OPERATING LEASE between WO GRAND HOTEL, LLC, Landlord And PLEASANT VALLEY 350 CATERING ASSOCIATES, L.L.C., Tenant Leased Property: Catering Facility Wilshire Grand Hotel 350 Pleasant Valley Way West Orange, New Jersey
Exhibit
10.2
between
WO
GRAND
HOTEL, LLC,
Landlord
And
PLEASANT
VALLEY 350 CATERING ASSOCIATES, L.L.C.,
Tenant
Leased
Property:
Catering
Facility
Wilshire
Grand Hotel
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TABLE
OF
CONTENTS
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ARTICLE
1 Demise and Term
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1
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ARTICLE
2 Taxes and Common Area Expenses
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3
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ARTICLE
3 Tenant’s Use and Operating
Covenants
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8
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|
ARTICLE
4 Operating and Improvement
Fund and Required
Improvements
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13
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ARTICLE
5 Electricity and Utilities
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15
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ARTICLE
6 Tenant’s Changes
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16
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ARTICLE
7 Notices
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19
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ARTICLE
8 Subordination; Attornment
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20
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ARTICLE
9 Default and Remedies
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21
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ARTICLE
10 Reentry by Landlord
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22
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ARTICLE
11 Surrender
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23
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ARTICLE
12 Tenant’s Insurance
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24
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|
ARTICLE
13 Non-Liability, Indemnification and Costs
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27
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ARTICLE
14 Brokerage
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28
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ARTICLE
15 Landlord’s Liability; Tenant’s Remedies
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29
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ARTICLE
16 Assignment, Mortgaging, Subletting
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29
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ARTICLE
17 Furniture, Fixtures and Equipment
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29
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ARTICLE
18 Compliance with Laws
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30
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ARTICLE
19 Repairs
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31
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ARTICLE
20 Landlord’s Access
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31
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ARTICLE
21 Signs
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32
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ARTICLE
22 Hazardous Material
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32
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ARTICLE
23 Casualty
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33
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ARTICLE
24 Condemnation
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34
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ARTICLE
25 Estoppel Certificate
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34
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i
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ARTICLE
26 Miscellaneous
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34
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ARTICLE
27 Guaranty.
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37
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EXHIBIT
A Floor Plan of Facility
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EXHIBIT
C Landlord’s Reservations
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C-1
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This
index is included only as a matter of
convenience of reference and shall not be deemed or construed in any way
to
define or limit the scope of the following Lease or the intent of any provision
thereof.
ii
OPERATING
LEASE (this “Lease”),
dated
as of September _____, 2005, between WO
GRAND HOTEL, LLC,
a New
Jersey limited liability company, having an address c/o Wilshire Enterprises,
Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (“Landlord)
and
PLEASANT VALLEY
350 CATERING ASSOCIATES, L.L.C.,
a New
Jersey limited liability company with an address at ▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇, ▇▇▇▇▇
▇▇,
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (“Tenant”).
RECITALS:
WHEREAS,
1.
Landlord
is the owner of certain real property and the improvements located thereon
including, without limitation, a hotel, catering facility and restaurant
complex, known collectively as the Wilshire Grand Hotel and located at
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (collectively, the “Facility”),
a
floor plan of the first floor of which is annexed hereto and made a part
hereof
as Exhibit
A;
and
2. Landlord,
as seller, and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Hotel Associates, L.L.C., as buyer, have
entered into a Hotel Purchase Agreement dated of even date herewith (the
“Purchase
Agreement”)
pursuant to which Landlord agreed to sell to such buyer and such buyer agreed
to
acquire from Landlord, the Facility, upon the terms and conditions set forth
in
the Purchase Agreement;
3.
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Hotel Associates, L.L.C. is an affiliate of Tenant, having
common ownership with Tenant;
4.
In
connection with the Purchase Agreement and prior to the closing thereunder,
Tenant desires to use and occupy the portion of the Facility currently being
used as a catering facility and Landlord is agreeable thereto, subject to
and
upon the terms, covenants and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration the receipt and sufficient of which
are hereby acknowledged, Landlord and Tenant hereby agree as
follows:
ARTICLE
1
Demise
and Term
1.01
Landlord
hereby leases to Tenant, and Tenant hereby hires from Landlord, upon and
subject
to the terms, covenants, provisions and conditions of this Lease, the following
(the “Leased
Property”):
(a)
the
portion of the first floor of the Facility shown hatched on the floor plan
annexed hereto as Exhibit
B
and made
a part hereof (the “Premises”);
and
(b) the
FF&E (as hereinafter defined).
Tenant
acknowledges that the floor plan annexed hereto as Exhibit
B
is
solely for the purpose of identifying the Premises and nothing set forth
in this
Lease shall be construed to be a representation or covenant as to the dimensions
and/or square foot area of the Premises. Tenant acknowledges that the floor
plan
annexed hereto as Exhibit
A
is
solely for the purpose of identifying the Facility and nothing set forth
in this
Lease shall be construed to be a representation or covenant as to the dimensions
and/or square foot area of the Facility.
1
1.02
The
term
of this Lease (the “Term”)
shall
commence on the date hereof (the “Commencement
Date”),
and
shall end on the earliest to occur of the following (the “Expiration
Date”):
(i)
the date of any expiration or termination of the Purchase Agreement, (ii)
December 29, 2005 (provided that if, and only if, the Scheduled Closing Date
(as
defined in the Purchase Agreement) is duly extended pursuant to Section 9.1
of
the Purchase Agreement, then the date “December 29, 2005” set forth in this
clause shall be deemed to be the earlier of (x) the adjourned Closing Date
(as
defined in the Purchase Agreement) pursuant to the Purchase Agreement and
(y)
March 28, 2006, or (iii) the date such Term shall sooner cease and terminate
as
herein provided. For all purposes of this Lease, the term “Business
Day”
shall
mean any Monday through Friday that is not a New Jersey State or Federal
holiday
for which financial institutions or post offices are generally closed in
the
State of New Jersey. The foregoing notwithstanding, only if the Closing (as
defined in the Purchase Agreement) shall actually occur on the Scheduled
Closing
Date (as defined in the Purchase Agreement, and as same may be adjourned
pursuant to the Purchase Agreement), and if Buyer shall request a reasonable
period prior to the Scheduled Closing Date, then immediately prior to the
Closing (but subject to the Closing actually occurring) the Term shall be
extended to the date two (2) days after Closing, but such extension shall
be
without liability or obligation on the part of Landlord (and this exculpation
of
Landlord shall survive the Closing and the extension of the term).
1.03
Tenant
acknowledges delivery of possession of the Leased Property and accepts the
Leased Property in its “as is” condition on the Commencement Date. Tenant
further acknowledges that it has had full opportunity to inspect the Leased
Property and the Facility and to review such documents and records as it
deems
necessary or appropriate concerning the Leased Property and the Facility,
including, without limitation, the condition of the soil, subsoil, surface
or
other physical condition of the Facility; the existence or non existence
of
hazardous or toxic materials, wastes or substances or archaeological matters,
the fitness or suitability of the Leased Property for any particular use
or
purpose, applicable restrictive covenants, governmental laws, rules,
regulations, and limitations; the zoning subdivision, use, density, location
or
development of the Facility; the necessity or availability or unavailability
of
any rezoning, zoning variances, conditional use permits, special management
area
permits, building permits, environmental impact statements, certificates
of
occupancy and other governmental permits, approvals or acts; the physical
condition of the Leased Property and the Facility, including but not limited
to,
the structural elements, foundation, roof, appurtenances, access, landscaping
and electrical, mechanical, HVAC, plumbing, sewage, and utility systems,
facilities and appliances (if any), the Facility’s compliance or non-compliance
with any building code, OSHA, the ADA and other Legal Requirements (as such
terms are hereinafter defined), the size, dimension, or topography of the
Leased
Property and the Facility and surface, soil geologic, drainage, flooding
or
groundwater conditions or other physical conditions and characteristics of
or
affecting the Leased Property and the Facility or adjoining land. Tenant
represents that it is not relying on any representation or warranty of Landlord
or Landlord’s agents or employees with respect to the condition of the Leased
Property and Tenant waives any claim or action against Landlord in respect
thereof. Landlord makes no warranty or representation, express or implied,
in
respect of the Leased Property or any part thereof, either as to its fitness
for
use, design or condition for any particular use or purpose or otherwise,
or as
to the quality of the material or workmanship therein, latent or patent,
it
being agreed that all such risks are to be borne by Tenant. Tenant further
acknowledges and agrees that Landlord has no obligation to perform any work,
supply any materials, incur any expense or make any alterations or improvements
to the Leased Property to prepare the Leased Property for Tenant’s
occupancy.
2
1.04
During
the Term, Tenant, its agents, employees, contractors, guests and invitees
shall
have the non-exclusive right to use, in common with Landlord and other tenants
and occupants of the Facility, and their agents, employees, contractors,
guests
and invitees, the parking and landscaped areas, common entrances, exits,
roadways, streets, curbs, driveways and delivery areas of the Facility that
are
designated by Landlord for common use at the Facility (the “Common
Areas”).
Landlord makes no representation as to the condition, use or otherwise with
respect to the Common Areas. The Common Areas shall be subject to the exclusive
control and management of Landlord and Landlord shall have the right to
establish, modify, change and enforce reasonable rules and regulations with
respect to the Common Areas, including, without limitation, with respect
to the
parking areas, for the proper care and operation of same, and Tenant agrees
to
abide by and conform with such rules and regulations. Landlord shall have
the
right, without liability to Tenant, to close any part of the Common Areas
for
such time as may be necessary for the repair, maintenance or replacement
thereof
and/or to make modifications to the Common Areas as Landlord deems necessary
or
desirable. Tenant agrees that it shall not use any portion of the Common
Areas
in any manner which would unreasonably or materially interfere with the use
thereof by Landlord and/or any other occupant of the Facility and their agents,
employees, contractors, guests and invitees. Except as expressly provided
in
this Lease, Tenant shall have no right to use any facilities or services
of the
Facility.
1.05
Notwithstanding
any provision of this Lease to the contrary, in no event may Tenant, its
employees, contractors, agents, guests and invitees (“Tenant
Parties”)
use
more than an aggregate of 125 parking spaces at the Facility (the “Parking
Areas”),
it
being acknowledged by Tenant that all of such parking spaces shall be at
the
rear of the Facility and that some or all of these parking spaces may be
unstriped or unmarked. Tenant acknowledges that the Restaurant Tenant has
been
granted certain exclusive parking rights pursuant to the Restaurant Lease
and
Tenant agrees that no Tenant Party shall park vehicles in any area exclusively
reserved for use by the Restaurant Tenant (as such area may change from time
to
time) Tenant further acknowledges that the number of spaces in the Parking
Areas
that are available for use by Tenant Parties may be insufficient to accommodate
Tenant’s parking requirements and that Tenant may be required to locate
alternate parking for Tenant Parties from time to time, which may include
arrangements for valet parking for guests (without expense to Landlord) at
Tenant’s events in the Premises. Tenant agrees to provide such valet parking
whenever so requested by Landlord. Tenant’s employees and contractors shall park
their vehicles only in such portions of the Parking Areas that are located
in
the rear of the Facility. Except as otherwise herein provided, Tenant Parties
shall park trucks and delivery vehicles only in those portions of the Parking
Areas at the rear of the facility that Landlord from time to time shall
designate to Tenant, and no trucks may be parked anywhere in the Parking
Areas
except for delivery purposes. To the extent that Tenant’s contractors require
parking in other portions of the Parking Areas in connection with the
performance of their work in the Premises, such contractors shall park their
vehicles only in those portions of the Parking Areas as Landlord may from
time
to time reasonably designate for that purpose.
ARTICLE
2
Taxes
and Common Area Expenses
2.01
For
the
purposes of this Lease the words and terms which follow shall have the following
meanings:
(a)
“Common
Area Expenses”
shall
mean any and all costs and expenses incurred by Landlord in connection with
the
repair, maintenance and operation of the Common Areas or which otherwise
are
costs of repair, maintenance and/or operation of improvements, equipment,
fixtures, and/or building systems shared by or servicing the Premises and
other
areas of the Facility (including without limitation exterior repair and
maintenance, and repair and maintenance of building systems) (“Shared
Facilities”),
including, but not limited to the following: (i) repair, maintenance and
cleaning (interior and exterior) of Common Areas and Shared Facilities, (ii)
holiday decorations, (iii) the cost of all insurance carried by Landlord
applicable to the Facility (such insurance not being limited to the Common
Areas
or the Shared Facilities, but to include all Landlord’s insurance respecting the
Facility, including, without limitation, the hotel portion of the Facility)
including, without limitation, primary and excess liability, fire and extended
coverage, vandalism and all broad form coverage; (iv) supplies; (v) all charges
for permits, approvals and authorizations required pursuant to applicable
Legal
Requirements; (vi) the cost of landscaping, site maintenance and refuse and
snow
removal including but not limited to curb cuts, curbs, and sidewalks adjacent
to
the Facility; (vii) repair and maintenance of the canopy, if any over the
sidewalks; and (viii) cost of operating, servicing, maintaining, repairing
and
replacing the security, fire-alarm and other life-safety, and traffic
systems.
3
(b)
“Taxes”
shall
mean any and all real estate taxes, assessments and special assessments,
governmental levies, municipal taxes, county taxes, village taxes and school
taxes, business improvement district assessments, special ad valorem levies,
and
any other governmental charges levied, assessed or imposed upon or with respect
to the Facility including water charges and sewer rents, by any municipal
or
other governments or governmental bodies or authorities. If at any time during
the Term the methods of taxation prevailing on the date hereof shall be altered
so that in lieu of, or as an addition to or as a substitute for, the whole
or
any part of such taxes, assessments, charges and levies now imposed on real
estate, there shall be levied, assessed or imposed (x) a tax, assessment,
levy,
imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (y) any other such additional
or
substitute tax, assessment, levy, imposition, fee or charge, then all such
taxes, assessments, levies, impositions, fees or charges or the part thereof
so
measured or based shall be deemed to be included within the term “Taxes” for the
purposes hereof, but only to the extent such tax is imposed exclusively upon
owners or lessees of real property and provided such tax is computed as if
the
Facility were the only property of Landlord. Except as set forth in the
preceding sentence, the term “Taxes” shall, exclude any net income, franchise or
“value added” tax, inheritance tax, gift or succession or transfer tax, capital
stock, mortgage recording or estate tax imposed or constituting a lien upon
Landlord, its members or partners or all or any part of the
Facility.
(c)
“Tax
Year”
shall
mean the fiscal year for real estate tax purposes adopted by the taxing
authority occurring during the Term.
(d)
“CAM
Statement”
shall
mean a statement in writing setting forth the amount payable by Tenant on
account of Common Area Expenses.
(e)
“Tax
Statement”
shall
mean a statement in writing setting forth the amount payable by Tenant on
account of Taxes.
(f)
“Tenant’s
Proportionate Tax Share”
shall
mean (a) thirty percent (30.0%) for the period from the date of this Lease
until
the date immediately preceding the date four (4) months after the date of
this
Lease and (b) thirty nine and six tenths percent (39.6%) for the period from
and
after the date four (4) months after the date of this Lease.
(g)
“Tenant’s
Proportionate CAM Share”
shall
mean thirty percent (30.0%).
(h)
“Tenant’s
Proportionate Utility Share”
shall
mean (a) twenty three percent (23%) for the period from the date of this
Lease
until the date immediately preceding the date fourteen weeks after the date
of
this Lease and (b) twenty-eight percent (28%) for the period from and after
the
date fourteen (14) weeks after the date of this Lease.
(i)
“Utility
Costs”
shall
mean any and all costs and expenses incurred by Landlord for heat, ventilation,
air-conditioning, electricity, gas, and/or any other utility furnished to
the
Facility or any part thereof (excluding, however, phone service, cable or
computer service, and water service), including, without limitation, the
hotel
portion of the facility, the Common Areas, and/or the Premises, together
with
all applicable taxes, impositions, service charges, surcharges, premium time
charges, standby charges, reservation charges, and all other charges of the
provider of such utility service.
4
(j)
“Utility
Statement”
shall
mean a statement in writing setting forth the amount payable by Tenant on
account of Utility Costs.
2.02
Tenant
shall pay to Landlord an amount equal to Tenant’s Proportionate Tax Share of
Taxes for each Tax Year during which any portion of the Term occurs, prorated
to
reflect the portion of the Tax Year occurring during the Term (“Tenant’s
Tax Amount”).
Tenant shall pay to Landlord one twelfth (1/12th)
of
Tenant’s Tax Amount on the first day of each month during the Term on account of
Tenant’s Tax Amount (partial months to be prorated), as same may be adjusted as
hereafter provided. The parties confirm that Tenant shall pay $10,075.66
per
month (partial months to be prorated) on account of Tenant’s Tax Amount for the
period from the date hereof until and including January 29, 2006, and $13,723.61
per month (partial months to be prorated) on account of Tenant’s Tax Amount
thereafter, subject to adjustment as hereinafter provided. If the Taxes for
any
Tax Year shall be adjusted by the taxing authority during the Term, or if
Tenant’s Tax Amount otherwise shall change in accordance with the provisions of
this Lease, or if the monthly amounts above specified must be revised to
accurately reflect Tenant’s Tax Amount, Landlord shall furnish Tenant with
notice of such adjustment and the corresponding adjustment in Tenant’s monthly
payment on account of Tenant’s Tax Amount. If the Taxes for the Tax Year are
adjusted such that the total amount paid by Tenant is less than Tenant’s Tax
Amount, Tenant shall pay the amount of such deficiency to Landlord within
then
(10) days after Landlord shall furnish to Tenant a Tax Statement therefor.
