NET LEASE AGREEMENT
THIS LEASE, made and entered into effective as of this 27th
day of September, 2000, by and between NNN-CW LP, a Delaware
limited partnership, whose mailing address is c/o Xxxxxxxx Xxxx
Company, 0000 X. Xxxxxxx Xxx., Xxxxx 000, Xxxxxx, XX 00000
("Lessor"), and ARAMARK Educational Resources, Inc., a Delaware
corporation, d/b/a Children's World Learning Centers, whose
address is 000) Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000
("Lessee");
WITNESSETH:
WHEREAS, Lessor is the fee owner of a certain parcel of real
property and improvements located at 000 Xxxx Xxxxxx Xxxxxx, Xxxx
Xxxxxxxxxxx, XX 00000, and legally described in Exhibit A
attached hereto and incorporated herein by reference; and
WHEREAS, Lessee constructed or caused the construction of
the building and improvements (together the "Building") on the
real property described in Exhibit A; and
WHEREAS, Lessee sold said real property and Building (said
real property and Building hereinafter referred to as the
premises ("Premises"), to Lessor and simultaneously leases said
Premises back from Lessor upon the terms and conditions
hereinafter provided;
NOW, THEREFORE, in consideration of the rents, terms,
covenants, conditions, and agreements hereinafter described to be
paid, kept, and performed by Lessee, Lessor does hereby grant,
demise, lease, and let unto Lessee, and Lessee does hereby take
and hire from Lessor and does hereby covenant, promise, and agree
as follows:
ARTICLE 1. LEASED PREMISES
Lessor hereby leases to Lessee, and Lessee leases and takes
from Lessor, the Premises subject to the conditions of this
Lease.
ARTICLE 2. TERM
(A) The term of this Lease ("Term") shall be approximately
three months and fifteen (15) consecutive Lease Years, as
hereinafter defined, commencing on September 28, 2000 ("Occupancy
Date"), and ending November 30, 2015.
(B) There shall be an Interim Term which shall be from the
Occupancy Date to December 1, 2000. The first "Lease Year" of
the Term shall be from December 1, 2000 to November 30, 2001 and
each successive Lease Year shall be a successive period of twelve
(12) calendar months.
(C) A short form or memorandum of this Lease has been
executed for recording purposes in the form attached as Exhibit B
hereto. Lessee shall pay any costs, fees or taxes associated
with such recording. Termination of Lessee's right to possession
shall be conclusive evidence of termination of any option to
renew, purchase, or to any right of first refusal, if any. Entry
of a court order terminating Lessee's right of possession shall
be sufficient evidence of the termination of any rights
established by such Memorandum of Lease, and the Memorandum of
Lease shall so state. Abandonment of the Premises by Lessee
shall not be considered a termination of Lessee's right to
possession of the Premises if Lessee continues maintenance of the
Premises and payment of rent under the terms of the Lease.
ARTICLE 3. RESPONSIBILITY FOR IMPROVEMENTS
(A) Lessee represents, to the best of its knowledge, that
the Building and all other improvements to the land do materially
comply with the applicable laws, ordinances, rules and
regulations of all state, federal and local governments.
(B) On the Occupancy Date, Lessee shall be deemed to have
accepted the Premises "as is and where is" and to have
acknowledged that the Premises are in the condition described
under this Lease and that Lessee is responsible for the
correction or repair of any defects or deficiencies in or of the
Premises whether in existence as of the date of this Lease or
discovered after such date, including but not limited to
compliance with applicable laws, ordinances, rules and
regulations of ail state, federal, and local governments.
ARTICLE 4. RENTAL PAYMENTS
(A) Lessee shall pay the Annual Base Rent ("Rental") to
Lessor during the Term in the amount as stated in this section in
equal monthly installments as stated in Exhibit 4.A each in
advance, without any setoff or deduction except as stated in
Article 34 below, on or before the 1st day of each month,
commencing on the 1st day of October, 2000, and for a prorated
amount for any partial month. The prorated amount from the
Occupancy Date through September 30, 2000, shall be due and
payable on the Occupancy Date.
(B) The Initial Annual Base Rent provided for in A.
immediately above shall be subject to being increased on each
Adjustment Date (as defined below) by the lesser of (i) the
applicable following percentages multiplied by the Annual Base
Rent for the immediately previous three year period ("Rent
Adjustment"):
Adjustment Date Rent Adjustment
4th Lease Year 3.33%
7th Lease Year 2.0%
10th Lease Year 2.0%
13th Lease Year 2.0%
or (ii) two hundred percent (200%) of the percentage increase,
if any, in the United States Department of Labor, Bureau of Labor
Statistics Consumer Price Index ("CPI") for All Items-All Urban
Consumers (base year 1982-84 = 100) for the U.S. City Average,
("Index") (which this phrase (ii) shall be defined as the "CPI
Adjustment") as follows:
The CPI Adjustment shall be determined using the
Index published nearest to the date four (4)
months prior to the Occupancy Date as the
"Beginning Index." The Index published nearest to
the date four (4) months prior to the applicable
Adjustment Date shall be the "Adjustment Date
Index." On each Adjustment Date (defined as
commencing with the beginning of the fourth (4th)
Lease Year, and every three (3) year interval
thereafter, i.e. commencement of the 7th, 10th,
13th, etc. Lease Years) during the Term of this
Lease and all Renewal Terms, if applicable, the
Annual Base Rent as determined by the CPI
Adjustment shall be calculated by multiplying the
then existing Annual Base Rent by a fraction, the
numerator of which fraction is the applicable
Adjustment Date Index and the denominator of which
fraction is the Beginning Index. The amount of
the CPI Adjustment shall be the difference between
the amount so determined and the then existing
Annual Base Rent, which sum shall be added back to
the then existing Annual Base Rent. The amount so
determined shall be the Annual Base Rent as
determined by the CPI Adjustment. If the Index
has changed so that the base year differs from
that used in this section, the Index shall be
converted in accordance with the conversion factor
published by the United States Department of
Labor, Bureau of Labor Statistics. If the Index
is discontinued or revised during the Term hereof
or any portion or extension, such other government
index or computation with which it is replaced
shall be used in order to obtain substantially the
same result as would be obtained if the Index has
not been discontinued or revised.
The Annual Base Rent for the applicable
Adjustment Date and until the next Adjustment
Date shall be the amount determined by the
CPI Adjustment or the Rent Adjustment,
whichever is less, but in no event shall the
Annual Base Rent be less than the Annual Base
Rent for the previous Lease Year.
(C) Overdue Payments. Lessee shall pay interest on all
overdue payments of Rental or other monetary amounts due
hereunder at a rate equal to the prime rate (as announced by the
Wall Street Journal newspaper) plus two percent, accruing from
the date such Rental or other monetary amounts were properly due
and payable.
(D) This Net Lease Agreement was entered into as part of
that certain Purchase and Sale Agreement and Escrow Instructions,
dated on or about July 7, 2000 ("Contract"). The Contract
provides that Seller convey to Purchaser, by xxxx of sale,
certain personal property located on the Premises. It is hereby
understood and agreed to by the parties that the personal
property conveyed in said xxxx of sale (a copy attached hereto)
is part of the Premises and is to be leased pursuant to the terms
of the Lease. There shall be no additional rent charged for the
lease of the personal property referred to in the xxxx of sale.
