlord receipted bills or
sufficient and adequate copies of same, as proof of such payment.
2.03 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),
any tax assessment, water rent, rate or charge, sewer rent or other private,
public or governmental imposition, fee or charge assessed against The Premises,
provided that such contesting or review will not subject Landlord to civil or
criminal penalties of 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 a surety company bond, 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 bond, if available as aforesaid, 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 bond, Tenant shall promptly pay all such items if at 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 bond may be canceled
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 is reasonably possible after the imposition or assessment of any
contested item and shall be prosecuted to final adjudication with reasonable
dispatch. If the Landlord in his discretion should intervene in, or review such
proceedings the Tenant shall reimburse Landlord for any reasonable legal fees
and expenses incurred by Landlord in connection therewith. In the event of any
reduction, cancellation or discharge of any such
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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 item;
and upon such payment any such bond may be canceled and discharged, and if there
shall be any refund with respect thereto Tenant shall be entitled to the same.
2.04 Notwithstanding anything to the contrary contained in Article, upon
Tenant's lawful assignment of this Lease in accordance with the consent of the
Landlord, which consent may be unreasonably withheld, the Tenant shall
thereafter, in all instances, be required to post a surety company bond, cash
deposit or other security reasonably satisfactory to Landlord, securing payment
of such contested items, interest and penalties, in the event it desires to
contest or review any such tax, assessment, water rent, rate or charge, etc.
2.05 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
(except any gross receipts tax measured by the rent payable hereunder), 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 or suffered by Landlord, or
principal, interest or other charges in respect of any fee or leasehold mortgage
covering The Premises.
ARTICLE 3
REPAIR and REPLACEMENT
3.01 Any and all buildings and improvements which may be erected or placed
upon The Premises at any time during said term shall be kept, outside and
inside, structural or otherwise, including sidewalks, parking areas, driving
range, nets, miniature golf course, or grounds or streets in front or
appurtenant to the same, in good and substantial order and repair by Tenant at
its sole cost and expense, and Tenant shall comply with all laws, ordinances,
orders, regulations, rules and requirements of every kind and nature, and
whether the same or any of them relate to any
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ordinary or extraordinary structural or non-structural changes or requirements
to or in and about the premises or any buildings thereon, including sewage,
water, water courses, sidewalks, parking areas or streets, or to changes or
requirements incident to or the result of any use or occupation thereof, or due
to the widening of or change in any street, road, avenue, or water course on
which the premises may abut. All buildings, improvements and facilities shall be
repaired and replaced in whole or in part, as required for proper upkeep, and
this includes but is not limited to, the repaving of parking lots and
replacement of roofs and HVAC.
3.02 Tenant shall comply with all orders of the Municipal, County, State
and Federal authorities, and each of them, their bureaus and departments, and
the appropriate Board of Fire Underwriters or any other Board or Fire Exchange
for standard fire insurance policies having jurisdiction over or relating to the
premises and the buildings and improvements thereon, and shall pay any and all
costs and expenses incident to such compliance, and shall indemnify and save
harmless Landlord of and from all costs, expenses, claims and damages by reason
of any notices, orders, rules, regulations, requirements, violations or
penalties filed against or imposed upon the premises, or any part thereof, or
against Landlord as owner thereof because of the failure of Tenant to comply
with this covenant.
3.03 Tenant shall have the right to contest or review any notice, order,
rule, regulation, requirement, violation or penalty issued against The Premises
by legal proceedings, or in such other manner as it deems suitable, provided
that such action will not subject Landlord to civil or criminal penalties of any
nature, and may have, if able, any such notice, order, rule, regulation,
requirement, violation or penalty canceled, removed or revoked without actual
compliance with the same, and if such actions or proceedings are instituted,
they shall be conducted promptly at the expense of Tenant and free of expense to
Landlord; and Tenant shall reimburse Landlord for any reasonable legal fees and
expenses incurred by Landlord in connection therewith; and if as a result of any
such actions or proceedings any notice, order, rule, regulation, requirement,
violation or penalty is modified or
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partially revoked or canceled, Tenant shall then be obligated to comply only
with that part thereof which shall remain in force and effect. The legal
proceedings herein referred to shall include appropriate appeals from any
judgments, decrees or orders.
3.04 All such legal proceedings and appeals instituted by Tenant shall be
begun as soon as possible after the filing of any such notice, order, rule,
regulation, requirement, violation or penalty, and shall be prosecuted to final
adjudication with all promptness and dispatch. If and when ever any such notice,
order, rule, regulation, requirement, violation or penalty shall become absolute
against Tenant and The Premises, or against Landlord, Tenant shall then comply
with the same with due diligence and if Tenant, within thirty (30) days thereof,
shall not comply with the same, Landlord may comply therewith and the cost and
expense of so doing will be paid by the Tenant to the Landlord, and the
provisions contained in Article 8 of this lease shall apply. Tenant shall be
required to comply with any recommendations of the appropriate Board of Fire
Underwriters or any other Fire Exchange for standard fire insurance policies
having Jurisdiction over or related to The Premises. Landlord and its agents and
other representatives shall have the right to enter into and upon The Premises
or any part thereof, at all reasonable hours, for the purpose of examining the
same.
3.05 Landlord and its agents and other representatives shall also have the
right to enter into and upon The Premises or any part thereof, for the purpose
of making such emergency repairs therein as may be necessary to prevent imminent
loss or damage to The Premises provided that Tenant shall have not have
commenced making such repairs. Landlord, however, is not under any obligation to
make any repairs, alterations or improvements of any kind whatsoever, structural
or otherwise, but Tenant shall make all such repairs, alterations, replacements
and improvements at its own cost and expense. However, in case of the neglect or
default of Tenant in making the same, Landlord may do so, and all the cost and
expenses attendant thereto, with interest thereon, shall be immediately paid by
Tenant to Landlord. It is the intention of the parties that the Landlord shall
receive the premises at the end of
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the term in the highest good order of repair and condition.
ARTICLE 4
INDEMNIFICATION OF LANDLORD
4.01 Tenant shall hold Landlord harmless against any and all claims,
damages, suits or causes of action for damages arising after the commencement of
and during the term hereof, or any renewal term hereof, and any lawsuits,
claims, 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, or in or upon the sidewalks, streets, walkways, golf
driving ranges, miniature golf courses, or facilities on the Demised Premises,
or in front of or appurtenant thereto, by any person or persons whatsoever,
except if caused as a result of the willful and malicious acts of Landlord, its
agents or employees.
4.02 The Landlord shall not be liable for any personal injuries or damage
to Tenant, its agents or employees, or to any other persons or to any occupant
of any part of The Premises, or for any injury or damage to any goods, wares,
merchandise, equipment or property of Tenant, or of any occupant of any part of
The Premises, irrespective of how the same may be caused, whether from action of
the elements or acts of negligence of the owner or occupants of the adjacent
properties.
4.03 Tenant shall and will indemnify and save harmless Landlord of and from
any and all liability, loss, damage or expense, cause of action, suits, claims
and judgments, including reasonable legal expenses in connection with defending
against such action, suit or claim, arising from injury to persons or property
of any and every nature and for any matter or thing growing out of the
occupation of The Premises, or any part thereof, or arising or growing out of
the use, occupation, management or possession of The Premises, or of any
building thereon, or any part thereof, or of the property adjacent thereto,
occasioned by Tenant, its agents, employees or occupants of any part of The
Premises, or by their agents or employees, respectively, or which may be
occasioned by any person or thing whatsoever. Tenant shall indemnify and save
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harmless the Landlord from all liability caused by the actions of the City of
Englewood or County of Bergen, or any of the departments, bureaus, etc., in
construction of any public work, or of any other matter, at any time during the
term hereof.
ARTICLE 5
INSURANCE
5.01 Tenant shall, throughout the term of this lease at its own cost and
expense, provide and keep in force for the benefit of Landlord, all risk
insurance against loss or damage or injury or destruction of any building or
buildings hereafter erected on The Premises resulting from fire, or from any
hazard, and as a minimum, Tenant shall produce all risk casualty insurance,
liability insurance, the extended coverage endorsement, including plate glass
insurance, sprinkler leakage, collapse and vandalism and malicious mischief, and
"All Risks of Physical Loss" coverage, in such company or companies as may be
reasonably acceptable to Landlord, and if more than one company is used, with
such distribution of the amount thereof among such companies as may be approved
by Landlord. 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
hereafter erected on the premises resulting from water and flood damage.
