LEASE DATED DECEMBER 1997
BETWEEN
XXXXX X. XXXXXX, (LANDLORD)
AND
CCC BELLEVUE CINEMA CORP, (TENANT)
1. LEASED PREMISES. Subject to the exception and exclusions set forth below,
the leased premises, also referred to hereunder as The theatre premises"
or just "the premises," shall consist of the entire building known as 000
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxx, EXCEPT THAT the leased
premises shall not include leased store space (currently rented out to a
third party) on the ground floor and space on the second floor above it
served by a separate front entrance. In addition the leased premises shall
include the basement of the building but shall not include the basement
space serving the aforementioned excluded store space.
2. EASEMENTS, ACCESS, AND COMMON AREAS. The leased premises shall be subject
to whatever easements, access, or common area requirements are reasonably
required to preserve the character and rentability of said excluded lease
store space. The tenant's possession and use of the leased premises shall
also be subject to all public and private easements or rights of way,
whether recorded or not, as have been established by normal course use
with respect to the sidewalks, driveways and exterior portions of the
building and the land, paved or otherwise, on which the leased premises is
located, all of which exterior elements shall hereinafter be referred to
as "the exterior of the premises."
3. EXTERIOR OF THE PREMISES. The landlord shall retain possession and control
of the exterior of the premises and shall repair and maintain same,
including painting and snow and ice removal, at a cost to be allocated to
all the tenants of the building, as is also set forth herein elsewhere,
EXCEPT that tenant shall repair and maintain at its own expense the
marquee and any other signs it is otherwise permitted hereunder.
4. TENANT'S PROPERTY. The tenant shall retain the ownership of the tangible
personal property used by tenant in the operation of its business at the
leased premises, which property is agreed generally to consist of the
movie theatre equipment attached or affixed in some manner to the
building, and to include the seats, screens, projection booth equipment,
and concession stand counters and equipment, together with such other
tangible personal property as tenant owns and uses in the theatre
operation not in any way affixed or attached to the building, all of which
shall be referred to as in general as "tenant's theatre equipment and
fixtures." It is further agreed that the tenant's theatre equipment and
fixtures shall not include the building outdoor marquee or any other
exterior signs. The tenant shall be free at all times hereunder to pledge,
assign, or otherwise hypothecate its theatre
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equipment and fixtures and otherwise deal with same subject to its other
obligations hereunder as to use, maintenance, alterations, and the
continuous operation of the theatre, all as is otherwise set forth
hereinafter.
5. LANDLORD'S PROPERTY. Notwithstanding the above and notwithstanding
tenant's rights to the possession and use of same and its repair and
restoration obligations with respect to same, all as is set forth
hereinelsewhere, it is agreed that the landlord shall at all times
hereunder retain the ownership of all building fixtures, components, and
systems not described above as tenant's property, including but not
limited to all heating, air conditioning, ventilation, plumbing, restroom
fixtures, and electric system components, and also including all building
improvements such as walls, doors, and theatre flooring and including the
theatre outdoor marquee and any other exterior signs, and that no pledge,
assignment, or other hypothecation permitted above for tenant's theatre
equipment and fixtures shall be deemed to or permitted to include or
create any lien or encumbrance on the aforesaid property of landlord.
6. PRORATA SHARE OF BUILDING COSTS. It is specifically agreed for purposes
of allocating any common area costs, exterior building maintenance,
property taxes, insurance, and any other charges called for hereunder to
be allocated between the tenant and any other tenants of the building,
(hereinafter also referred to as "building costs") that the theatre tenant
hereunder will be responsible for 94.8% (ninety-four point eight percent)
of building costs as are incurred by the landlord, the details of which
are set forth hereinelsewhere below. The 94.8% (ninety-four point eight
percent) set forth above shall hereinafter also be referred to as "the
tenant's prorate share."
7. USE. The leased premises shall be used and occupied only and for no other
purpose than as a theater for the presentation of performances on film.
Tenant shall not exhibit any X-rated motion pictures at the leased
premises. In addition the tenant shall be permitted, but only through its
own employees for its own account, to sell candies, confections,
beverages, popcorn, food products, souvenir programs, souvenir books,
cigarettes and tobacco (if permitted by law) and such merchandise,
novelties, records, compact disks, videos, and tapes on or from the
premises, but only incidental to the exhibition of motion pictures. In
addition the tenant shall be permitted, but only through its own employees
for its own account, to use the premises for private parties, but only
incidental to the exhibition of motion pictures. In addition the tenant
shall be permitted, but only through its own employees for its own
account, to sell on screen or on premises advertising to third parties.
8. FIXED MINIMUM RENT. The tenant agrees to pay a fixed minimum rent, also
called "base rent," in the annual totals and the monthly payment amounts,
as appear below as part of paragraph 6 of this rider. All fixed minimum
rents and any other rent due hereunder are payable, unless stated
otherwise hereunder, in advance upon the first day of each calendar month
of the tenancy at the office of the landlord, or such other place as the
landlord may from time to time designate. All rents of any kind due
hereunder are payable without set-off or deduction of any kind.
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9. ADDITIONAL PERCENTAGE RENT. The tenant also agrees to pay to landlord as
rent, in addition to the foregoing fixed rent, a percentage rent equal to
10% (ten percent) of the annual gross sales (as defined below) of the
leased premises in excess of the base gross sales amounts, payable annual,
all as is set forth below: Annual gross sales used as the base gross sales
amounts shall also be referred to as the gross sales "breakpoint."
FIRST 5 YEARS:
Number of On Lease Fixed "Base" Fixed "Base" Gross sales
Lease year year ending rent rent base for %rent % rent over
completed November 30 (Annual) (Monthly) ("Breakpoint") base
--------- ----------- -------- --------- -------------- ----
1 1998 $100,000 $8,333.33 $1,000,000 10%
2 1999 $100,000 $8,333.33 $1,000,000 10%
3 2000 $100,000 $8,333.33 $1,000,000 10%
4 2001 $100,000 $8,333.33 $1,000,000 10%
5 2002 $100,000 $8,333.33 $1,000,000 10%
SECOND 5 YEARS (BEGINNING DECEMBER 1, 2002 AND ENDING NOVEMBER 30, 2007.)
The fixed annual and monthly rent for the second five years will be equal
respectively to the average annual and monthly total rent (base and percentage
rent) paid over the first 5 years, so that, by way of example, if the actual
annual gross sales were $1,100,000 each year of the first 5 years, then the base
annual rent for the second 5 years would be $110,000 and the gross sales base
for percentage rent for the second five years will be $1,100,000. If, to change
the above example slightly, the sales in the 5th year were $1,600,000 instead of
$1,100,000, then the base annual rent in the second 5 years would be $120,000
and the gross sales base for percentage rent for the second 5 years would be
$1,200,000.
A percentage rent of 10% of the annual gross sales in excess of the gross sales
base for each year of the second five years will also be due annually, the same
as is set forth above for the first 5 years for percentage rents.
THIRD 5 YEARS (BEGINNING DECEMBER 1, 2007 AND ENDING NOVEMBER 30, 2012.)
The fixed annual and monthly rent for the third 5 years will be equal
respectively to the average annual and monthly total rent (base and percentage
rent) paid over the second 5 years, calculated the same as is shown by the
examples set forth above for the first 5 years.
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A percentage rent of 10% of the annual gross sales in excess of the gross sales
base for each year of the third five years will also be due annually, the same
as is set forth above for percentage rents.
FOURTH 5 YEARS (BEGINNING DECEMBER 1, 2012 AND ENDING NOVEMBER 30, 2017.)