ARTICLE 5. INSURANCE AND INDEMNITY
(A) Lessee shall, throughout the Term or Renewal Terms, if
any, of this Lease, at its own cost and expense, procure and
maintain insurance which covers the Premises and improvements
against fire, wind, and storm damage (including flood insurance
if the Premises is in a federally designated flood prone area)
and such other risks as may be included in the broadest form of
extended coverage insurance as may, from time to time, be
available in amounts sufficient to prevent Lessor or Lessee from
becoming a co-Insurer within the terms of the applicable
policies. In any event, the insurance coverage shall not be less
than one hundred percent (100%) of the then insurable value.
Additionally, replacement cost endorsements, vandalism
endorsement, malicious mischief endorsement, waiver of
subrogation endorsement, waiver of co-insurance endorsement (if
available), shall be obtained.
(B) Lessee agrees to place and maintain throughout the Term
or Renewal Terms, if any, of this Lease, at Lessee's own expense,
public liability, in combination with excess liability, insurance
with respect to Lessee's use and occupancy of said Premises, with
initial limits of at least $2,000,000/$5,000,000 for bodily
injury and property damage, or such additional amounts subject to
commercially reasonable deductibles, as Lessor shall reasonably
require from time to time, including contractual liability
insurance covering Lessee's obligations and indemnities under
this Lease.
(C) Lessee agrees to notify Lessor in writing if Lessee is
unable to procure all or some part of the aforesaid insurance.
In the event Lessee fails to provide all insurance required under
this Lease, Lessor shall have the right, but not the obligation,
to procure such insurance on Lessee's behalf, and Lessee will
then, within ten (10) business days from receiving written
notice, pay Lessor the amount of the premiums due or paid,
together with interest thereon at the current prime rate plus two
percent, which amount shall be considered rent payable by Lessee
in addition to the Rental defined at Article 4 hereof.
(D) All policies of insurance provided for or contemplated
by this Article shall be primary to Lessor for Lessee's
responsibilities under this Agreement, and shall name Lessor and
Lessee and any mortgagee as insured or additional insured and
loss payee, as their respective interests may appear, and shall
provide that the policies cannot be canceled, terminated, or
modified in a manner that materially affects the insurance
required hereunder without thirty (30) days written notice to the
parties. All insurance companies must have an A.M. Best rating
of "Good" or better. Lessee has provided Lessor with a legible
copy of the applicable insurance certificate(s) and will provide
Lessor with copies of any changes thereto and shall provide
evidence no less than thirty (30) days prior to the expiration
thereof of the renewal thereof and the renewal and existence of
requisite public liability insurance as by current certificates
of insurance.
(E) Lessee shall defend, indemnify, and hold Lessor
harmless against any and all claims, damages, and lawsuits of any
nature whatsoever arising on or after the Occupancy Date of this
Lease and any orders, decrees or judgments which may be entered
therein, brought for damages or alleged damages resulting from
any injury to person or property or from loss of life sustained
in or about the Premises, and Lessee agrees to save Lessor
harmless from, and indemnify and defend Lessor against, any and
all injury, loss, or damage, of whatever nature, to any person or
property caused by, or resulting from any act, omission, or
negligence of Lessee or any employee, agent, or contractor of
Lessee. In addition, Lessee hereby releases Lessor from any and
all liability for any loss or damage caused by fire or any of the
extended coverage casualties, even if such fire or other casualty
shall be brought about by the negligence (but not the gross
negligence or intentional or willful misconduct or malice) of
Lessor.
(F) Lessor hereby waives any and all rights that it may
have to recover from Lessee damages for any loss occurring to the
Premises by reason of any act or omission of Lessee; provided,
however, that this waiver is limited solely to those losses for
which Lessor is actually compensated by its insurers. Lessee
hereby waives any and all right that it may have to recover from
Lessor damages for any loss occurring to the Premises by reason
of any act or omission of Lessor; provided, however, that this
waiver is limited solely to those losses for which Lessee is
actually compensated by its insurers.
ARTICLE 6. TAXES, ASSESSMENTS AND UTILITIES
(A) Lessee shall be liable for, and agrees to pay at or
before the due date thereof, the charges for, all public utility
services rendered or furnished to the Premises, including heat,
water, gas, electricity, sewer, sewage treatment facilities and
the like, all personal property taxes, real estate taxes, special
assessments, and municipal or government charges, general,
ordinary and extraordinary, of every kind and nature whatsoever,
which may be levied, imposed, or assessed against the Premises,
or upon any improvements thereon, at any time from and after the
Occupancy Date of this Lease and prior to the expiration of the
Term, including any Renewal Term. Such payments shall be due and
payable as rent paid by Lessee in addition to the Rent defined at
Article 4 hereof.
(B) Lessee shall pay all real estate taxes, assessments for
public improvements or benefits, and other governmental
impositions, duties, and charges of every kind and nature
whatsoever which shall or may, during the Term of this Lease, be
charged, levied, assessed, or imposed upon, or become a lien or
liens upon the Premises or any part thereof or upon the rents
payable hereunder, except for taxes based solely upon the income
of Lessor. Such payments shall be due and payable as rent paid
by Lessee in addition to the Rent defined at Article 4 hereof.
Lessee shall be deemed to have complied with the foregoing
covenant if payment is made by Lessee within the time when
payment is permitted without penalty or interest, and before the
same shall become a lien upon the Premises. If by law any real
estate taxes, assessments for public improvements or benefits, or
other governmental impositions, duties, and charges of every kind
and nature whatsoever may at the option of the taxpayer be paid
in installments (whether or not interest shall accrue on the
unpaid balance), Lessee may exercise the option to pay the same
in installments and shall pay such installments as they become
due during the Term of this Lease. Lessee shall be liable for a
pro rata portion of any installments which come due after the
expiration of the Lease Term, to the extent such installments
relate to a period prior to such expiration, and Lessor shall be
liable for the pro rata portion of any installments which becomes
due after the expiration of the Lease Term, to the extent such
installments relate to a period after such expiration. If due to
a change in the method of taxation, a franchise tax, rental tax,
or income or profit tax shall be levied against Lessor in
substitution for or in lieu of any tax which would otherwise
constitute a real estate tax, such tax shall be deemed a real
estate tax for the purposes herein and shall be paid by Lessee.
(C) All real estate taxes, assessments for public
improvements or benefits, water rates and charges, sewer rents,
and other governmental impositions, duties, and charges which
shall become payable for the first and last tax years of the Term
shall be apportioned pro rata between Lessor and Lessee in
accordance with the respective number of months during which each
party shall be in possession of the Premises in said respective
tax years. For the purposes of this provision, all personal
property taxes, real estate taxes and special assessments shall
be deemed to have been assessed in the year that the first
payment or any installment thereof is due.
