UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-KSB
[x] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the Fiscal Year Ended December 31, 1999
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number: 0-24592
CINEMA RIDE, INC.
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(Name of small business issuer in its charter)
Delaware 95-4417467
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
12001 Ventura Place, Suite 340, Studio City, California 91604
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(Address of principal executive offices, including zip code)
Issuer's telephone number, including area code: (818) 761-1002
Securities registered pursuant to Section 12(b) of the Act: None.
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $0.08 par value
Redeemable Common Stock Purchase Warrants
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(Title of class)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days.
Yes [x] No [ ]
Check if disclosure of delinquent filers in response to Item 405 of
Regulation S-B is not contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-KSB or any amendment to this Form 10-KSB. [ ]
The issuer's revenues for the fiscal year ended December 31, 1999 were
$2,457,607.
The aggregate market value of the issuer's common stock held by
non-affiliates of the Company as of March 17, 2000, was $1,007,558.
As of March 17, 2000, the issuer had 779,823 shares of common stock issued
and outstanding.
Transitional Small Business Disclosure Format: Yes [ ] No [x]
Documents incorporated by reference: None.
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Cautionary Statement Pursuant to Safe Harbor Provisions of the Private
Securities Litigation Reform Act of 1995:
This Annual Report on Form 10-KSB for the fiscal year ended December 31,
1999 contains "forward-looking" statements within the meaning of the Federal
securities laws. These forward-looking statements include, among others,
statements concerning the Company's expectations regarding its working capital
requirements, its business, growth prospects, competition and results of
operations, and other statements of expectations, beliefs, future plans and
strategies, anticipated events or trends, and similar expressions concerning
matters that are not historical facts. The forward-looking statements in the
Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999 are
subject to risks and uncertainties that could cause actual results to differ
materially from those results expressed in or implied by the statements
contained herein.
PART I.
ITEM 1. DESCRIPTION OF BUSINESS
Overview:
Cinema Ride, Inc. (the "Company") was incorporated in Delaware in April
1993. Unless the context otherwise requires, references to the Company in this
report refer to Cinema Ride, Inc. and its subsidiaries. The Company is in the
business of developing and operating rides consisting of motion simulator
attractions that combine projected three-dimensional action films of
approximately four minutes in duration with computer-controlled,
hydraulically-mobilized seating platforms that are programmed to move in concert
with the on-screen action. Each attraction is designed to provide the viewer
with a realistic feeling of being a participant in the action on the screen. To
date, the Company has completed construction and installation of five
facilities. The first facility (the "Las Vegas Facility") commenced operations
in October 1994 and is located in the Forum Shops at Caesar's Palace Hotel and
Casino (the "Forum Shops"), a high traffic tourist mall located between Caesar's
Palace Hotel and Casino and the Mirage Hotel in Las Vegas, Nevada. The second
facility (the "West Edmonton Mall Facility") commenced operations in August 1995
and is located in the West Edmonton Mall, Alberta, Canada. The third facility
(the "Times Square Facility") commenced operations in September 1996 and was
located in Times Square in New York City, New York. The Times Square Facility
was closed during January 1998. The fourth facility (the "Atlanta Facility")
commenced operations in September 1998 as a joint venture with Dave & Buster's,
Inc. and is located in Atlanta, Georgia. The fifth facility (the "New Jersey
Facility") commenced operations in January 2000 and is located in the Jersey
Gardens Mall in Elizabeth, New Jersey, near Newark Airport. The Company's
executive offices are located in Studio City, California.
Equipment and Technology:
Each of the Company's rides is comprised of two basic elements, a motion
simulator, which consists of an enclosed seating platform and related equipment
and computer programming, and the 3-D films viewed by audiences in the
simulator.
Simulators:
The Company utilizes a simulator that is both space and cost efficient. Each
simulator includes an enclosed capsule with 15 seats in which audiences are
seated during a given ride. Inside the capsule, each seat faces a screen at the
front of the capsule onto which the ride film is projected. Company attractions
consists of one or more capsules, the number of which varies depending on the
size and desired seating capacity of a particular location. The Las Vegas
Facility consists of four capsules, the New Jersey consists of two capsules, and
the West Edmonton Mall Facility and the Atlanta Facility each consist of one
capsule.
Capsules are mounted on top of a motion base consisting of six independent
hydraulic cylinders that control the movement of the attached
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capsule. The motion bases allow an audience to experience a full six
degrees of motion (pitch, roll, heave, yaw, surge and sway). Through the use of
the motion base, capsules have a maximum range of motion of approximately six
feet. The motion bases used by the Company were constructed by a manufacturer
of military and commercial flight simulators which is now out of business.