The fixed and percentage rent for the fourth 5 years will be the greater of:
(a) A fixed annual and monthly rent equal respectively to the average
annual and monthly total rent paid over the third 5 years, calculated the
same as set forth, by example, above, together with percentage rent of 10%
of the annual gross sales in excess of the gross sales base for each year
of the fourth five years, also be due annually, the same as is set forth
above for percentage rents, or
(b) a fixed annual and monthly rent and an annual percentage rent set
forth on the following table:
Number of On Lease Fixed "Base" Fixed "Base" Gross
Lease year year ending rent rent sales base % rent over
completed November 30 (Annual) (Monthly) for %rent base
--------- ----------- -------- --------- --------- ----
16 2013 $125,000 $10,416.67 $1,250,000 10%
17 2014 $125,000 $10,416.67 $1,250,000 10%
18 2015 $125,000 $10,416.67 $1,250,000 10%
19 2016 $125,000 $10,416.67 $1,250,000 10%
20 2017 $125,000 $10,416.67 $1,250,000 10%
FIRST 10 YEAR OPTION BEGINNING DECEMBER 1, 2017
The fixed and percentage rent for the first 10 year option period will be the
greater of:
(a) A fixed annual and monthly rent equal respectively to the average
annual and monthly total rent paid over the 5 years immediately prior to
the start of the option period, calculated the same as set forth, by
example, above, together with percentage rent of 10% of the annual gross
sales in excess of the gross sales base for each year of the option
period, also due annually, the same as is set forth above for percentage
rents, or
(b) a fixed annual and monthly rent and an annual percentage rent set
forth on the following table:
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Number of On Lease Fixed "Base" Fixed "Base" Gross
Lease year year ending rent rent sales base % rent over
completed November 30 (Annual) (Monthly) for %rent base
--------- ----------- -------- --------- --------- ----
All years $175,000 $14,583.33 $1,750,000 10%
SECOND 10 YEAR OPTION BEGINNING DECEMBER 1, 2027
The fixed and percentage rent for the second 10 year option period will be the
greater of:
(a) A fixed annual and monthly rent equal respectively to the average
annual and monthly total rent paid over the 5 years immediately prior to
the start of the option period, calculated the same as set forth, by
example, above, together with percentage rent of 10% of the annual gross
sales in excess of the gross sales base for each year of the option
period, also due annually, the same as is set forth above for percentage
rents, or
(b) a fixed annual and monthly rent and an annual percentage rent set
forth on the following table:
Number of On Lease Fixed "Base" Fixed "Base" Gross
Lease year year ending rent rent sales base % rent over
completed November 30 (Annual) (Monthly) for %rent base
--------- ----------- -------- --------- --------- ----
All years $200,000 $16,666.67 $2,000,000 10%
Tenant's obligations respecting percentage rents and related matters shall
also include the following:
a) On or before the 25th day after the expiration of each three-month's
period, tenant shall submit to landlord a statement signed by an
officer of tenant showing, in reasonable detail, the amount of gross
sales (as defined below) in, at, on, or from the leased premises
during the preceding three-month period. Within thirty (30) days
after the end of each lease year, tenant shall deliver to landlord a
statement of gross sales (as defined below) made in, at, on, or from
the leased premises for such lease year, bearing the certification
of an officer of tenant that the statement truly reports tenant's
gross sales (as defined below). Tenant shall simultaneously with the
delivery of said statement, make payments of any percentage rent due
for such lease year.
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b) Each lease year, except the first lease year, shall begin on the
first day of December of the year in question and end on the last
day of November of the next succeeding calendar year.
c) Each lease year during the term hereof shall be considered as an
independent accounting period for the purposes of computing and
determining the amount of percentage rent if any payable hereunder.
The amount of gross sales in any lease year shall not be carried
over into any other lease year.
d) The first lease year shall begin on the date (in November 1997)
when the landlord turns possession of the leased premises over to
the tenant. The parties will at that time calculate the fixed rent
due at $273.97 per day ($100,000/365) to be paid by the tenant in
advance for November. The gross sales for any time in November 1997
when the tenant is in possession of the leased premises shall be
added on to gross sales for the 12 months ending November 30, 1998,
and the fixed rent paid for any portion of November, 1997, shall be
added to the gross sales base for year number 1 in the table
appearing above and the additional percentage rent due on or before
December 31, 1998 shall be calculated accordingly to include a
percentage rent on gross sales for November 1997 as well as on the
12 months ending November 30, 1998.
e) The term "gross sales" shall in general mean and include all
revenues received from or generated by any use of the premises that
is permitted hereunder and Gross sales" shall in all events include
and be defined to include all gross paid box office receipts,
including the amounts actually paid by patrons of all of the
theaters at the leased premises for admission thereto, less any
admissions taxes paid by such patrons included in the admission
prices and which taxes are to be transmitted to any governmental
authority or collector entitled to receive payment thereof.
(However, tenant shall not deduct any corporate income, gross
receipts or franchise or property tax imposed on tenant or its
income in determining gross box office receipts.) "Gross sales"
shall also include any amounts received for passes for admission to
the said theaters "Gross sales" shall also include money received
from the sale of candies, confections, beverages, popcorn, food
products, souvenir programs, souvenir books, cigarettes, tobacco and
such merchandise, novelties, records, compact disks, videos, and
tapes on or from the premises, including any admissions or other
revenues generated from or on the premises or from their use for any
private parties such as birthday parties for children or private
screenings and gross sales shall also include any revenues generated
by onscreen or on premises advertising time or space sold or
permitted by tenant on or about the premises. There shall be
excluded from gross sales any sums collected and paid out for any
sales tax or tax based upon the sale or sales of merchandise and
required by law, whether now or hereafter in force to be paid by a
seller or collected from
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its customers to the extent that such taxes are to be charged
separately and to be remitted by seller or seller's agent to the
taxing authorities.
f) Tenant shall and hereby agrees to keep in the leased premises during
the term thereof, for a period of two (2) consecutive years
following the end of each lease year, a permanent, complete and
accurate record of all gross sales of merchandise and services, as
heretofore defined, and all revenue derived from business conducted
on or from the leased premises for such lease year. The tenant
further agrees to keep, retain and preserve for at least one (1)
year after the expiration of each lease year all original sales
records and all original sales records and sales slips or sales
records and all original sales records and sale slips or sales
checks and other pertinent original sales records from any use of
the premises and to install and use exclusively accurate
non-reset/able cash registers or other modern systems within the
leased premises which shall show, record and preserve, in complete
detail, all items making up any revenues or receipts generated at or
from the premises, whether contended by tenant to be gross sales as
defined above or not. All such records, including sales tax reports
and business and occupation tax reports, shall be open to the
inspection and audit of landlord and its agents at all reasonable
times during ordinary business hours, excluding only those tax
returns prepared on a consolidated basis with any other operation
not subject to this lease.
g) The tenant shall also submit to landlord on or before the thirtieth
(30th) day following the end of each lease year at the place then
fixed for the payment of rent, a complete audited statement made and
certified by duly authorized officer of tenant, showing accurately
and in reasonable detail the amount of gross sales made by tenant,
and its subleases, concessionaires, or licensees, if any are
permitted-- see hereinafter below--, upon, within, from or at the
leased premises during the preceding lease year or fractional lease
year, if any, and shall submit on or before the 30th day following
the expiration or termination of the term a like statement covering
the preceding lease year, or fractional lease year, if any.
h) The receipt by landlord of any statement or any payment of
percentage rent for any period or the failure of landlord to make an
audit for said period shall not bind landlord as to the correctness
of the statement or the payment, nor bar landlord from collecting at
any time thereafter the percentage rent due for said period. If any
audit by landlord or its agents of tenant's records shall reveal a
deficiency in any payment of percentage rent, tenant shall forthwith
pay to landlord the amount of the deficiency together with interest
at the rate of twelve (12%) percent per annum from the date when
said payment should have been made, together with the reasonable
cost of such audit.
i) It is agreed that nothing contained in this Lease shall be deemed or
construed as creating a partnership or joint venture between
landlord and tenant, or between landlord and
Page 7 12/11/97
any other party, or cause landlord to be responsible in any way for
the debts or obligations of tenant, or any other party, and neither
party shall hold out to any person that any such partnership or
joint venture exist between the leased premises and the tenant.
j) The tenant shall not, without the prior express written consent of
the landlord, which consent shall not be unreasonably withheld,
authorize, license, sub-let, grant any concession, or otherwise
permit any use of the premises to any person or entity, which allows
the person receiving the license, sublet, or grant, etc., to
commercialize the premises or any part of same, even if such use is
otherwise permitted under this lease and all such uses as are
permitted by this lease are permitted only to the tenant.