(D) Lessee shall have the right to contest or review by
legal proceedings or in such other manner as may be legal (which,
if instituted, shall be conducted solely at Lessee's own expense)
any tax, assessment for public improvements or benefits, or other
governmental imposition aforementioned, at any time until the
property is subject to levy or execution. All such proceedings
shall be begun as soon as reasonably possible after the
imposition or assessment of any contested items and shall be
prosecuted to final adjudication with reasonable dispatch. In
the event of any reduction, cancellation, or discharge, Lessee
shall pay the amount that shall be finally levied or assessed
against the Premises or adjudicated to be due and payable, and,
if there shall be any refund payable by the governmental
authority with respect thereto, Lessee shall be entitled to
receive and retain the same, subject, however, to apportionment
as provided during the first and last years of the Term of this
Lease.
(E) Lessor, within sixty (60) days after notice to Lessee
if Lessee fails to commence such proceedings, may, but shall not
be obligated to, contest or review by legal proceedings, or in
such other manner as may be legal, and at Lessor's own expense,
any tax, assessments for public improvements and benefits, or
other governmental imposition aforementioned, which shall not be
contested or reviewed, as aforesaid, by Lessee, and unless Lessee
shall promptly join with Lessor in such contest or review, Lessor
shall be entitled to receive and retain any refund payable by the
governmental authority with respect thereto.
(F) Lessor shall not be required to join in any proceeding
referred to in this Article, unless in Lessee's reasonable
opinion, the provisions of any law, rule, or regulation at the
time in effect shall require that such a proceeding be brought by
and/or in the name of Lessor, in which event Lessor shall upon
written request, join in such proceedings or permit the same to
be brought in its name.
ARTICLE 7. ASSIGNMENT AND SUBLETTING
So long as Lessee shall remain fully liable for the
performance of all obligations of any lessee under this Lease,
and if Lessee provides notice and true and complete copies of all
assignments or sublet agreements to Lessor, then Lessee may
assign or sublet this Lease or the Premises without the prior
permission of Lessor. Lessee shall, prior to the effective date
thereof deliver to Lessor executed counterparts of any such
agreement and of all ancillary agreements with the proposed
assignee or sublessee, as applicable. Lessor shall have the
right to require all rental payable to Lessee under any such
subletting or assignment to be payable to Lessor.
Notwithstanding any such assignment or subletting, the Premises
shall be continuously operated as a licensed child care facility
during the first two (2) Lease Years.
ARTICLE 8. REPAIRS AND MAINTENANCE
Lessee covenants and agrees to keep and maintain in good
order, condition and repair the interior and exterior of the
Premises, including all structures, the roof, the playground, and
all other improvements, during the Term of the Lease, and further
agrees that Lessor shall be under no obligation to make any
repairs or perform any maintenance to the Premises. Lessee
covenants and agrees that it shall be responsible for all
repairs, alterations, replacements, or maintenance of, including
but without limitation, interior and exterior portions of all
doors, door checks and operators, windows, plate glass, plumbing,
water and sewage facilities, fixtures, electrical equipment,
interior walls, ceilings, signs, interior building appliances and
similar equipment, heating and air conditioning equipment, and
further agrees to be replace any of said equipment when
necessary. Lessee further agrees to be responsible for, at its
own expense, snow removal, lawn maintenance, landscaping,
maintenance of the parking lot (including parking lines, seal
coating, and blacktop surfacing), and other similar items.
Lessee, for itself, its successors, assignees, sublessee
customers, and invitees hereby irrevocably waives any implied
warranty of habitability or fitness for any purpose by Lessor or
any other implied warranty by Lessor whatsoever as to the
Premises.
If after written notice and a 90 day cure period (except in
the event of emergencies), Lessee refuses or neglects to commence
or complete repairs promptly and adequately, Lessor may cause
such repairs to be made, but shall not be required to do so, and
Lessee shall pay the cost thereof to Lessor upon demand as
additional rent under this Lease. It is understood that Lessee
shall pay all expenses and maintenance and repair during the Term
of this Lease. If Lessee is not then in default hereunder,
Lessee shall have the right to make repairs and improvements to
the Premises without the consent of Lessor if such repairs and
improvements do not exceed $50,000 provided such repairs or
improvements do not affect the structural integrity of the
Premises. Any repairs or improvements in excess of $50,000 or
affecting the structural integrity of the Premises may be done
only with the prior written consent of Lessor, such consent not
to be unreasonably withheld. All alterations and additions to
the Premises shall be made in accordance with all applicable laws
and shall remain for the benefit of Lessor. Lessee further
agrees, in the event of making such alterations as herein
provided, to indemnify and save harmless Lessor from all expense,
liens, claims or damages to either persons or property or the
Premises arising out of or resulting from the undertaking or
making of said repairs, improvements, alterations or additions,
or Lessee's failure to make said repairs, improvements,
alterations or additions.
ARTICLE 9. COMPLIANCE WITH LAWS AND REGULATIONS
Lessee will materially comply with all statutes, ordinances,
rules, orders, regulations and requirements of all federal,
state, city and local governments, and with all rules, orders and
regulations of the applicable Board of Fire Underwriters which
affect the use of the improvements. Lessee will materially
comply with all easements, restrictions, covenants or other
matters of record and those not of record if entered into by
Lessee or an agent of Lessee or with Lessee's written consent
against or affecting the Premises existing as of the Occupancy
Date, or subsequently arising if entered into by Lessee or an
agent of Lessee or with Lessee's written consent, or required for
operation of the Premises in accordance with Article 14 hereof,
and Lessee hereby assumes all obligations of Lessor thereunder,
including, without limitation, any obligations for compliance
with variances obtained by Lessee or if of record, variances
obtained on or prior to the Occupancy Date, compliance with flood
hazard area requirements, payment of assessments, reimbursement
for construction of improvements by others, construction of
additional improvements, maintenance, sharing of costs or
otherwise.
ARTICLE 10. SIGNS
Lessee shall have the right to install and maintain a sign
or signs advertising Lessee's business, provided that the signs
conform to law, and further provided that the sign or signs
conform specifically to the written requirements of the
appropriate governmental authorities.
ARTICLE 11. SUBORDINATION
(A) Lessor reserves the right and privilege to subject and
subordinate this Lease at all times to the lien of any mortgage
or mortgages now or hereafter placed upon Lessor's interest in
the Premises and on the land and buildings of which said Premises
are a part, or upon any buildings hereafter placed upon the land
of which the Premises are a part, and to any and all advances to
be made under such mortgages, and all renewals, modifications,
extensions, consolidations, and replacements thereof, provided
such a mortgagee shall execute a reasonably appropriate
subordination, attornment and non-disturbance agreement (which
shall include the right to quiet enjoyment).
(B) Lessee covenants and agrees to execute and deliver,
upon demand, such further reasonable instrument or instruments
subordinating this Lease on the foregoing basis to the lien of
any such mortgage or mortgages as shall be desired by Lessor and
any mortgage or proposed mortgagees, provided such instrument
contains a reasonable non-disturbance agreement (which shall
include the right to quiet enjoyment).