5.02 Tenant shall provide and keep in force all such insurance in an amount
equal to the full replacement cost of the buildings, including the fixtures and
equipment therein, and Landlord shall, from time to time, increase the insurance
coverage, including liability coverage, to compensate for increases in the
Consumer Price Index over the base year of 1997. If at any time Landlord and
Tenant cannot agree as to the full replacement cost of the building, and the
fixtures and equipment, or regarding the amount of liability insurance coverage,
the value of same shall be determined by the insurance company with whom the
policy or policies of insurance are being maintained by, 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
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force by Tenant shall provide that the loss, if any, be payable to Landlord and
Tenant as their respective interests may appear. Where reference is made
hereinabove to fixtures and equipment, the parties hereto intend that the same
be fixtures and equipment used on or in connection with the premises, or used in
connection with the operation of the buildings or structures located on The
premises. 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 or certificates of insurance, and that the originals of
such policies or certificates of insurance be delivered either to such mortgagee
or to Landlord; provided, however, that all proceeds of such insurance shall be
made available for application as in this lease provided.
5.03 Tenant shall provide and maintain insurance for loss or damage by
explosion of steam boilers, pressure vessels or similar apparatus hereafter
installed on The Premises. Said insurance shall be on a Boiler and Machinery
Broad Form Policy of not less than $250,000 on a repair and replacement basis,
plus Bodily Injury coverage.
5.04 Tenant shall provide and maintain general liability insurance
(including personal injury and property damage) in the usual form, in the single
limit amount of $3,000,000, and such insurance shall name both Landlord and
Tenant as insured thereon; and Tenant shall pay the premium on all said policies
as they are due; and Tenant shall promptly deliver to Landlord certificates for
said policies. Tenant will, without notice or demand, have the Landlord named as
party insured under said policies, entitled to the full benefits and protection
afforded by the provisions of said policies. The liability insurance coverage
shall be increased from year to year in accordance with the Consumer Price Index
increases, over the base year of 1997. That is to say, if there is a 3% increase
in the consumer price index over the base year of 1997, the amount of liability
insurance coverage will be increased by 3%, and likewise the consumer price
increase shall be calculated each year and the insurance adjusted in the same
fashion each year.
5.05 Tenant shall provide and maintain insurance against loss of rental,
under a rental value insurance policy
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covering risk of loss due to the occurrence of any of the hazards described in
Article 5, in an amount equal to the sum of one (1) years annual rent as
provided for herein, as the same may be increased from time to time, plus the
amount of any real estate taxes for the period of twelve (12) months next
following the occurrence of the insured casualty, which policies shall be
payable to Landlord and Tenant as their interest may appear. Said policies of
insurance shall be deposited with Landlord, and Tenant does hereby assign to
Landlord the proceeds of such insurance, if, as and when collected, and said
proceeds shall be held in trust and 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. Tenant shall pay
the premium on all said policies. 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.
5.06 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 materially changed or canceled without the Landlords consent, and
without at least twenty (20) days prior written notice to Landlord and to any
such mortgagee named as loss payee thereunder.
5.07 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
shall be at liberty from time to time, but shall not be required, to obtain such
insurance and to furnish Landlord with certificates for such insurance, and to
procure such insurance for a term not exceeding one (1) year and to 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.
5.08 Tenant shall procure an appropriate clause in, or
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endorsement on, any fire or exceeded coverage insurance policy covering The
Premises and the buildings 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, the 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 any other perils whether or not covered by such
fire and extended coverage insurance.
ARTICLE 6
DESTRUCTION AND DAMAGE
6.01 If during the term of this Lease, the buildings, and improvements
erected thereon or therein, shall be destroyed or damaged in whole or in part by
fire or any other cause, Tenant shall give to Landlord prompt 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, and
the Tenant shall not be entitled to an abatement of rent by reason of the damage
or destruction to The Premises.
6.02 For the purpose of paying towards the cost of such repairs,
replacement or rebuilding, in the event of a loss in excess of $25,000.00,
Landlord and Tenant shall deposit the proceeds of insurance with the Landlord as
trustee and such trustee shall make available and pay from time to time, but in
no event more frequently than once in each month, 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
rebuildings shall progress or to Tenant, if Tenant shall make or pay for such
repairs, re-
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placement or rebuilding, in reimbursement for work and materials actually
incorporated in The Premises. Such payment shall be made by such trustee 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 said trustee shall
be made upon appropriate requisition certificates 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 the trustee and 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
(90%) percent 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.
6.03 If in the course of such work any mechanic's, construction, 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 rent or additional rent then due and payable, or
if there is any existing and unremedied default 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, such trustee shall not make any
payment of such insurance proceeds until and unless such lien or order shall
have been fully bonded, satisfied, canceled, discharged of record or complied
with, and/or until such default shall have been cured. In the event of a loss
less than $25,000.00, such proceeds of insurance shall be assigned or paid
directly to Tenant, to be applied by it in accordance with the provisions of
this Article headed "DESTRUCTION AND DAMAGE".
6.04 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
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the amount of such insurance proceeds shall be in excess of the cost thereof,
the excess shall be paid to and retained by Tenant.
6.05 The repairs, replacement or rebuilding to be performed by Tenant shall
not be delayed by Tenant because of failure to receive the insurance proceeds or
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 ten (10) days from the date of loss 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 fifteen (15) 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 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 may be terminated by the Landlord, and all
such insurance proceeds shall belong to and shall be retained by Landlord, and
Tenant shall remain liable for all of its obligations under this Lease.
6.06 Such work and the performance thereof shall be subject to and shall be
performed in accordance with the provisions of the Article of this Lease headed
"ALTERATIONS, IMPROVEMENTS AND ADDITIONS".
6.07 The fifteen (15) day period mentioned in Article 6 shall be extended
by such period as Tenant may be delayed by strikes, labor or material shortages,
embargoes, governmental restrictions or priorities, or other causes beyond
Tenant's reasonable control; provided, however, that lack of required monetary
funds shall not be deemed to be a cause beyond Tenant's reasonable control.
6.08 If, at any time during the last one (1) year of the original term, or
during the last one (1) year of any renewal term, of this Lease, the buildings
and improvements on The Premises shall be so destroyed or damaged by fire or any
other cause that the cost of the restoration exceeds fifty (50%) percent of the
full replacement cost of such buildings, improvements or equipment immediately
prior to such destruction or damage, either party may,
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within the period of ten (10) days after the date on which such destruction or
damage occurs, give notice to the other of its election to terminate this lease,
and this lease and the term of this Lease shall cease and expire on the date of
expiration of the period of ten (10) days after the date on which such notice is
given with the same force and effect as if such date were the date originally
set forth in this lease for the expiration of this Lease and the term of this
Lease, and, in such event, Tenant shall have no obligation to repair, replace or
rebuild such buildings, improvements or equipment and the proceeds of insurance
referred to in Article 6 shall be paid to and belong to Landlord.
ARTICLE 7
WAIVER OF REDEMPTION
7.01 It being clearly understood by Tenant that Landlord is unwilling to
enter into any lease of The Premises unless any statutory rights of redemption
after a dispossess proceeding shall be waived by Tenant and Tenant being willing
to waive all such rights of redemption in order that it may secure a long term
lease, Tenant covenants and agrees that in the event of an action of ejectment,
or any other action or proceeding to dispossess, terminating this lease, the
right of redemption, if any, provided or permitted by any statute, law or
decision, now or hereafter in force, shall be and hereby is expressly waived.
ARTICLE 8
PAYMENT TO LANDLORD
8.01 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 pay the same to Landlord upon demand, with
interest thereon at ten (10%) percent per annum, and in default thereof, the sum
or sums so paid or to be incurred by Landlord, together with all interest, costs
and damages, shall be additional rent becoming due immediately, and shall for
all purposes whatsoever be deemed to be rent due and payable immediately, or on
any subsequent day, as
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Landlord may, at Landlord's option, elect, and shall be payable as such, but it
is expressly covenanted and agreed hereby 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 Tenant, 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 or act. The
Landlord may demand and receive payment from the Tenant in advance of the date
that the Landlord elects to make payment.