If
the total amount paid by Tenant for any Tax Year exceeds Tenant’s Tax Amount,
then provided Tenant is not in default under this Lease in respect of any
monetary obligation of Tenant (without regard to any notice or cure period)
or
in default beyond any applicable notice and cure period in respect of any
other
obligation of Tenant under this Lease, Landlord shall pay the amount of such
excess simultaneously with delivery of such Tax Statement to Tenant
Notwithstanding any provision of this Lease to the contrary, if as a result
of
any work or improvements performed by Tenant in the Premises, any assessment
is
imposed or Taxes shall increase (a “Tenant
Improvement Tax”),
Tenant shall be solely responsible for such Tenant Improvement Tax and for
purposes of this Lease the term Tenant’s Tax Amount shall include any such
Tenant Improvement Tax. Tenant’s obligation to pay Tenant’s Tax Amount shall
survive the expiration or sooner termination of this Lease.
2.03
Tenant
shall pay to Landlord an amount equal to Tenant’s Proportionate CAM Share of
Common Area Expenses for each calendar year in which any portion of the Term
occurs, prorated to reflect the portion of the calendar year occurring during
the Term (“Tenant’s
CAM Amount”).
Promptly following the Commencement Date Landlord shall furnish to Tenant
a CAM
Statement setting forth Landlord’s estimate of Common Area Expenses for the 2005
calendar year (each calendar year in which any portion of the Term occurs,
a
“Computation
Year”).
Tenant shall pay to Landlord on the first day of each month during the Term
one-twelfth (1/12) of the amount shown on such CAM Statement (partial months
to
be prorated), as same may be adjusted as hereafter provided. If Landlord’s
estimate of Tenant’s CAM Amount for any Computation Year shall change at any
time, Landlord shall furnish Tenant with notice of such adjustment and the
corresponding adjustment in Tenant’s monthly payment on account of Tenant’s CAM
Amount. Following the end of each Computation Year Landlord shall furnish
Tenant
with a CAM Statement showing the actual Common Area Expenses for the Computation
Year prorated to reflect the portion of the Computation Year occurring during
the Term and Tenant’s Proportionate CAM Share thereof. If the total amount paid
by Tenant on account of Common Areas Expenses is less than the amount shown
on
such CAM Statement, Tenant shall pay the amount of such deficiency to Landlord
within twenty (20) days after Landlord shall furnish the CAM Statement to
Tenant. If the total amount paid by Tenant exceeds the amount shown on such
CAM
Statement, then provided Tenant is not in default under this Lease, Landlord
shall pay the amount of such excess to Tenant simultaneously with the delivery
of such CAM Statement to Tenant. Tenant’s obligation to pay Common Area Expenses
shall survive the expiration or sooner termination of this Lease.
5
2.04
Tenant
shall pay to Landlord an amount equal to Tenant’s Proportionate Utility Share of
Utility Costs for each calendar year in which any portion of the Term occurs,
prorated to reflect the portion of the calendar year occurring during the
Term
(“Tenant’s
Utility Amount”).
Promptly following the Commencement Date Landlord shall furnish to Tenant
a
Utility Statement setting forth Landlord’s estimate of Utility Costs for the
2005 calendar year. Tenant shall pay to Landlord, on the first day of each
month
during the Term, one-twelfth (1/12) of the amount shown on such Utility
Statement (partial months to be prorated), as same may be adjusted as hereafter
provided. If Landlord’s estimate of Tenant’s Utility Amount for any Computation
Year shall change at any time, Landlord shall furnish Tenant with notice
of such
adjustment and the corresponding adjustment in Tenant’s monthly payment on
account of Tenant’s Utility Amount. Following the end of each Computation Year
Landlord shall furnish Tenant with a Utility Statement showing the actual
Utility Costs for the Computation Year prorated to reflect the portion of
the
Computation Year occurring during the Term and Tenant’s Proportionate Utility
Share thereof. If the total amount paid by Tenant on account of Utility Costs
is
less than the amount shown on such Utility Statement, Tenant shall pay the
amount of such deficiency to Landlord within twenty (20) days after Landlord
shall furnish the Utility Statement to Tenant. If the total amount paid by
Tenant exceeds the amount shown on such Utility Statement, then provided
Tenant
is not in default under this Lease, Landlord shall pay the amount of such
excess
to Tenant simultaneously with the delivery of such CAM Statement to Tenant.
Tenant’s obligation to pay Utility Costss shall survive the expiration or sooner
termination of this Lease.
2.05
Tenant
shall pay to Landlord three hundred dollars ($300) per month, on the first
day
of each month (partial months to be prorated), commencing on the Commencement
Date, representing the agreed upon payment by Tenant to Landlord for water
consumed at the Premises (“Tenant’s
Water Amount”).
2.06
Each
Tax
Statement, CAM Statement and Utility Statement (as the case may be, a
“Statement”)
shall
be conclusive and binding upon Tenant, unless Tenant gives notice to Landlord
within sixty (60) days after receipt of such Statement, of Tenant’s election to
have Tenant’s designated (in such notice) Approved CPA (as hereinafter defined)
examine such of Landlord’s books and records (collectively, “Records”)
as are
directly relevant to the Statement in question. In making such examination,
Tenant agrees, and shall cause its designated Certified Public Accountant
to
agree, to keep confidential (i) any and all information contained in such
Records and (ii) the circumstances and details pertaining to such examination
and any dispute or settlement between Landlord and Tenant arising out of
such
examination; and Tenant will confirm and cause its Certified Public Accountant
to confirm such agreement in a separate written agreement, if requested by
Landlord. Pending the resolution of any contest pursuant to the terms hereof,
Tenant shall continue to pay all sums as determined to be due in the first
instance by such Statement and upon the resolution of such contest, appropriate
adjustment shall be made in accordance therewith. For purposes of this Lease,
an
“Approved
CPA”
shall
mean a certified public accountant, licensed in the State of New Jersey,
who is
not an Affiliate (as hereinafter defined) of Tenant and is reasonably acceptable
to Landlord, and who is not paid a fee or commission based in whole or in
part
on the amount of any reduction in the amounts payable by Tenant.
2.07
Tenant
shall pay “Tenant
Charges”
consisting of all Taxes, Common Area Expenses, Utility Costs, Tenant’s Water
Amount and all other sums of money as shall become due from and payable by
Tenant to Landlord under this Lease, all to be paid in lawful money of the
United States of America to Landlord at its office, or such other place,
or to
such agent, and at such place, as Landlord may designate by written notice
to
Tenant. Such payment of Tenant Charges shall be by check, subject to collection.
Tenant covenants and agrees to pay all Tenant Charges promptly when due without
notice or demand therefor and without any abatement, deduction or setoff
for any
reason whatsoever, except as otherwise provided herein. Tenant’s obligation to
pay Tenant Charges which have accrued prior to the expiration or termination
of
this Lease shall survive the expiration or termination of this
Lease.
6
2.08
No
payment by Tenant or receipt or acceptance by Landlord of a lesser amount
than
the correct amount of the Tenant Charges shall be deemed to be other than
a
payment on account, nor shall any endorsement or statement on any check or
any
letter accompanying any check or payment be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord’s
right to recover the balance or pursue any other remedy in this Lease or
at law
provided.
2.09
If
Tenant
shall fail to pay Tenant Charges due hereunder for more than seven (7) days
after the same becomes due and payable, Tenant shall pay Landlord a late
charge
of five cents ($0.05) for each dollar of such Tenant Charges as shall not
have
been paid to Landlord within said seven (7) day period;
provided,
however,
that if Tenant shall default in the timely payment of any Tenant Charge on
the
date due more than two (2) times, then commencing with the third such event
Tenant shall pay a
late
charge of five cents ($0.05) for each dollar of such Tenant Charges as shall
not
have been paid to Landlord on the date due, and such late charge shall
be
deemed to be Tenant Charges.
Such
late charge shall be without prejudice to any of Landlord’s rights and remedies
hereunder or at law for nonpayment of rent, shall be in addition thereto
and
shall be deemed to be Tenant Charges.
2.10
If
Tenant
shall fail to pay any Tenant Charges by the date ten (10) day after the date
on
which such payment is due, in addition to (and not in lieu of) the late charge
provided for Section 2.07 hereof, Tenant shall pay interest thereon at the
rate
which is the lesser of (i) ten (10%) percent per annum or (ii) the maximum
rate
of interest allowed by applicable law(s), if any, then prevailing, from the
date
on which such installment or payment is due to the date of payment thereof,
and
such interest shall be deemed to be Tenant Charges; provided,
however,
that if
Tenant shall default in the timely payment of any Tenant Charge on the date
due
more than two (2) times, then commencing with the third such event Tenant
shall
pay interest thereon at the rate of ten (10%) percent per annum or the maximum
rate of interest allowed by applicable law(s), if any, then prevailing, from
the
date on which such installment or payment is due to the date of payment thereof.
Such interest charge shall be without prejudice to any of Landlord’s rights and
remedies hereunder or at law for nonpayment of rent, shall be in addition
thereto and shall be deemed to be Tenant Charges.
2.11
Anything
herein to the contrary notwithstanding if, in the reasonable judgment of
Landlord, it is possible to determine or to reasonably estimate whether there
has been any overpayment or underpayment by Tenant of any Tenant’s Tax Amount,
Tenant’s Cam Amount, Tenant’s Utility Amount, or any other Tenant Charge,
respecting any period of time, prior to the expiration of the applicable
Tax
Year or Computation Year, as the case may be, Landlord shall have the right,
but
not the obligation, prior to the end of the applicable Tax Year or Computation
Year, as the case may be, to furnish a Statement showing the actual (or
Landlord’s reasonable estimate of) Tenant’s Tax Amount, Tenant’s Cam Amount,
Tenant’s Utility Amount, or other Tenant Charge for the applicable period. If
the total amount paid by Tenant on account of the applicable Tenant Charge
is
less than the amount shown on such Statement, Tenant shall pay the amount
of
such deficiency to Landlord within twenty (20) days after Landlord shall
furnish
the Statement to Tenant (or, if sooner, simultaneously with the Closing under
the Purchase Agreement). If the total amount paid by Tenant exceeds the amount
shown on such Statement, then provided Tenant is not in default under this
Lease, Landlord shall pay the amount of such excess to Tenant simultaneously
with the delivery of such Statement to Tenant. This provision shall survive
the
expiration or termination of this Lease.
7
ARTICLE
3
Tenant’s
Use and Operating Covenants
3.01
Subject
to and in accordance with the provisions of this Lease, Tenant shall use
the
Leased Property for the operation of a first-class, full service catering
facility for on-premises events. Tenant
agrees not to permit or suffer the use of the Leased Property for any other
business or purpose.
3.02
Tenant,
recognizing that the Facility has been developed and is maintained as a
first-class hotel and restaurant complex and as an additional inducement
to
Landlord to enter into this Lease, covenants and agrees that at all times
during
the Term, the business to be conducted in the Premises, including, but not
limited to, the (i) amenities, services, staffing, appearance and deportment
of
personnel, sales methods and advertising, and (ii) quality and presentation
of
food and beverages, menu, décor, style of furnishing, lighting and other
appurtenances, and (iii) quality, condition, and utility of the equipment,
and
machinery used in connection therewith, will be in conformity with customary
standards of practice among comparable facilities in Essex County, New Jersey
and shall conform in all respects to the reasonable standards of the Facility
consistent with the foregoing as communicated by Landlord to Tenant from
time to
time during the Term and all applicable Legal Requirements (collectively,
the
“Operating
Standard”);
it
being understood and agreed that (i) the parties contemplate that the Operating
Standard as applicable to the standards and quality of food and service for
catering services are in all events intended to equal or exceed those of
the
catering services operating in the vicinity of the Facility known as Ridgefield
Regency Caterers (of Bloomfield Avenue, Verona, NJ), Mayfair Farms Caterers
(of
Eagle Rock Avenue, West Orange, NJ), and Main Event Caterers (of Englewood,
NJ)
(the
“Approved
Off-Premises Caterers”),
and
(ii) the use of any caterer at the Premises other than the Approved Off-Premises
Caterers shall require the prior written consent of Landlord in each instance
(not to be unreasonably withheld or delayed provided such other caterer meets
the Operating Standard). Tenant agrees that its failure to operate the Leased
Property in accordance with the Operating Standard shall be a material default
under this Lease. In no event may Tenant use or permit the use of the Premises
for a cabaret, discothèque or bar or for any obscene or pornographic purposes or
any nude or semi-nude performances and Tenant will not bring or permit any
obscene or pornographic material on the Premises. For purposes hereof
“pornographic” is defined as any object, writing or other material or any
activity with prurient appeal or that is concerned with lewd or prurient
sexual
activity; and “obscene” is defined as it is in N.J.S. Section 2C:34-2 and
34-3.
3.03
Neither
Tenant nor any Affiliate of Tenant shall or shall have any right to, without
Landlord’s prior written consent in Landlord’s sole discretion, use the name
“Wilshire” or any derivation thereof (either alone or in combination with any
other words) to identify Tenant’s business or operations, whether at the
Premises or otherwise, Landlord shall (except as may be otherwise specifically
provided in the Purchase Agreement) have and retain all property rights in
and
the right to use the name “Wilshire” and “Wilshire Grand Hotel” and any other
name of the Facility and Landlord shall have the absolute right to change
the
name of the Facility at any time and from time to time, upon reasonable prior
notice to Tenant. Tenant shall have no property right to any such name whether
or not same becomes associated with Tenant’s business at the Facility. For
purposes of this Lease, an “Affiliate”
of
Tenant means any entity that directly or indirectly controls, is controlled
by,
or is under common control with Tenant and “control”
shall
mean possession of the power to direct or cause the direction of the policies
and management of Tenant, whether by ownership of voting securities, contract
or
otherwise.
8
3.04
Landlord
makes no representation that Tenant may lawfully use the Premises for any
purpose, including without limitation the use permitted hereunder, and Tenant
specifically acknowledges that no certificate of occupancy or any other
certificate, permit or approval has been issued with respect to the Premises.
Tenant agrees to make prompt, complete and full application to the applicable
governmental authority for a permanent unconditional certificate of occupancy
for the Premises approving the use thereof as a catering facility and Tenant
shall, at Tenant’s sole cost and expense (except as otherwise expressly provided
in Article 4 of this Lease), diligently and expeditiously prosecute such
application, including, but not limited to, by performing all work, making
all
alterations and taking all other action as may be required in order to obtain
such certificate of occupancy. Upon receipt of such certificate of occupancy,
Tenant shall maintain same in full force and effect during the
Term.
3.05
Tenant
shall not at any time use or occupy the Leased Property or the Facility,
or
suffer or permit anyone to use or occupy the Leased Property, which in any
manner (i) violates any certificate of occupancy (including any temporary
certificate of occupancy) issued with respect to the Premises or any applicable
certificate of occupancy (including any temporary certificate of occupancy)
issued with respect to the Facility; (ii) causes or is liable to cause injury
to
the Leased Property or the Facility or any equipment, facilities or systems
therein; (iii) constitutes a violation of any Legal Requirements or the
requirements of insurance bodies; (iv) impairs or tends to impair the proper
and
economic maintenance, operation and repair of the Facility and/or its equipment,
facilities or systems; (v) repeatedly or habitually annoys or inconveniences
other tenants or occupants of the Facility; (vi) constitutes a nuisance,
public
or private; (vii) makes unobtainable from reputable insurance companies
authorized to do business in the State of New Jersey any fire insurance with
extended coverage, or liability, elevator, boiler or other insurance at standard
rates required to be furnished by Landlord under the terms of any mortgages
covering the Facility; or (viii) discharges objectionable fumes, vapors or
odors
into the Facility’s flues or vents or otherwise.
3.06
Tenant,
at its sole cost and expense, shall (i) procure, comply with and thereafter
maintain all necessary licenses, permits, certificates and other permissions
required from time to time by any governmental authority having jurisdiction
over the Facility and the Leased Property, for the proper and lawful operation
of Tenant’s business in the Premises and the use thereof or which from time to
time may become or are necessary with respect to any alteration, repair or
improvement of the Leased Property, (ii) submit copies of all such licenses,
permits and certificates to Landlord, for its inspection upon request and
in all
events prior to Tenant opening the Premises for the conduct of business,
and
(iii) submit copies of new or renewal licenses, permits and certificates,
expiring during the term of this Lease at least twenty (20) days before such
expiration. Tenant shall, at its sole cost and expense, but utilizing Landlord’s
designated contractor, maintain all fire detection and fighting equipment
and
all appurtenances thereto which have been or are hereafter installed in the
Leased Property. If any governmental authority having jurisdiction over the
Facility and the Leased Property shall require additional fire fighting or
detection equipment, Tenant agrees to install and (utilizing Landlord’s
contractor, as aforesaid) maintain such equipment at its sole cost and
expense.