NOTWITHSTANDING the above, the tenant expressly agrees that any
consent of the landlord to any such license, sub-let, grant etc.,
hereunder shall require and be deemed to require that the person or
entity receiving such license, sub-let, or grant, etc., shall submit
and agree to the same terms and definitions as are set forth above
all to the extent necessary so that the said person or entity shall
owe a percentage rent of 10 % of its gross sales to the landlord and
so that the gross sales of said person or entity from, by, or at the
premises, shall be also deemed hereunder to be the gross sales of
the tenant, as and when earned or realized by said person or entity,
and so that both the tenant and said person or entity shall be
jointly and severally liable to the landlord for the payment of
additional percentage rent due on same.
k) In the event that there are any gross sales or other revenues earned
or realized by the tenant or any person or entity acting under a
license, sub-let, or grant, etc., as is set forth above BUT WITHOUT
THE CONSENT OF THE LANDLORD and/or there are any gross sales or
other revenues generated, earned, or realized by the tenant at,
from, or on the premises, by a use of the premises NOT PERMITTED BY
THIS LEASE, then notwithstanding that same has been a breach of this
lease by the tenant, the tenant shall nonetheless have the same
additional percentage rent obligations as are set forth in this
lease and rider with respect to said gross sales or other revenues
as though said gross sales or other revenues were permitted
hereunder and said gross sales or other revenues shall be added to
any reports otherwise called for, records kept with respect to same,
and 10% of same will be due to the landlord, all as though they were
consented to hereunder.
8. CONTINUOUS OPERATION. Tenant shall, during the term of this Lease,
continuously use the demised premises for the purpose stated in this
Lease, carrying on therein Tenant's business undertaking diligently,
assiduously and energetically, including both the showing of motion
picture films and also including the operation of a food concession stand
as is customarily provided at movie theatre operations. Tenant shall keep
the premises open and available for business activity therein during all
usual days and hours for theatres except when
Page 8 12/11/97
prevented by strikes, fire, casualty or other causes beyond Tenant's
reasonable control.
9. ALL PAYMENTS UNCONDITIONAL. Tenant will pay all rent and additional rents
when due, without any setoff or deduction whatsoever. Any payment to or
receipt thereof by Landlord of any amount less than the full amount to
which Landlord claims it is entitled shall not be a waiver of any kind, or
a settlement or satisfaction of the rents or other amounts claimed due,
notwithstanding any statement or condition on any paper accompanying the
payment or on any check or payment instrument even if same is endorsed by
landlord, but Landlord shall be deemed to have accepted said payment
without prejudice to all rights landlord may have to collect the full
balance claimed due, as well as to have maintained all other rights
available to landlord by law and under this lease agreement, and not to be
subject to the condition offered with the payment, unless by separate
writing the landlord expressly agrees to accept the condition or make the
waiver or settlement claimed.
10. HOLDOVERS. In the event the Tenant does not surrender the premises at the
end of the term of this lease but holds over without the prior written
consent of landlord, Tenant shall be obliged to perform all of the
obligations of the Tenant as are stated throughout this lease except that
the fixed rent and additional percentage rent shall be double the amount
and percentage obligations called for and the percentage rent shall be due
monthly on a prorated monthly basis and the tenant shall also be liable to
landlord for all such damages as the law shall allow.
11. ALL RENTS DUE IF TENANT QUITS PRIOR TO END OF TERM. In the event that
Tenant, without written consent of Landlord, vacates demised premises
before expiration of said term, all fixed rent and all additional rents
and charges, including percentage rent for the current term, prorated for
the portion of the lease year then remaining, shall then and thereupon
become at once due and payable as if originally so provided herein.
Notwithstanding that the entire unpaid rent called for will be due and
owing, the tenant shall receive offsets for any funds received by the
landlord in mitigation of landlord's damages, but only if and when and as
such funds in mitigation of landlord's damages are actually received by
the landlord.
12. LEASE PROVISIONS NOT TO BE STRICTLY CONSTRUED TO DETRIMENT OF LANDLORD.
This lease shall not be construed against the Landlord, but rather shall
be fairly and reasonably interpreted as having been mutually agreeable to
all parties all of whom had equal bargaining strength and the
representation of counsel.
13. LEASE REMEDIES CUMULATIVE. No remedy or election given by an provision in
this lease shall be deemed exclusive unless so indicated, but each shall,
wherever possible, be cumulative with all other remedies in law or equity
unless otherwise specifically provided.
14. LIMITED LIABILITY OF LANDLORD. Tenant agrees that the liability of
landlord under this lease and all matters pertaining to or arising out of
the tenancy and the use and occupancy of the demised premises shall be
limited to landlord's interest in the building of which the demised
premises forms a part, and in no event shall tenant
Page 9 12/11/97
make any claim against or seek to impose any personal liability upon any
individual, general or limited partner of any partnership, or principal of
any firm or corporation or member of any company that may now be or
hereafter become the landlord.
15. COMPLIANCE WITH ENVIRONMENTAL LAWS AND REGULATIONS. Tenant at all times
shall comply, at tenant's sole cost, with all provisions of all
environmental protection laws as are applicable to tenant and tenant will
at no time use the leased premises in any way that creates liabilities or
incurs any cost or increase in cost for the landlord on account of any
environmental law or regulation, including but not limited to the
industrial site Recovery Act (ISRA). N.J.S.A. 13:1 Keg et seq. and the
regulations promulgated thereunder. Tenant shall -- --- indemnify, defend
and save harmless landlord from liability from all fines, suits,
procedures, claims and actions of any kind, including all reasonable
attorneys' fees and costs of experts arising from or relating to any act
of the tenant in violation of tenant's obligations agreed to hereinabove.
The tenant agrees to provide the landlord, at no cost to landlord, such
estoppel certificates and affidavits as are requested by landlord as to
the non use of any hazardous substances in violation of the tenant's
obligations hereunder and as to any other such matter as is reasonably
requested by landlord with respect to the tenant's obligations hereunder.
The tenant's obligations hereunder shall survive any termination of this
lease.
16. SUBORDINATION TO MORTGAGES. Notwithstanding the subordination of this
lease to any mortgage as is set forth hereinelsewhere, the tenant's right
to possession of the premises shall not be disturbed if the tenant is not
in default under this lease and as long as the tenant shall attorn to and
pay the rents and other amounts required to be paid, to the landlord or to
the landlord's successor in interest as same are due pursuant to the terms
hereof, whatever the case may be, provided only that the Lease is not
otherwise terminated pursuant to its terms.
17. DOCUMENTS REQUIRED IN A CONDEMNATION. If tenant shall fail to execute
such instruments as may be required to landlord under paragraph 12th of
the lease, or to undertake such steps as may be requested as therein
stated, within ten (10) days of written notice from landlord, landlord
shall be deemed the duly authorized irrevocable agent and attorney-in-fact
of tenant to execute such instruments and undertake such steps in as
herein stated in and on behalf of tenant. It is agreed and understood,
however, that landlord does not reserve to itself, and the tenant does not
assign to landlord, any damages payable for trade fixtures installed or
purchased by tenant at its own cost and expense and which are not part of
the realty, also referred to hereinelsewhere as the tenant's property.
Notwithstanding anything herein to the contrary, landlord shall allocate
to tenant out of landlord's condemnation award an amount reasonably
related to tenant's fair share of any alterations permitted hereinafter.
If the parties cannot agree on the amount to be allocated to tenant at
such time, this issue shall be submitted by the parties to arbitration for
resolution. Nothing herein contained shall prevent tenant from pursuing
any separate relocation assistance award to which tenant is entitled under
applicable law.
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18. BUILDING REGULATIONS. The landlord reserves the right from time to time
to promulgate and/or revise such reasonable building regulations as he
shall, in his sole good faith discretion, see fit with regard to access
and common areas, etc., of the building of which the leased premises form
a part. The tenant agrees to comply with all such reasonable regulations
on notice to him. No such rule or regulation shall restrict the access of
the public to the theatre or theatre facilities without the prior consent
of the tenant, which shall not be unreasonably withheld.
19. OTHER TENANTS ACTS. Notwithstanding any provisions of this lease to the
contrary, the landlord shall not have any liability to the tenant, for
damages or otherwise, on account of any violation of any such regulations
nor on account of any violations of any provision of any lease or
agreement with any other tenants of the building.