ARTICLE 9
LIENS
9.01 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 or alteration to The Premises or any addition or new
building located thereon, 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 Tenant, or anyone claiming by, through
or under Tenant, at The Premises, Tenant shall, within thirty (30) days after
notice to Tenant of the filing thereof, cause the same to be canceled 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 Tenant'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.
9.02 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),
any such lien filed against The Premises upon condition that before instituting
any such proceedings, if the contested item or items shall not have been paid
and are in the aggregate in excess of $25,000.00, Tenant
20
shall furnish to Landlord a surety company bond, sufficient to cover the amount
of such 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 bond, Tenant shall not be deemed to be in
default in the payment of such contested items. Notwithstanding the provisions
of the foregoing, or the furnishing of any such bond, Tenant shall promptly pay
all such items if at 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 bond may be canceled and discharged. The legal proceedings
herein referred to shall include appropriate appeals from any judgments, decrees
or orders, but all such proceedings shall be begun as soon as is reasonably
possible after the imposition or assessment of any contested item, and shall be
prosecuted to final adjudication with reasonable dispatch. In the event of any
reduction, cancellation or discharge of any such contested item, Tenant shall
pay the amount finally levied against The Premises or adjudicated to be due and
payable on any such contested item, and upon such payment any such bond may be
canceled and discharged, and if there shall be any refund with respect thereto,
Tenant shall be entitled to the same.
ARTICLE 10
HOLDOVER BY TENANT
10.01 In the event that the Tenant shall holdover and remain in possession
of the leased property after the expiration of this Lease, or at such sooner
date as the Lease may be terminated by reason of the provisions thereof, without
the Landlord's consent, it shall not be deemed or construed to be a renewal or
extension of this Lease, but it shall operate to create a holdover tenancy, at
which time the rent shall accrue at double the amount of the rent then due and
owing.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
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11.01 Tenant may not assign this Lease. Tenant may not sublet The Premises,
except to a wholly owned subsidiary, after having obtained the written consent
of the Landlord, and provided that U.S. GOLF AND ENTERTAINMENT, INC. shall
remain fully and primarily liable under the terms of this Lease.
11.02 Tenant may not sublet The Premises without the prior written consent
of Landlord, which consent may not be unreasonably withheld; provided, however,
in connection with any sublet of The Premises, Tenant shall comply with the
following:
(a) At the time of any sublet, this Lease must be in full force and
effect without any uncured or continuing Event of Default hereunder on the
part of Tenant;
(b) The sub-tenant shall assume, by written instrument in form
reasonably satisfactory to Landlord, the due performance of the Tenant's
obligations under this Lease;
(c) A copy of any sub-lease, both in form and content reasonably
satisfactory to Landlord, fully executed and acknowledged by the
sub-tenant, together with a certified copy of a properly executed corporate
resolution (if the sub-tenant be a corporation) authorizing such sub-lease,
shall be delivered to Landlord prior to the effective date of such
sub-lease for the Landlord's review; and
(d) The use of the premises shall continue to be the same as that
presently authorized by the lease; and
(e) The Tenant shall pay the Landlord's attorney's fees and expenses
regarding this matter, including the review and approval of the sub-lease.
11.03 If Tenant is a corporation, then the sale, issuance or transfer of
any voting capital stock of Tenant which shall result in a change in the voting
control of Tenant shall be deemed to be a prohibited assignment of this Lease
within the meaning of this Paragraph.
ARTICLE 12
ARBITRATION
12.01 Neither the Landlord nor the Tenant shall be required to arbitrate
any disputes under this Lease.
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ARTICLE 13
ALTERATIONS, IMPROVEMENTS AND ADDITIONS
13.01 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 and/or additions, structural or
otherwise, in and to The Premises; provided, however that: (a) such alteration,
improvement and/or addition does not materially impair the value of The Premises
or change the character of The Premises so as to be in violation of the
provisions of the Article of this Lease headed "USE OF PROPERTY", (b) Tenant
notifies Landlord of its intention to make such alterations, improvements and/or
additions in writing prior to the commencement of any such work, (c) if the cost
of the proposed alteration, improvement and/or addition is in excess of
$25,000.00, furnish Landlord with a copy of the plans and specifications for
such work, and, (d) Tenant shall obtain the prior written consent of Landlord
and the holder of any mortgage to which this Lease is subordinate, which consent
shall not be unreasonably withheld so long as Tenant delivers adequate security
that it will restore The Premises on termination of this Lease, and (e) On
termination of this Lease, the Tenant will, at the option of the Landlord,
restore The Premises to the condition it was prior to the improvement,
alteration or addition.
13.02 In connection with such work, Tenant shall be required to procure and
deliver to Landlord a performance and payment bond in an amount equal to the
estimated cost of construction of such alteration, improvement and/or addition,
in the event any of the following shall occur' (a) The cost of the proposed
alteration, improvement and/or addition is in excess of $25,000.00 or involves a
permanent structure, or a change to a structure on The Premises.
13.03 In the event Tenant is required to post a performance and payment
bond in accordance with Article 13.02 above, such bond shall be executed by a
surety company or companies reasonably satisfactory to Landlord and shall be in
a form approved by Landlord guaranteeing that Tenant shall and will:
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(a) Make, erect and complete the proposed improvement 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
(except if delayed by strikes, labor or material shortages, embargoes,
governmental restrictions or priorities or other causes beyond Tenant's
reasonable control) and fully pay for the same at the times and in the
manner as fixed by contracts therefor; and
(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 certificates of occupancy therefor.
13.04 During the period of such work, Tenant shall pay all items of rent,
percentage rent, and additional rent which Tenant is obligated to pay under any
other provision of this Lease. Wherever in this Lease rent is required to be
paid by Tenant, it shall mean all rent, without exception, including net rent,
base rent, percentage rent, additional rent, and all other Tenant's impositions.
It is mutually understood and agreed that the liability of the surety or
sureties on said bond or bonds may, from time to time, be reduced so that the
amount therefor at any time in force shall be equal to the estimated cost of
completion of the balance of the improvement, but that said liability, as the
same may from time to time be reduced as aforesaid, shall continue for the
benefit of Landlord until the completion of said improvement and the expiration
of four (4) months next succeeding the date of such completion, or until
satisfactory proof has been submitted to Landlord that said improvement has been
fully paid for and The Premises are free of any mechanic's or other liens or
claims for which a lien may be filed in connection with such work. Tenant
further agrees that at all times during construction, Tenant will indemnify and
keep indemnified Landlord against loss on account of
24
injuries to person or property, and against loss by way of penalties or
otherwise on account of the failure of Tenant to perform or fulfill any duty
imposed upon Landlord in, or arising out of, or connected with the intended
construction, either by appropriate endorsement on the policy or policies of
general liability insurance referred to in this lease, or by obtaining policies
of insurance with the same limitations of coverage to cover Landlord and Tenant
during such construction. Landlord shall, upon request of Tenant, but at
Tenant's sole cost and expense, join in Tenant's application for any building
permit or license required in connection with such alteration, improvement
and/or addition, and only upon Landlord's prior written consent, which shall not
be unreasonably withheld, grant such underground utility easements as may be
required in connection therewith.
13.05 Any such alteration, improvement and/or addition to The Premises
shall immediately be and become the property of Landlord.
ARTICLE 14
USE OF PROPERTY
14.01 Tenant will not do, cause or knowingly permit to be caused, any waste
or damage, disfigurement or injury to The Premises or any part thereof, nor
shall Tenant use or knowingly allow The Premises or any part thereof, to be used
or occupied for: (a) any unlawful purpose, or (b) in a manner that would, in any
way, violate any certificate of occupancy affecting the premises, or (c) in any
way which may make void or voidable any insurance then in force with respect to
the premises, or (d) in a manner that will cause, or be likely to cause,
structural injury to the premises, or (e) in a manner that would constitute a
private or public nuisance, or (f) in a manner to violate Environmental
Protection Laws or Regulations, or any other Federal, State or Municipal
governmental rule or regulation.