ARTICLE 12. CONDEMNATION OR EMINENT DOMAIN
(A) If Lessee receives any notice of Condemnation or
becomes aware of any threatened Condemnation affecting the
Premises or any access thereto, Lessee shall forthwith provide
written notice of the same to Lessor. If a Condemnation
(including the taking by any public authority under the power of
eminent domain, or by private purchase in lieu thereof) shall
affect all or a substantial portion of the Premises and shall
render the Premises unsuitable for restoration for continued use
and occupancy in Lessee's business or causes a loss of child care
license capacity of 20% or more, then Lessee may, not later than
60 days after possession of the Premises or any part thereof must
be delivered with respect to such Condemnation, deliver to Lessor
(i) notice of its intention to terminate this Lease on the next
rental payment date which occurs not less than 60 days after the
delivery of such notice (the "Condemnation Termination Date"),
(ii) a certificate of an authorized officer of Lessee describing
the event giving rise to such termination and stating that Lessee
has determined that such Condemnation has rendered the Premises
unsuitable for restoration for continued use and occupancy in
Lessee's business or that a loss of child care license capacity
of 20% has occurred, and (iii) if the Condemnation Termination
Date occurs during the Term, an irrevocable rejectable offer by
Lessee to Lessor to purchase on the Condemnation Termination Date
any remaining portion of the Premises and the Net Proceeds, if
any, payable in connection with such Condemnation (or the right
to receive the same when made, if payment thereof has not yet
been made), at the price set forth on Exhibit 12(A) (the "Buyout
Price"); provided that if the Condemnation Termination Date
occurs during any Renewal Term, this Lease shall terminate on the
Condemnation Termination Date, except with respect to obligations
and liabilities of Lessee hereunder, which have arisen prior to
the Condemnation Termination Date, and the Net Proceeds shall
belong to Lessor. If items (i), (ii) and (iii) have been sent
and the Condemnation Termination Date occurs during the original
fifteen (15) year Term, Lessor shall elect either (x) to accept
said offer and to convey to Lessee or its designee the remaining
portion of the Premises, if any, and there shall be assigned to
Lessee or its designee all of the Net Proceeds (as defined
herein) or (y) to reject said offer and agree that this Lease
shall terminate on the Condemnation Termination Date, except with
respect to obligations and liabilities of Lessee hereunder which
have arisen prior to the Condemnation Termination Date, and the
Net Proceeds shall belong to Lessor. The acceptance by Lessor of
said offer shall be effective only if given in writing within
sixty (60) days after receipt by Lessor of items numerate (i),
(ii) and (iii), and only if the Lender (if any), in its sole
discretion, provides its written approval of such acceptance
within said sixty-day period. If notice of unequivocal
acceptance from both Lessor and Lender is not given within said
sixty (60) day period, then the offer shall be deemed rejected
and the Lease shall be terminated pursuant to this Article.
Subsection 15(C) shall govern if this Lease is not terminated
based upon Condemnation pursuant to this subsection 12(A).
ARTICLE 13. RIGHT TO INSPECT
Lessor reserves the right to enter upon, inspect and examine
the Premises at any time during business hours, and Lessee agrees
to allow Lessor free access to the Premises to show the Premises
upon a minimum of 48 hours prior notice to Lessee. Lessor will
not enter into the Premises for purposes of this section unless
accompanied by a representative of Lessee and Lessee does hereby
agree to provide such representative upon request by Lessor, such
request given not less than 48 hours in advance. Upon default
by Lessee or at any time within ninety (90) days of the
expiration or termination of the Lease, Lessee agrees to allow
Lessor to place "For Sale" or "For Rent" signs on the Premises.
ARTICLE 14. USE OF LEASED PREMISES
(A) Lessee agrees and warrants that the Premises will be
used only for lawfully permitted uses which do not diminish the
value of the Premises and which comply with applicable law and
any recorded restrictions and covenants. During the first two
(2) Lease Years, such use shall be as a child care facility, and
shall for such period continually be used for such.
Notwithstanding the above, in no event shall the Premises be used
for any of the purposes set forth in Exhibit 14.
ARTICLE 15. CASUALTY
(A) SUBSTANTIAL CASUALTY DURING THE LAST EIGHTEEN MONTHS OF
THE PRIMARY TERM OR EXTENDED TERM. In the event of any casualty,
Lessee shall forthwith provide Lessor with notice of the same.
If a casualty shall affect all or a substantial portion of the
Premises and occurs during the last 18 months of the Term or at
any time during any Renewal Term, if any, and shall render the
Premises unsuitable for restoration for continued use and
occupancy or otherwise unsuitable for continued use and occupancy
in Lessee's business, then Lessee may, not later than 60 days
after such Casualty, deliver to Lessor (i) notice of its
intention to terminate this Lease on the next rental payment date
which occurs not less than 60 days after the delivery of such
notice (the "Casualty Termination Date"), (ii) a certificate of
an authorized officer of Lessee describing the event giving rise
to such termination and stating that Lessee has determined that
such Casualty has rendered the Premises unsuitable for
restoration for continued use and occupancy in Lessee's business.
Upon payment by Lessee of all Base Rent, additional rent and
other sums then due and payable hereunder to and including the
Casualty Termination Date, this Lease shall terminate on the
Casualty Termination Date except with respect to obligations and
liabilities of Lessee hereunder which have arisen prior to the
Casualty Termination Date, and the Net Proceeds shall belong to
Lessor. Subsection 15(C) shall govern if this Lease is not
terminated pursuant to this subsection 15(A).
(B) SUBSTANTIAL CASUALTY DURING THE INTERIM TERM OR THE
FIRST THIRTEEN AND ONE HALF YEARS. If a Casualty shall affect
all or a substantial portion of the Premises before the end of
the thirteenth Lease Year and six months, and shall render the
Premises unsuitable for restoration for continued use and
occupancy in Lessee's business, then Lessee may, not later than
60 days after such Casualty, deliver to Lessor (i) notice of its
intention to terminate this Lease on the next rental payment date
which occurs not less than 60 days after the delivery of such
notice (the "Casualty Termination Date"), (ii) a certificate of
an authorized officer of Lessee describing the event giving rise
to such termination and stating that Lessee has determined that
such Casualty has rendered the Premises unsuitable for
restoration for continued use and occupancy in Lessee's business,
and (iii) an irrevocable rejectable offer by Lessee to Lessor to
purchase on the Casualty Termination Date any remaining portion
of the Premises and the Net Proceeds, if any, payable in
connection with such Casualty (or the right to receive the same
when made, if payment thereof has not yet been made), at the
Buyout Price. If items (i), (ii) and (iii) have been sent,
Lessor shall elect either (x) to accept said offer and to convey
to Lessee or its designee the Premises, and there shall be
assigned to Lessee or its designee all of the Net Proceeds
(as defined herein) or (y) to reject said offer and agree that
this Lease shall terminate on the Casualty Termination Date,
except with respect to obligations and liabilities of Lessee
hereunder which have arisen prior to the Casualty Termination
Date, and the Net Proceeds shall belong to Lessor. The
acceptance by Lessor of said offer shall be effective only if
given in writing within sixty (60) days after receipt by Lessor
of items numerate (i), (ii) and (iii), and only if the Lender (if
any), in its sole discretion, provides its written approval of
such acceptance within said sixty-day period. If notice of
unequivocal acceptance from both Lessor and Lender is not given
within said sixty (60) day period, then the offer shall be deemed
rejected and the Lease shall be terminated pursuant to this
Article. Subsection 15(C) shall govern if this Lease is not
terminated pursuant to this subsection 15(B).