3.07
Tenant
further covenants and agrees that Tenant will, at Tenant’s sole cost and
expense:
(i)
clean
the
interior and exterior of the windows and doors (including, in each case,
the
frames therefor) in the Premises and in the perimeter walls thereof whenever
in
the judgment of Landlord necessary but in no event less frequently than on
a
quarterly basis;
(ii)
keep
the
Leased Property clean, and in a neat, sanitary condition; keep the duct work
to
the main vertical risers clean in a manner and under conditions satisfactory
to
Landlord; keep all plumbing in the Leased Property and sanitary systems and
installations serving the Leased Property in a good state of repair and
operating condition to the points they connect with the main vertical risers
and
stacks of the Facility;
9
(iii)
as
soon
as practicable and in any event within five (5) days after any glass (including
mirrors) in the Leased Property and the perimeter and demising walls thereof
is
broken or cracked, including a so-called “bulls eye” break in the glass, replace
such glass with matching glass of similar kind and quality and as may be
necessary or desirable in connection with such replacement, repair or replace
the frames for such glass, and in the event Tenant shall fail to so replace
such
glass and if necessary repair or replace such frames as aforesaid in a manner
satisfactory to Landlord, then Landlord, upon ten (10) days notice to Tenant,
may replace the glass, if necessary, and repair or replace such frames on
Tenant’s behalf and Tenant shall, within ten (10) days after Landlord’s demand
therefor, pay to Landlord as Additional Rent the reasonable costs incurred
by
Landlord in so doing. Throughout the Term, Tenant shall keep all glass in
the
Leased Property and in the perimeter and demising walls thereof, the frames
for
such glass, and any lettering and ornamentation on such glass insured against
damage (including temporary repairs) for the benefit of Tenant, Landlord,
Landlord’s managing agent and any Superior Mortgagee or Superior Lessor (as such
terms are hereinafter defined) whose name is furnished to Tenant by Landlord,
furnishing Landlord with a separate policy or policies for such glass insurance,
in such form and placed with such carriers as are required pursuant to the
provisions of Article 12 of this Lease;
(iv)
keep
the
Leased Property free from rats, mice, insects and other vermin and, maintain
a
contract with a competent rodent, ▇▇▇▇▇, insect or vermin exterminating company
providing extermination services not less frequently than monthly;
(v)
contract
for the removal of rubbish and refuse from the Leased Property with a contractor
who is reasonably satisfactory to Landlord and bag and remove all rubbish
and
other debris from the Leased Property daily during hours and through areas
designated by Landlord under conditions approved by Landlord;
(vi)
install
any necessary grease traps and other apparatus and keep same clean and
maintained in good order and repair for the purpose of preventing any stoppage
or interference with the general plumbing or sewerage system of the Facility
emanating from the Leased Property and promptly remove and/or repair any
stoppage or interference with such plumbing or sewerage system; and
(vii)
maintain
a fire suppression system in compliance with applicable Legal Requirements
in
good working condition.
3.08
Tenant
shall not (i) permit or allow the sale or offering for sale of food or beverages
from the Leased Property for off-premises consumption, (ii) distribute, anywhere
in the vicinity of the Facility, circulars, flyers or any other type of printed
advertisement or announcements, (iii) or keep or permit to be kept any animals
(except seeing-eye dogs) in or about the Facility.
10
3.09
(a)
Promptly
following the Commencement Date Tenant shall establish an office at a location
in the Premises to be approved by Landlord (the area of which shall not exceed
900 square feet) and shall arrange for such staffing utilizing Tenant’s own
personnel, office machinery, supplies and telephone service (including a
telephone number separate from Landlord’s telephone number at the Facility) as
may be required for the proper operation of the business to be conducted
in the
Premises in accordance with the Operating Standard, including but not limited
to, receiving and accepting reservations for catering and other events to
be
held at the Premises (“Reservations”).
Landlord agrees to transfer telephone calls for Tenant received at Landlord’s
switchboard, to Tenant’s office telephone line and Tenant agrees to pay the
incremental labor cost incurred by Landlord in connection therewith. Tenant
shall maintain a written schedule of rates and charges for events to be held
in
the Premises which rates and charges shall be commercially reasonable and
shall
be subject to Landlord’s prior written approval (which approval shall not be
unreasonably withheld or delayed). Tenant shall furnish such scheduled rates
and
charges to Landlord upon request from time to time; and such rates approved
by
Landlord shall be utilized by Tenant for all events at the Premises (unless
Landlord otherwise shall specifically agree in writing). Prior to accepting
any
Reservation, Tenant shall submit to Landlord, for Landlord’s approval, the name
and address of the party making the Reservation (the “Reserving
Party”),
the
date and time of the proposed Reservation, a brief description of the event,
a
reasonable estimate of the charges and such other information as Landlord
shall
reasonably request. Landlord shall not unreasonably withhold its consent
to any
Reservation submitted by Tenant, provided that Landlord may reject any
Reservation if Landlord has received a Reservation for the same date and
during
hours that conflict with the Reservation submitted by Tenant. Subject to
the
foregoing, Tenant agrees to accept Reservations for events requiring an
off-premises caterer to provide food and beverages, including, without
limitation, events at which only kosher food and beverages may be served
(“Special
Reservations”);
and
in respect of such Special Reservations Tenant shall (at reasonable prices
approved by Landlord) provide the room, set up, kitchen use (if the kitchen
is
then operational) (including, but not limited to, by making the kitchen
available for inspection and cleaning, prior to the date of the Special
Reservation) and similar services customarily supplied in such circumstances.
Any off-premises caterer supplying food and/or beverages to the Premises
shall
be subject to Landlord’s approval (except for an Approved Off-Premises Caterer)
and Tenant shall permit any off-premises caterer approved by Landlord to
use the
Leased Property in connection with any Special Reservation. If Tenant receives
a
request for any Special Reservation which is approved by Landlord in accordance
with the provisions of this Section 3.09, Tenant will provide all
reasonable cooperation in connection with any such Special Reservation.
Notwithstanding any provision of this Section 3.09 to the contrary,
Tenant agrees to honor, for its account, (i) all Reservations accepted by
Landlord prior to the date hereof and any deposits made therefor, including,
but
not limited to the Reservations on the dates set forth on Exhibit C
annexed hereto, and (ii) any Reservation made by Landlord after the date
hereof
provided same does not conflict with a Reservation previously approved by
Landlord in accordance with the provisions of this Section 3.09. Tenant
shall keep records and books of account in which full, true and correct entries
in all material respects will be made of dealings and transaction in relation
to
the business and affairs of Tenant. Subject to the provisions of this Section
3.09(a), Tenant shall not enter into, accept, amend, revise, cancel or
terminate any Reservation without the prior consent of Landlord (not to be
unreasonably withheld or delayed). It is understood that Landlord makes no
representation, warranty or guaranty concerning the Reservations set forth
on
Exhibit C, and Landlord shall have no liability or obligation to Tenant,
nor shall Tenant have any rights or remedies as against Landlord or this
Lease,
if any party to any of the Reservations set forth on Exhibit C shall fail
to honor its obligations in connection with any such Reservations, or otherwise
shall default in connection therewith or cause any damage to Tenant in
connection therewith.
(b)
Tenant
shall deliver to Landlord, immediately upon receipt, all deposits, reservation
fees and similar advance payments, whether in cash, by way of letter of
credit
or otherwise and held as security for the performance of the obligations
of the
parties to all of the Reservations, including without limitation Special
Reservations (“Reservation
Deposits”),
together with such documents of assignment, if any, as Landlord from time
to
time may request. Landlord shall segregate the Reservation Deposits from
monies
of Landlord (it being agreed that cash Reservation Deposits shall be held
by
Landlord in a non-interest bearing account of Landlord), and, within a
reasonable period of time after request by Tenant therefor (provided such
request by Tenant is made at a reasonable time and in accordance with the
terms
of the Reservation) shall disburse the Reservation Deposit (or the applicable
portion thereof) (i) to Tenant, when and if Landlord reasonably
believes
(based on written substantiation by Tenant) that such Reservation Deposit
is
payable to Tenant as a result of (1) a cancellation of the respective
Reservation on terms which entitle Tenant to keep and retain the Reservation
Deposit or (2) the performance by Tenant of Tenant’s obligations respecting the
Reservation on terms which entitle Tenant to keep and retain the Reservation
Deposit, or (ii) to the other party to the Reservation, when and if Landlord
reasonably believes that such Reservation Deposit is payable to such party
as a
result of (1) a cancellation of the respective Reservation on terms which
entitle such party to a return of the Reservation Deposit or (2) the failure
of
performance by Tenant of Tenant’s obligations respecting the Reservation on
terms which entitle such party to a full or partial return of the Reservation
Deposit. Tenant shall cooperate with Landlord in good faith to assist Landlord
in determining when and whether a Reservation Deposit (or any portion thereof)
shall be disbursed to Tenant or another party. If there shall be any dispute
as
to whether Tenant or another party to the Reservation Deposit (or any portion
thereof), or if Landlord shall be unsure at to whether Landlord should
disburse
the Reservation Deposit (or any portion thereof) to Tenant or another party
Landlord shall be entitled to hold the Reservation Deposit until:
(i) Landlord receives instructions signed by both Tenant and the
other
party, setting forth the manner in which the Reservation Deposit shall
be
delivered or (ii) Landlord files an interpleader action, naming Tenant
and the
other party as defendants and setting forth their respective adverse claims
to
the Reservation Deposit, and the Reservation Deposit shall be delivered
in
accordance with an order or judgment issued by a court of competent
jurisdiction. Tenant shall not dispose of or encumber all or any part of
the
Reservation Deposit while on deposit with Landlord. Tenant agrees that
Landlord
shall not be liable to Tenant or any other party for any act or omission
on its
part respecting the Reservation Deposits unless such action is taken or
suffered
as the result of the willful misconduct or gross negligence of Landlord.
Landlord shall incur no liability for acting upon any instruction, notice,
receipt or document believed by it to be genuine and to have been made,
signed,
sent or presented by a person or persons authorized to perform such acts.
Landlord shall have no duty or obligation to ascertain the truth or accuracy
of
any factual statements made by either of the parties respecting the Reservation
Deposits and shall have no liability whatsoever for any action taken in
reliance
upon any assertion of fact contained in any document or receipt respecting
same.
Tenant shall be liable to and shall reimburse and indemnify Landlord for,
and
defend and hold it harmless against, any loss, claim, cost, obligation,
liability or expense, including but not limited to reasonable attorneys’ fees
and expenses, incurred by Landlord in connection with the Reservation Deposits
and/or Landlord’s good faith efforts to perform its agreements respecting the
Reservation Deposits (except to the extent of such loss, liability, or
expense
incurred as the result of the willful misconduct or gross negligence of
Landlord); and the provisions of this sentence shall survive the expiration
or
termination of this Lease.
11
3.10
Tenant
agrees that (i) all service of alcoholic beverages at the Premises by or
for
Tenant shall be in accordance with all requirements of law, and through the
services of duly licensed off-premises caterers, (ii) anything in this Lease
to
the contrary notwithstanding, in no event shall Landlord be obligated to
provide
any service of alcoholic beverages at the Premises, (iii) notwithstanding
the
existence (on the date hereof or in the future) of any Reservations or
agreements with an off-premises caterer to provide alcoholic beverage service
at
the Premises, (A) Tenant shall not permit such caterer to provide such service
if it shall be unlawful for such caterer to provide such service (whether
by
reason of Landlord having a liquor license or otherwise), (B) if such service
by
such off-premises caterer shall not be lawful, Tenant shall be responsible,
at
Tenant’s cost and expense, for amending such Reservations or agreements with
such off-premises caterer so that such off-premises caterer shall not provide
such service, and (C) Landlord shall have no liability or obligation to Tenant
in connection therewith, nor shall Tenant have any rights or remedies against
Landlord or this Lease. Tenant acknowledges that Landlord shall have the
right,
at any time, and at Landlord’s sole option, to deactivate and/or “pocket” the
liquor license applicable to the catering premises at the Facility and to
take
all steps and actions reasonably deemed appropriate by Landlord in connection
therewith.
3.11
Throughout
the Term, Tenant agrees to conduct continuously in the entire Premises the
business set forth in this Article 3 and shall remain open for business
(which shall include, without limitation, having on site an employee of Tenant
for the purpose of discussing Reservations with potential customers, booking
Reservations, and addressing issues concerning existing Reservations, between
the hours of 10:00 a.m. and 7:00 p.m. on every Tuesday through Sunday).
12
3.12
Tenant
acknowledges that Tenant is not being granted any exclusive right with respect
to the use permitted by this Lease and that Landlord may permit other portions
of the Facility to be used for the same or similar purposes, including but
not
limited to the restaurant currently operating in the Facility adjacent to
the
Premises.
3.13
Tenant
shall provide, at Tenant’s sole cost and expense, security personnel and
security services for functions in the Premises as Landlord may request from
time to time.
3.14
Tenant
acknowledges that Landlord’s damages resulting from any breach of the provisions
of this Article are difficult, if not impossible to ascertain and agrees
that,
among other remedies for such breach permitted by law or the provisions of
this
Lease, Landlord shall be entitled to enjoin Tenant from any violation of
said
provisions.
ARTICLE
4
Operating
and Improvement Fund and Required Improvements
4.01
Tenant
hereby covenants and agrees to perform and complete the following work in
and to
the Leased Property in a good and workerlike manner and in accordance with
the
Operating Standard, at Tenant’s sole cost and expense except as otherwise
provided in this Article 4 and subject to the terms and conditions of this
Lease
(the “Tenant
Improvements”):
(a)
Repair
portion of the roof over the kitchen in the Premises and other portions of
the
Facility roof as Landlord from time to time shall designate in writing to
Tenant;
(b)
Installation
of new kitchen facility in the Premises;
(c)
Pave,
repave, apply blacktop to and otherwise finish such portions of the Parking
Area
as Landlord from time to time shall designate in writing to Tenant;
(d)
Repair
and repaint rear wall on first floor of the Premises; and
(e)
Work
from
time to time designated by Landlord which is required so that the Premises
or
any other portion of the Facility designated by Landlord can be lawfully
occupied and business operated thereat, or otherwise to cure any violations
affecting any portion thereof.
The
Tenant Improvements shall be performed in such order and with such priority
as
Landlord shall approve from time to time and in accordance with the provisions
of this Lease, including, but not limited to, Article
6
hereof.
Subject to the provisions of Article
6
hereof,
Tenant shall in good faith, diligently and expeditiously commence and prosecute
the Tenant Improvements and complete same as soon as reasonably practicable
following the Commencement Date and in no event later than ten (10) days
following the Commencement Date.
4.02
Tenant
has deposited the sum of One Million ($1,000,000.00) Dollars representing
the
Fund, to the Fund Account, as such capitalized terms are defined in and in
accordance with the provisions of the Purchase Agreement. Landlord and Tenant
agree that the Fund shall be used for only the following purposes:
13
(a)
Subject
to the provisions of this Section
4.02,
up to
an aggregate of $25,000 per month, on a non-cumulative basis (the “Monthly
Expense Cap”)
may be
used to reimburse Tenant for only the following expenses of operating the
Leased
Property (collectively, “Reimbursable
Expenses”):
(i)
Taxes, (ii) utilities, (iii) maintenance and repairs that are approved by
Landlord, and (iv) insurance, provided that no contractor, subcontractor
or
supplier providing such maintenance, repairs or insurance shall be an Affiliate
of Tenant and the charges for same shall not exceed prevailing charges for
comparable insurance, maintenance and repairs in Essex County, New Jersey.
Tenant shall request reimbursement for Reimbursable Expenses by submitting
to
Landlord paid invoices for any items included in Reimbursable Expenses for
each
month during the Term for Landlord’s approval, together with such reasonable
substantiation therefore as Landlord may require. Provided this Lease is
in full
force and effect and Tenant is not in default under any provision hereof,
upon
Landlord’s approval of such invoices and substantiation, Landlord shall pay the
amount thereof to Tenant from the Fund to the extent the balance remaining
therein, as the Fund is disbursed and applied pursuant to the provisions
of this
Article
4
from
time to time (the “Fund
Balance”),
shall
be sufficient for such purpose; provided, however, that Landlord shall not
be
required to make a disbursement to Tenant for Reimbursable Expenses more
than
once per month and the aggregate amount so reimbursed during each month of
the
Term shall not exceed the Monthly Expense Cap. Tenant shall be responsible
to
pay, without reimbursement of any kind, all operating expenses of the Leased
Property, that are not Reimbursable Expenses and Reimbursable Expenses that
exceed the lesser of the (i) Monthly Expense Cap in any month during the
Term,
or (ii) Fund Balance.
(b)
The
Fund
Balance, if any, may be applied to the Capital Costs (as hereinafter defined)
of
the Tenant Improvements, provided that as of the date on which Landlord is
required to make a disbursement pursuant to this Section
4.02(b)
this
Lease is in full force and effect and Tenant shall not be in default under
this
Lease in respect of any monetary obligation of Tenant (without regard to
any
notice or cure period) or in default under beyond any applicable notice and
cure
period in respect of any other obligation of Tenant under any provision hereof.