14.02 Tenant, without the express written consent of Landlord, may only use
The Premises: (a) for an upscale family oriented recreation facility limited to
a two-level heated golf driving range; (b) an 18-hole miniature golf course; and
(c) a related club house. No other uses are permitted.
25
14.03 Nothing contained in this Article headed "USE OF PROPERTY" and no
action or inaction by Landlord hereunder shall be deemed or construed to mean
that Landlord has granted to Tenant any right, power or permission to do any act
or make any agreement that may create, give rise to, or be the foundation for
any right, title, interest, charge or other encumbrance upon the estate of
Landlord in The Premises.
14.04 Tenant, throughout the term of this lease, shall comply with all of
the terms, provisions and conditions of all documents of record subject to which
Landlord acquired title to The Premises.
14.05 Tenant acknowledges that Tenant has heretofore consulted with the
Building Inspector of the City of Englewood, and has received assurances to
Tenant's satisfaction that Tenant's proposed use and occupancy of the Demised
Premises is permitted under the zoning and other ordinances of said City. Tenant
further acknowledges that the execution and delivery of this Lease is based upon
Tenant's independent investigation as to permitted uses and not upon any
representation by or actions of the Landlord with respect thereto, and Tenant
assumes all liability with respect to Tenant's use and occupancy of the Demised
Premises as being a permitted use.
ARTICLE 15
SALE AND INSPECTION BY LANDLORD
15.01 Tenant shall permit Landlord or the agents of Landlord to show The
Premises for sale or lease between the hours of nine o'clock in the forenoon and
six o'clock in the afternoon on business days.
ARTICLE 16
MEMORANDUM OF LEASE
16.01 Upon request of either party to this Lease, Landlord and Tenant agree
to execute and deliver a memorandum of this Lease, and a memorandum of any
modification of this Lease, in recordable form.
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ARTICLE 17
TENANT'S RECORDS
17.01 Tenant agrees that throughout the term of this lease and during any
renewal term, if this lease is renewed, to furnish Landlord, without demand,
with copies of its published annual and interim financial reports to
shareholders and public filings with the Securities and Exchange Commission.
ARTICLE 18
QUIET ENJOYMENT
18.01 Tenant, upon payment of the rent and all sums herein reserved, and
upon the due performance of all terms, covenants, conditions and agreements
herein contained on Tenant's part to be kept and performed, shall at all times
during the term hereby granted quiet enjoyment of The Premises from the actions
of the Landlord, subject, however, to the terms of this lease. Any failure by
Landlord to comply with the foregoing covenant which arises as a result of a
claim of paramount title, or is otherwise outside of Landlord's control, shall
not give Tenant any right to cancel or terminate this Lease, or to xxxxx, reduce
or make deductions from or offset any rent or other sums payable in accordance
with the provisions of this Lease, or to fail to perform or observe any other
covenant, agreement or obligation of Tenant hereunder. The Tenant covenants that
it has made a title search of The Premises, and has obtained the requisite
Certificate of Occupancy, and that the Tenant has accepted title and possession
"as is".
ARTICLE 19
SUBORDINATION AND NON-DISTURBANCE
19.01 This lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all fee and leasehold mortgages which
may now, or hereafter affect all or any portions of The Premises, to each and
every new mortgage or advance made or hereafter to be made under such mortgages,
and to all renewals, modifications, replacements and extension of such mortgages
and spreaders and consolidations of such mortgages,
27
provided that as to any mortgages that become liens of record after the date of
this lease: (a) the mortgagees thereunder shall each enter into a
non-disturbance agreement, in favor of Tenant, to provide that in the event its
said mortgage shall be foreclosed and provided that there is no Event of Default
continuing hereunder, this lease shall not terminate on account thereof so long
as Tenant continues to pay the rents reserved in this Lease and otherwise
performs and observes all of the terms, covenants, conditions and provisions of
this Lease to be performed and observed by or on behalf of Tenant hereunder,
provided that the lien of any mortgages shall cover any structures installed by
the Tenant on The Premises. The provisions of this Article 19 shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute and deliver,
within 5 days of request, any instruments that Landlord, or the holder of any
mortgage, or any of their respective successors in interest, may reasonably
request to evidence such subordination.
19.02 In the event of any act or omission of Landlord which would give
Tenant the right, immediately or after lapse of a period of time, to cancel or
terminate this lease, or to claim a partial or total eviction, Tenant shall not
exercise such right until it has given written notice to the Landlord, if there
is a mortgagee, to the mortgagee, of such act or omission, and if it is one
which is not capable of being remedied by Landlord or any mortgagee within a
reasonable amount of time, until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notice and following
the time when all such mortgagees shall have become entitled under such
mortgages to remedy the same (which reasonable period shall in no event be less
than the period to which Landlord would be entitled under this lease or
otherwise, after similar notice, to effect such remedy), provided any such
mortgagee shall, with due diligence, give Tenant written notice of intention to,
and shall commence and continue to, remedy such act or omission, but nothing
herein contained shall obligate any mortgagee to do so unless it so elects.
19.03 If a mortgagee shall succeed to the rights of Landlord
28
under this lease, whether through possession or foreclosure action or delivery
of a new lease or deed, then, at the request of such Party so succeeding to
Landlord's rights (herein sometimes called the "Successor Landlord") and upon
such Successor Landlord's written agreement to accept Tenant's attornment which
such Successor Landlord shall agree to accept if so requested by Tenant, Tenant
shall attorn to and recognize such Successor Landlord as Tenant's landlord under
this Lease, and shall promptly execute and deliver any instrument that such
Successor Landlord may reasonably request to evidence such attornment. Upon such
attornment, this Lease shall continue in full force and effect as if it were a
direct lease between the Successor Landlord and Tenant upon all of the terms,
covenants and conditions set forth in this Lease, and all such terms, covenants
and conditions shall be applicable after such attornment except that the
Successor Landlord shall: (a) Not be liable for any previous act or omission of
Landlord under this Lease; (b) Not be subject to any offset, not expressly
provided for in this Lease, which shall have theretofore accrued or which may
thereafter accrue to Tenant against Landlord; and (c) Not be bound by any
previous modification of this Lease, not expressly provided for in this lease,
other than a modification of this lease executed by Landlord and Tenant prior to
the notice of the execution of any mortgage, or by any previous prepayment of
more than one month's annual rental, unless, if such modification or prepayment
shall have been made by Tenant after its' receipt of notice of the existence of
such mortgage(s), such modification or prepayment shall have been expressly
approved in writing by the mortgagee through or by reason of which the Successor
Landlord shall have succeeded to the rights of Landlord under this Lease.
ARTICLE 20
RENEWAL OPTION
20.01 If this Lease shall not have been terminated as herein provided
during the original term, Tenant, provided no Event of Default is continuing
hereunder, is hereby granted an option to
29
extend the term of this Lease for one ten (10) year period. Tenant shall notify
Landlord in writing not less than one (1) year prior to the expiration of the
then current term, time being of the essence, that Tenant elects to extend the
term of this Lease and upon the giving of such notice as herein provided, this
Lease shall be automatically renewed for such renewal term without the necessity
of the execution of any further instruments. The renewal term shall be upon the
terms, covenants and conditions applicable to the original term, except that:
(a) the rent reserved for the term shall be as specified in the rent schedule of
Paragraph 1.01; (b) the minimum rent during such renewal term shall be increased
by the CPI increase (but not decrease) calculated as the difference (reduced to
a percentage) between the N.Y. Metropolitan Index (or similar index) for the
month of February 1997, and the index for the month of February 2022. For
example, if there is an increase in the CPI index, the minimum rent will be
$350,000.00 as shown in the rent schedule, plus the CPI increase calculation,
which together shall be the total new minimum rent for that year, with a similar
calculation thereafter. The gross income provision of the lease as well as all
other clauses, remain applicable to the extended term.
20.02 If the Tenant shall fail to exercise its option to extend this Lease
for the renewal term as provided in Article 20, TIME BEING OF THE ESSENCE, then
the renewal term shall automatically lapse, and be void and of no effect, and
the Lease will terminate on April 30. 2022.