(C) CASUALTY DURING THE INTERIM TERM OR THE THIRTEEN AND
ONE HALF YEARS OF THE PRIMARY TERM OR LESS THAN SUBSTANTIAL
CONDEMNATION. If, after a Condemnation or Casualty, Lessee does
not give or does not have the right to give notice of its
intention to terminate this Lease as provided in subsection
15(A), 15(B) or 12(A), then this Lease shall continue in full
force and effect and Lessee shall, at its expense, rebuild,
replace or repair the Premises in conformity with the
requirements of this Lease so as to restore the Premises (in the
case of Condemnation, as nearly as practicable) to the condition,
character and fair market value thereof immediately prior to such
Casualty or Condemnation. The Net Proceeds shall be used and made
available to Lessee for any such rebuilding, replacement or
repair. If the cost of any rebuilding, replacement or repair
required to be made by Lessee pursuant to this subsection 15(C)
shall exceed the amount of such Net Proceeds, the deficiency
shall be paid by Lessee.
ARTICLE 16. ACTS OF DEFAULT
(A) Each of the following shall be deemed a default by
Lessee and a breach of this Lease:
1. Failure to pay the Annual Base Rent, or any
monetary obligation herein reserved, (and to be considered to be
rent for the purposes of this Lease) or any part thereof, within
five (5) business days after written notice from Lessor that the
same shall be due and payable. Provided, however, that interest,
late fees, and penalties for failure to pay rent when due shall
accrue from the first date such rent was due and payable.
2. Failure to do, observe, keep and perform any of
the material non-monetary terms, covenants, conditions,
agreements and provisions in this Lease to be done, observed,
kept and performed by Lessee within 30 days after written notice
of such default (or within a reasonable time thereafter if the
default is incapable of cure within 30 days and Lessee is
diligently pursuing a reasonable course of action to cure such
default).
3. The abandonment (defined herein as the leaving of
the Premises without paying rent, without maintaining and without
the intent of returning) of the Premises by Lessee, the
adjudication of Lessee as a bankrupt, the making by Lessee of a
general assignment for the benefit of creditors, the taking by
Lessee of the benefit of any insolvency act or law, the
appointment of a permanent receiver or trustee in bankruptcy for
Lessee property, or the appointment of a temporary receiver which
is not vacated or set aside within sixty (60) days from the date
of such appointment.
ARTICLE 17. TERMINATION FOR DEFAULT
In the event of any uncured default by Lessee and at any
time thereafter, Lessor may serve a written notice upon Lessee
that Lessor elects to terminate this Lease upon a specified date
not less than thirty (30) days after the date of serving such
notice of termination, and this Lease shall then terminate on the
date so specified, provided, however, that Lessee shall have
continuing liability for future rents for the remainder of the
original term and any exercised renewal term as set forth in
Article 19, notwithstanding any earlier termination of the Lease
hereunder, preserving unto Lessor the benefit of its bargained
for rental payments.
ARTICLE 18. LESSOR'S RIGHT OF RE-ENTRY
In the event that this Lease shall be terminated as herein
provided, or by summary proceedings or otherwise, or in the event
of an uncured default hereunder by Lessee, or in the event that
the Premises or any part thereof, shall be abandoned by Lessee,
(subject to rights to cure as provided above) Lessor or its
agents, servants or representatives, may immediately or at any
time thereafter, re-enter and resume possession of the Premises
or any part thereof, and remove all persons and property
therefrom, in accordance with local law either by summary
dispossess proceedings or by a suitable action or proceeding at
law, without being liable for any damages therefor.
ARTICLE 19. LESSEE'S CONTINUING LIABILITY
(A) Should Lessor elect to re-enter as provided in this
Lease or should it take possession pursuant to legal proceedings
or pursuant to any notice provided for by law, it may either (i)
terminate this Lease or (ii) it may from time to time, without
terminating the contractual obligation of Lessee to pay Rent
under this Lease, make such commercially reasonable alterations
and repairs as may be necessary to relet the Premises or any part
thereof for such Term or Renewal Terms, at such commercially
reasonable rental or rentals, and upon such other commercially
reasonable terms and conditions as Lessor in its sole discretion
may deem advisable.
(B) Upon each such reletting, without termination the
contractual obligation of Lessee to pay Rent under this Lease,
all rentals received by Lessor shall be applied as follows:
1. First, to the payment of any indebtedness other
than Base Rent due hereunder from Lessee to
Lessor,
2. Second, to the payment of any costs and expenses
of such reletting, including brokerage fees and
reasonable attorney's fees and of costs of such
alterations and repairs,
3. Third, to the payment of rent due and unpaid
hereunder;
4. The residue, if any, shall be held by Lessor and
applied in payment of future rent as the same may
become due and payable hereunder. Then any
residue will be used first to reimburse Lessor (or
Lessee if previously paid by Lessee for costs and
expenses per Article 19(B)2 above) for such costs
and expenses incurred per Article 19(B)2 above
until repaid, then any excess shall remain with
Lessor.
If such rentals received from such reletting during any
month are less than that to be paid during that month by Lessee
hereunder, Lessee shall pay any such deficiency to Lessor. Such
deficiency shall be calculated and paid monthly. No such
re-entry or taking possession of such Premises by Lessor shall be
construed as an election on its part to terminate this Lease
unless a written notice of such termination be given to Lessee.
(C) Notwithstanding any such reletting without termination,
Lessor may at any time thereafter elect to terminate this Lease
for any breach.
(D) In addition to any other remedies Lessor may have with
this Article 19, Lessor may recover from Lessee all damages it
may incur by reason of any breach, including the cost of
recovering and reletting the Premises, reasonable attorney's
fees, and including the present value (discounted at a rate of 8%
per annum) of the excess of the amount of rent, and other charges
equivalent to rent reserved in this Lease for the remainder of
the Term over the then reasonable rental value of the Premises
(or the actual rents receivable by Lessor, if relet) for the
remainder of the Term, all of which amounts shall be immediately
due and payable from Lessee to Lessor in full. In determining
the rent which would be payable by Lessee hereunder, subsequent
to default, the total Rental for each year of the unexpired Term
shall be equal to the average total Rental that would be payable
by Lessee as set forth in Article 4 above. For purposes of this
section only, the increase in Rental pursuant to Article 4(B)
shall be calculated without any regard to the CPI Adjustment. In
the event that the rent obtained from such alternative or
substitute Lessee is more than the rent and other costs which
Lessee is obligated to pay under this Lease, then such excess
shall be paid to Lessor provided that Lessor shall credit such
excess against the outstanding obligations of Lessee due pursuant
hereto, if any.
(E) Lessor will use its reasonable efforts to attempt to
mitigate its damages, but Lessor shall have absolutely no
obligation to expend any moneys in the way of tenant inducements
or in the refurbishment of the Premises for any use other than
that for which the Premises were being used by Lessee. It is the
object and purpose of this Article 19 that Lessor shall be kept
whole and shall suffer no damage by way of non-payment of rent or
by way of diminution in rent. Lessee waives and will waive all
rights to trial by jury in any summary proceedings to recover
possession of the Premises which may hereafter be instituted by
Lessor.