Tenant shall pay all costs of the Tenant Improvements in excess of the Fund
Balance. For purposes of this Article
4“Capital
Costs”
shall
mean only those costs related to the Tenant Improvements that are required
to be
capitalized in accordance with generally accepted accounting principles
consistently applied. Tenant shall not be entitled to receive any portion
of the
Fund Balance not actually expended by Tenant for Capital Costs prior to the
Expiration Date or earlier termination of this Lease, nor shall Tenant have
any
right to apply any unexpended portion of the Fund Balance as a credit against
Reimbursable Expenses in excess of the Monthly Expense Cap or any other
obligation of Tenant hereunder. Landlord shall pay amounts on account of
the
Capital Costs of the Tenant Improvements from the Fund Balance following
the
final completion of each item included in the Tenant Improvements and submission
by Tenant to Landlord of a written requisition, signed by Tenant and accompanied
by (i) copies of paid invoices covering such Tenant Improvements,
(ii) a written certification from Tenant’s architect or general contractor
stating that (A) the Tenant Improvements described on such invoices
have
been completed in accordance with the plans and specifications approved by
Landlord, (B) such work has been paid in full by Tenant, and (C) all
contractors, subcontractors and materialmen have delivered to Tenant waivers
of
lien with respect to such work (copies of which shall be included with such
architect’s certification), (iii) proof of the satisfactory completion of
all required inspections and the issuance of any required approvals and
sign-offs by the applicable governmental authorities with respect thereto,
and
(iv) such other documents and information as Landlord may reasonably
request. The right to receive Landlord’s Contribution is for the exclusive
benefit of Tenant, and in no event shall such right be assigned to or be
enforceable by or for the benefit of any third party, including any contractor,
subcontractor, materialman, laborer, architect, engineer, attorney or
otherwise.
14
4.03
Any
portion of the Fund Balance not actually expended prior to the Expiration
Date
or earlier termination of this Lease shall be paid in accordance with the
applicable provisions of Article 4 of the Purchase Agreement.
ARTICLE
5
Electricity
and Utilities
5.01
Except
as
may be otherwise specifically provided in this Lease, Landlord shall not
supply
to the Leased Property or be responsible for the supply to the Leased Property
of any utilities or services whatsoever, including, without limitation, heat,
air conditioning, water, ventilation, gas, steam, waste disposal, electricity
or
cleaning. Tenant shall utilize all services or utilities required by Tenant
(i)
in compliance with (a) all Legal Requirements, (b) all rules and regulations
of
Landlord and any public utility or other company furnishing such service
or
utility, and (c) the provisions of this Lease, including, without limitation,
Article 6 hereof, and (ii) so as not to exceed the operating specifications
or
operating parameters of any building service or equipment at the Facility.
5.02
Tenant’s
use of electric current in the Leased Property shall not at any time exceed
the
capacity of any of the electrical conductors and equipment in or otherwise
serving the Leased Property. Tenant shall not make or perform or permit the
making or performing of any alterations to wiring installations or other
electrical facilities in or serving the Leased Property without the prior
written consent of Landlord in each instance. Should Landlord grant any such
consent, any additional risers, feeders, or other equipment proper or necessary
to supply Tenant’s electrical requirements, will be installed by Tenant, at
Tenant’s expense (or, at Landlord’s option, same will be installed by Landlord,
at the sole cost and expense of Tenant), if, in Landlord’s sole judgment, the
same are necessary and will not cause permanent damage or injury to the Facility
or the Leased Property, or cause or create a dangerous or hazardous condition
or
entail excessive or unreasonable alterations, repairs or expense or materially
or unreasonably interfere with or disturb other tenants or
occupants..
5.03
Anything
in this Lease to the contrary notwithstanding, Landlord shall not be liable
in
any way to Tenant for any failure or defect in the supply or character of
electric energy, steam, gas, water, heating, venting and/or air conditioning
or
other utilities, if any, furnished to the Leased Property by reason of any
requirement, act or omission of the public utility serving the Facility with
electricity, steam, gas, water, or other utilities, if any, or for any other
reason not attributable to the gross negligence or willful misconduct of
Landlord. Interruption or curtailment of such services shall not constitute
a
constructive eviction nor entitle Landlord to any compensation.
5.04
Landlord
reserves the right without liability to Tenant and without constituting any
claim of constructive eviction, to stop or interrupt any heating, lighting,
heating ventilating, air conditioning, gas, steam, power, water, waste disposal,
electricity, labor or other service to make repairs or improvements reasonably
deemed necessary or appropriate by Landlord or by reason of fire, casualty
or
accident, strike, labor dispute, failure of sources of supply, act of God,
riot
or civil disturbance, law, order, rule or regulation of any government authority
or by reason of any other similar or dissimilar cause beyond the reasonable
control of Landlord. No such stoppage or interruption shall entitle Tenant
to
any compensation nor shall this Lease or any of the obligations of Tenant
be
affected or reduced by reason of any such stoppage or interruption.
15
ARTICLE
6
Tenant’s
Changes
6.01
Tenant
shall not make any alterations, improvements, installations additions or
other
physical changes in or about the Leased Property, including, but not limited
to,
the Tenant Improvements (collectively, “Tenant’s
Changes”),
other
than Permitted Decorative Alterations (hereinafter defined) without Landlord’s
prior consent, which may be withheld in Landlord’s sole discretion. For the
purposes of this Lease, “Permitted
Decorative Alterations”
shall
mean interior decorative alterations (not visible from outside the Premises)
such as painting, wall coverings and carpeting, the cost of which, either
individually or in the aggregate in respect of any work or changes which
are
related, do not exceed $5,000.00. Tenant shall not make any Tenant Changes,
including without limitation Tenant Improvements and Permitted Decorative
Alterations, except in accordance with the following conditions (it being
understood that the performance by Tenant of the Tenant Improvements by Tenant
has been approved in concept, but remains subject to the following
conditions):
(a)
all
Tenant’s Changes shall (1) be performed in a good and workmanlike manner, free
of defects, in accordance with the plans and specifications required under
Section 6.01(b) hereof, (2) be performed by the contractors required under
Section 6.01(c) hereof, and shall otherwise be of material, workmanship,
quality, manufacture and design, at least equal to the Operating Standard,
(3)
(except for Permitted Decorative Installations) be performed under the
supervision of a licensed architect required under Section 6.01(b) hereof
or a
construction manager approved by Landlord, (4) be performed in compliance
with
all Legal Requirements and the terms of this Lease, and (5) utilize and/or
include only equipment that shall be in good and safe operating condition,
of a
quality at least equal to Operating Standard, and shall not include any
materials or equipment shall be subject to any lien or other
encumbrance.
(b)
Tenant,
at Tenant’s expense, shall (i) prepare and furnish to Landlord detailed
architectural and engineering working drawings in connection with all Tenant’s
Changes, and (ii) file all required architectural, mechanical and electrical
drawings with all appropriate governmental authorities and obtain all necessary
approvals and permits, and Tenant shall obtain Landlord’s prior written approval
of the drawings referred to in clauses (i) and (ii) hereof, which approval
Landlord may withhold in its sole and absolute discretion;
(c)
the
architect and/or engineer utilized by Tenant to prepare Tenant’s working
drawings in connection with Tenant’s Changes and the contractor who shall
perform Tenant’s Changes shall be subject to Landlord’s prior written approval;
provided, however, Landlord’s approval to the contractor that performs the
Tenant’s Changes (notwithstanding that Landlord’s prior approval shall be
required to the Tenant’s Changes themselves) shall not be required for (1)
Permitted Decorative Alterations, (2) demolition of non-structural, non-bearing
interior walls which are not visible from outside the Premises and which
demolition does not require any change to or re-routing of, or otherwise
affect,
any mechanical, electrical, plumbing, sanitary, sprinkler, heating, ventilation
and air conditioning, security, life-safety, elevator and other service systems
or facilities (including any systems or facilities exclusively serving the
Premises), or (3) carpentry work associated with the installation of kitchen
equipment (it being understood however, that all electrical and plumbing
work
and all other work (whether or not relating to the kitchen installations)
shall
be performed by professionals duly licensed in the State of New
Jersey;
(d)
prior
to
the commencement of Tenant’s Changes, Tenant shall furnish to Landlord
certificates evidencing the existence of (y) worker’s compensation insurance
covering all persons employed for such work, and (2) commercial general
liability and property damage insurance naming Landlord, its designees,
Landlord’s managing agent, any Superior Mortgagee or Superior Lessor or other
party or person whose name is furnished by Landlord to Tenant, and Tenant
as
insureds with coverage of at least $1,000,000 single limit, with $24,000,000
umbrella liability with respect to each of the liability coverages required
hereunder;
16
(e)
Tenant
shall reimburse Landlord, within twenty (20) days after being billed therefor,
for all out-of-pocket costs incurred by Landlord for the fees of any architect,
engineer and/or construction consultant retained by Landlord for reviewing
Tenant’s plans and inspecting Tenant’s Changes and the performance thereof;
and
(f)
Tenant
shall perform Tenant’s Changes in accordance with Landlord’s then standard rules
and regulations with respect to construction at the Facility.
6.02
Tenant
agrees that Tenant’s Changes will be performed only between the hours of 8:00
a.m. and 6:00 p.m. on Monday through Fridays (legal holidays excepted), and
between the hours of 10:00 am and 6:00 p.m. on Saturdays (legal holidays
excepted), unless otherwise directed by Landlord (it being agreed that that
Tenant will not perform any Tenant Changes during any period which, in the
reasonable judgment of Landlord, would interfere with the preparation for
or
conduct of any booking, event, or reservation, provided that Landlord shall
provide to Tenant not less than three (3) business days (or such shorter
notice
as may be practical under the circumstances) prior notice (which may be oral
if
given to one of Buyer’s Principals (as defined in the Purchase Agreement) or to
the manager of the Facility) of the time(s) such preparation and conduct
is
scheduled). Tenant further agrees that (i) Tenant Changes will be performed
without disturbance to any occupants of the Facility, (ii) Tenant will
immediately (after completing such immediate work as may be necessary to
avoid
danger of injury to person or damage to property) cease any work upon notice
by
Landlord (which may be oral if given to one of Buyer’s Principals or to the
manager of the Facility) that any work is disturbing any occupants of the
Facility), and (iii) Tenant’s work shall not affect the structural and
mechanical parts of the Facility. At any and all times during the progress
of
Tenant’s Changes, Landlord shall be entitled to have a representative or
representatives on the site to inspect Tenant’s Changes (but no such inspection
shall give rise to any liability or obligation on the part of Landlord),
and
such representative or representatives shall have free and unrestricted access
to any and every part of the Leased Property. Tenant shall advise Landlord
in
writing of Tenant’s general contractor and all subcontractors who are to perform
Tenant’s Changes, and such contractors shall be subject to Landlord’s prior
written approval.
6.03
Tenant,
in performing Tenant’s Changes will, at its own cost and expense, promptly
comply with all applicable Legal Requirements, including without limitation
the
Americans with Disabilities Act, 42 U.S.C.A. §§ 12101 et seq. (the
“ADA”).
Tenant
shall not do or fail to do any act which shall or may render the Leased Property
or the Facility liable to any mechanic’s lien or other lien and if any such lien
or liens be filed against the Facility or against Tenant’s Changes, or any part
thereof, Tenant will, at Tenant’s own cost and expense, promptly remove the same
of record within thirty (30) days after the filing of such lien or liens;
or in
default thereof, Landlord may cause any such lien or liens to be removed
of
record by payment of bond or otherwise, as Landlord may elect, and Tenant
will
reimburse Landlord for all reasonable costs and expenses incurred by Landlord
incidental to the removal of any such lien or liens incurred by Landlord.
Tenant
shall indemnify and save harmless Landlord of and from all claims, counsel
fees,
loss, damage and expenses whatsoever by reason of any liens, charges or payments
of any kind whatsoever that may be incurred or become chargeable against
Landlord or the Facility, or Tenant’s Changes or any part thereof, by reason of
any work done or to be done or materials furnished or to be furnished to
or upon
the Leased Property in connection with Tenant’s Changes (and Tenant’s
obligations hereunder shall survive the expiration or termination of this
Lease). All materialmen, contractors, artisans, mechanics and laborers and
other
persons contracting with Tenant with respect to the Leased Property or any
part
thereof, are hereby charged with notice that liens are expressly prohibited
and
that they must look solely to Tenant to secure payment for any work done
or
material furnished for Tenant’s Changes or for any other purpose.
17
6.04
Landlord,
prior to granting its consent to any Tenant’s Changes, may impose such
conditions (in addition to those expressly provided in this Lease) as to
guarantee of completion and payment and of restoration or otherwise as Landlord
may consider desirable. In no event shall Landlord be required to grant its
consent to any Tenant’s Changes which would physically affect any part of the
Facility outside of the Leased Property or would in Landlord’s judgment
adversely affect the proper functioning of any of the mechanical, electrical,
sanitary or other service systems of the Facility or the structural elements
of
the Facility.
6.05
Tenant
agrees that the performance of Tenant’s Changes shall not violate Landlord’s
union contracts, if any, affecting the Facility, or create any work stoppage,
picketing, labor disruption or dispute or disharmony or any interference
with
the business of Landlord or any tenant or occupant of the Facility. Tenant
shall
immediately stop work or other activity in connection with Tenant’s Changes if
Landlord notifies Tenant that continuing such work or activity (i) would
violate
Landlord’s union contracts affecting the Facility, or (ii) may create any work
stoppage, picketing, labor disruption or dispute or disharmony or any
interference with the business of Landlord or any tenant or occupant of the
Facility.
6.06
Upon
completion of Tenant’s Changes, Tenant, at Tenant’s sole cost and expense, shall
deliver to Landlord the following:
(a)
evidence
satisfactory to Landlord that all of Tenant’s Changes have been completed and
paid for in full, that any and all liens therefor that have been or might
be
filed have been discharged of record (by payment, bond, order of a court
of
competent jurisdiction or otherwise) or waived, and that no security interests
relating thereto are outstanding;
(b)
as-built
plans and specifications showing the exact nature and location of Tenant’s
Changes; and
(c)
a
certificate of a registered architect or licensed professional engineer
certifying to Landlord that Tenant’s Changes has been completed in a good and
workmanlike manner and in accordance with the final plans approved by Landlord
and in compliance with all applicable Legal Requirements.
6.07
All
Tenant Changes shall be the property of Landlord and shall not be removed
by
Tenant without the prior approval of Landlord. The preceding sentence
notwithstanding, on or prior to the date of expiration or termination of
this
Lease Tenant shall, at Tenant’s expense, remove all of tenant’s personal
property and, unless otherwise directed by Landlord remove any Tenant
Changes which have not been approved by Landlord. Tenant shall repair and
restore, in a good and workmanlike manner, any damage to the Premises or
the
Facility caused by Tenant’s removal of any Tenant Changes or Tenant’s personal
property, and if Tenant fails to do so, Tenant shall reimburse Landlord,
on
demand, for Landlord’s cost of repairing and restoring such damage. The
obligations of Tenant under this provision shall survive the expiration or
termination of this Lease.
6.08
The
approval of plans or specifications, or the consent by Landlord to the making
of
any Tenant Changes, or the inspection by Landlord of any Tenant Changes,
does
not constitute Landlord’s agreement or representation that such plans,
specifications or Tenant Changes comply with any Legal Requirements or the
certificate of occupancy or any other permit. Landlord shall have no liability
to Tenant or any other party in connection with Landlord’s approval of plans and
specifications, or any architect or contractor, for any Tenant Changes, or
Landlord’s consent to Tenant’s performing any Tenant Changes. If, as the result
of any Tenant Changes made by or on behalf of Tenant, Landlord is required
to
make any alterations or improvements to any part of the Facility in order
to
comply with any Legal Requirements, whether or not in the Premises, Tenant
shall
pay all costs and expenses incurred by Landlord in connection with such
alterations or improvements upon demand by Landlord.
18
ARTICLE
7
Notices
7.01
Any
notice, statement, demand, consent, approval or other communication required
or
permitted to be given, rendered or made by either party to this Lease or
pursuant to any applicable Legal Requirement, law or requirement of public
authority (collectively, “notices” shall be in writing (whether or not so stated
elsewhere in this Lease) and shall be deemed to have been properly given,
rendered or made only if sent by next business day delivery by a nationally
recognized overnight courier service (e.g., Federal Express) requiring receipt
for delivery or registered or certified mail, return receipt requested, posted
in a United States post office station or letter box in the continental United
States, addressed to the other part as follows:
If
to
Landlord:
WO
Grand
Hotel, LLC
c/o
Wilshire Enterprises, Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇, President
Fax:
▇▇▇
▇▇▇ ▇▇▇▇
with
a
copy to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
and
if to
Tenant:
PLEASANT
VALLEY 350 CATERING ASSOCIATES, L.L.C.
▇▇▇
▇.▇.
▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇,
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇ ▇▇▇▇
Fax:
(▇▇▇) ▇▇▇ ▇▇▇▇
Attention:
Mr. ▇▇▇▇▇ ▇▇▇▇▇
With
a
copy to:
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇, Esq.
19
and
shall
be deemed to have been given, rendered or made (x) on the first business
day
following the date sent if sent by a nationally recognized courier service
or
(y) on the second business day following the day so mailed, unless mailed
to a
location outside of the State of New Jersey, in which case it shall be deemed
to
have been given, rendered or made on the third business day after the day
so
mailed. Either party may, by notice as aforesaid, designate a different address
or addresses for notices intended for it. Notwithstanding the foregoing,
with
respect to an occurrence presenting imminent danger to the health or safety
of
persons or damage to property in, on or about the Facility or during a postal
strike, notices may be hand delivered to a party at the address to which
notices
to that party are to be sent, provided that the same notice is also sent
in the
manner set forth above.
7.02
In
addition to the foregoing, either Landlord or Tenant may, from time to time,
request in writing that the other party serve a copy of any notice on one
other
person or entity designated in such request, such service to be effected
as
provided in this Article 7.