This has not been a problem for the Company, since replacement parts are
available from other sources and the motion bases are being manufactured
by another company.
Each simulator combines the motion base and capsule with two video
projectors and audio systems which provide a visual and audio presentation
without the degeneration of picture and sound that is common to film formats
under heavy usage. In addition, the use of laser disk players enables the
Company to avoid delays associated with rewinding traditional film and enables
the Company to change entire presentations with the push of a single button.
The projection equipment used by the Company is capable of projecting both 3-D
and standard ride films.
All of the mechanical equipment comprising the simulator is coordinated by
a computer system. A time code is added to each laser disk in order to enable
the film data to correspond with the movement of the motion bases. As the
projectors receive the film and sound data from the laser disks, the simulator's
computer receives the time code, which enables the computer to synchronize the
filmed action with the movement of the motion bases and the operation of the
wind machines.
The equipment utilized by the Company contains relatively standard
hydraulic components that are readily available through various vendors and
suppliers. Should the need arise, the Company believes that other vendors are
available that could manufacture and maintain its equipment. In addition,
because each simulator is completely independent of the other simulators in a
given location, the Company is able to perform routine maintenance and make any
necessary repairs to simulator equipment without hindering the operation of the
entire attraction at a facility that has more than one capsule.
3-D Films:
Each of the Company's attractions utilizes 3-D technology in the exhibition
of ride films. This 3-D technology creates the illusion of three-dimensional
images. The technology involves the filming and simultaneous projection of
images that are slightly offset from each other which, when viewed with special
polarized glasses, create an illusion of depth and off-screen effects which are
not possible with traditional 2-D filmed entertainment. On January 12, 1999,
the Company was granted Patent No. 5,857,917 by the United States Patent and
Trademark Office for 3-D video projected motion simulator rides.
As of December 31, 1999, the Company had completed production of six ride
films for exhibition in its attractions. The Company produces ride films by
contracting with independent film production companies.
The typical ride film lasts approximately four minutes. Each capsule is
able to feature approximately nine to twelve attractions per hour. The Company
does not anticipate that any of its attractions will operate at or near maximum
capacity.
Facility Operations:
The Company currently generates virtually all of its income from the sale
of ride tickets. Customers purchase ride tickets at a ticket booth. Prior to
the showing, ticket holders are led through an entry area where their tickets
are taken and they are handed 3-D glasses and led into a pre-show area. While
the previous audience is inside the capsule viewing the ride film, ticket
holders in the pre-show area watch a short film on a video monitor outlining
safety instructions and other information regarding the ride.
Once the previous showing has been completed, ticket holders are led into
the capsule. Each seat in the capsule has a safety belt that audience members
are required to wear for the duration of the ride film. The audience and the
area surrounding the capsule are monitored via video cameras by the ride
operator during each showing for the safety of audience members. Upon
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completion of the ride film, audiences exit back into the lobby area where the
3-D glasses are deposited into a return basket for cleaning.
The hours of operation for all of the Company's facilities are generally
from 11:00 a.m. to 11:30 p.m. The average price per show is generally less than
$5.00 due to the Company's practice of selling multiple features per ticket and
the use of coupons and other promotional discounts.
Joint Venture:
On May 29, 1998, the Company entered into a three-year joint venture
agreement with Dave & Buster's, Inc. to install its 3-D motion simulation
theater at Dave & Buster's, Inc. facility in Atlanta, Georgia. Dave & Buster's,
Inc. was responsible for providing the space in its Atlanta, Georgia facility
and preparing the premises for installation. The Company was responsible for
the transportation and installation of its equipment. The theater installation
was completed and became operational on September 14, 1998. The joint venture
agreement can be terminated by either party prior to the end of the three-year
period if, among other things, certain revenue and cash flow goals are not
achieved.
Sale of Systems to Third Party Operators:
The Company may pursue customers for the sale or joint venture of its
simulator systems. The Company also may lease its film library to buyers of its
simulator systems, as well as others, for an annual fee based on a percentage of
gross revenues generated by the sold capsules with a minimum rental fee due
annually. There can be no assurance that the Company will be successful in its
efforts to sell its capsules to third party operators.
Competition:
The Company faces intense competition in the development and marketing of
attractions. Such competition extends to gaining access to desirable locations
for attractions, as well as to selling or leasing simulators and ride films.