ARTICLE 21
BROKERAGE
21.01 The parties mutually represent to each other that the Tenant was
introduced to The Premises by Marcus Associates, and the Tenant represents that
Marcus Associates is the sole broker who negotiated and consummated the within
transaction, for the Landlord, shall be responsible to pay the brokerage
commission to Marcus Associates only.
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ARTICLE 22
DEFAULT
22.01 Each of the following shall be an "Event of Default"
(a) Failure of Tenant to pay any installment of rent or any part thereof
(including, but not limited to, failure to make any deposit required hereunder)
or any other payments of money, costs or expenses herein agreed to be paid by
Tenant after the same shall become due and payable, and the continuance of such
failure for a period of five (5) days.
(b) Failure of Tenant to observe or perform one or more of the other terms,
conditions, covenants or agreements of this Lease and the continuance of such
failure for a period of twenty (20) days after written notice by Landlord
specifying such failure (unless such failure requires work to be performed, acts
to be done or conditions to be removed which cannot, by their nature, reasonably
be performed, done or removed, as the case may be, within such 20-day period, in
which case no Event of Default shall be deemed to exist so long as Tenant shall
have commenced curing the same within such 20-day period and shall diligently
and continuously prosecute the same to completion);
(c) Failure of Tenant to observe or perform one or more of the terms,
conditions, covenants or agreements contained in the documents and agreements of
records subject to which Landlord acquired title to The Premises and, provided
same does not result in a forfeiture or reversion of title, the continuance of
such failure for a period of twenty (20) days after written notice by Landlord
specifying such failure.
(d) The filing or execution or occurrence of;
(i) a petition in bankruptcy by or against Tenant, sub-tenant, or to
an assignee;
(ii) a petition or answer by or against Tenant seeking a
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or any relief under a provision of the Bankruptcy Act;
(iii) adjudication of Tenant as a bankrupt or insolvent;
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(iv) an assignment by Tenant for the benefit of creditors, whether by
trust, mortgage or otherwise;
(v) a petition or other proceeding by or against Tenant for, or the
appointment of, a trustee, receiver, guardian, conservator or liquidator of
Tenant with respect to all or substantially all of its property;
(vi) a petition or other proceeding by or against Tenant for its
dissolution or judicial liquidation, or the taking of possession of the
property of Tenant by a governmental authority in connection with
dissolution or liquidation;
(e) The entry of a final order, judgment or decree by any court of
competent jurisdiction granting any prayer of demand contained in any petition
under (d) (i), (ii), (iii), (iv),(v) or (vi) above.
(f) Failure of the Tenant to remain open for business seven (7) calendar
days per week during normal golf driving range business hours, including
mornings, and evenings until 10:00 p.m., Friday and Saturday evenings until
12:00 p.m.
22.02 If an Event of Default shall occur under this Lease, Landlord, at any
time thereafter, may, at its option, give written notice to Tenant stating that
this lease and the term hereby demised shall expire and terminate on the date
specified in such notice (which shall be no earlier than five (5) days after the
mailing of said notice), and, upon the date specified in such notice, this lease
and the term hereby demised, and all rights of the Tenant hereunder, shall
expire and terminate as if that date were the date herein definitely fixed for
the termination of the term of this lease, and the Tenant hereof shall quit and
surrender The Premises, but Tenant shall remain liable on all terms of the Lease
as hereinafter provided for it is agreed that in the event the Lease is so
terminated, the Tenant shall remain liable for all obligations under the Lease.
22.03 In the event of the termination of this Lease either by operation of
law, by issuance of a dispossessory warrant, by termination as provided above or
otherwise, or if an Event of Default shall occur, Landlord may, without notice,
reenter and repossess The Premises, using such force for that purpose as may be
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necessary without being liable to indictment, prosecution or damages therefor,
and Tenant shall nevertheless remain and continue liable to Landlord for a sum
equal to all rent and other payments and charges reserved herein, for the
remainder of the term, which sum shall be immediately due and payable. The term
of the Lease shall run to April 30, 2022, or if the option is executed, to April
30, 2032. If Landlord shall so re-enter, Landlord may, at its option, repair and
alter The Premises in such manner as to Landlord may seem necessary or
advisable, and/or let or relet The Premises or any parts thereof for the whole
or any part of the remainder of the term hereof or for a longer period, for such
amounts as the Landlord may elect, whether for a lesser sum or a greater sum
than the amount due by the Tenant, in Landlord's name or as agent of Tenant, and
out of any rent collected or received as a result of such letting or reletting
Landlord shall first, pay to itself the cost and expense of retaking and
repossessing The Premises, and the cost and expenses of removing all persons and
property therefrom, including reasonable legal fees and expenses; second, pay to
itself the cost and expense sustained in securing any new tenants, and if
Landlord shall maintain and operate The Premises, the cost and expense of
operating and maintaining The Premises; and third, pay to itself any balance
remaining on account of the liability of Tenant to Landlord for the sum equal to
all rent and other payments and charges reserved herein and unpaid by Tenant for
the remainder of the term hereof. In the event that the rent received by the
Landlord shall be greater than that due from the Tenant, the Tenant shall
receive no excess sum, but that sum be retained by the Landlord. No re-entry by
Landlord, whether had or taken under summary proceedings or otherwise, shall
absolve or discharge Tenant from liability hereunder. Landlord shall in no way
be responsible or liable for any failure to relet The Premises or any part
thereof, or for any failure to collect any rent due on any such reletting, and
Landlord shall not have the duty to mitigate damages. The Landlord may offer to
lease and lease The Premises for a greater or lesser sum than that due from the
Tenant. Should any rent to be collected by Landlord after the aforementioned
payments be insufficient fully to pay Landlord a sum equal to all
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such rent and other payments and charges reserved herein, the deficiency shall
be paid by Tenant, or if there shall be an excess of rent collected by Landlord
over and above that to be paid by the Tenant, the Landlord shall be entitled to
retain any surplus; and Tenant hereby expressly waives any defense that might be
predicated upon the issuance of such dispossessory warrant or other termination
hereof.
22.04 Upon the occurrence of any of the circumstances hereinabove mentioned
in which Landlord shall have the right to hold Tenant liable under this Lease,
Landlord may forth-with recover against Tenant as damages for loss of the
bargain and not as a penalty, in addition to any other damages becoming due
hereunder, an aggregate sum which, at the time of such termination of this Lease
or of such recovery of possession of The Premises by Landlord, as the case may
be, represents the aggregate of the rent and all other payments and charges
payable by Tenant hereunder that would have accrued for the balance of the term,
such sum to be computed on the basis of a Tenant paying not only the minimum
rent, percentage rent, and additional rent, to Landlord for the use and
occupation of The Premises, but also the taxes, insurance, impositions,
additional rent and all other payments and charges as are required to be paid by
Tenant under the terms of this Lease for the balance of such term.
22.05 Suit or suits for the recovery of such deficiency or damages, or for
a sum equal to any installments of rent, taxes, insurance and other charges
hereunder, may be brought by Landlord, from time to time at Landlord's election,
and nothing herein contained shall be deemed to require Landlord to await the
date whereon this Lease or the term hereof would have expired had there been no
such default by Tenant or termination.
22.06 Nothing herein contained shall limit or prejudice the right of
Landlord to prove and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization or dissolution proceeding an amount
equal to the maximum allowed by a statute or rule of law governing such
proceeding and in effect at the time when such damages are to be proved, whether
or not such amount be greater, equal to or less than the amount of the damages
referred
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to in any of the preceding Articles hereof.
22.07 No receipt of monies by Landlord from Tenant or any other person
after termination of this Lease, or after the giving of any notice of
termination of this Lease, shall reinstate, continue or extend the term of this
Lease or affect any notice theretofore given to Tenant, or operate as a waiver
of the right of Landlord to enforce the payment of rent or other sum or sums of
money and other charges herein reserved and agreed to be paid by Tenant then due
or thereafter falling due, or operate as a waiver of the right of Landlord to
recover possession of The Premises by proper remedy, it being agreed that after
the service of notice to terminate this lease or the commencement of suit or
summary proceedings, or after final order or judgment for the possession of The
Premises, Landlord may demand, receive and collect any monies due or thereafter
falling due without in any manner affecting such notice, proceeding, order, suit
or judgment, except as herein otherwise specifically provided, all such monies
collected being deemed payments on account of the use and occupation of The
Premises or, by reason of economic necessity, at the election of Landlord, on
account of Tenant's liability hereunder.