ARTICLE 20. PERSONALTY, FIXTURES AND EQUIPMENT
(A) All building fixtures, building machinery, and building
equipment used in connection with the operation of the Premises
including, but not limited to, heating, lighting, ventilating,
plumbing, walk-in refrigerators, walk-in freezers, and air
conditioning systems shall be the property of Lessor. All trade
fixtures and all articles of personal property owned by Lessee
shall remain the property of Lessee.
(B) Lessee shall furnish and pay for any and all equipment,
furniture, trade fixtures, and signs. Lessor agrees that it has
no interest in the personal property of Lessee.
(C) At the end of the Term, all personal property and trade
fixture of Lessee may be removed from the Premises by Lessee,
however, removal of such trade fixtures may proceed only after
five (5) business days prior written notice to Lessor of the time
of such removal and notice of the identification of the parties
performing such removal. All damage to the Premises which may be
caused by the removal of such property shall be promptly repaired
and paid for by Lessee.
ARTICLE 21. LIENS
Lessee shall not do or cause anything to be done whereby the
Premises may be encumbered by any mechanic's or other liens.
Whenever and as often as any mechanic's or other lien is filed
against said Premises purporting to be for labor or materials
furnished or to be furnished to Lessee, within thirty (30) days
from the date of the filing of said mechanic's or other lien (or
such earlier period if required by law prevent default or
attachment of the lien) and delivery of notice thereof to Lessee,
Lessee shall remove the lien of record by payment or by bonding
with a surety company authorized to do business in the state in
which the property is located, or other security reasonably
acceptable to Lessor. Should Lessee fail to take the foregoing
steps within said thirty (30) day period, then Lessor shall have
the right, among other things, to pay said lien without inquiring
into the validity thereof, and Lessee shall forthwith reimburse
Lessor for the total expense incurred by it in discharging said
lien as additional rent hereunder, subject to notice to Lessee
and a 10 business day cure period.
ARTICLE 22. NO WAIVER BY LESSOR EXCEPT IN WRITING
No agreement to accept a surrender of the Premises or
termination of this Lease shall be valid unless in writing signed
by Lessor. The delivery of keys to any employee of Lessor or
Lessor's agents shall not operate as a termination of the Lease
or a surrender of the Premises. The failure of Lessor to seek
redress for violation of, any rule or regulation, shall not
prevent a subsequent act, which would have originally constituted
a violation, from having all the force and effect of an original
violation. No payment by Lessee or receipt by Lessor of a lesser
amount than the rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check nor any letter
accompanying any check or payment as rent be deemed an accord and
satisfaction, and Lessor may accept such check or payment without
prejudice to Lessor's right to recover the balance of such rent
or pursue any other remedy provided in this Lease. This Lease
contains the entire agreement between the parties, and any
executory agreement hereafter made shall be ineffective to
change, modify or discharge it in whole or in part unless such
executory agreement is in writing and signed by the party against
whom enforcement of the change, modification or discharge is
sought.
ARTICLE 23. QUIET ENJOYMENT
Lessor covenants that Lessee, upon paying the rent set forth
in Article 4 and all other sums herein reserved as rent and upon
the due performance of all the terms, covenants, conditions and
agreements herein contained on Lessee's part to be kept and
performed, shall have, hold and enjoy the Premises free from
molestation, eviction, or disturbance by Lessor, or by any other
person or persons lawfully claiming the same by, through or under
Lessor, and that Lessor has good right to make this Lease for the
full Term granted, including Renewal Terms.
ARTICLE 24. BREACH - PAYMENT OF COSTS AND ATTORNEYS' FEES
The non-prevailing party agrees to pay and discharge all
reasonable costs, attorneys' fees and expenses that shall be
incurred by the prevailing party in enforcing the covenants,
conditions and terms of this Lease or defending against an
alleged breach.
ARTICLE 25. ESTOPPEL CERTIFICATES
Either party to this Lease will, at any time from time to
time, upon not less than ten (10) business days prior request by
the other party, execute, acknowledge and deliver to the
requesting party a statement in writing, executed by an executive
officer of such party, certifying (a) that this Lease is
unmodified (or if modified then disclosure of such modification
shall be made); (b) that this Lease is in full force and effect;
(c) the date to which the rent and other charges have been paid;
and (d) that to the knowledge of the signer of such certificate
the other party is not in default in the performance of any
covenant, agreement or condition contained in this Lease, or if a
default does exist, specifying each such default of which the
signer may have knowledge. It is intended that any such statement
delivered pursuant to this Article may be relied upon by any
prospective purchaser or mortgagee of the Premises or any
assignee of such mortgagee or a purchaser of the leasehold
estate.
ARTICLE 26. PROCEDURE UPON PURCHASE
(A) If Lessee shall purchase the Premises pursuant to
Article 12 or Article 15 of this Lease, Lessor shall convey title
thereto by Bargain and Sale Deed in a form customary for the
county in which the Premises are located, free of any mortgage or
lien and subject only to this Lease, the lien of any taxes,
exceptions subject to which the Premises were conveyed to Lessor,
and exceptions created or consented to or existing by reason of
any action or inaction by Lessee.
(B) Upon the date of any purchase of the Premises pursuant
to Article 12 or Article 15 of this Lease, Lessee shall pay to
Lessor the purchase price therefor specified herein in
immediately available funds, together with all Base Rent,
additional rent and other sums then due and payable pursuant to
the applicable section of this Lease, and there shall be
delivered to Lessee a deed (as stated above) to the Premises then
being sold to Lessee and any other instruments necessary to
convey the title thereto described hereto and to assign any other
property then required to be assigned by Lessor pursuant hereto.
(C) Lessor shall pay for title insurance premiums and its
counsel's fees. Lessee shall pay its counsel fees. All other
costs shall be prorated and paid as customarily paid for in the
county where the Premises are located.
ARTICLE 27. MORTGAGE
Lessee does hereby agree to make reasonable modifications of
this Lease requested by any Mortgagee of record from time to time
provided such modifications are not material and do not increase
any of the rents or modify any of the business elements of this
Lease.
ARTICLE 28. OPTION TO RENEW
If this Lease is not previously canceled or terminated and
if Lessee is not then in material default hereunder, then Lessee
shall have four (4) separate individual options to renew this
Lease upon the same conditions and covenants contained in this
Lease for four separate individual (4) consecutive periods of
five (5) years each (singularly "Renewal Term").
The first Renewal Term would commence on the date the
original Term expires and successive Renewal Terms would commence
on the last day of the then expiring Renewal Term. Lessee must
give 180 days written notice to Lessor of its intent to exercise
this option prior to the expiration of the original Term of this
Lease or any Renewal Term, as the case may be. Failure to timely
exercise any option for a Renewal Term shall cancel and terminate
any other remaining options for subsequent Renewal Terms, unless
Lessee in fact maintains its tenancy with written agreement of
Lessor during a Renewal Term regardless of such failure to
exercise.