20. ASSIGNMENT OR SUBLET. The landlord's consent to an proposed assignment or
sublet shall not be unreasonably withheld, provided first that:
a) All covenants, agreements, and obligations of the lease imposed on
the tenant shall have been fully complied with and current at the
date landlord's consent is requested, and no breach thereof can be
anticipated.
b) The proposed assignee/subtenant establishes to the landlord, to a
reasonable certainty, that he has the business, legal, and financial
ability to perform satisfactorily all of the tenant's obligations
under the lease.
c) In the event such assignment or sublet is permitted, the same shall
be evidenced in writing, properly executed and acknowledged by both
assignee/subtenant and assignor, in which writing the
assignee/subtenant shall expressly accept, assume and agree to
perform for landlord's benefit all the terms, conditions and
limitations contained in the lease.
d) It is further understood that in the event of any assignment or
sublet of the premises, the tenant assigning or subletting the lease
(the "original tenant") shall NOT be relieved or discharged from the
performance of any covenants, agreements or obligations imposed on
any tenant under the lease and the original tenant shall stand as
co-obligor, co- and jointly liable with any new tenant (assignee or
subtenant), with respect to all covenants, agreements, liabilities
and obligations whatsoever imposed by the lease on any tenant,
including the obligations of tenant under any renewal term EXCEPT
that tenant's liability under this sub-paragraph shall cease upon
the end of the fifth year from the date of any assignment or sublet
permitted hereinabove PROVIDED the lease is then current as to all
tenant obligations.
e) The tenant shall pay to landlord, as additional rent, the reasonable
costs and fees incurred by landlord in reviewing any request by
tenant for landlord's consent hereunder.
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Any transaction involving tenant such that there is a change in the voting
control of the tenant will be deemed an assignment of this lease requiring
the consent of the landlord and subject to the above.
21. RIGHT OF FIRST REFUSAL AFTER BANKRUPTCY, ETC. In the event that there
is any transfer by operation of law of the tenant's interest in this lease
as may occur by the filing of any petition in bankruptcy or other
insolvency proceeding, or if there is any such filing and the tenant
remains a debtor in possession, then the landlord shall have the right of
first refusal to meet the terms of any offer of purchase of the tenant's
interest in this lease and to additionally purchase any of tenant's
theatre equipment and fixtures, as are described hereinelsewhere above, as
may be subject to any proposed offer of purchase. The terms of landlord's
right of first refusal hereunder are as appear on Exhibit B. attached. The
granting of this right of first refusal shall not be a waiver by the
landlord of any right he may otherwise have to terminate the lease in the
event of any default nor shall it be a waiver by landlord of any other
rights or remedies he may have under this lease, but it shall be a right
he shall have in addition to any such other rights and remedies. Any
purchase he shall make pursuant to his right of first refusal shall not be
a waiver of or otherwise reduce any amount which tenant may otherwise owe
to landlord hereunder.
22. LATE CHARGE. Tenant shall pay to landlord a sum equal to 5% (five per
cent) of any rental payment and/or any other payment as set forth and due
hereunder as a late charge for any such payment not received by the
landlord within 10 (ten) days of the date same shall become due.
23. INCREASED SECURITY DEPOSIT. The parties acknowledge that the security
required herein is equal to 2 (two) months monthly fixed rent. As the
monthly fixed rents increase according to the terms hereof, the security
shall be increased accordingly, without demand by the landlord for same,
and such additional security shall be due and payable with the first
payment of any increased monthly fixed rent called for hereunder.
24. REPAIRS AND MAINTENANCE BY TENANT. The Tenant shall at its sole cost be
responsible for all interior maintenance and repair of the premises,
including the maintenance and repair of all interior building components,
walls, windows, floors, rest rooms, fixtures, equipment, improvements, and
systems, including all heating, ventilating, air conditioning, electric,
gas, plumbing, or other systems serving the building (excluding only
structural repairs to load bearing walls and repairs to the roof, and
further excluding such of the abovementioned as is otherwise in the
exclusive possession and control of the tenant of the store premises, all
as hereinelsewhere noted), and including all of the tenant's theatre
equipment and fixtures, and without limiting the above, the tenant agrees
at its sole cost to:
a) Maintain all such equipment, fixtures, improvements, systems, etc.,
as abovementioned, regardless of whether same is the property of the
tenant
Page 12 12/11/97
or not, in good repair, painted, and in a sanitary, neat and clean
appearance, free of any infestation
b) Maintain and use all plumbing, electric, and other facilities safely
and in the way for which they were intended
c) Promptly notify the Landlord of conditions which need repair beyond
routine maintenance and promptly execute repairs which are the
responsibility of the Tenant.
In addition to the above the tenant shall be responsible for, at tenant's
sole cost, and the tenant shall promptly perform or see to the maintenance
of the marquee and other exterior signs utilized by tenant and for the
condition of the sidewalks serving the building other than, but
supplementing, the snow and ice removal services contracted for by
landlord, as is set forth below. It shall be the tenant's obligation to
provide though its own employees such additional and ancillary snow and
ice removal from the sidewalk and exterior areas serving the theatre as
shall be reasonable and necessary to provide safe passage for persons
using same.
25. LITTER AND TRASH REMOVAL. In addition to the above, the tenant shall avoid
littering on the building grounds, including but not limited to any
littering by the Tenant's employees, agents, customers, or other invitees
or licensees and the tenant shall be responsible for proper disposal of
its garbage, trash, debris, end product, by product or other waste, etc.
in a proper manner, complying with all applicable municipal or building
rules and regulations, with respect to same and not permit the blowing or
release of litter or rubbish from the premises or from tenant's trash
containers or the spoilage of any trash therein and position same on the
premises so as not to obstruct any other permitted use of premises.
26. REPAIRS AND MAINTENANCE BY LANDLORD AT LANDLORD'S COST. At landlord's own
cost, unless the need for said repairs was caused by tenant's misuse, or
the misuse of any of its agents, employees, representatives, visitors,
deliverymen, customers, invitees, or licensees., the landlord shall
maintain and make all structural repairs to loadbearing walls of the
building. The landlord shall have no other repair or maintenance costs
that it shall bear.
27. REPAIRS AND MAINTENANCE BY LANDLORD AT A COST TO BE ALLOCATED. At a cost
to be allocated 94.8% (ninety four point eight percent) to tenant as is
set forth hereinelsewhere above, the landlord will make all repairs and do
all maintenance required for the exterior of the building of which the
leased premises are a part, including painting and roof repairs and
including sidewalk snow and ice removal contracting as is set forth below
and also including all driveway, parking, or other blacktop replacement
and repairs, but excluding the marquee and other tenant signs, The
landlord shall be deemed to discharge his obligations for the above and
for any repair and maintenance obligations he has under this lease if he
shall engage the services of any reputable independent contractor
regularly engaged in providing the services requested. The landlord shall
have no liability to the tenant for any failure or negligence of any
contractor to fulfill his
Page 13 12/11/97
contractual obligations to the landlord, but the tenant shall and is
hereby deemed to be an intended third party beneficiary of any contract
with any such third party. The cost of any such contract with any third
party shall be allocated to the tenant, as is set forth above, but the
landlord shall not be entitled to any override or overhead charges
associated with any of the landlord's repair and maintenance obligations
as are performed by third parties and the landlord shall pass on to
tenant, to be allocated as is set forth below, only the actual cost to
landlord of discharging said obligations.
28. HEAT AND UTILITIES. The tenant shall supply its own heat to the building
and keep the heating system and other systems providing same in good
working order. THE TENANT HEREBY AGREES THAT IT WILL CONTINUE TO SUPPLY
HEAT AND COLD WATER FOR THE ENTIRE BUILDING AS SAME IS REASONABLY
REQUIRED, INCLUDING HEAT AND COLD WATER AS MAY BE USED OR REQUIRED BY THE
TENANT OF THE STORE PREMISES NOT PART OF THE LEASED PREMISES HEREUNDER.
The landlord agrees to reimburse the tenant 5.2% (five point two percent)
of the costs of supplying same as are paid by tenant to third party
utilities, as same are submitted by tenant to landlord, in any reasonable
manner as the parties work out. The parties acknowledge that the boiler
providing heat to the non-theatre store premises heats only those premises
but is located n the basement of the building otherwise part of the leased
theatre premises. The tenant will have no obligation to maintain said
boiler, but the tenant shall allow access to same, at all times
reasonable, to allow for its maintenance and repair. The tenant and the
store premises tenant will, other than for gas for the building boiler and
water for the building, have separate hook ups and each will have its own
separate account, for all other utilities serving the building.
29. FIRE AND OTHER INSURANCE. The landlord will obtain a policy or policies
of insurance covering the building of which the leased premises are a part
and insuring same against fire and other hazards in such amounts as are
commercially reasonable and the tenant will pay the landlord 94.8% (ninety
four point eight percent) of the costs of obtaining said policies, as a
building cost to be paid by tenant hereunder. Said insurance will contain
rent interruption coverage, payable to the landlord, for any period in
which the rent hereunder is otherwise suspended due to fire or other loss.