7.03
Whenever
Landlord is required or desires to send any notice or other communication
to
Tenant under or pursuant to this Lease, such notice or communication, if
sent by
the Landlord’s managing agent or its attorneys, shall, for all purposes, be
deemed to have been sent by Landlord.
ARTICLE
8
Subordination;
Attornment
8.01
This
Lease and all rights of Tenant under this Lease are subject and subordinate
to
any and all ground or underlying leases and to any and all mortgages now
or
hereafter affecting the Leased Property, or the real property of which the
Leased Property forms a part, and to any renewals, modifications,
consolidations, replacements or extensions of any such leases or mortgages.
This
provision is self-operative and no further instrument of subordination is
required. Tenant shall, however, within ten (10) days following request
therefor, execute and deliver to Landlord any instrument evidencing or
confirming this subordination and, if Tenant shall fail to do so, Landlord
is
hereby irrevocably authorized (as attorney-in-fact, coupled with an interest)
to
execute any such instrument for and on behalf of Tenant. Any lease to which
this
Lease is, at the time referred to, subject and subordinate is herein called
a
“Superior
Lease”
and the
lessor of a Superior Lease or its successor-in-interest, at the time referred
to, is herein called a “Superior Lessor”; and any mortgage to which this Lease
is, at the time referred to, subject and subordinate is herein called a
“Superior
Mortgage”
and the
holder of a Superior Mortgage is herein called a “Superior
Mortgagee.”
8.02
If
any
Superior Lessor or Superior Mortgagee or the nominee or designee of any Superior
Lessor or Superior Mortgagee shall succeed to the rights of Landlord under
this
Lease, whether through possession or foreclosure action or delivery of a
new
lease or deed, or otherwise, then at the request of such party so succeeding
to
Landlord’s rights (herein called a “Successor Landlord) and upon such Successor
Landlord’s written agreement to accept Tenant’s attornment, 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 a direct
Lease
between the Successor Landlord and Tenant upon all of the terms, conditions
and
covenants as are set forth in this Lease, except that the Successor Landlord
shall not be (i) liable for any previous act or omission of Landlord under
this
Lease, (ii) subject to any counterclaim or setoff which theretofore accrued
to
Tenant against Landlord, or (iii) bound by any previous modification of this
Lease which was not approved in writing by the Superior Lessor or the Superior
Mortgagee through or by reason of which the Successor Landlord shall have
succeeded to the rights of Landlord under this Lease.
20
8.03
If
any
act of omission of Landlord 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 (a) until
it has
given written notice of such act or omission to Landlord, and to any Superior
Lessor and Superior Mortgagee whose name and address shall previously have
been
furnished to Tenant, and (b) until a reasonable period for remedying such
act or
omission shall have elapsed following the giving of such notice and following
the time when such Superior Mortgagee or Superior Lessor shall have become
entitled under such Superior Mortgage or Superior Lease, as the case may
be, 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 such Superior Mortgagee
or
Superior Lessor shall with due diligence give Tenant notice of intention
to, and
commence and continue to, remedy such act or omission.
8.04
No
alteration or modification of any of the provisions of this Lease, nor any
cancellation or surrender of this Lease, shall be valid or binding against
the
existing Superior Lessor and the existing Superior Mortgagee or any other
Superior Mortgagee or Superior Lessor whose name and address shall have been
furnished to Tenant in writing unless the same shall have been approved by
such
Superior Mortgagee or Superior Lessor, as the case may be.
ARTICLE
9
Default
and Remedies
9.01
This
Lease and the term and estate hereby granted are subject to the limitation
that
whenever Tenant, or any guarantor of Tenant’s obligations under this Lease,
shall make an assignment for the benefit of creditors, or shall file a voluntary
petition under any bankruptcy or insolvency law, or an involuntary petition
alleging an act of bankruptcy or insolvency shall be filed against Tenant
or
such guarantor, if any, under any bankruptcy or insolvency law, or whenever
a
petition shall be filed by or against Tenant or such guarantor, if any, under
the reorganization provisions of the United States Bankruptcy Code or under
the
provisions of any law of like import, or whenever a petition shall be filed
by
Tenant, or such guarantor, if, any, under the arrangement provisions of the
United States Bankruptcy Code or under the provisions of any law of like
import,
or whenever a permanent receiver of Tenant, or such guarantor, if any, or
of or
for the property of Tenant, or such guarantor, if any, shall be appointed,
then
Landlord (a) if such event occurs without the acquiescence of Tenant, or
such
guarantor, if any, as the case may be, at any time after the event continues
for
ninety (90) days, or (b) in any other case at any time after the occurrence
of
any such event, may give Tenant a notice of intention to end the term of
this
Lease at the expiration of five (5) days from the date of service of such
notice
of intention, and upon the expiration of said five (5) day period this Lease
and
the term and estate hereby granted, whether or not the Term shall theretofore
have commenced, shall terminate with the same effect as if that day were
the
Expiration Date, but Tenant shall remain liable for damages pursuant to
law.
9.02
This
Lease and the term and estate hereby granted are subject to the further
limitations that:
(a)
if
Tenant
shall default in the payment of any Tenant Charge and such default shall
continue for five (5) days after written notice thereof has been given to
Tenant, or
(b)
if
Tenant
shall, whether by action or inaction, be in default of any of its obligations
under this Lease (other than a default in the payment of any Tenant Charge
or a
default otherwise specified in subsections (c), (d), (e), or (f) of this
Section
9.02) and such default shall continue and not be remedied within thirty (30)
days after Landlord shall have given to Tenant a notice specifying the same,
or,
in the case of a default which cannot with due diligence be cured within
a
period of thirty (30) days and the continuance of which for the period required
for cure will not (i) subject Landlord or any Superior Lessor or any Superior
Mortgagee to prosecution for a crime or any other fine or charge, (ii) subject
the Leased Property or any part thereof or the Facility, or any part thereof,
to
being condemned or vacated, (iii) subject the Facility, or any part thereof,
to
any lien or encumbrance which is not removed or bonded within the time period
required under this Lease, or (iv) result in the termination of any Superior
Lease or foreclosure of any Superior Mortgage, if Tenant shall not (x) within
said thirty (30) day period advise Landlord of Tenant’s intention to take all
steps reasonably necessary to remedy such default, (y) duly commence within
said
thirty (30) day period, and thereafter diligently prosecute to completion
all
steps reasonably necessary to remedy the default and (z) complete such remedy
within a reasonable time after the date of said notice of Landlord,
or
21
(c)
if
any
event shall occur or any contingency shall arise whereby this Lease or the
estate hereby granted or the unexpired balance of the Term would, by operation
of law or otherwise, devolve upon or pass to any person, firm or corporation
other than Tenant in violation of the provisions of Article
16
hereof
or otherwise there shall occur any breach of or violation of Article
16,
or
(d)
if
Tenant
shall fail to commence business in the Premises by accepting Reservations
(subject to the provisions of Section 3.09 hereof) within two (2) Business
Days
after the Commencement Date and thereafter continuously operate in the Premises
in accordance with the provisions of Article
3
hereof,
or to diligently and continuously use good faith efforts to construct and
install the kitchen and otherwise perform the Tenant Improvements commencing
promptly after the Commencement Date, or
(e)
if
the
buyer shall default under the Purchase Agreement, or
(f)
if
▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. shall no longer be responsible for the day to day
activities of Tenant or shall no longer hold seventy-five percent (75%) and
twenty five percent (25%), respectively, of all of the ownership interests
in
and to Tenant,
then,
in
any of said cases, Landlord may give to Tenant a notice of intention to end
the
term of this Lease at the expiration of five (5) days from the date of the
service of such notice of intention, and upon the expiration of said five
(5)
days this Lease and the term and estate hereby granted, whether or not the
Term
shall theretofore have commenced, shall terminate with the same effect as
if
that day was the Expiration Date.
9.03
Tenant,
recognizing that this Lease and the Purchase Agreement are a part of the
same
transaction hereby agrees that a default under this Lease shall be a default
under the Purchase Agreement, and in such event, Landlord shall be entitled
to
exercise all of its rights and remedies under this Lease and the Purchase
Agreement.
ARTICLE
10
Reentry
by Landlord
10.01
If
Tenant
shall default in the payment of any Tenant Charges, and such default shall
continue for five (5) days after written notice thereof has been given to
Tenant, or if this Lease shall terminate as provided in Article 9 hereof,
Landlord or Landlord’s agents and employees may immediately or at any time
thereafter reenter the Leased Property, or any part thereof, either by summary
dispossess proceedings or by any suitable action or proceeding at law or
by
force (pursuant to legal process), without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove
any
person therefrom, to the end that Landlord may have, hold and enjoy the Leased
Property. The word “reenter,” as used herein, is not restricted to its technical
legal meaning. If this Lease is terminated under the provisions of Article
9, or
if Landlord shall reenter the Leased Property under the provisions of this
Article 10 or in the event of the termination of this Lease, or of reentry,
by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall
thereupon pay to Landlord all Tenant Charges due Landlord through the date
of
such termination, or of such recovery of possession of the Leased Property
by
Landlord, as the case may be, and shall also pay to Landlord damages pursuant
to
law.
22
10.02
In
the
event of a breach or threatened breach by Tenant of any of its obligations
under
this Lease, Landlord shall also have the right of injunction. The special
remedies to which Landlord may resort hereunder are cumulative and are not
intended to be exclusive of any other remedies to which Landlord may lawfully
be
entitled at any time and Landlord may invoke any remedy allowed at law or
in
equity as if specific remedies were not provided for herein.
10.03
If
this
Lease shall terminate under the provisions of Article 9 hereof, or if Landlord
shall reenter the Leased Property under the provisions of this Article 10,
or in
the event of the termination of this Lease, or of reentry, by or under any
summary dispossess or other proceeding or action or any provision of law
by
reason of default hereunder on the part of Tenant, Landlord shall be entitled
to
retain all monies, if any, paid by Tenant to Landlord but such monies shall
be
credited by Landlord against all amounts due from Tenant at the time of such
termination or reentry or, at Landlord’s option, against any damages payable by
Tenant pursuant to law.
ARTICLE
11
Surrender
11.01
On
the
Expiration Date or upon any earlier termination of this Lease, or upon any
reentry by Landlord upon the Leased Property, Tenant shall quit and surrender
to
Landlord, the Leased Property including, without limitation, all FF&E in the
Premises, “broom-clean” and in good order, condition and repair, except for
ordinary wear and tear.
11.02
No
act or
thing done by Landlord or its agents shall be deemed an acceptance of a
surrender of the Leased Property, and no agreement to accept such surrender
shall be valid unless in writing and signed by Landlord and each Superior
Lessor
and Superior Mortgagee whose lease or mortgage, as the case may be, provides
that no such surrender may be accepted without its consent.
11.03
If
the
Leased Property is not surrendered and vacated as and at the time required
by
this Lease, Tenant shall be liable to Landlord for all losses and damages
which
Landlord may incur or sustain by reason thereof, including, without limitation,
legal fees and disbursements, and Tenant shall indemnify Landlord against
all
claims made by any succeeding tenants against Landlord or otherwise arising
out
of or resulting from the failure of Tenant to timely surrender and vacate
the
Leased Property in accordance with the provisions of this Lease. The parties
recognize end agree that the damage to Landlord resulting from any failure
by
Tenant to timely surrender the Leased Property will be substantial, will
exceed
the amount of monthly Tenant Charges theretofore payable hereunder, and will
be
impossible of accurate measurement. Tenant therefore agrees that if possession
of the Leased Property is not surrendered to Landlord within two (2) Business
Days after the Expiration Date or sooner termination of the Term, then Tenant
will pay Landlord as liquidated damages for each month and for each portion
of
any month during which Tenant holds over in the Leased Property after expiration
or termination of the Term, a sum equal to the greater of (i) $5,000 per
month
or (ii) two hundred (200%) percent of the fair market rental value of the
Leased
Property, as reasonable determined by Landlord. The aforesaid obligations
shall
survive the expiration or sooner termination of the Term.
11.04
Immediately
upon the expiration or termination of this Lease Tenant (unless such expiration
or termination is simultaneous with a closing of the transaction under the
Purchase Agreement) Tenant shall (i) assign to Landlord such Reservations
(including, without limitation, Special Reservations) as Landlord shall elect,
including, without limitation, the Reservation Deposits respecting such
Reservations, and (ii) deliver to Landlord the Reservation Deposits respecting
the Reservations so assigned to Landlord, and (iii) deliver to Landlord all
other agreements and documents respecting the Reservations so assigned to
Landlord. This provision shall survive the expiration or termination of this
Lease (unless such expiration or termination is simultaneous with a closing
of
the transaction under the Purchase Agreement).
23
ARTICLE
12
Tenant’s
Insurance
12.01
From
and
after the date of this Lease and throughout the Term Tenant, at the sole
cost
and expense of Tenant, shall maintain in full force and effect with responsible
insurance companies licensed to do business in the State of New Jersey and
satisfactory to Landlord, the following insurance:
(a)
all
risk
property insurance against loss or damage by fire, windstorm, vandalism and
malicious mischief and such other hazards as are included in so-called “extended
coverage” or as may be otherwise reasonably required by Landlord (including,
without limitation, theft and, if applicable, boiler and machinery coverage),
covering all FF&E and improvements and betterments in the Leased Property
for their full replacement value, such insurance to include a replacement
cost
endorsement and a “waiver of co-insurance” clause;
(b)
commercial
general liability insurance on an occurrence basis for death, bodily and
personal injury (including contractor’s liability) and property damage occurring
on or about the Leased Property with limits of liability in the amount of
at
least $1,000,000 combined single limit for any one occurrence, which insurance
coverage shall also include, without limitation, (1) products and completed
operations insurance with the aforesaid limits, (2) hired, non-owned automobile
liability insurance with the aforesaid limits (if applicable), and (3) garage
keeper’s liability insurance with limits of $100,000 per incident;
(c)
workers’
compensation insurance and disability insurance subject to statutory limits
or
better, as required by applicable Legal Requirements;
(d)
dram
shop/liquor legal liability insurance with respect to the Leased Property
and
the operations of Tenant with limits of not less than $1,000,000 per occurrence
with respect to personal injury and property damage;
(e)
automobile
liability insurance (if Tenant shall own or lease or use any vehicles in
connection with its business at the Premises) with limits of not less than
$1,000,000 per occurrence with respect to personal injury and property
damage;
(f)
during
the performance of an Tenant’s Changes, until completion thereof, Builder’s risk
insurance on an “all risk” basis and on a completed value form for full
replacement value covering the interest of Landlord and Tenant (and their
respective contractors and subcontractors) and any Superior Mortgagee or
Superior Lessor in all work incorporated in the Facility and all materials
and
equipment in or about the Premises;
(g)
$24,000,000
umbrella liability with respect to each of the liability coverages required
hereunder;
24
(h)
such
other insurance which Landlord may, from time to time, reasonably require
arising out of Tenant’s use or manner of use of the Leased Property, and that is
generally required to be obtained by operators of comparable facilities in
Essex
County, New Jersey.
12.02
Any
deductible under the insurance policies provided by Tenant as required by
this
Article 12 shall be subject to Landlord’s approval (not to be
unreasonably withheld) and all such insurance, other than the insurance referred
to in paragraph (c) hereof, shall (i) be carried in favor of Landlord,
Landlord’s members, Landlord’s managing agent and Tenant, as their interests may
appear, and if requested by Landlord, any such insurance shall include the
interest of Superior Mortgagee(s) and Superior Lessor(s) (it being understood
that Landlord, Wilshire Enterprises, Inc., Proud Three, LLC, Landlord’s managing
agent and such other parties that Landlord shall designate shall be named
as
additional insureds on such policies) and shall provide that the loss, if
any,
shall be payable jointly to such Superior Mortgagee(s), Superior Lessor(s),
Landlord and Tenant, as their respective interests may appear (ii) provide
primary coverage without contribution from any other insurance carried by
Landlord or any Superior Mortgagee or Superior Lessor named as additional
insured, and (iii) provide for not less than twenty (20) days’ prior written
notice to Landlord and to any such Superior Mortgagee(s) and such Superior
Lessor(s), of any cancellation, election not to renew or material alteration
thereof. Tenant shall deliver to Landlord such policies or certificates thereof
with evidence of the payment of premiums therefor before entering into
possession of the Leased Property, and shall procure and deliver to Landlord
renewals thereof with evidence of the payment of premiums therefor at least
thirty (30) days before the expiration of any such policies, which certificates
shall be in form reasonably satisfactory to Landlord. Tenant and Landlord
shall
cooperate in connection with the collection of any insurance moneys that
may be
due, including the execution and delivery by Tenant to Landlord of such proofs
of loss and other instruments which may be required for the purpose of obtaining
the recovery of any such insurance moneys. For purposes of this Article
12, “insurance” shall be deemed to mean valid and collectible insurance
written on an “occurrence” basis, covering losses in respect of occurrences
during the entire term of this Lease. Any certificate of such insurance
furnished by Tenant to Landlord shall clearly specify the occurrence basis
upon
which such policy is written.