The rent during the Renewal Term or Terms shall increase
beginning the first year of the first Renewal Term (year 16) and
increase every three (3) year interval thereafter, i.e.
commencement of the 19th, 22nd, 25th, 28th, 31st and 34th lease
years by the lesser of (i) four per cent (4%) of the Annual Base
Rent for the immediately previous three year period, or (ii) two
hundred per cent (200%) of the percentage increase, if any in the
CPI as defined in Article 4.(B).
ARTICLE 29. MISCELLANEOUS PROVISIONS
(A) All written notices shall be given by certified mail or
express courier. Notices to Lessor shall be addressed to the
person and address given on the first page hereof with copies
sent concurrently to such other persons as Lessor may request by
written notice to Lessee. Lessor and Lessee may, from time to
time, change these addresses by notifying each other of this
change in writing. Notices shall be deemed received on the
earlier of actual receipt or three (3) business days after sent
by certified mail and one business day after sent by express
carrier. Notices may also be given by telefacsimile with a copy
sent by first class mail.
(B) The terms, conditions and covenants contained in this
Lease and any riders and plans attached hereto shall bind and
inure to the benefit of Lessor and Lessee and their respective
successors, heirs, legal representatives, and assigns.
(C) This Lease shall be governed by and construed under the
laws of the State where the Premises are situated.
(D) In the event that any provision of this Lease shall be
held invalid or unenforceable, no other provisions of this Lease
shall be affected by such holding, and all of the remaining
provisions of this Lease shall continue in full force and effect
pursuant to the terms hereof.
(E) The paragraph captions are inserted only for
convenience and reference, and are not intended, in any way, to
define, limit, describe the scope, intent, and language of this
Lease or its provisions.
(F) In the event Lessee remains in possession of the
Premises herein leased after the expiration of this Lease and
without the execution of a new lease, it shall be deemed to be
occupying said Premises as a tenant from month-to-month, subject
to all the conditions, provisions, and obligations of this Lease
insofar as the same can be applicable to a month-to-month tenancy
except that the monthly installment of Rental shall be increased
25% from the amount due on the last month prior to such
expiration.
(G) If any installment of rent (whether lump sum, monthly
installments, or any other monetary amounts required by this
Lease to be paid by Lessee, all of which shall be deemed to
constitute Rental hereunder) shall not be paid within 10 days
after the date when due, Lessor shall have the right to charge
Lessee a late charge of three percent (3%) of unpaid rent for
each month or portion thereof that any amount of rent installment
remains unpaid. Said late charge shall commence after such
installment is due and continue until said installment, interest
and all accrued late charges are paid in full.
(H) Any part of the Premises may be conveyed by Lessor for
private easement purposes at any time provided Lessee gives
written consent to such private easement. In the event that the
private easement affects or is related to the playground or the
building on the Premises, then Lessee's consent may be
arbitrarily withheld in Lessee's sole and absolute discretion.
If the private easement does not affect the playground or
building on the Premises, then Lessee's consent may not be
commercially unreasonably withheld. In such event that any part
of the Premises are so conveyed, Lessor shall, at its own cost
and expense, restore the remaining portion of the Premises to the
extent necessary to render it reasonably suitable for the
purposes for which it was leased, all to be done without
adjustments in rent to be paid by Lessee. All proceeds from any
conveyance of a private easement shall belong solely to Lessor.
(I) For the purpose of this Lease, the term "rent" shall be
defined as Rental under Article 4, and any other monetary amounts
required by this Lease to be paid by Lessee.
(J) "Net Proceeds" shall be defined as all awards,
compensations and insurance payments on account of any
condemnation, eminent domain proceeding or casualty. Lessee or
Lessor may negotiate, prosecute and adjust any claim for any Net
Proceeds, provided, however, that any final adjustment or
settlement as to Net Proceeds shall require the prior written
consent of Lessor and Lessee and the other party shall cooperate
and may appear in any such proceeding or action to negotiate,
prosecute and adjust any claim for any Net Proceeds.
Notwithstanding anything to the contrary in this Lease, if
permissible under applicable law, any separate compensation made
to Lessee for its moving and relocation expenses, anticipated
loss of business profits, loss of goodwill or fixtures and
equipment paid for by Lessee and which are not part of the
Premises shall be paid directly to and shall be retained by
Lessee regardless of any other provision of this Lease.
(K) "Lender" shall be defined as a third party lender which
holds a First Security Interest on the Premises which secures
indebtedness incurred by Lessor in connection with the Premises.
"First Security Interest" shall be defined as a first mortgage or
first deed of trust encumbering the Premises.
ARTICLE 30. REMEDIES
NON-EXCLUSIVITY. Notwithstanding anything contained herein
it is the intent of the parties that the rights and remedies
contained herein shall not be exclusive but rather shall be
cumulative along with all of the rights and remedies of the
parties which they may have at law or equity.
ARTICLE 31. HAZARDOUS MATERIALS INDEMNITY
Lessee covenants, represents and warrants to Lessor, its
successors and assigns, (i) that it has not used or permitted and
will not use or permit the Premises to be used, whether directly
or through contractors, agents or tenants, and to the best of
Lessee's knowledge and except as disclosed to Lessor in writing,
the Premises has not at any time been used for the generating,
transporting, treating, storage, manufacture, emission of, or
disposal of any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances as defined in the Federal
Comprehensive Environmental Response Compensation and Liability
Act of 1980 ("CERCLA"), the Federal Resource Conservation and
Recovery Act of 1976 ("RCRA"), or any other federal, state or
local environmental laws, statutes, regulations, requirements and
ordinances ("Hazardous Materials"); (ii) that there have been no
investigations or reports involving Lessee, or the Premises by
any governmental authority which in any way pertain to Hazardous
Materials; (iii) that the operation of the Premises has not
violated and is not currently violating any federal, state or
local law, regulation, ordinance or requirement governing
Hazardous Materials; (iv) that the Premises is not listed in the
United States Environmental Protection Agency's National
Priorities List of Hazardous Waste Sites nor any other list,
schedule, log, inventory or record of Hazardous Materials or
hazardous waste sites, whether maintained by the United States
Government or any state or local agency; and (v) that the
Premises will not contain any formaldehyde, urea or asbestos,
except as may have been disclosed in writing to Lessor by Lessee
at the time of execution and delivery of this Lease. Lessee
agrees to indemnify and reimburse Lessor, its successors and
assigns, for:
(a) any breach of these representations and
warranties, and
(b) any loss, damage, expense or cost arising out
of or incurred by Lessor which is the result
of a breach of, misstatement of or
misrepresentation of the above covenants,
representations and warranties, and
(c) any and all liability of any kind whatsoever
which Lessor may, for any cause and at any
time, sustain or incur by reason of Hazardous
Materials, released or placed on the Premises
during the Term of the Lease, together with
all reasonable attorneys' fees, costs and
disbursements incurred in connection with the
defense of any action against Lessor arising
out of the above. These covenants,
representations and warranties shall be
deemed continuing covenants, representations
and warranties for the benefit of Lessor, and
any successors and assigns of Lessor and
shall survive expiration or sooner
termination of this Lease. The amount of all
such indemnified loss, damage, expense or
cost, shall bear interest thereon at the rate
of interest equal to the rate changed on
overdue payment in Section 4(E) and shall
become immediately due and payable in full on
demand of Lessor, its successors and assigns.