The tenant will similarly insure its own property in the building,
including its own theatre equipment and fixtures as are defined
hereinelsewhere above, at its own cost, adding whatever additional
coverage it sees fit for business interruption, the proceeds of which
additional coverage will be its to keep in all events. The parties will
coordinate their efforts in obtaining such insurance, either from the same
carriers, or waiving subrogation where same can be done if from different
carriers.
30. PROPERTY TAXES.
a) Tenant covenants and agrees to pay as additional rent its
proportionate share of all real estate taxes, assessments, water
rates and charges, and other governmental charges, general and
special, ordinary and extraordinary, unforeseen as well as foreseen,
of any kind or nature
Page 14 12/11/97
whatsoever, including, but not limited to assessments for public
improvements or benefits which shall be laid, assessed, levied or
imposed upon and become due and payable, and a lien upon the land
and building of the demised premises for any and all tax years
during the term hereof (all of which real estate taxes, assessments,
charges, levies or other governmental charges are referred to as
"taxes"). The sum of the taxes assessed against the building for any
tax year during the term hereof shall be deemed to be the taxes
assessed against the building for said tax year and the tenant's
proportionate share of same shall be 94.8% (ninety four point eight
percent).
b) From the commencement date hereof and thereafter, during each
period during which real estate taxes are being paid by landlord
based on preliminary tax bills, tenant shall pay to landlord, on the
first day of each and every month during such period, 1/12th (one
twelfth) of tenant's proportionate share of the annualized
preliminary applicable taxes then being paid by landlord. Upon
receipt by landlord of final real estate tax bills or bills for
additional taxes or assessments, tenant shall pay to landlord any
unpaid portion of its pro rata share of such taxes in equal monthly
installments on the first day of each and every month during the
balance of the calendar year.
c) All real estate taxes which shall become payable for the first and
last tax years of the term hereof shall be apportioned pro rata
between landlord and tenant in accordance with the respective number
of months during which each party shall be in possession of the
demised premises in said respective tax year.
d) If landlord shall obtain a remission or a refund of all or any part
of the real estate taxes heretofore paid by tenant for any year,
landlord shall promptly refund to tenant (or credit tenant with) its
proportionate share of such remission or refund, after deduction of
all expenses incurred in connection therewith.
e) If at any time during the term of this lease the methods of
taxation prevailing at the commencement of the term hereof shall be
altered so that in lieu of or as a supplement to or a substitute for
the whole or any part of the real estate taxes or assessments now
levied, assessed or imposed, there is imposed (i) a tax, assessment,
levy, imposition or a charge, wholly or partially as a capital levy
or otherwise, on the rents received therefrom or (ii) a tax,
assessment, levy (including but not limited to any municipal, state
or federal levy), imposition or charge measured by or based in whole
or in part upon the premises and imposed upon the landlord, or (iii)
a license fee measured by the rent payable under this lease, then
all such taxes, assessments, levies, impositions and charges, or the
part thereof so measured or based shall be deemed to be included in
the general real estate taxes and assessments payable by the tenant
pursuant to this paragraph and the tenant shall pay and discharge
the
Page 15 12/11/97
same as herein provided in respect of the payment of general real
estate taxes and assessments.
31. PAYMENT OF BUILDING COSTS. With respect to all items due from the
tenant to the landlord hereunder and referred to as "building costs,"
consisting generally of maintenance and insurance, property taxes, and
such other items as are similar thereto, all such items shall be
additional rent due hereunder. Unless payment is specified to be otherwise
elsewhere in this lease, they shall in each instance be due and promptly
paid by the tenant when proof of payment by the landlord is presented to
the tenant, no later than the first day of the month following the month
of presentation by the landlord, provided that the tenant shall have at
least 15 days notice of same.
32. PERMITS AND CERTIFICATE OF OCCUPANCY. Upon signing of this lease, the
tenant shall apply for and pay all costs related to obtaining any business
permit necessary to operate the premises as a movie theatre with a food
concession and take such steps as are otherwise required to continue under
the existing Certificate of Occupancy or to obtain a new one, whichever
the case may be.
33. ALTERATIONS. Provided the lease is then current as to all tenant
obligations, the consent of the landlord to alterations, additions or
improvements requested by tenant shall not be unreasonably withheld. Any
such alterations, additions or improvements must be done in a workmanlike
manner in keeping with all building codes and regulations and in no way
harm the structure of the leased premises. At the expiration of this Lease
or any extension thereof, tenant, at its expense, upon written request
from landlord must restore the leased premises to their original
condition, except as to those alterations which shall have been permitted
by landlord in writing to remain. The landlord reserves the right, before
approving any such alterations, additions or improvements to require the
tenant to furnish him a good and sufficient bond, conditioned that it will
save landlord harmless from the payment of any claims either by way of
damages or liens. All of such alterations, additions or improvements as
shall be permitted by landlord shall be made solely at the expense of the
tenant; and the tenant agrees to protect, indemnify and save harmless the
landlord on account of any injury to third persons or property by reason
of any such alterations, additions or improvements, and to protect,
indemnify and save harmless landlord from the payment of any claim of any
kind or character and account of bills for labor or material in connection
therewith.
34. CURE PERIODS. In the event of any default in the payment of any rent or
any charge characterized as rent and called for hereunder, the tenant
shall have a period of 10 (ten) days after the receipt of notice of
Page 16 12/11/97
said default in which to cure same by payment in good funds of the amount
stated as due in said notice, said payment to be received by the landlord
at landlord's address within said 10 (ten) day period.
In the event of any default of any obligation of tenant not calling for a
payment by tenant to landlord, the tenant shall have 30 (thirty) days
after receipt of notice of said default in which to cure same, which 30
(thirty) days shall be extended as is reasonably necessary, if cure would
reasonably require more than 30 (thirty) days PROVIDED that cure is
commenced within said initial 30 day period and FURTHER PROVIDED the
tenant is not in default in any other obligations of tenant under the
lease.
35. NOTICES. Any notice otherwise permitted or called for under this lease
sent certified mail, return receipt requested, shall be deemed received on
the third day after the post xxxx of said notice.
36. FIRST 10 YEAR RENEWAL OPTION. Provided that the tenant has faithfully
performed all of the terms, covenants and conditions of this lease during
the initial 20 year term, the tenant shall have the option to extend this
lease for an additional 10 years beginning December 1, 2017, provided
further that tenant gives notice of its election to do so to the landlord,
in writing, not later than 12 (twelve) months next proceeding the end of
the first term of the lease but not sooner than 24 (twenty-four) months
next proceeding end of the first term of the lease. The additional ten
year term shall also be referred to as "the first 10 year option period."
The rent for each year of the first 10 year option period shall be as is
set forth hereinelsewhere above. All other terms and provisions of this
lease shall be extended and bind the parties during the first 10 year
option period, all applied consistently with their application during the
original term of the lease, except that there shall be only one additional
10 year option to renew this lease, as is set forth below.
37. SECOND 10 YEAR RENEWAL OPTION. Provided that the tenant has faithfully
performed all of the terms, covenants and conditions of this lease during
the first 10 option period, the tenant shall have the option to extend
this lease for an additional 10 years beginning December 1, 2027, provided
further that tenant gives notice of its election to do so to the landlord,
in writing, not later than 12 (twelve) months next proceeding the end of
the first 10 year option period but not sooner than 24 (twenty-four)
months next proceeding the end of the first 10 year option period. The
second additional ten year term shall also be referred to as "the second
10 year option period."
The rent for each year of the second 10 year option period shall be as is
set forth hereinelsewhere above. All other terms and provisions of this
lease shall be extended and bind the parties during the second 10 year
option period, all applied consistently with their application during the
First 10 year option period, except that there shall be no further option
to extend this lease beyond the end of the second 10 year option period.