22.08 Tenant hereby expressly waives the service of any notice of intention
to re-enter provided for in any statute, or of the institution of legal
proceedings to that end. The terms "enter", "re-enter", "entry" or "re-entry" as
used in this Lease are not restricted to their technical legal meaning.
22.09 Each and every covenant contained herein shall be deemed separate and
independent and not dependent upon other provisions of this Lease.
22.10 In the event of any breach or threatened breach by Tenant of any of
the covenants, agreements terms or conditions contained in this Lease, the
Landlord shall be entitled to enjoin such breach or threatened breach and shall
have the right to invoke any right and remedy allowed at law or in equity or by
statute or otherwise.
22.11 Each right and remedy provided for in this Lease shall be cumulative
and shall be in addition to every other right or remedy provided for in this
Lease or now or hereafter
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existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise of any one or more of the rights or remedies provided
for in this lease or now or hereafter existing at law or in equity or by statute
or otherwise, shall not preclude the simultaneous or later exercise of any or
all other rights or remedies.
22.12 If the Landlord shall be made a party to any action or proceeding by
reason of the act or omission of the Tenant or its agents or employees, the
Tenant pay all costs and expenses, including, but not limited to, reasonable
attorneys fees, incurred by the Landlord. In the event Landlord incurs any costs
or expenses in enforcing any of the covenants and provisions of this lease, all
such costs and expenses, including, but not limited to, reasonable attorneys'
fees, shall be paid by the Tenant, and shall be deemed to be additional rent
hereunder.
22.13 In the event of any action or proceeding brought by Tenant against
the Landlord, all costs, expenses and attorneys' fees incurred by Landlord in
connection therewith shall be payable by the Tenant if the Landlord prevails and
may be included in and form part of any judgment entered in any such action or
proceeding. All such amounts due under this Article shall be paid within ten
(10) days of the rendition of a xxxx or statement therefor.
22.14 In the event of a termination of this lease by reason of the
occurrence of an Event of Default or breach by Tenant hereunder, all unexpired
insurance premiums, all deposits theretofore made by Tenant with utility
companies, all rights of Tenant under all insurance policies, any claims for
refund of any impositions, any pending claims for insurance proceeds or
condemnation awards, all monies and securities of Tenant then held by Landlord
and all fuel and supplies on The Premises, shall be deemed to be and are hereby
assigned to and transferred to Landlord.
22.15 The rent hereunder and each and every installment thereof, and all
costs, reasonable attorneys' fees or other expenses which may be incurred by
Landlord in enforcing the provisions of this lease, or on account of any
delinquency of Tenant in carrying out the provisions of this Lease, shall be and
they hereby are declared to constitute a valid lien upon the
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interest of Tenant in this Lease, and shall be deemed additional rent under this
Lease.
22.16 No failure by Landlord or Tenant to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease or to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such covenant, agreement, term of
condition. No covenant, agreement, term or condition of this lease to be
performed or complied with by Landlord or Tenant, and no breach thereof, shall
be waived, altered or modified except by a written instrument executed by
Landlord or Tenant, as the case may be. No waiver of any breach shall affect or
alter this lease, but each and every covenant, agreement, term and condition of
this lease shall continue in full force and effect with respect to any other
then existing or subsequent breach thereof.
22.17 This Lease shall survive the termination of the Landlord/Tenant
relationship for the purposes of payment of rent and all other sums due to the
end of the term. Thus, the Tenant shall remain liable for the sums accruing
after the termination of the Landlord/Tenant relationship. The Landlord has no
duty to mitigate damages, and nothing that the Landlord does will constitute a
waiver thereof.
ARTICLE 23
DISTRAINT
23.01 The Landlord and Tenant specifically agree, in consideration of the
Lease herein, that in the event Tenant defaults in the performance of any of the
conditions and covenants herein contained, that the Landlord, in addition to any
other remedies herein contained or permitted by law, shall have the right and
power under the terms of this Lease to cause a Distraint to be placed upon the
goods and chattels of Tenant so that Tenant's rent, and all other charges, which
are in default, may be paid. For purposes hereof, Landlord shall follow the
following procedure:
(a) Cause a constable or private person, such as Landlord, manager, agent
or auctioneer, to make the Distraint by
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posting a notice on The Premises that the Distraint has been made.
(b) Advise the Tenant, by certified mail, return receipt requested,
addressed to Tenant's address as herein set forth, that the Distraint has been
made.
(c) The said constable or private person as described above shall advertise
in a newspaper having a circulation in the community within three (3) days of
the notice of Distraint that a public sale will take place on a date set, which
date shall be within ten (10) days, but not less than seven (7) days from the
date of said Distraint.
(d) Tenant shall be notified, by certified mail, return receipt requested,
addressed to Tenant's address as herein set forth, of the date of said sale.
(e) On the date and at the time set for the said sale, the constable or
other private person as described above shall then sell the goods and chattel of
Tenant to the highest bidder for the unpaid rent. Said sale shall be for
separate items or the goods and chattel under a single bid in the discretion of
the constable or private person. Landlord shall have the right to bid for said
goods and chattel on his own behalf. The monies realized from the said bid shall
be applied, first, to the cost of these proceedings and sale, including
constable or private person and reasonable legal fees of the Landlord, and the
balance thereof shall be applied to the unpaid rent. In the event Landlord bids
on his own behalf, an affidavit of reasonable value of the goods and chattels
sold by the constable or private person shall be mailed to Tenant by certified
mail, return receipt requested, together with an accounting of all the monies
received.
23.02 The parties hereto agree to this fully, knowing the present state of
law with respect to the Distraint Statute as it is presently enacted in the
State of New Jersey, and intend this to be a procedure agreed to between the
parties as a consideration of the making of this Lease.
23.03 Proceeding under this Paragraph shall not validate the continuance of
the Lease and shall not limit Landlord with respect to any other remedies under
this lease, or at law or in equity.
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ARTICLE 24
LANDLORD'S REMEDIES ON TENANT'S
DEFAULT RE ITEMS OF ADDITIONAL COST
24.01 Upon default in the payment of any item of additional rent as herein
provided, with all accrued interest and penalties thereon, shall or may be added
as additional rent due immediately to the Landlord, or at Landlord's option, may
be added 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 in default
of the payment of the same, Landlord shall have all the rights and remedies to
enforce the payment of the same, including summary proceedings for non-payment
of rent, as Landlord would have were the said payments for the rent due. Nothing
herein contained shall, however, be deemed to waive the right of Landlord to xxx
for and recover by action at law or equity any sums of money which it may have
paid out, or any indebtedness which it may have incurred on account of the
failure of Tenant to comply with or perform any terms, conditions, covenants or
agreements of this Lease. No cause of action brought by Landlord to dispossess,
evict or terminate the Tenant shall be dismissed because the notice periods
provided for in this Lease shall not have been followed.
ARTICLE 25
SURRENDER
25.01 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, well and truly surrender and
deliver up into the possession and use of Landlord, without fraud or delay, the
entire premises in good order and repair. Upon surrender, the premises,and also
all buildings, structures, golf driving ranges, golf courses, facilities, pipes,
plumbing, electric wires, boilers and heating plant shall be in good repair,
order and condition, and the property shall be broom clean and free and clear of
all liens and
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encumbrances other than those, if any, created by Landlord. To which end Tenant
specifically contracts, under penalty of termination and damages, that Tenant
will at all times not only keep all structures, buildings, golf driving ranges,
and golf courses, sidewalks, parking areas, grounds and streets of the premises,
together with all fixtures, in good repair, inside and outside, and will, from
time to time, renew the same to the end that delivery of The Premises,
including, but not limited to, buildings, structures, miniature golf courses,
golf driving range, sidewalks, parking areas, grounds and streets and all pipes,
plumbing, electric wires, fixtures and equipment thereof shall be at the
expiration of this Lease in good repair and condition. The Tenant shall keep the
premises freshly painted from time to time as proper maintenance will warrant,
both inside and out, and the roof free of leaks, and the HVAC in proper working
order. Repaving of the parking area, and replacement of the roofs and HVAC will
be made as required. Furniture, trade fixtures and personal property shall, at
Landlord's option, be removed by Tenant at or prior to the termination of this
Lease, and all of Tenant's signs shall, if requested by Landlord, be removed by
Tenant prior to the termination hereof. Any injury to the buildings or Premises,
or other injury which necessitates fundamental changes in or repairs to the
buildings or structures caused by such removal shall be repaired by Tenant. Any
personal property of Tenant which shall remain on The Premises 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 Landlord as the property of Landlord or be disposed of, at
Tenant's expense, if Tenant does not remove same within seven (7) days after
Landlord's notice to Tenant, without accountability, and in such manner as
Landlord sees fit.