ARTICLE 32. ESCROWS
If Lessee has defaulted in payment of any taxes, or if
Lessee shall be in default under any of the items of this Lease,
or if Lessor's Mortgagee shall require Lessor to escrow the
amount of real estate taxes or assessments on a monthly basis,
then in either event, at Lessor's option, Lessee shall deposit
with Lessor on the first day of each and every month thereafter,
an amount equal to one-twelfth (1/12th) of the estimated annual
real estate taxes, and assessments ("Charges") due on the
Premises. From time to time out of such deposits Lessor will,
upon the presentation to Lessor by Lessee of the bills therefor,
pay the Charges or will upon presentation of receipted bills
therefor, reimburse Lessee for such payments made by Lessee. In
the event the deposits on hand shall not be sufficient to pay all
of the estimated Charges when the same shall become due from time
to time or the prior payments shall be less than the currently
estimated monthly amounts, then Lessee shall pay to Lessor on
demand any amount necessary to make up the deficiency. The
excess of any such deposits shall be credited to subsequent
payments to be made for such items. If a default or an event of
default shall occur under the terms of this Lease, Lessor may, at
its option, without being required so to do, apply any Deposit on
hand to cure the default, in such order and manner as Lessor may
elect.
ARTICLE 33. NET LEASE
Notwithstanding anything contained herein to the contrary it
is the intent of the parties hereto that this Lease shall be a
net lease and that the rent defined pursuant to Paragraph 4
should be a net rent paid to Lessor. Any and all other expenses
including but not limited to, maintenance, repair, insurance,
taxes, and assessments, shall be paid by Lessee.
ARTICLE 34. RIGHT TO SUBSTITUTION
If Lessee determines that it is economically unfeasible to
continue operations in or at the Premises, Lessee may exchange
the Premises for another of like kind, value, size and
demographic location acceptable to Lessor. The acceptance by
Lessor of said replacement property shall not be effective unless
the Lender (if one), in its sole discretion, approves such
acceptance by Lessor. If Lessor elects not to accept the
replacement property, this Lease shall continue in full force and
effect. If Lessor elects to accept a replacement property in
exchange for the Premises owned by Lessor, Lessee shall provide a
replacement property of comparable size, cost, location and
ownership interest in a Section 1031 "like-kind" exchange and
shall lease the replacement Premises from Lessor on identical
terms as contained in the lease for the original Premises. All
costs associated with making such exchange, including the
provision of surveys, title, environmental and all other
documentation normally required or obtained by Lessor, shall be
paid by Lessee.
ARTICLE 35. LESSOR'S DEFAULT
If Lessor defaults in the performance of any of the terms or
provisions of this Lease, Lessee shall promptly so notify Lessor
in writing. If Lessor shall fail to cure such default within 30
days after receipt of such notice, or if the default is of such
character as to require more than 30 days for remedy and such
default continues beyond the time reasonably necessary to cure
(or Lessor has not undertaken procedures to cure the default
within such 30 day period and to diligently pursue such efforts
to cure to completion), then, Lessee may incur any reasonable
expense necessary to perform the obligation of Lessor specified
in such notice and deduct such expense from the rents or other
charges next becoming due.
ARTICLE 36. DELINQUENCY AT END OF TERM
At the expiration of the Lease Term or upon any termination
of this Lease, Lessee shall deliver the Premises and the land on
which the Premises are located to Lessor in good condition, broom
clean, subject to reasonable wear and tear, and shall deliver to
Lessor copies or originals of all maintenance records and files
relating to the maintenance and operation of the property and in
Lessee's possession. However, nothing in this section shall
impose a duty on Lessee to maintain such records and files.
IN WITNESS WHEREOF, the parties hereby execute this
document.
LESSOR:
NNN-CW LP, a Delaware limited partnership
By: TCC NNN TRADING, INC., a Delaware
corporation, its General Partner
Date: September 27, 2000 By: /s/ Xxxxxxx X Xxxxxx Xx
Xxxxxxx X. Xxxxxx, Xx.,
Vice President
LESSEE:
ARAMARK Educational Resources, Inc.,
a Delaware Corporation
d/b/a Children's World Learning Centers
Date: September 27, 2000 By:/s/Xxxx Xxxxx
Xxxx Xxxxx, Executive Vice President
STATE OF COLORADO )
) ss.
CITY & COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this
September 27th, 2000 by Xxxxxxx X. Xxxxxx, Xx. , as Vice
President of TCC NNN Trading, Inc., a Delaware corporation, as
General Partner of NNN-CW LP, a Delaware limited partnership, on
behalf of said General Partner, on behalf of the limited
partnership.
My commission expires:
5/25/04 /s/ Xxx Xxxxxx
Notary Public
STATE OF COLORADO )
) ss.
CITY & COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this
September 27, 2000 by Xxxx Xxxxx, as Executive Vice President of
ARAMARK Educational Resources, Inc., a Delaware corporation, on
behalf of the corporation.
My commission expires:
/s/ Xxxxx Xxxxxxxx
Notary Public
[notary seal]
EXHIBIT A
TO NET LEASE AGREEMENT
Legal Description
A certain parcel of land in West Bridgewater, Plymouth County,
Massachusetts, being located on the Northerly side of West Center
Street, and being identified as Xxx 0 xx Xxxx Xxxxx Xxxx 0000-X
filed with Plymouth Registry District of the Land Court to which
plan reference is made for a more particular description,
including the appurtenant easement over lots 1 to 4 and 6 to 9,
shown on Land Court Plan 4709-B, as more particularly described
in the Declaration of Access Easement dated May 27, 1999, created
by Xxxxxx X. Xxxxx, Xx., Trustee of Xxxxxxx X. Xxxxx Family
Realty Trust, filed as Document No. 449324 and shown on the
easement plan attached thereto.
EXHIBIT 4.A
TO NET LEASE AGREEMENT
NNN-CW, LP ("Lessor")
ARAMARK Educational Resources, Inc. ("Lessee")
Initial Annual Base Rent $174,526
Initial Monthly Base Rent $ 14,544
EXHIBIT 14
TO NET LEASE AGREEMENT
NNN-CW, LP ("Lessor")
ARAMARK Educational Resources, Inc. ("Lessee")
Use of Leased Premises
The Premises may not be used for any of the following listed
purposes:
A) Activities causing fire, explosion or other
damaging or dangerous hazards, including storage,
display or sale of explosives or fireworks;
B) Drilling for and/or removal of subsurface
substances;
C) Dumping of garbage or refuse;
D) Any massage parlor, adult bookstore, sale or
exhibition of pornographic material, beer tavern,
bar, cocktail lounge, skating rink, billiard
parlor, health club, gymnasium, amusement center,
bowling alley, automobile dealer or funeral
parlor, body piercing or tatoo parlor;
E) Any use which is prohibited by zoning,
conditions of platting or subdivision approval, or
any other rule, regulation or order of any
governmental agency which has jurisdiction over
the Premises.