[SIGNATURES AND INCORPORATION OF EXHIBITS ON NEXT PAGE]
Page 17 12/11/97
IN ADDITION TO THE ABOVE, THE PARTIES HEREBY INCORPORATE BY REFERENCE AS THOUGH
SATED VERBATIM:
EXHIBIT A: ALLSTATE FORM 255 AS MARKED AND SIGNED
EXHIBIT B: RIDER ATTACHMENT, AS SIGNED
TENANT: CCC BELLEVUE CINEMA CORP.
by /s/ A. Xxxx Xxxx President
-----------------------------
LANDLORD
/s/ Xxxxx X. Xxxxxx
--------------------
XXXXX X. XXXXXX
Page 18 12/11/97
EXHIBIT A
RIDER TO LEASE OF DECEMBER 1997 BETWEEN:
XXXXX X. XXXXXX, LANDLORD
AND
CCC BELLEVUE CINEMA CORP., TENANT
Repairs and Care
2nd: The Tenant has examined the premises and has entered into this lease
without any representation on the part of the Landlord as to the condition
thereof. The Tenant shall take good care of the premises and shall at the
Tenant's own cost and expense, make all repairs, including painting and
decorating, and shall maintain the premises in good condition and state of
repair, and at the end or other expiration of the term hereof, shall deliver up
the rented premises in good order and condition, wear and tear from a reasonable
use thereof, and damage by the elements not resulting from the neglect or fault
of the Tenant, excepted. The Tenant shall neither encumber nor obstruct the
sidewalks, driveways, yards, entrances, hallways and stairs, but shall keep and
maintain the same in a clean condition, free from debris, trash, refuse, snow
and ice.
Glass, etc. Damage Repairs
3rd: In case of the destruction of or any damage to the glass in the
leased premises, or the destruction of or damage of any kind whatsoever to the
said premises, caused by the carelessness, negligence or improper conduct on the
part of the Tenant or the Tenant's agents, employees, guests, licensees,
invitees, subtenants, assignees or successors, the Tenant shall repair the said
damage or replace or restore any destroyed parts of the premises, as speedily as
possible, at the Tenant's own cost and expense.
Alterations Improvements
4th: No alterations, additions or improvements shall be made, and no
climate regulating, air conditioning, cooling, heating or sprinkler systems,
television or radio antennas, heavy equipment, apparatus and fixtures, shall be
installed in or attached to the leased premises, without the written consent of
the Landlord. Unless otherwise provided herein, all such alterations, additions
or improvements and systems, when made, installed in or attached to the said
premises, shall belong to and become the property of the Landlord and shall be
surrendered with the premises and as part thereof upon the expiration or sooner
termination of this lease, without hindrance, molestation or injury.
Signs
5th: The Tenant shall not place nor allow to be placed any signs of any
kind whatsoever, upon, in or about the said premises or any part thereof, except
of a design and structure and in or at such places as may be indicated and
consented to by the Landlord in writing. In case the Landlord or the Landlord's
agents, employees or representatives shall deem it necessary to remove any such
signs in order to paint or make any repairs, alterations or improvements in or
upon said premises or any part thereof, they may be so removed, but shall be
replaced at the Landlord's expense when the said repairs, alterations or
improvements shall have been completed. Any signs permitted by the Landlord
shall at all times conform with all municipal ordinances or other laws and
regulations applicable thereto.
Utilities
6th: The Tenant shall pay when due all the rents or charges for water or
other utilities used by the Tenant, which are or may be assessed or imposed upon
the leased premises or which are or may be charged to the Landlord by the
suppliers thereof during the term hereof, and if not paid, such rents or charges
shall be added to and become payable as additional rent with the installment of
rent next due or within 30 days of demand therefor, whichever occurs sooner.
Compliance with Laws etc.
7th: The Tenant shall promptly comply with all laws, ordinances, rules,
regulations, requirements and directives of the Federal, State and Municipal
Governments or Public Authorities and of all their departments, bureaus and
subdivisions, applicable to and affecting the said premises, their use and
occupancy, for the correction, prevention and abatement of nuisances, violations
or other grievances in, upon or connected with the said premises, during the
term hereof; and shall promptly comply with all orders, regulations,
requirements and directives of the Board of Fire Underwriters or similar
authority and of any insurance companies which have issued or are about to issue
policies of insurance covering the said premises and its contents, for the
prevention of fire or other casualty, damage or injury, at the Tenant's own cost
and expense.
Liability Insurance and Indemnification
8th: The Tenant, at Tenant's own cost and expense, shall obtain or provide
and keep in full force for the benefit of the Landlord, during the term hereof,
general public liability insurance, insuring the Landlord against any and all
liability or claims of liability arising out of, occasioned by or resulting from
any accident or otherwise in or about the leased premises, for injuries to any
person or persons, in any one accident or occurrence, and for loss or damage to
the property of any person or persons, for not less than $2,000,000. The policy
or policies of insurance shall be of a company or companies authorized to do
business in this State and shall be delivered to the Landlord, together with
evidence of the payment of the premiums therefor, not less than fifteen days
prior to the commencement of the term hereof or of the date when the Tenant
shall enter into possession, whichever occurs sooner. At least fifteen days
prior to the expiration or termination date of any policy, the Tenant shall
deliver a renewal or replacement policy with proof of the payment of the premium
therefor. The Tenant also agrees to and shall save, hold and keep harmless and
indemnify the Landlord from and for any and all payments, expenses, costs,
attorney fees and from and for any and all claims and liability for losses or
damage to property or injuries to persons occasioned wholly or in part by or
resulting from any acts or omissions by the Tenant or the Tenant's agents,
employees, guests, licensees, invitees, subtenants, assignees or successors, or
for any cause or reason whatsoever arising out of or by reason of the occupancy
by the Tenant and the conduct of the Tenant's business.
Assignment
9th: The Tenant shall not, without the written consent of the Landlord,
assign, mortgage or hypothecate this lease, nor sublet or sublease the premises
or any part thereof. See main body of lease and attachment.
Restriction of use
10th: The Tenant shall not occupy or use the leased premises or any part
thereof, nor permit or suffer the same to be occupied or used for any purposes
other than as herein limited, nor for any purpose deemed unlawful, disreputable,
or extra hazardous, on account of fire or other casualty.
Mortgage Priority
11th: This lease shall not be a lien against the said premises in respect
to any mortgages that may hereafter be placed upon said premises. The recording
of such mortgage or mortgages shall have preference and precedence and be
superior and prior in lien to this lease, irrespective of the date of recording
and the Tenant agrees to execute any instruments, without cost, which may be
deemed necessary or desirable, to further effect the subordination of this lease
to any such mortgage or mortgages. A refusal by the Tenant to execute such
instruments shall entitle the Landlord to the option of cancelling this lease,
and the term hereof is hereby expressly limited accordingly. See main body of
lease and attachment.
Condemnation and Eminent Domain
12th: If the land and premises leased herein, or of which the leased
premises are a part, or any portion thereof, shall be taken under eminent domain
or condemnation proceedings, or if suit or other action shall be instituted for
the taking or condemnation thereof, or if in lieu of any formal condemnation
proceedings or actions, the Landlord shall grant an option to purchase and or
shall sell and convey the said premises or any portion thereof, to the
governmental or other public authority, agency, body or public utility, seeking
to take said land and premises or any portion thereof, then this lease, at the
option of the Landlord, shall terminate, and the term hereof shall end as of
such date as the Landlord shall fix by notice in writing; and the Tenant shall
have no claim or right to claim or be entitled to any portion of any amount
which may be awarded as damages or paid as the result of such condemnation
proceedings or paid as the purchase price for such option, sale or conveyance in
lieu of formal condemnation proceedings; and all rights of the Tenant to
damages, if any, are hereby assigned to the Landlord. The Tenant agrees to
execute and deliver any instruments, at the expense of the Landlord, as may be
deemed necessary or required to expedite any condemnation proceedings or to
effectuate a proper transfer of title to such governmental or other public
authority, agency, body or public utility seeking to take or acquire the said
lands and premises or any portion thereof. The Tenant covenants and agrees to
vacate the said premises, remove all the Tenant's personal property therefrom
and deliver up peaceable possession thereof to the Landlord or to such other
party designated by the Landlord in the aforementioned notice. Failure by the
Tenant to comply with any provisions in this clause shall subject the Tenant to
such costs, expenses, damages and losses as the Landlord may incur by reason of
the Tenant's breach hereof.
Fire and other Casualty
13th: In case of fire or other casualty, the Tenant shall give immediate
notice to the Landlord. If the premises shall be partially damaged by fire, the
elements or other casualty, the Landlord shall repair the same as speedily as
practicable, but the Tenant's obligation to pay the rent hereunder shall not
cease. If, in the opinion of the Landlord, the premises be so extensively and
substantially damaged as to render them untenantable, then the rent shall cease
until such time as the premises shall be made tenantable by the Landlord.