ARTICLE 26
SECURITY DEPOSIT
26.01 The Tenant shall deposit with the Landlord the sum of $100,000.00,
without interest, as security for the faithful performance and observance by
Tenant of the terms, provisions and
40
conditions of this lease, such deposit to be delivered to Landlord to be held by
him as he so desires, without interest, for the uses and purposes herein
contained. In the event Tenant defaults in respect of any of the terms,
provisions and conditions of this Lease, including, but not limited to, the
payment of rent and additional rent, Landlord may use, apply or retain the whole
or part of the security so deposited to the extent required for the payment of
any rent or additional rent or any other sum as to which Tenant is in default,
or for any sum which Landlord may expend or may be required to expend by reason
of Tenants' default in respect of any of the terms, covenants and conditions of
this lease, including, but not limited to, any damages or deficiency accruing
before or after summary proceedings or other re-entry by Landlord and any
application of security shall not serve to cure the default.
26.02 In the event Tenant shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this Lease, the security deposit
deposited hereunder, without interest, shall be returned to Tenant within a
reasonable time after the termination date as set forth herein. In the event of
a sale of The Premises, Landlord shall have the right to transfer the security
to the vendee and Landlord shall thereupon be released by Tenant from all
liability for the return of such security, and Tenant agrees to look to the new
landlord solely for the return of said security; and it is agreed that the
provisions hereof shall apply to every transfer made of the security to a new
landlord.
ARTICLE 27
CONDEMNATION
27.01 Any award or payment to which Landlord or Tenant may be or become
entitled by reason of any taking of The Premises, or part thereof, in or by
condemnation or other eminent domain proceedings pursuant to any law, general or
special, or by reason of the temporary reacquisition of the use or occupancy of
The Premises, or part thereof, by any governmental authority, civil or military,
shall be paid to Landlord.
27.02 If: (a) a portion of The Premises shall be taken in or
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by condemnation or other eminent domain proceedings pursuant to any law, general
or special, and this lease shall not be terminated and the Tenant's obligation
shall continue as stated herein, or (b) the use or occupancy of The Premises, or
part thereof, shall be temporarily requisitioned by any governmental authority,
civil or military, then this lease shall continue in full force and effect
without any abatement of rent.
27.03 In case of any such partial taking as referred to in Article 27.02(a)
above, the Landlord and Tenant shall deposit the net award in an interest
bearing account with the Landlord as trustee and such trustee shall make
available and pay from time to time, but in no event more frequently than once
in each month, such net award 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 rebuildings shall progress. Such payment shall be
made by such trustee 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 said trustee shall be made upon appropriate requisition certificates
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 the trustee and 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 (90%) Percent of the balance of said award 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 the
cost of restoration required to be made by Tenant pursuant to this Article shall
exceed the amount of the net award, the deficiency shall be paid by Tenant. If
the amount of such net award shall exceed the cost of restoration, such excess
shall belong to and shall be paid to Landlord.
27.04 If the whole of the demised premises shall be taken by eminent domain
for any public use then this lease shall, upon full payment by the authority to
the Landlord, and title vesting, cease and terminate.
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27.05 Tenant shall have the right, in any eminent domain proceeding, to
file and prosecute separate claims, independent of Landlord, with the condemning
authority for damages of loss of Tenant's trade fixtures and moving expenses,
provided same does not reduce Landlord's award.
ARTICLE 28
SIGNS
28.01 The Tenant shall secure the prior written approval of the Landlord
before placing any identifying sign on the premises. If such approval is given,
the Tenant shall be solely responsible for the upkeep and maintenance of such
signs, and for any injury, damage or claims that may be made by reason thereof.
ARTICLE 29
ESCROW DEPOSITS
29.01 In the event of the occurrence of an Event of Default as defined in
this Lease, whether or not such default shall have been waived by Landlord,
Landlord shall have the option during the term hereof, and any renewal term
hereof, of requiring Tenant to pay to Landlord, together with and in addition to
the rent reserved herein, any installment of the taxes and assessments levied or
to be levied against The Premises and of the insurance premiums required under
this Lease. Such installments shall be equal to 1/12th of the annual taxes and
assessments and insurance premiums as estimated by Landlord. Landlord shall hold
such monthly payments in escrow to apply the same against such taxes and
assessments and insurance premiums when due.
29.02 If the total of the payments made by Tenant for taxes and assessments
and insurance premiums shall exceed the amount of payments actually made by
Landlord for such charges, such excess shall be credited by Landlord on
subsequent payments of the same nature made by Tenant. If, however, said monthly
payments made by Tenant shall not be sufficient to pay such taxes and
assessments and insurance premiums when the same shall become due and payable
then Tenant shall pay to Landlord any amount necessary to make up the
deficiency, on or before the date when payment of
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such taxes and assessments and insurance premiums shall be due.
ARTICLE 30
CERTIFICATES
30.01 The Tenant shall, without charge, at any time and from time to time,
within ten (10) days after request by the Landlord, certify by written
instrument, duly executed, acknowledged and delivered to the Landlord, or to any
mortgagee or proposed mortgagee, or any purchaser or proposed purchaser:
(a) Whether or not such Tenant or Landlord is in default in any way, in the
performance of any of the covenants, conditions and agreements to be performed
by such party in accordance with this Lease and if there is any such default,
specifying the nature of same.
(b) What the amount of rent is pursuant to the terms of this Lease.
(c) That this Lease is unmodified and in full force and effect, or in the
event that there have been modifications, that the same is in full force and
effect as modified, and setting forth the modifications.
(d) Whether or not there are then existing any claims, set-offs or defenses
against the enforcement of any of the agreements, terms, covenants or conditions
hereof upon the part of such other party to be performed or complied with, and
if so, specifying the same.
30.02 The failure of the Tenant to deliver this certificate shall be deemed
tantamount to the delivery of the certificate by the Tenant to the party
requesting such certificate to the effect that this lease is valid and
subsisting and in full force and effect and that the Landlord at the time, is
not in default under any of the terms of this Lease.
ARTICLE 31
JURY WAIVER
31.01 It is mutually agreed by and between Landlord and Tenant, that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim
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brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of The Premises
and/or any claim of injury or damage and any emergency statute or any other
statutory remedy.
ARTICLE 32
SUPPLY OF SERVICES
32.01 Landlord shall not be required to furnish any services or facilities
or to make any repairs or alterations in or to The Premises. Tenant hereby
assumes the full and sole responsibility for the condition, operation, repair,
replacement, maintenance and management of The Premises and accepts same "as is"
in its present condition.
ARTICLE 33
ACCEPTANCE OF PREMISES
33.01 Tenant has examined the premises and accepts The Premises in its
present condition and without any representation or warranty by Landlord as to
the condition of said buildings or as to the use or occupancy which may be made
thereof, and Landlord shall not be responsible for any latent defect or change
of condition in The Premises, or the structures to be built thereon, and the
rent hereunder shall in no case be withheld or diminished on account of any
defect in The Premises, or the title thereto, nor for any change in their
condition, nor for any damage occurring thereto, nor because of the existence of
any violations of State or Local Laws or Regulations. The approval of Landlord
of any plans or specifications shall not constitute a representation that those
plans and specifications comply with the laws, orders, ordinances and
regulations of the public authorities, or that the use or occupancy indicated in
said plans or specifications is legal. The Landlord makes no representation
regarding access to the premises or the availability of water, sewer, electrical
or other services to The Premises, for the Tenant has satisfied itself in this
regard.