12.03
Landlord
and Tenant shall each procure an appropriate clause in or endorsement to
any
property insurance covering the Leased Property and the Facility, wherein
the
insurance companies shall waive subrogation or consent to a waiver of right
of
recovery, and Landlord and Tenant agree not to make any claim against, or
seek
to recover from, the other for any loss or damage to its property or the
property of others resulting from fire and other hazards; provided, however,
that the release, discharge, exoneration and covenant not to ▇▇▇ contained
herein shall be limited by and coextensive with the terms and provisions
of the
waiver of subrogation or waiver of right of recovery.
12.04
Tenant
shall give immediate notice to Landlord of any accident, loss or damage or
dangerous or defective condition in, to or of the Leased Property or any
part
thereof or the fixtures or other property of Landlord therein of which Tenant
has knowledge. Such notice shall not, however, be deemed or construed to
impose
upon Landlord any obligation to perform any work to be performed by Tenant
under
this Lease.
12.05
Notwithstanding
anything in this Lease to the contrary, unless otherwise specifically directed
by Landlord in each instance, Tenant shall not permit any off-premises caterer
(including, without limitation, the Approved Off-Premises Caterers (hereafter
defined) and/or the caterers listed on Exhibit C), to come into the Premises,
or
to provide any services at the Premises, unless, prior to coming upon the
Premises, such caterer provides to each of Landlord and Tenant certificates
reasonably satisfactory to Landlord, demonstrating that such off-premises
caterer has (and will have, at the time of coming upon the Premises) insurance
coverage which meets all of the requirements set forth in Section 12.01 (not
including subsections (a) and (f) of Section 12.01), Section 12.02, and Section
12.03, protecting the interests of such off-premises caterer, Landlord,
Landlord’s members, Landlord’s managing agent and Tenant, as their interests may
appear, and if requested by Landlord, the interest of Superior Mortgagee(s)
and
Superior Lessor(s) (it being understood that Landlord, Wilshire Enterprises,
Inc., Proud Three, LLC, Landlord’s managing agent, Tenant and such other parties
that Landlord shall designate shall be named as additional insureds on such
policies)); provided, however, that the umbrella liability coverage described
in
Section 12.01(g) may be in the amount of $10,000,000, rather than
$24,000,000.
25
12.06
Notwithstanding
anything in this Lease to the contrary, Landlord, at any time, and only for
such
duration as Landlord shall elect in its sole discretion, may (solely by specific
written waiver to such effect signed by Landlord and delivered to Tenant)
waive
any or all of the requirements that Tenant provide all or any of the insurance
otherwise to be obtained and maintained by Tenant pursuant to this Lease,
it
being understood that in such case (1) Landlord shall have the option, but
not
the obligation, and solely during such period as Landlord shall determine
in its
sole discretion, to name Tenant as an additional insured on Landlord’s policies
of liability insurance (and Tenant freely and fully shall cooperate with
Landlord in connection therewith), (2) subject to Section 12.07, such waiver
may
be revoked at any time by Landlord, in its sole discretion, by not less than
two
(2) Business Days notice to Tenant, (3) no such waiver by Landlord shall
in any
manner waive or release (or be deemed to waive or release) any liability
or
obligation of Tenant under this Lease (including, without limitation, any
indemnification obligation of Tenant), and all of such liabilities and
obligation of Tenant (including, without limitation, any indemnification
obligations of Tenant) shall at all times remain in full force and effect,
(4)
any such waiver must be specific and in writing, signed by Landlord and
delivered by Landlord to Tenant, and (5) (a) Landlord shall have no liability
or
obligation to Tenant concerning the sufficiency or adequacy or the limits
of any
such insurance policies maintained by Landlord (nor shall any of such limits
in
any way limit or waive any of the liabilities or obligations of Tenant (or
any
guarantor) under this Lease including, without limitation, any indemnification
obligations of Tenant) under this Lease, (b) Landlord shall have no liability
or
obligation concerning any deductibles or exclusions concerning any such
insurance policies maintained by Landlord, or the coverage provisions, coverage
conditions, or coverage limitations in any such insurance policies maintained
by
Landlord (nor shall any of such deductibles, exclusions, coverage provisions,
coverage conditions or coverage limitations in any way limit or waive any
of the
liabilities or obligations of Tenant (or any guarantor) under this Lease
including, without limitation, any indemnification obligations of Tenant),
(c)
Landlord shall have no liability or obligation to Tenant concerning the solvency
or insolvency of any insurer selected by Landlord, or the willingness or
ability
of any such insurer to pay any claim respecting any insurance (nor shall
any of
such solvency, insolvency or unwillingness or inability to pay any claim
in any
way limit or waive any of the liabilities or obligations of Tenant (or any
guarantor) under this Lease including, without limitation, any indemnification
obligations of Tenant) under this Lease, (d) Landlord shall have no obligation
or liability to Tenant if all or any of Landlord’s insurance carriers shall,
with or without notice to Landlord and/or Tenant, cancel, terminate, reduce,
or
amend any insurance coverage in favor or Landlord and/or Tenant (nor shall
any
of such cancellation, termination, reduction or amendment in any way limit
or
waive any of the liabilities or obligations of Tenant (or any guarantor)
under
this Lease including, without limitation, any indemnification obligations
of
Tenant under this Lease), (e) Landlord shall have no obligation or liability
to
Tenant if Landlord shall request that Tenant be removed or deleted as an
additional insured under Landlord’s insurance in accordance with Section 12.07
(nor shall any such removal or deletion in any way limit or waive any of
the
liabilities or obligations of Tenant (or any guarantor) under this Lease
including, without limitation, any indemnification obligations of Tenant)
under
this Lease) and (f) TENANT
AND EACH GUARANTOR OF THIS LEASE HEREBY FOREVER WAIVES AND RELEASES (X) ANY
AND
ALL DEFENSES AND AFFIRMATIVE DEFENSES, OFFSETS, AND RIGHTS OF RECOUPMENT
AGAINST
ANY SUITS, ACTIONS OR CLAIMS BY LANDLORD AND (Y) ANY AND ALL SUITS, CLAIMS,
ACTIONS, COUNTERCLAIMS, CROSS-CLAIMS, AND CAUSES OF ACTION AGAINST LANDLORD,
WILSHIRE ENTERPRISES, INC., PROUD THREE, LLC, LANDLORD’S MANAGING AGENT, AND ALL
OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, PARTNERS, AGENTS, REPRESENTATIVES,
PRINCIPALS AND AFFILIATES OF THE FOREGOING,
in each
case based upon any or all of the matters, circumstances, conditions and
things
described or referred in subclauses (a), (b), (c), (d) and/or (e) of this
clause
(5) of this sentence.
26
12.07
Landlord
and Tenant acknowledge that on the date hereof Tenant does not have in place
any
of the insurance coverage that Tenant is required to obtain and maintain
pursuant to this Lease, and Landlord hereby waives the obligation of Tenant
to
obtain such insurance for the period from the date hereof until the date
thirty
(30) days after the date hereof (but nothing herein shall waive any other
liability or obligation of Tenant including, without limitation, and
indemnification obligation of Tenant), provided that Tenant shall comply
with
its obligations under this Section 12.07 and otherwise duly and timely perform
its obligations under this Lease. Tenant agrees to use its best efforts to
obtain all such insurance as soon as possible after the date of this Lease,
and
to provide Landlord evidence of same; and Tenant thereafter shall maintain
all
such insurance in force and effect. Landlord has requested that Landlord’s
insurer name Tenant as an additional insured on the liability policies
respecting the Facility which, on the date hereof, are maintained by Landlord.
Subject to the provisions of Section 12.06 (and provided that Tenant shall
comply with its obligations under this Section 12.07 and otherwise duly and
timely perform its obligations under this Lease), (x) Landlord shall not,
prior
to the date thirty (30) days after the date of this Lease, request that Tenant
be removed as an additional insured from such policies (unless this Lease
is
sooner terminated), unless Tenant shall be in default under this Lease, or
unless Landlord otherwise shall have reasonable cause to do so, and (y) Landlord
shall provide to Tenant not less than five (5) Business Days notice before
requesting that Tenant be removed as an additional insured from such policies.
Upon request by Landlord from time to time, Tenant shall fully apprise Landlord
of Tenants efforts to obtain the insurance required to be maintained by Tenant
under this Lease. Anything in this Lease to the contrary notwithstanding
(and in
addition to all other rights and remedies of Landlord, and notwithstanding
the
waiver by Landlord herein described), Tenant shall be solely responsible
for,
and shall pay, not later than five (5) Business Days after demand from Landlord
from time to time, one hundred percent (100%) of any increased insurance
costs
incurred by Landlord by reason of the failure by Tenant to obtain and/or
maintain the insurance otherwise required to be maintained by Tenant under
this
Lease.
12.08
Anything
in this Lease to the contrary notwithstanding, Tenant shall not and shall
not
suffer to occur, any cooking, baking or similar activity, or any activity
which
is similarly hazardous, at the Premises until Tenant shall have obtained
and
shall have in place or all of the insurance coverage that Tenant is required
to
obtain and maintain pursuant to this Lease.
12.09
Tenant
shall at all times keep Landlord fully apprised of all increases to the value
of
the Premises and/or any fixtures, equipment or personal property therein,
including, without limitation, all increases in value resulting from Tenant’s
Changes which have been made or which are being made.
12.10
It
is
understood that Landlord, at any time or times, in Landlord’s sole discretion,
shall have the right, without notice to Tenant, to increase, decrease or
change
the amounts of insurance (if any) Landlord shall maintain, and/or the
provisions, coverages and/or carriers of such insurance, and/or to cancel
or
terminate any such insurance coverages.
ARTICLE
13
Non-Liability,
Indemnification and Costs
13.01
Tenant
shall indemnify, defend (with counsel reasonably acceptable to Landlord)
and
save harmless Landlord, Landlord’s manager, members and partners, and any
Superior Mortgagee or Superior Lessor against and from (i) any and all claim
of
whatever nature arising from any act, omission or negligence of Tenant, its
contractors, licensees, agents, servants, employees, invitees or visitors;
(ii)
all claims arising from any accident, injury or damage whatsoever caused
to any
person or to the property of any person and (A) occurring during the Term
in or
about the Leased Property, and (B) occurring outside of the Leased Property
or
anywhere within or about the Facility including the sidewalks leading to
the
entrances of the Leased Property and the ramps and driveways leading into
and
out of the Leased Property, to the extent such accident, injury or damage
results or is claimed to have resulted from any act, omission or negligence
of
Tenant or Tenant’s agents, contractors, servants, employees, invitees or
visitors; (iii) any breach, violation or non-performance of any covenant,
condition or agreement in this Lease set forth and contained on the part
of
Tenant to be fulfilled, kept, observed and performed, including, without
limitation, Tenant’s failure to comply with any Legal Requirements; and (iv) any
cost, liability or responsibility for the payment of any sales tax with respect
to any installations, furniture, furnishings, fixtures or other improvements
located, installed or constructed in the Leased Property, or the filing of
any
tax return in connection therewith regardless of whether such tax is imposed
upon Landlord or Tenant. This indemnity and hold harmless agreement shall
include indemnity from and against any and all liability, fines, suits, demands,
costs and expenses of any kind or nature incurred in or in connection with
any
such claim or proceeding brought thereon, and the defense thereof including
without limitation, attorneys’ fees and disbursements. Notwithstanding anything
else set forth herein, the indemnification obligation of Tenant pursuant
to this
provision shall not be applicable to the extent of any damage, liability
or
claim results from the intentional wrongful act or gross negligence of Landlord,
its contractors, agents, servants, employees, visitors, licensees or invitees
(other than Tenant, or Tenant’s agents, contractors, servants, employees,
invitees or visitors). Tenant’s indemnity pursuant to the provisions of this
Section 13.01 shall survive the expiration or sooner termination of this
Lease.
27
13.02
Tenant
and all those claiming by, through or under Tenant shall store their property
in
and shall occupy and use the Leased Property and any improvements therein
and
appurtenances thereto and all portions of the Facility solely at their risk
and
Tenant and all those claiming by, through or under Tenant, hereby release
Landlord and any Superior Mortgagee(s) and Superior Lessor(s), to the full
extent permitted by law, from all claims, of every kind, including loss of
life,
bodily or personal injury, damage to merchandise, equipment, fixtures or
other
property, or damage to business or for business interruption, arising directly
or indirectly out of or from or on account of such occupancy and use or
resulting from any present or future condition or state of repair
thereof.
13.03
Neither
Landlord nor any Superior Mortgagee(s) or Superior Lessor(s) shall be
responsible or liable for damages at any time, for any defects, latent or
otherwise, in the Facility or any of the equipment, machinery, utilities,
appliances or apparatus therein, nor shall Landlord be responsible or liable
for
damages at any time for loss of life, or bodily or personal injury or damage
to
property, or for business interruption, to, through or under Tenant, caused
by
or resulting from bursting, breaking, leaking, running, seeping, overflooding
or
backing up of water, steam, gas or sewage, in any part of the Leased Property
or
caused by or resulting from acts of God or the elements, or resulting from
any
defects or negligence on the occupancy, construction, operation or use of
the
Facility, including the Leased Property or any of the equipment, fixtures,
machinery, appliances or apparatus therein.
ARTICLE
14
Brokerage
14.01
Each
of
Tenant and Landlord represents to the other that the indemnifying party has
not
dealt or negotiated with any broker in connection with this Lease. Each of
Tenant and Landlord agrees to hold harmless and indemnify the other from
and
against any and all liabilities and expenses, including, without limitation,
legal fees and other costs resulting from a breach of the foregoing
representation.
28
ARTICLE
15
Landlord’s
Liability; Tenant’s Remedies
15.01
Notwithstanding
anything contained in this Lease or in any rule of law or statute to the
contrary, to the extent that Landlord shall at any time have any liability
under, pursuant to or in connection with this Lease, neither Tenant nor any
other party shall seek any personal or money judgment against Landlord, but
shall only pursue any such rights or remedies against the interest of Landlord
in the Facility. In no event, and under no circumstances, shall Landlord
or any
officer, employee, agent or principal (disclosed or undisclosed) of Landlord
have any personal liability or monetary obligation of any kind under or pursuant
to this Lease. Any attempt by Tenant to seek any such personal liability
or
monetary obligation shall, in addition to and not in limitation of Landlord’s
other rights, powers, privileges and remedies under the terms and provisions
of
this Lease, immediately vest in Landlord the unconditional right to cancel
this
Lease on no less than three (3) days’ prior written notice to Tenant. The
provisions of this Section 15.01 shall survive the Expiration Date or earlier
termination of this Lease.
15.02
Tenant
agrees that its sole remedies in cases where Landlord’s reasonableness in
exercising its judgment or withholding its consent or approval is applicable
pursuant to a specific provision of this Lease, or any rider or separate
agreement relating to this Lease, if any, shall be those in the nature of
an
injunction, declaratory judgment or specific performance; the rights to money
damages or other remedies being hereby specifically waived.
ARTICLE
16
Assignment,
Mortgaging, Subletting
16.01
Tenant
covenants and agrees for Tenant and its successors, assigns and legal
representatives, that neither this Lease nor the term and estate hereby granted,
nor any part hereof or thereof, will be assigned, mortgaged, pledged, encumbered
or otherwise transferred (whether voluntarily, involuntarily, by operation
of
law or otherwise), and that neither the Leased Property, nor any part thereof,
will be encumbered in any manner by reason of any act or omission on the
part of
Tenant, or will be used or occupied, or permitted to be used or occupied,
or
will be sublet, in whole or in part, without the prior written consent of
Landlord in every case, which consent may be withheld in Landlord’s sole and
absolute discretion. Any assignment, mortgage, encumbrance or other transfer
or
any sublease made without Seller’s prior written consent shall be null and void,
and shall constitute a default under this Lease which is not capable of being
cured. For the purposes of this Article 16, any change in ownership or control
(as such term is defined in Section 3.03 hereof) of Tenant shall be deemed
to be
an assignment of this Lease. Tenant represents that on the date hereof, (i)
the
ultimate owners of Tenant are ▇▇▇▇▇ ▇▇▇▇▇, an individual, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
an
individual, respectively owning, directly, seventy-five percent (75%) and
twenty-five percent (25%) of the ultimate equity interests in Tenant and
(ii)
▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, collectively, have the right to and actually
do
exercise control of Tenant.
ARTICLE
17
Furniture,
Fixtures and Equipment
17.01
All
floor
coverings and all heating, ventilating, air conditioning, plumbing, ducting,
electrical and sprinkler systems, machinery and equipment, furniture,
furnishings and other articles of personal property whether currently or
hereafter installed or existing in the Premises at any time either by Tenant
or
by Landlord, whether or not attached to or affixed to the Premises
(collectively, “FF&E”
which
term includes any additions to or replacements of any of the foregoing) shall,
unless and until the Closing occurs, be the property of Landlord. Tenant
shall
not remove any FF&E from the Premises unless such FF&E is replaced with
a comparable item of FF&E of at least equal quality. If this Lease expires
other than as a result of the Closing or upon any earlier termination of
this
Lease, the FF&E shall remain upon and be surrendered with the Premises.
Throughout the Term, Tenant shall, at its sole cost and expense (but subject
to
the provisions of Section 4.02 hereof) cause all of the items of FF&E
to be in proper working order and in good condition (reasonable wear and
tear
excepted) (and to the extent Tenant’s obligations accrue prior to the expiration
or termination of this Lease, such obligations of Tenant shall survive the
expiration or termination of this Lease).