However, if, in the opinion of the Landlord, the premises be totally destroyed
or so extensively and substantially damaged as to require practically a
rebuilding thereof, then the rent shall be paid up to the time of such
destruction and then and from thenceforth this lease shall come to an end. In no
event however, shall the provisions of this clause become effective or be
applicable, if the fire or other casualty and damage shall be the result of the
carelessness, negligence or improper conduct of the Tenant or the Tenant's
agents, employees, guests, licensees, invitees, subtenants, assignees or
successors. In such case, the Tenant's liability for the payment of the rent and
the performance of all the covenants, conditions and terms hereof on the
Tenant's part to be performed shall continue and the Tenant shall be liable to
the Landlord for the damage and loss suffered by the Landlord. If the Tenant
shall have been insured against any of the risks herein covered, then the
proceeds of such insurance shall be paid over to the Landlord to the extent of
the Landlord's costs and expenses to make the repairs hereunder, and such
insurance carriers shall have no recourse against the Landlord for
reimbursement.
Reimbursement of Landlord
14th: If the Tenant shall fail or refuse to comply with and perform any
conditions and covenants of the within lease, the Landlord may, if the Landlord
so elects, carry out and perform such conditions and covenants, at the cost and
expense of the Tenant, and the said cost and expense shall be payable on demand,
or at the option of the Landlord shall be added to the installment of rend due
immediately thereafter but in no case later than one month after such demand,
whichever occurs sooner, and shall be due and payable as such. This remedy shall
be in addition to such other remedies as the Landlord may have hereunder by
reason of the breach by the Tenant of any of the covenants and conditions in
this lease contained.
Inspection and Repair
15th: The tenant agrees that the Landlord and the Landlord's agents,
employees or other representatives, shall have the right to enter into and upon
the said premises or any part thereof, at all reasonable hours, for the purpose
of examining the same or making such repairs or alterations therein as may be
necessary for the safety and preservation thereof. This clause shall not be
deemed to be a covenant by the Landlord nor be construed to create an obligation
on the part of the Landlord to make such inspection or repairs.
Right to Exhibit
16th: The Tenant agrees to permit the Landlord and the Landlord's agents,
employees or other representatives to show the premises to persons wishing to
rent or purchase the same, and Tenant agrees that on and after six months next
preceding the expiration of the term hereof, the Landlord or the Landlord's
agents, employees or other representatives shall have the right to place notices
on the front of said premises or any part thereof, offering the premises for
rent or for sale; and the Tenant hereby agrees to permit the same to remain
thereon without hindrance or molestation.
Increase of Insurance Rates
17th: If for any reason it shall be impossible to obtain fire and other
hazard insurance on the buildings and improvements on the leased premises, in an
amount and in the form and in insurance companies acceptable to the Landlord,
the Landlord may, if the Landlord so elects at any time thereafter, terminate
this lease and the term hereof, upon giving to the Tenant fifteen days notice in
writing of the Landlord's intention so to do, and upon the giving of such
notice, this lease and the term thereof shall terminate. If by reason of the use
to which the premises are put by the Tenant or character of or the manner in
which the Tenant's business is carried on, the insurance rates for fire and
other hazards shall be increased, the Tenant shall upon demand, pay to the
Landlord, as rent, the amounts by which the premiums for such insurance are
increased. Such payment shall be paid with the next installment of rent but in
no case later than one month after such demand, whichever occurs sooner.
Removal of Tenant's Property
18th: Any equipment, fixtures, goods or other property of the Tenant, not
removed by the Tenant upon the termination of this lease, or upon any quitting,
vacating or abandonment of the premises by the Tenant, or upon the Tenant's
eviction, shall be considered as abandoned and the Landlord shall have the
right, without any notice to the Tenant, to sell or otherwise dispose of the
same, at the expense of the Tenant, and shall not be accountable to the Tenant
for any part of the proceeds of such sale, if any.
Remedies upon Tenant's Default
19th: If there should occur any default on the part of the Tenant in the
performance of any conditions and covenants herein contained, or if during the
term hereof the premises or any part thereof shall be or become abandoned or
deserted, vacated or vacant, or should the Tenant be evicted by summary
proceedings or otherwise, the Landlord, in addition to any other remedies herein
contained or as may be permitted by law, may either by force or otherwise,
without being liable for prosecution therefor, or for damages, re-enter the said
premises and the same have and again possess end enjoy; and as agent for the
Tenant or otherwise, re-let the premises and receive the rents therefor and
apply the same, first to the payment of such expenses, reasonable attorney fees
and costs, as the Landlord may have been put to in re-entering and repossessing
the same and in making such repairs and alterations as may be necessary; and
second to the payment of the rents due hereunder. The Tenant shall remain liable
for such rents as may be in arrears and also the rents as may accrue subsequent
to the re-entry by the Landlord, to the extent of the difference between the
rents reserved hereunder and the rents, if any, received by the Landlord during
the remainder of the unexpired term hereof, after deducting the aforementioned
expenses, fees and costs; the same to be paid as such deficiencies arise and are
ascertained each month.
Termination on Default
20th: Upon the occurrence of any of the contingencies set forth in the
preceding clause, or should the Tenant be adjudicated a bankrupt, insolvent or
placed in receivership, or should proceedings be instituted by or against the
Tenant for bankruptcy, insolvency, receivership, agreement of composition or
assignment for the benefit of creditors, or if this lease or the estate of the
Tenant hereunder shall pass to another by virtue of any court proceedings, writ
of execution, levy, sale, or by operation of law, the Landlord may, if the
Landlord so elects, at any time thereafter, terminate this lease and the term
hereof, upon giving to the Tenant or to any trustee, receiver, assignee or other
person in charge of or acting as custodian of the assets or property of the
Tenant, five days notice in writing, of the Landlord's intention so to do. Upon
the giving of such notice, this lease and the term hereof shall end on the date
fixed in such notice as if the said date was the date originally fixed in this
lease for the expiration hereof; and the Landlord shall have the right to remove
all persons, goods, fixtures and chattels therefrom, by force or otherwise,
without liability for damages.
Non-Liability of Landlord
21st: The shall not be liable for any damage or Landlord injury which may
be sustained by the Tenant or any other person, as a consequence of the failure,
breakage, leakage or obstruction of the water, plumbing, steam, sewer, waste or
soil pipes, roof, drains, leaders, gutters, valleys, downspouts or the like or
of the electrical, gas, power, conveyor, refrigeration, sprinkler,
airconditioning or heating systems, elevators or hoisting equipment; or by
reason of the elements; or resulting from the carelessness, negligence or
improper conduct on the part of any other Tenant or of the Landlord or the
Landlord's or this or any other Tenant's agents, employees, guests, licensees,
invitees, subtenants, assignees or successors; or attributable to any
interference with, interruption of or failure, beyond the control of the
landlord, of any services to be furnished or supplied by the Landlord.
Non-Waiver by Landlord
22nd: The various rights, remedies, options and elections of the Landlord,
expressed herein, are cumulative, and the failure of the Landlord to enforce
strict performance by the Tenant of the conditions and covenants of this lease
or to exercise any election or option, or to resort or have recourse to any
remedy herein conferred or the acceptance by the Landlord of any installment of
rent after any breach by the Tenant, in any one or more instances, shall not be
construed or deemed to be a waiver or a relinquishment for the future by the
Landlord of any such conditions and covenants, options, elections or remedies,
but the same shall continue in full force and effect.
Non-Performance by Landlord
23rd: This lease and the obligation of the Tenant to pay the rent
hereunder and to comply with the covenants and conditions hereof, shall not be
affected, curtailed, impaired or excused because of the Landlord's inability to
supply any service or material called for herein, by reason of any rule, order,
regulation or preemption by any governmental entity, authority, department,
agency or subdivision or for any delay which may arise by reason of negotiations
for the adjustment of any fire or other casualty loss or because of strikes or
other labor trouble or for any cause beyond the control of the Landlord.
Validity of Lease
24th: The terms, conditions, covenants and provisions of this lease shall
be deemed to be severable. If any clause or provision herein contained shall be
adjudged to be invalid or unenforceable by a court of competent jurisdiction or
by operation of any applicable law, it shall not affect the validity of any
other clause or provision herein, but such other clauses or provisions shall
remain in full force and effect.
Notices
25th: All notices required under the terms of this lease shall be given
and shall be complete by mailing such notices by certified or registered mail,
return receipt requested, to the address of the parties as shown at the head of
this lease, or to such other address as may be designated in writing, which
notice of change of address shall be given in the same manner.