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ARTICLE 34
AMENDMENT
34.01 None of the covenants, terms, agreements and conditions of this Lease
shall in any manner be altered, waived, changed or abandoned, nor shall the term
hereof or any part thereof be surrendered, except by a written instrument duly
executed and delivered by the parties hereto. This Lease contains the entire
agreement between the parties and any executory agreement hereafter made shall
be ineffective to change, modify or discharge it in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification or discharge is sought.
34.02 This Lease will not be construed against the drafter. Both Landlord
and Tenant have examined the same, and therefore the Lease will not be construed
against the drafter.
ARTICLE 35
NOTICES
35.01 Any notices required or permitted to be given under this lease,
either by Landlord to Tenant or by Tenant to Landlord, shall be in writing,
enclosed in an envelope with the Proper postage prepaid thereon, and mailed by
registered or certified in a post office or in any branch post office of the
United States, addressed to the respective party as set forth herein or to such
other address as either party shall hereafter furnish to the other for that
purpose, and the same shall be given and shall be deemed to have been served and
given when each has received the notice. In the event that the Tenant cannot be
located, service upon the Tenant's attorney is sufficient.
ARTICLE 36
INVALIDITY OF PARTICULAR PROVISIONS
36.01 If any term or provision of this Lease or the application thereof to
any person or circumstances shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
46
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
ARTICLE 37
EXCULPATION
37.01 Landlord shall not be personally liable, under any expressed or
implied covenant of this Lease, for any damages to Tenant, and Tenant agrees to
look solely to the equity of Landlord in The Premises, for the satisfaction of
the remedies by Tenant in the event of a breach by Landlord of any of the
covenants or conditions hereof.
ARTICLE 38
NO HAZARDOUS USE OF PREMISES
38.01 The Tenant covenants and agrees that it will not use the premises for
any use which creates an extra hazard or fire or other danger or casualty or
which will increase the risk of damage to The Premises, nor will the Tenant
utilize, store, manufacture, or otherwise place upon The Premises any objects,
chemicals, substances, or other matters which are deemed to be hazardous
chemicals or substances pursuant to New Jersey or Federal Law or Regulation.
ARTICLE 39
ISRA REQUIREMENTS
39.01 The Landlord will not obtain an ISRA Certificate of
Non-Applicability, or any other similar certificate. Should such a certificate
be required for any reason, the Tenant will assume the Landlord's duty to obtain
that certificate. In the event that during the term of this Lease, there shall
result in a determination that DEP, or ISRA, or similar compliance is required,
the Tenant shall immediately undertake the compliance and cure and thereafter
apply to ISRA, or any similar agency, for a Letter of Non-Applicability or other
determination that the ISRA requirements have been satisfied, and the Tenant
will complete all requirements at its own expense. At the termination of this
Lease, the Tenant
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shall forthwith obtain a determination from ISRA or any similar or replacement
requirement, that all matters regarding ISRA or any substitute statute or rule
or regulation, whether State or Federal, which may take the place of ISRA or
which may otherwise be applicable at that time, whether contemplated or not,
have been complied with by the Tenant and the Tenant will cure and repair any
defect, damage or other default found, whether or not caused by reason of
Tenant's operation or use of The Premises, for it is the intention of the
parties that the Landlord shall not be subject to any risk, liability, cost or
expense by reason thereof.
ARTICLE 40
OPERATION OF BUSINESS
40.01 Tenant shall at all times during the term hereof (a) conduct its
business on the entire Demised Premises; (b) remain open for business seven (7)
calendar days per week during normal business hours for a golf driving range as
referenced in a previous article of this Lease; (c) adequately staff its
business with sufficient employees to handle the maximum business and carry
sufficient merchandise of such character and quality to accomplish the same; (d)
if the Tenant closes early or does not remain open, or does not open, in
accordance with the above paragraphs, Tenant shall pay to the Landlord, as
additional rent, in addition to the minimum rent and other impositions,
liquidated damages in the sum of $1,000.00 per day or fraction thereof, for all
such failures to maintain and/or conduct its business during such times, and
Landlord shall be entitled to all other remedies at law or equity, including
injunctive relief.
ARTICLE 41
STATEMENT OF ACCEPTANCE
41.01 Upon the Tenant's entering possession of The Premises, the Tenant
covenants and agrees that it will furnish to the Landlord a statement that it
accepts The Premises by the payment of the first month's rent, the Tenant does
hereby covenant and agree that it has accepted the lease premises by the payment
of the first month's rent.
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ARTICLE 42
LATE PAYMENT AND INTEREST
42.01 The Tenant agrees that as a material inducement to the Landlord to
enter into this Lease, it will pay the rent and other charges as herein provided
promptly on the first day of each and every month or as otherwise provided in
this Lease, and that the Tenant understands that the Landlord will incur
expenses in the event that the rent is not paid on time. Therefore without
waiving any of the Landlord's other remedies for failure to pay rent or
additional rent as in this Lease contained, the Tenant hereby agrees that if any
rent payment or any other charge or expense is not paid by the Tenant within
five (5) days after the same shall be due, the Tenant shall pay immediately, and
without demand, a late charge of five (5%) percent of each payment required,
which payment shall be deemed additional rent. This late charge is deemed to be
a reasonable charge by the Tenant. Failure to demand or collect the late charge
is not a waiver thereof. In addition to the late charge aforesaid, the Tenant
shall pay interest upon any sum that has not been paid by the Tenant to the
Landlord more than thirty (30) days after the same is due, at the highest rate
of interest allowed by law in the State of New Jersey, which sum shall be in
addition to the late charge herein imposed.
ARTICLE 43
NO PARTNERSHIP
43.01 Landlord shall in no event be construed, held or become in any way or
for any purpose a partner, associate or joint venturer of Tenant, or any party
associated with Tenant, in the conduct of its business or otherwise.
ARTICLE 44
COMPLIANCE WITN LAWS
44.01 Tenant shall, at its own cost and expense:
(a) Comply with all governmental laws, ordinances orders and regulations
affecting the Demised Premises now in force or which hereafter may be in force;
(b) Comply with and execute all rules, requirements and
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regulations of the Board of Fire Underwriters, Landlord's insurance company, and
other organizations establishing insurance rates;
(c) Not suffer, permit or commit any waste or nuisance;
(d) Not conduct any auction, distress, fire or bankruptcy sale;
(e) Install fire extinguishers in accordance with law and insurance
requirements; and
(f) Obtain all necessary environmental and operating permits.
44.02 Tenant acknowledges the existence of environmental laws, rules and
regulations, including but limited to the provisions of ISRA, as hereinafter
defined. Tenant shall comply with any and all such laws, rules and regulations.
Tenant represents to Landlord that Tenant's Standard Industrial Classifications
Manual prepared by the Office of Management and Budget in the Executive Office
of the President of the United States will not subject the Demised Premises to
ISRA applicability.
ARTICLE 45
ATTORNEY-IN-FACT
45.01 If Tenant shall fail, within ten (10) days after written request from
the Landlord, to execute and deliver to Landlord such instruments as are
required by this Lease, the Tenant hereby irrevocably appoints Landlord as
attorney-in-fact for Tenant with full power and authority to execute and deliver
such instruments for and in the name of Tenant. If Tenant shall not have
executed and delivered such instruments as aforesaid, and Tenant's actual
execution is required by the party requesting the instrument, Landlord may
cancel this Lease.
ARTICLE 46
FORCE MAJEURE
46.01 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,
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hostilities.
ARTICLE 47
NO REPRESENTATIONS BY LANDLORD
47.01 The Landlord does not make any representations regarding the
condition, title, use or occupancy of The Premises, and the Landlord is
unwilling to make any representations regarding the condition, title, use and
occupancy of The Premises, or regarding the nature of The Premises whatsoever.
The Tenant has made its final inspection of The Premises and is satisfied
therewith.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed, sealed
and executed this Lease on the day and year first above written.
ATTEST: U.S. GOLF AND ENTERTAINMENT, INC.
BY:
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Tenant
---------------------------------
XXXXXX X. BEER, Landlord
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