29
17.02
Tenant
covenants and agrees that no lien or security interest, whether by way of
conditional ▇▇▇▇ of sale, chattel mortgage, Uniform Commercial Code financing
statement or instrument of similar import, shall be placed or allowed to
remain
upon any FF&E, whether or not any of same is affixed to the Premises or the
Facility and Tenant shall not enter into any equipment lease for any FF&E
(collectively, “Liens”).
If
any Lien is filed against Tenant, the Leased Property or the Facility, Tenant
will, immediately upon notice thereof from Landlord, cause such Lien to be
removed or discharged at Tenant’s sole cost and expense, and Tenant’s failure to
do so shall constitute a material breach of this Lease (and to the extent
Tenant’s obligations accrue prior to the expiration or termination of this
Lease, or any Lien is filed which relates to any act or wrongful inaction
of
Tenant prior to the expiration or termination of this Lease, such obligations
of
Tenant shall survive the expiration or termination of this Lease).
ARTICLE
18
Compliance
with Laws
18.01
Tenant, at
Tenant’s sole cost and expense, shall comply with all applicable laws,
resolutions, codes, rules and regulations of any department, bureau, agency
or
any governmental authority having jurisdiction over the operation, occupancy,
maintenance and use of the Leased Property (collectively, “Legal
Requirements”)
relating in any way to the Leased Property including, without limitation,
Tenant’s use and operation thereof and any Tenant’s Changes. Tenant agrees to
indemnify and save Landlord harmless from and against any claim, penalty,
loss,
damage or expense (including reasonable attorneys’ fees and disbursements)
imposed by reason of a violation of any Legal Requirement in any way related
to
the Leased Property (and to the extent Tenant’s obligations accrue prior to the
expiration or termination of this Lease, or any claim, penalty, loss, damage
or
expense (including reasonable attorneys’ fees and disbursements) imposed by
reason of a violation of any Legal Requirement is filed which relates to
any act
or wrongful inaction of Tenant prior to the expiration or termination of
this
Lease, such obligations of Tenant shall survive the expiration or termination
of
this Lease).
18.02
If
and to
the extent that that City of West Orange requires installation of a fence
across
the parking lot at the Facility, Landlord, at Landlord’s expense, shall be
responsible for installation of such fence.
ARTICLE
19
Repairs
19.01
Tenant,
throughout the Term, shall take good care of the Leased Property, the fixtures
and appurtenances therein (including, without limitation, any equipment
installed by Tenant in accordance with the provisions of this Lease, and
all
installations required for the furnishing to the Leased Property of the services
enumerated in Article 4 hereof), and the entrance doors thereto and, at Tenant’s
sole cost and expense, shall make all repairs to the Leased Property, whether
structural or non-structural, foreseen or unforeseen, ordinary or extraordinary,
as and when needed to preserve the same in good working order and condition
and
to comply with the Operating Standard. In addition, all damage or injury
to any
part of the Facility, or to its fixtures, equipment and appurtenances, or
to the
sidewalks or curbs adjacent to the Facility, whether requiring structural
or
nonstructural repairs, caused by or resulting from (i) the moving of any
FF&E or (ii) any act, omission, neglect or improper conduct of, Tenant’s
servants, employees, invitees or licensees, or (iii) Tenant’s Changes or the
performance thereof, shall be repaired promptly, either by Landlord at Tenant’s
sole cost and expense, to the satisfaction of Landlord or, at Landlord’s option,
such repairs shall be performed by Tenant at Tenant’s sole cost and expense. All
the aforesaid repairs shall be of a quality or class equal to the original
work
or construction and shall be made in accordance with the provisions of Article
6
hereof. If Tenant fails to proceeds with due diligence to make any repairs
required to be made by Tenant, and such failure continues for five (5) Business
Days after the giving of notice by Landlord (except that no such notice or
five
(5) Business Days period shall be required in any circumstance in which Landlord
reasonably deems prompt action required in order to avoid risk of injury
to
person or damage to property, or which Landlord otherwise reasonably deems
an
emergency), same may be made by Landlord, and the expenses thereby incurred
by
Landlord shall be collectible as Tenant Charges. Tenant shall give Landlord
prompt notice of any defective condition in any mechanical, electric, sanitary,
plumbing, utility or other service system (or any part thereof) located in,
servicing or passing through the Leased Property.
30
ARTICLE
20
Landlord’s
Access
20.01
Tenant
shall permit Landlord to erect, use, maintain and repair pipes, ducts, cables,
conduits, plumbing, vents and wires in, to and through the Leased Property
and
staging, scaffolding, protective sidewalk coverings, and the like in and
around
the exterior of the Facility, including, without limitation, near the entrance
to the Premises, in connection with interior and exterior renovations and
repairs and construction by Landlord as and to the extent that Landlord may
now
or hereafter deem to be necessary or appropriate for the proper operation
and
maintenance of the Facility or to the extent necessary to accommodate the
requirements of other tenants. All such work shall be done, so far as
practicable in the good faith judgment of Landlord, in such manner as to
avoid
unreasonable and unnecessary interference with Tenant’s use of the Leased
Property but shall not be required to be done on an overtime or expedited
basis
and in no event whatsoever shall Tenant be entitled to any compensation therefor
or to make any claim of constructive eviction. Landlord shall indemnify,
defend
(with counsel reasonably acceptable to Tenant) and hold harmless Tenant from
and
against any claim, cost, expense, liability or obligation to the extent arising
from damage to property or injury to person directly caused by Landlord in
connection with any work performed by Landlord pursuant to this provision,
but
such obligation to Landlord shall not include any punitive or consequential
damages, or any damages suffered or incurred by Tenant in connection with
any
interruption of or disruption of Tenant’s business or occupancy.
20.02
Landlord
and any other party designated by Landlord and their respective agents shall
have the right to enter the Premises at all reasonable times, upon reasonable
notice (which notice may be oral) except in the case of emergency, in which
event notice shall not be required, (i) to examine the Premises, (ii) to
show
the Premises to prospective purchasers or mortgagees of the Facility and
their
respective agents and representatives or others, and (iii) to make such repairs,
alterations or additions to the Leased Property or the Facility (without
any
obligation to do so) (A) as Landlord may deem necessary or desirable, or
(B)
which Landlord may elect to perform following Tenant’s failure to perform and
Landlord shall be allowed to take all material into the Premises that may
be
required for the performance of such work without the same constituting an
actual or constructive eviction of Tenant in whole or in part.
20.03
All
parts
(except surfaces facing the interior of the Premises) of all walls, windows
and
doors bounding the Premises, including exterior walls, exterior core corridor
walls, and doors and entrances (other than doors and entrances solely connecting
areas within the Premises), all balconies, terraces and roofs adjacent to
the
Premises, all space in or adjacent to the Premises used for shafts, stacks,
risers, fan rooms, electrical and communications closets, stairways, mail
chutes, conduits and other mechanical facilities and Facility systems are
not
part of the Leased Property, and Landlord shall have the use thereof and
access
thereto through the Premises for the purposes of Facility operation,
maintenance, alteration and repair.
ARTICLE
21
Signs
21.01
Tenant
shall not display any lettering, sign, advertisement, notice or object and
shall
permit no such display on the windows or doors or on the exterior of the
perimeter walls of the Premises or the Facility except with the prior written
consent of Landlord, which consent may be given or withheld in Landlord’s sole
and absolute discretion. Landlord shall have the right to remove any signs,
displays or other installations installed by Tenant in violation of this
Section
21.01 if Tenant shall not have removed same within twenty-four (24) hours
after
Landlord shall have given written notice to Tenant of said violation and
to
charge Tenant for the cost of such removal and any repairs necessitated thereby,
without liability to Landlord for such removal. In such event, Tenant shall
immediately install replacement signs, displays or other installations, as
the
case may be, which are satisfactory to Landlord. Tenant shall maintain and
keep
in effect at Tenant’s cost during the Term (i) all permits and licenses required
for Tenant’s signs on the exterior of the Facility and (ii) customary insurance
coverage relating to such signs naming Landlord and any other party or person
whose name is furnished by Landlord to Tenant in writing as additional insureds
thereunder. Tenant shall not place or install or suffer to be placed or
installed or maintained within the Leased Property any temporary or
non-professionally made sign of any kind or nature, nor shall Tenant place
or
maintain on the Premises, including, without limitation, on the glass of
any
window or door thereof, any sign, decoration, lettering, advertising matter,
shade or blind or other thing of any kind. At the Expiration Date or earlier
termination of this Lease, Tenant, at its own cost and expense, shall remove
or
cause to be removed all such signs or other installations and repair any
damage
to the Leased Property caused by such removal. In the event Tenant fails
to
remove or cause to be removed the same within two (2) Business Days following
the Expiration Date or earlier termination of this Lease, then Landlord shall
have the right, without notice to Tenant, to remove any such signs or other
installations and to dispose of the same and to charge Tenant for the cost
of
such removal and disposition and any repairs necessitated thereby without
liability to Tenant for such removal and disposition.
ARTICLE
22
Hazardous
Material
22.01
Tenant
shall not cause or permit, any Hazardous Material (as such term is defined
in
the Purchase Agreement) to be brought or remain upon, kept or used in or
about
the Leased Property or the Facility.
22.02
In
addition to, and in no way limiting Tenant’s duties and obligations as set forth
in this Lease, or if the presence of any Hazardous Material in or upon the
Leased Property or the Facility, that Tenant causes or permits to be brought
upon, used, remained upon or kept at the Leased Property results in
contamination of the Leased Property, the Facility, the atmosphere, or any
water
or waterway (including groundwater), or if contamination of the Leased Property
or the Facility by any Hazardous Material otherwise occurs for which Tenant
is
otherwise legally liable to Landlord for damage resulting therefrom, Tenant
shall indemnify, save harmless, and, at Landlord’s option and with attorneys
approved in writing by Landlord (such approval not to be unreasonably withheld
or delayed), defend Landlord, Landlord’s manager, and its agents, employees,
partners, officers, directors, and mortgagees, if any, from any and all claims,
demands, damages, expenses, fees, costs, fines, penalties, suits, proceedings,
actions, causes of action, and losses of any and every kind and nature,
including, without limitation, diminution in value of the Leased Property
or the
Facility, damages for the loss or restriction on use of the rentable or usable
space or of any amenity of the Leased Property or the Facility, damages arising
from any adverse impact on marketing space in the Facility, and sums paid
in
settlement of claims and for attorney’s fees, consultant fees and expert fees,
which may arise during or after the Term or any extension thereof as a result
of
such contamination, including, without limitation, costs and expenses incurred
in connection with any investigation of site conditions or any cleanup,
remedial, removal or restoration work required by any federal, state or local
governmental agency, or political subdivision because of Hazardous Material
present on or about the Leased Property or the Facility or anywhere else
which
emanated from Tenant or the Leased Property. Without limiting the foregoing,
if
the presence of any Hazardous Material on or about the Leased Property or
the
Facility, caused or permitted by Tenant results in any contamination of the
Leased Property or the Facility, Tenant shall, at its sole expense, promptly
take all actions as are necessary to return the Leased Property and/or the
Facility to the condition existing prior to the introduction of any such
Hazardous Material to the Leased Property and/or the Facility; provided,
however, that Landlord’s approval of such actions shall first be obtained. The
provisions of this Section 22.03 shall survive the Expiration Date or
earlier termination of this Lease.
32
22.03
If
any
laws, orders, rules or regulations of any applicable governmental authority
require that any asbestos or other Hazardous Material contained in or about
the
Leased Property be removed, encapsulated or otherwise remediated in any
particular manner in connection with any Tenant’s Changes, then it shall be
Tenant’s obligation, at Tenant’s expense, to remove encapsulate or otherwise
remediate such asbestos or any other Hazardous Material in accordance with
all
such laws, orders, rules and regulations. In the event Tenant is required
to
remediate such asbestos or other Hazardous Material in accordance with the
foregoing provisions of this Article 22, then notwithstanding anything
herein to the contrary, Landlord, at Landlord’s election, shall have the option
to remediate such asbestos or other Hazardous Material and, in such event,
Tenant shall reimburse Landlord, as Tenant Charges, for all of Landlord’s costs
and expenses in connection therewith within ten (10) days next following
the
rendition of a statement by Landlord to Tenant requesting such reimbursement.
ARTICLE
23
Casualty
23.01
In
the
event of any fire or other casualty constituting a Non-Material Casualty
or a
Material Casualty (as such terms are defined in the Purchase Agreement) which
does not result in the termination of the Purchase Agreement, this Lease
shall
continue in full force and effect, and (a) if the casualty shall occur prior
to
the date that is ninety (90) days prior to the Closing, Landlord shall repair
the damage to and restore and rebuild the Facility and the Leased Property
(excluding Tenant’s improvements and betterments and the FF&E) with
reasonable dispatch after notice to it of the damage or destruction and the
collection of the insurance proceeds attributable to such damage, provided
that
Landlord shall not be required to expend any amount in excess of the insurance
proceeds actually received by Landlord with respect to such casualty, and
(b)
Tenant shall repair the damage to and restore and repair Tenant’s improvements
and betterments and the FF&E with reasonable dispatch after such damage or
destruction. Such work by Tenant shall be deemed Tenant’s Changes for the
purposes of Article 6 hereof. Notwithstanding the provisions of this Section
23.01 to the contrary, if the casualty shall occur within ninety (90) days
prior
to Closing, then Landlord shall have no obligation to restore the Facility
or
the Leased Property and the provisions of Section 16.4(b) of the Purchase
Agreement shall apply to the rights and obligations of Landlord and Tenant
in
such circumstances.
33
23.02
In
the
event that a Material Casualty (as such term is defined in the Purchase
Agreement) results in the termination of the Purchase Agreement, this Lease
shall automatically terminate simultaneously with the termination of the
Purchase Agreement. Neither party shall have any right to terminate this
Lease
as a result of a fire or other casualty except in the event of a Material
Casualty which results in the termination of the Purchase
Agreement.
23.03
Landlord
will not be obligated to carry insurance of any kind on the FF&E or any
improvements and betterments, and shall not be obligated to repair any damage
to
or replace any FF&E. Tenant agrees to look first to its insurance for
recovery of any damage to or loss of FF&E. If Tenant shall fail to maintain
such insurance, Landlord shall have the right to obtain same and the cost
thereof shall be Tenant Charges under this Lease and payable by Tenant to
Landlord on demand.
ARTICLE
24
Condemnation
24.01
In
the
event of any Non-Material Taking or any Material Taking (as such terms are
defined in the Purchase Agreement) that does not result in the termination
of
the Purchase Agreement, this Lease shall continue in full force and effect.
In
the event of any Material Taking which results in the termination of the
Purchase Agreement, this Lease shall automatically terminate simultaneously
with
the termination of the Purchase Agreement. The proceeds of any condemnation
award shall be paid in accordance with the provisions of Section 16.4(a)
of the
Purchase Agreement.
ARTICLE
25
Estoppel
Certificate
25.01
Tenant
agrees, at any time and from time to time, as requested by Landlord, upon
not
less than ten (10) Business Days prior notice, to execute and deliver to
Landlord a statement certifying that this Lease is unmodified and in full
force
and effect (or if there have been modifications that the same is in full
force
as modified and stating the modifications), certifying the dates to which
the
Tenant Charges have been paid, stating whether or not, to the best knowledge
of
Tenant, Landlord is in default in performance of any of its obligations under
this Lease, and, if so, specifying each such default of which Tenant may
have
knowledge, and certifying as to any other information regarding this Lease
as
Landlord shall reasonably request, it being intended that any such statement
delivered pursuant hereto may be relied upon by others with whom Landlord
may be
dealing.
ARTICLE
26
Miscellaneous
26.01
Each
term, covenant, agreement, obligation or other provision of this Lease on
Tenant’s part to be performed shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent upon any of the other terms
of
this Lease. This Lease shall be construed without regard to any presumption
or
other rule requiring construction against the party causing this Lease to
be
drafted. In the event of any action, suit, arbitration, dispute or proceeding
affecting the terms of this Lease, no weight shall be given to any deletions
or
striking out of any of the terms of this Lease contained in any draft of
this
Lease and no such deletion or strike out shall be entered into evidence in
any
such action, suit, arbitration, dispute or proceeding nor given any weight
therein.
34
26.02
Neither
the submission of this Lease form to Tenant nor the execution of this Lease
by
Tenant shall constitute an offer by Landlord to lease the Leased Property
to
Tenant. This Lease shall not be or become binding upon Landlord to any extent
or
for any purpose unless and until it is executed by Landlord and a fully executed
counterpart thereof is delivered to Tenant.
26.03
This
Lease shall be governed in all respects by the laws of the State of New
Jersey.
26.04
If,
in
connection with obtaining financing for the Facility, a bank, insurance company
or other lending institution shall request reasonable modifications to this
Lease as a condition to such financing, Tenant will not unreasonably withhold,
delay or defer its consent thereto, provided that such modifications do not
increase the monetary obligations of Tenant hereunder, and do not materially
increase any other obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created.
26.05
The
Schedules and/or Exhibits annexed to this Lease shall be deemed part of this
Lease with the same force and effect as if such Schedules and/or Exhibits
were
numbered Articles of this Lease.
26.06
Tenant
acknowledges that it has no rights to any development rights, “air rights” or
comparable rights appurtenant to the Facility, and consents, without further
consideration, to any utilization of such rights by Landlord and agrees to
promptly execute and deliver any instruments which may be requested by Landlord,
including instruments merging zoning lots, evidencing such acknowledgment
and
consent.