Title and Quiet Enjoyment
26th: The Landlord covenants and represents that the Landlord is the owner
of the premises herein leased and has the right and authority to enter into,
execute and deliver this lease; and does further covenant that the Tenant on
paying the rent and performing the conditions and covenants herein contained,
shall and may peaceable and quietly have, hold and enjoy the leased premises for
the term aforementioned.
Entire Contract
27th: This lease contains the entire contract between the parties. No
representative, agent or employee of the Landlord has been authorized to make
any representations or promises with reference to the within letting or to vary,
alter or modify the terms hereof. No additions, changes or modifications,
renewals or extensions hereof, shall be binding unless reduced to writing and
signed by the Landlord and the Tenant.
Mechanics' Liens
29th: If any mechanics' or other liens shall be created or filed against
the leased premises by reason of labor performed or materials furnished for the
Tenant in the erection, construction, completion, alteration, repair or addition
to any building or improvement, the Tenant shall upon demand, at the Tenant's
own cost and expense, cause such lien or liens to be satisfied and discharged of
record together with any Notices of Intention that may have been filed. Failure
so to do, shall entitle the Landlord to resort to such remedies as are provided
herein in the case of any default of this lease, in addition to such as are
permitted by law.
Waiver of Subrogation Rights
30th: The Tenant waives all rights of recovery against the Landlord or
Landlord's agents, employees or other representatives, for any loss, damages or
injury of any nature whatsoever to property or persons for which the Tenant is
insured. The Tenant shall obtain from Tenant's insurance carriers and will
deliver to the Landlord, waivers of the subrogation rights under the respective
policies.
Security
31st: The Tenant has this day deposited with the Landlord the sum of $NONE
as security for the payment of the rent hereunder and the full and faithful
performance by the Tenant of the covenants and conditions on the part of the
Tenant to be performed. Said sum shall be returned to the Tenant, without
interest, after the expiration of the term hereof, provided that the Tenant has
fully and faithfully performed all such covenants and conditions and is not in
arrears in rent. During the term hereof, the Landlord may, if the Landlord so
elects, have recourse to such security, to make good any default by the Tenant,
in which event the Tenant shall, on demand, promptly restore said security to
its original amount. Liability to repay said security to the Tenant shall run
with the reversion and title to said premises, whether any change in ownership
thereof be by voluntary alienation or as the result of judicial sale,
foreclosure or other proceedings, or the exercise of a right of taking or entry
by any mortgagee. The landlord shall assign or transfer said security, for the
benefit of the Tenant, to any subsequent owner or holder of the reversion or
title to said premises, in which case the assignee shall become liable for the
repayment thereof as herein provided, and the assignor shall be deemed to be
released by the Tenant from all liability to return such security. This
provision shall be applicable to every alienation or change in title and shall
in no wise be deemed to permit the Landlord to retain the security after
termination of the Landlord's ownership of the reversion or title. The Tenant
shall not mortgage, encumber or assign said security without the written consent
of the Landlord.
Conformation with Laws and Regulations
The Landlord may pursue the relief or remedy sought in anyinvalid clause,
by conforming the said clause with the provisions of the statutes or the
regulations of any governmental agency in such case made and provided as if the
particular provisions of the applicable statutes or regulations were set forth
herein at length.
In all references herein to any parties, persons, entities or corporations
the use of any particular gender or the plural or singular number is intended to
include the appropriate gender or number as the text of the within instrument
may require. All the terms, covenants and conditions herein contained shall be
for and shall inure to the benefit of and shall bind the respective parties
hereto, and their heirs, executors, administrators, personal or legal
representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals, or caused these presents to be signed by their proper corporate officers
and their proper corporate seal to be hereto affixed, the day and year first
above written.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF /s/ Xxxxx Xxxxxx
OR ATTESTED BY ------------------------------
Landlord
/s/ CCC Bellevue Cinema Corp.
-------------------------------
Tenant
By /s/ A. Xxxx Xxxx
-------------------------------
A. Xxxx Xxxx, Pres.
Exhibit B
Rider Attachment to
Lease between Xxxxx X. Xxxxxx and
CCC Bellevue Cinema Corp
December 12, 1997
Notwithstanding anything in the lease rider to which this document is attached
to the contrary, the parties agree as follows:
1. The landlord represents that a theatre has been operated from the premises
since he has owned them (December 1996) without interference by any person
claiming any easement or rights of way and that attached is a copy of a survey
of the premises of which the theatre is a part which he received from his
predecessor in title, showing what he believes to be the case, namely that his
building and improvements cover almost all of the real estate he owns and that
most if not all of any public right of way is adjacent and not on his property.
2. With respect to any environmental contamination which may be found on the
premises at any time after the lease is signed:
a) As to any contamination that is subject to the landlord's right to
indemnification from his predecessor in title-- United Artists--, disclosed
elsewhere, the landlord will indemnify and hold tenant harmless the same as
United Artists has indemnified him and remove any asbestos exposing employees,
customers, or others, to acceptable DEP standards.
b) As to any contamination the existence of which can be determined to have
predated the occupancy of the premises by the tenant, the tenant shall have no
obligations with regard to the cost of the clean-up of same or for whatever
other compliance is required under law.
c) As to any contamination the existence of which cannot be determined to have
predated the occupancy of the premises by the tenant, the landlord shall have
the primary obligation to remedy same and the right to control all steps taken
in compliance therewith, but all costs of said remediation and compliance shall
be passed through to the tenant as a building cost and the tenant shall pay its
proportionate 94.8% (ninety four point eight percent) of same. The landlord
shall keep the tenant fully apprised as to all remediation and compliance
undertaken, in advance wherever possible, and provide the tenant with copies of
all correspondence, notices, reports, and other communications and afford
Page 1 of 3 12/11/97
the tenant the opportunity to participate in or attend all meetings or
proceedings with respect thereto.
Any dispute as to the dating of any contamination or as to any other
matter pertaining to remediation or compliance or the costs thereof shall be
submitted by the parties to informal but binding arbitration.
3. There shall be no security deposit required of tenant.
4. Unrated movies may be exhibited.
5. The tenant may sell on screen advertising through unaffiliated third parties,
for a commission or other consideration, and only the commission or other
consideration and not the gross advertising revenues of the third party will be
included in gross sales for the purposes of computing percentage rent owed.
6. With respect to roof maintenance, the landlord shall bear 100% of the costs
of same for the first five years of the lease. The landlord and the tenant will
divide the costs of same, 50% each, for the next five years. Thereafter the
costs of same will be a building cost and the tenant will pay 94.8% (ninety four
point eight percent) of same. NOTWITHSTANDING the above, the tenant will at no
time have any obligation to be responsible for the structural repair of any roof
member, the sole cost and obligation of which will be the landlord's EXCEPTING
ONLY the cost of such repair for damage caused by acts otherwise stated to be a
violation of this lease by tenant.
7. The tenant may mortgage, hypothecate, or collaterally assign this lease as
security for tenant borrowing and the person or entity holding such interests as
are created thereby, hereinafter referred to as "the tenant's lender ," on
notice to landlord, shall be entitled to receive copies of all subsequent
notices from landlord to tenant. The lender, upon any termination of the lease
by landlord for failure of tenant to cure a default, shall also have an
additional opportunity to cure the default or defaults covered by the notices,
to wit, an additional 10 (ten) days to cure a payment default, and 30 (thirty)
days to cure a non payment default, all in accord with the conditions and
provisions as are set forth in the rider for cure by the tenant.
Page 2 of 3 12/11/97
8. In the event the first lease year is more or less than 365 days, the parties
will, upon signing of the lease, agree upon an example of the first lease
periods percentage rent will be determined and called for that period, using the
total base daily rent due for that period, at $273.97 ($100,000 divided by 365)
times the number of days in the period, as the gross sales base for percentage
rent for that period, and running the example to its conclusion.
TENANT:
CCC Bellevue Cinema Corp.
by /s/ A. Xxxx Xxxx President
---------------------------------------
LANDLORD
/s/ Xxxxx X. Xxxxxx
-------------------------
Xxxxx X. Xxxxxx
Page 3 of 3 12/11/97
Bellevue Break Point - Year 1 (i.e. show year ending Nov. 30, 1998)
USS Dec 1-12 365
(12)
----
First year Rent per diem 352 days
$273.97
-------
1st year Base rent $96,440.96
x 10
-------
"Break-point" for 352 days
ending Nov. 30, 1998 per page 8,
sub P. (d) $964,410.
CCC Bellevue/Xxxxxx