26.07
If
any of
the provisions 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 provision or provisions to persons
or
circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected thereby, and every provision of this
Lease
shall be valid and enforceable to the fullest extent permitted by law.
26.08
Tenant
shall not place or permit to be placed any vending machines in the Leased
Property, except with the prior written consent of Landlord in each instance.
26.09
The
Article headings of this Lease are for convenience only and are not to be
given
any effect whatsoever in construing this Lease.
26.10
Landlord
and Tenant each represent that the individual signing this Lease on its behalf
is duly authorized to sign this Lease on its behalf.
26.11
Tenant
shall not record this Lease or any memorandum hereof, and any such recording
of
this Lease by Tenant shall be invalid and of no force or effect.
26.12
All
references in this Lease to Sections and Articles shall be deemed to refer
to
Sections and Articles in this Lease.
26.13
Except
as
expressly provided in Article 23 and Article 24 hereof, the
obligations of Tenant under this Lease shall be in no way affected, impaired
or
excused, nor shall Landlord have any liability whatsoever to Tenant, nor
shall
it be deemed a constructive eviction because Landlord is unable to fulfill,
or
is delayed in fulfilling, any of its obligations under this Lease by reason
of
strike, lock-out or other labor trouble, governmental preemption of priorities
or other controls in connection with a national or other public emergency
or
shortages of fuel, supplies or labor resulting therefrom, or any other cause,
whether similar or dissimilar, beyond Landlord’s reasonable
control.
35
26.14
The
execution and performance of this Lease, Landlord’s and Tenant’s review and
approval rights (if any) described in this Lease, the agreements of the parties
in this Lease and the exercise of any rights hereunder, are not intended,
and
shall not be construed, to create a partnership, joint venture or co-tenancy
between Landlord and Tenant. Furthermore, the execution of this Lease by
Landlord and Tenant shall not create (and neither Landlord nor Tenant intends
to
create) any relationship of principal and agent between Landlord or Tenant,
or
any partnership or joint venture relationship between Landlord and Tenant.
Neither Landlord nor Tenant shall be deemed to be a fiduciary of the other
party.
26.15
Landlord
shall have the right to establish, modify, change and enforce rules and
regulations with respect to the Facility and Tenant shall observe and comply
with all such rules and regulations. Nothing contained in this Lease shall
impose upon Landlord any obligation to enforce any rules and regulations
or
terms, covenants or conditions in any other lease against any other Facility
tenant, and Landlord shall not be liable to Tenant for violation of the rules
and regulations by any other tenant, its employees, agents, visitors or
licensees.
26.16
Landlord
and Tenant acknowledge and agree that this is a “net” Lease and the amounts
payable by Tenant hereunder shall not be subject to offset, abatement, defense,
or counterclaim of any kind and, except as specifically set forth herein,
Landlord shall not be required to provide any service or incur any expense
with
respect to the Leased Property or Tenant’s use and operation
thereof.
26.17
This
Lease constitutes the entire agreement between Landlord and Tenant with respect
to the subject matter hereof, and any prior understandings and agreements
between the parties have been merged into this Lease and the Purchase Agreement.
This Lease may not be changed, modified, or discharged, in whole or in part,
except by a writing made after the date hereof signed by the party against
whom
enforcement of the change, modification, or discharge is sought. Nothing
in this
provision shall waive, terminate or affect the Purchase Agreement, or the
references in this Lease to the Purchase Agreement.
26.18
This
Lease may be executed in any number of counterparts, each of which shall,
when
executed, be deemed to be an original and all of which shall be deemed to
be one
and the same instrument. This Lease may be executed by facsimile signature,
which shall be as binding as original signature.
26.19
Tenant
and the guarantors of this Lease hereby confirm that they have reviewed and
approved the Purchase Agreement.
26.20
Anything
in this Lease to the contrary notwithstanding, Tenant (unless otherwise directed
by Landlord) at all times freely shall allow all persons (provided such persons
are properly attired) reasonable access and egress to and from the portion
of
the Facility rented under the Restaurant Lease (as defined in the Purchase
Agreement) across the Premises and to and from the portion of the Facility
operated as a Hotel, including, without limitation, use of the corridor
connecting the Premises, the portion of the Facility rented under the Restaurant
Lease, and the portion of the Facility operated as a Hotel.
36
26.21 (a)
Tenant
acknowledges, that, with the consent of Buyer’s Principals, Landlord has
requested that ▇▇▇▇▇ Inc. or an affiliate of ▇▇▇▇▇ Inc. conduct background
investigations concerning Buyer’s Principals and provide reports of such
investigations (“Kroll Reports”).
(b)
In
the
event that any of the Kroll Reports include any information concerning any
of
Buyer’s Principals that Landlord, in Landlord’s reasonable judgment, deems of
such nature that Landlord’s reputation could be adversely affected by engaging
in a transaction with any of Buyer’s Principals or otherwise being associated
with any of Buyer’s Principals, then Seller shall have the right to terminate
this Lease by notice to Tenant (it being agreed by Tenant that notice by
the
seller under the Purchase Agreement to the buyer thereunder terminating the
Purchase Agreement shall ipso facto also be deemed notice to Tenant under
this
Lease by Landlord terminating this Lease pursuant to this provision) in which
event this Lease shall thereupon be deemed terminated, and neither party
hereto
shall have any obligations of any nature to the other hereunder or by reason
hereof, except for those provisions that expressly survive such termination;
provided, however, that such notice terminating this Lease pursuant to this
provision must be given not later than the date ten (10) days after receipt
by
Landlord of the last of the Kroll Reports concerning Buyer’s Principals to be
received by Landlord.
ARTICLE
27
Guaranty.
27.01
To
induce
Landlord to enter into this Lease, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (individually
and collectively, jointly and severally, “Guarantor”)
in
accordance with and subject to the provisions of this Article 27 (this
“Guaranty”),
jointly
and severally, absolutely, unconditionally and irrevocably guarantees, as
a
primary obligor and not merely as a surety: (i) the full and prompt payment
of
all Tenant Charges, and (ii) the full and timely performance of all covenants,
terms, conditions, obligations, indemnities, and agreements to be performed
by
Tenant under this Lease (all of the obligations described in clauses (i)
and
(ii), collectively, the “Obligations”).
27.02
Guarantor
agrees with Landlord that (i) any action, suit or proceeding of any kind
or
nature whatsoever (an “Action”)
commenced by Landlord against Guarantor to collect any Tenant Charges due
under
this Lease for any month or months shall not prejudice in any way Landlord’s
rights to collect any such amounts due for any subsequent month or months
throughout the term of this Lease in any subsequent Action, (ii) Landlord
may,
at its option, without prior notice or demand, join Guarantor in any Action
against Tenant in connection with or based upon this Lease or any of the
Obligations, (iii) Landlord may, to the extent permitted under this Guaranty,
seek and obtain recovery against Guarantor in an Action against Tenant or
in any
independent Action against Guarantor without Landlord first asserting,
prosecuting, or exhausting any remedy or claim against Tenant or against
any
security of Tenant held by Landlord under this Lease, and (iv) Guarantor
will be
conclusively bound in any jurisdiction by a judgment in any Action by Landlord
against Tenant, as if Guarantor were a party to such Action, even though
Guarantor is not joined as a party in such Action.
27.03
This
Guaranty is an absolute and unconditional guaranty of payment and of
performance, and not of collection, and shall be enforceable against Guarantor
without the necessity of the commencement by Landlord of any Action against
Tenant, and without the necessity of any notice of nonpayment, nonperformance
or
nonobservance, or any notice of acceptance of this Guaranty, or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby expressly waives in advance.
27.04
This
Guaranty is a continuing guarantee and will remain in full force and effect
notwithstanding, and the liability of Guarantor hereunder shall be absolute
and
unconditional irrespective of: (i) any modifications, amendments or termination
of this Lease, (ii) any releases or discharges of Tenant other than the full
release and complete discharge of all of the Obligations, (iii) any extension
of
time that may be granted by Landlord to Tenant, (iv) any assignment or transfer
of all of any part of Tenant’s interest under this Lease, (v) any further
subletting of the Premises, (vi) any other dealings or matters occurring
between
Landlord and Tenant, (viii) the taking by Landlord of any additional guarantees
from other persons or entities, (viii) the releasing by Landlord of any other
guarantor, (ix) Landlord’s release of any security provided under this Lease, or
(x) Landlord’s failure to perfect any landlord’s lien or other security interest
available under applicable law. Guarantor hereby consents, prospectively,
to
Landlord’s taking or entering into any or all of the foregoing actions. This
Guaranty and the liability of Guarantor hereunder shall not be impaired,
modified, changed, stayed, released or limited in any manner whatsoever by
any
impairment, modification, change, release, limitation or stay of the liability
of Tenant or its estate in bankruptcy resulting from the operation of any
present or future provision of the United States Bankruptcy Code or any other
statute or from the decision of any court interpreting any of the same. It
is
understood that this Guaranty shall cease and shall be no longer effective
upon
the Expiration Date or earlier termination of this Lease except for obligations
of Tenant that are specifically referenced in this Lease to survive the
Expiration Date or termination of this Lease, or that have accrued under
this
Lease prior to the Expiration Date or sooner termination of this Lease, which
surviving obligations are specifically agreed to include, without limitation,
any indemnification obligations of Tenant pursuant to this Lease.
37
27.05
Guarantor
waives (i) notice of acceptance of this Guaranty, (ii) notice of any actions
taken by Landlord or Tenant under this Lease or any other agreement or
instrument relating thereto, (iii) notice of any and all defaults by Tenant
in
the payment of Tenant Charges, or of any other defaults by Tenant under this
Lease, and (iv) all other notices, demands and protests, and all other
formalities of every kind in connection with the enforcement of the Obligations,
omission of or delay in which, but for the provisions of this Section 27.05,
might constitute grounds for relieving Guarantor of his obligations
hereunder.
27.06
Guarantor
waives trial by jury of any and all issues arising in any Action upon, under
or
in connection with this Guaranty, this Lease, the Obligations, and any and
all
negotiations or agreements in connection therewith.
27.07
Guarantor
represents and warrants to Landlord that:
(a)
Guarantor
is a citizen of United States of America and has all requisite power and
authority to enter into and perform his obligations under this
Guaranty.
(b)
The
execution, delivery and performance by Guarantor of this Guaranty does not
and
will not (i) contravene applicable law or any contractual restriction binding
on
or affecting Guarantor or any of his properties, or (ii) result in or require
the creation of any lien, security interest or other charge or encumbrance
upon
or with respect to any of his properties.
(c)
This
Guaranty is a legal, valid and binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms.
27.08
There
is
no action, suit or proceeding pending or threatened against or otherwise
affecting Guarantor before any court or other governmental authority or any
arbitrator which may materially adversely affect Guarantor’s ability to perform
its obligations under this Guaranty.
27.09
Guarantor
owns 100% of the membership interest in Tenant.
38
27.10
All
consents, notices, demands, requests, approvals or other communications given
under this Guaranty shall be given as provided this Lease and shall be addressed
to Guarantor at Guarantor’s address set forth on the signature page of this
Lease.
27.11
Guarantor
hereby irrevocably (i) submits to the jurisdiction of any New Jersey or Federal
court sitting in New Jersey in any Action arising out of or relating to this
Guaranty, and (ii) agrees that all claims in respect of such Action may be
heard
and determined in such New Jersey State or Federal court. Service of process
in
any such Action may be made by mailing or delivering such process to Guarantor
at his address specified on the signature page hereof. Guarantor agrees that
a
final judgment in any such Action shall be conclusive and may be enforced
in
other jurisdictions by suit on the judgment or in any other manner permitted
by
law. Nothing set forth herein shall limit or affect Landlord’s right to serve
legal process in any other manner permitted by law.
27.12
Guarantor
irrevocably waives, to the fullest extent permitted by law, and agrees not
to
assert, by way of motion, as a defense or otherwise (i) any objection which
it
may have or may hereafter have to the laying of the venue of any such Action
brought any of the courts described in Section 27.11 hereof, (ii) any claim
that
any such Action brought in any such court has been brought in an inconvenient
forum, or (iii) any claim that Guarantor is not personally subject to the
jurisdiction of any such courts. Guarantor agrees that final judgment in
any
such Action brought in any such court shall be conclusive and binding upon
Guarantor and may be enforced by Landlord in the courts of any state, in
any
federal court, and in any other courts having jurisdiction over Guarantor
or any
of his property, and Guarantor agrees not to assert any defense, counterclaim
or
right of set-off in any Action brought by Landlord to enforce such judgment.
27.13
Guarantor
hereby irrevocably waives, with respect to himself and his property, any
immunity from the jurisdiction of any court or from any legal process, to
which
Guarantor may be entitled, and agrees not to assert any claims of any such
immunities in any Action brought by Landlord under or in connection with
this
Guaranty. Guarantor acknowledges that the making of such waivers, and Landlord’s
reliance on the enforceability thereof, is a material inducement to Landlord
to
enter into this Lease.
27.14
Guarantor
specifically acknowledges and agrees to the provisions set forth in Section
12.06 of this Lease.
27.15
The
provisions, covenants and guaranties of this Guaranty shall be binding upon
Guarantor and his heirs, successors, legal representatives and assigns, and
shall inure to the benefit of Landlord and its successors and assigns, and
shall
not be deemed waived or modified unless such waiver or modification is
specifically set forth in writing, executed by Landlord or its successors
and
assigns, and delivered to Guarantor.
27.16
Guarantor
may execute this instrument in counterparts each of which shall, when executed,
be deemed to be an original and all of which shall be deemed to be one and
the
same instrument. Guarantor may execute this instrument by facsimile signature,
which shall be as binding as original signature.
[Signature
Page Follows]
39
IN
WITNESS WHEREOF, the parties have executed this Lease as of the date set
forth
above.
| LANDLORD: | ||
| WO GRAND HOTEL, LLC | ||
| By WILSHIRE ENTERPRISES, INC., | ||
| Managing Member | ||
| By: | ||
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
||
| President | ||
| TENANT: | ||
| PLEASANT VALLEY 350 CATERING ASSOCIATES, L.L.C. | ||
| By: | ||
|
Name: |
||
| Title: Managing Member | ||
| As to Article 27: | |
| Guarantor: | |
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
|
|
|
|
|
|
Address:
|
|
|
|
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Address:
|
|
|
|
|
40
EXHIBIT
A
Facility
Floor Plan
The
floor
plan which follows is intended solely to identify the general location of
the
Facility, and should not be used for any other purpose. All areas, dimensions
and locations are approximate, and any physical conditions indicated may
not
exist as shown.
▇-▇
▇-▇
▇▇▇▇▇▇▇
B
Premises
Floor Plan
The
floor
plan which follows is intended solely to identify the general location of
the
Premises, and should not be used for any other purpose. All areas, dimensions
and locations are approximate, and any physical conditions indicated may
not
exist as shown.
B-1
B-2
EXHIBIT
C
Landlord’s
Reservations
The
following schedule of Landlord’s Reservations shall apply only to the extent
such Reservations pertain to dates after the commencement of the term of
this
Lease.
Banquet
Functions For 2005
|
Banquet
|
Type
|
Date
|
Liquor
(Y/N)
|
|
▇▇▇▇▇▇▇▇▇▇▇
Party
|
Barmitzvah
|
10/1/05
|
N
|
|
UMDNJ
|
Lunch
Meeting
|
10/15/05
|
N
|
|
POA
|
Business
Meeting
|
10/19/05
|
N
|
|
Travel
Impressions
|
Travel
Expo
|
10/26/05
|
Y
|
|
▇▇▇▇▇
Hamlet
|
Wedding
|
10/29/05
|
Y
|
|
Rooney
Party
|
Sweet
16
|
11/4/05
|
Y
|
|
Pecknay
Party
|
Batmitzvah
|
11/12/05
|
Y
|
|
POA
|
Business
Meeting
|
11/16/05
|
N
|
|
▇▇▇▇▇▇▇▇▇
Party
|
Wedding
|
11/26/05
|
Y
|
|
Continental
Systems
|
Holiday
Party
|
12/9/05
|
Y
|
|
▇▇▇▇▇▇▇▇
Party
|
Batmitzvah
|
12/17/05
|
Y
|
C-1
|
Banquet
Functions For 2006.
|
Liquor
(Y/N)
|
||
|
▇▇▇▇▇▇▇▇▇
Barmitzvah
|
1/7/06
|
Richfield
Regency
|
Y
|
|
American
Savings Meeting
|
1/19/06
|
Inhouse
|
N
|
|
▇▇▇▇▇▇▇▇▇▇
Barmitzvah
|
2/10-2/12/06
|
Total
Event
|
Y
|
|
▇▇▇▇▇▇▇▇
Barmitzvah
|
3/4/06
|
Total
Event
|
Y
|
|
▇▇▇▇▇
Barmitzvah
|
4/23/06
|
Richfield
Regency
|
Y
|
|
▇▇▇▇▇▇▇
Wedding
|
5/28/06
|
TBD
|
Y
|
|
▇▇▇▇▇▇
Barmitzvah
|
6/3/06
|
Richfield
Regency
|
Y
|
|
▇▇▇▇▇▇
Barmitzvah
|
6/10/06
|
Richfield
Regency
|
Y
|
|
▇▇▇▇▇▇▇▇▇
Barmitzvah
|
10/28-29/06
|
Prestige
|
Y
|
C-2