Iwerks Entertainment, Inc. and Showscan Corporation, as well as other companies,
develop and market simulators that compete with the simulators and related
filmed entertainment developed and marketed by the Company. Many of these
corporations have greater financial and marketing resources than the Company and
have established reputations for success in the development and marketing of
products that are competitive with those of the Company. In addition, there are
no significant barriers to entry that would prevent additional competitors from
competing with the Company in the development and operation of attractions on a
site-by-site basis.
The Company also competes with existing motion simulators on a site-by-site
basis. The Company is aware of several competing motion simulator attractions
currently existing in the vicinity of its facilities, including a motion
simulator attraction developed by Caesar's Palace Hotel and Casino with IMAX
Corporation which was opened during December 1997 in the new expansion of the
Forum Shops. In addition, the Excalibur Hotel in Las Vegas has a simulator ride
facility that has been operational for many years. The Hilton Hotel Casino and
the Luxor Hotel and Casino in Las Vegas offer motion simulator attractions.
Other hotels or theme parks in Las Vegas may also acquire or develop motion
simulator attractions, including such major new hotels such as the Mandalay Bay
and the Venetian. The Company also competes for customers to some extent with
theme parks, traditional motion pictures and other forms of filmed or computer
entertainment. Similarly, the West Edmonton Mall Facility competes with
existing motion simulators within the West Edmonton Mall. The New Jersey
Facility has no motion simulator competition within the immediate vicinity. The
Company's attractions compete with other attractions and entertainment
alternatives in a given region on the basis of location, price and content of
its ride films.
The Company believes that the real estate experience of its management
assists it in effectively competing in locating and acquiring favorable
locations for its attractions. In addition, the Company believes that the
compact size and realistic motion capabilities of its simulators, as well as the
unique and entertaining thematic elements and effects of its ride films, enable
it to effectively compete for customers with regard to the marketing of its
attractions.
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Seasonality:
Because of the seasonal nature of tourist traffic, attendance patterns at
attractions may vary. The degree of this seasonality varies among attractions
depending on the nature of tourist and local traffic patterns at a given
location as well as the nature of entertainment alternatives available to
audiences. Attendance at the Company's facilities is highest during June
through August (the height of the tourist season) and lowest during January and
February. The West Edmonton Mall Facility is more effected by seasonality as
compared to the Las Vegas Facility due to the extreme weather conditions during
the winter months in Alberta, Canada. The revenues generated during peak
tourist periods have a significant impact on the Company's results of
operations.
Trademarks, Copyrights and Patents:
On January 12, 1999, the Company was granted Patent No. 5,857,917 by the
United States Patent and Trademark Office for 3-D video projected motion
simulator rides. However, there can be no assurance that the Company will be
able to utilize this patent to prevent competitors from developing similar
simulator systems.
During 1996, the Company obtained a trademark for "Cinema Ride" and a
trademark for "Ride Guy". In addition, the Company holds copyright protection
for each of the ride films owned by the Company. While the Company believes
that patent, copyright and other protection is desirable, the Company believes
that they are less significant to the Company's success than factors such as the
location and marketing of attractions and the production or acquisition of
entertaining ride films.
Insurance:
The Company maintains insurance coverage that it believes provides adequate
coverage for all of its current operations. The Company also maintains
$1,000,000 "key-man" life insurance on the life of Mitchell J. Francis, its
President and Chief Executive Officer, as to which the Company is the sole
beneficiary.
Governmental Regulations:
The Company is subject to certain governmental regulations that establish
standards for the design, construction, installation, alteration, maintenance,
operation and inspection of amusement rides such as the Company's attractions.
The Company is in compliance with such standards and has obtained all necessary
permits and approvals.
Employees:
As of March 17, 2000, the Company had three full-time employees at its
corporate offices (including its officers), 18 employees at its Las Vegas
Facility, five employees at its West Edmonton Mall Facility, and seven employees
at its New Jersey Facility. Employees at the ride locations consist of both
full-time and part-time employees. Should the Company add new facilities, the
Company expects to hire additional employees to manage and operate the new
facilities. The Company's employees are not represented by any unions. The
Company believes that its relations with its employees are satisfactory.
ITEM 2. DESCRIPTION OF PROPERTY
Las Vegas Facility:
In October 1993, the Company entered into a lease agreement for a site in
the Forum Shops adjacent to Caesar's Palace Hotel and Casino that houses the
Company's Las Vegas Facility. The Las Vegas Facility lease has a term of 10
years through July 2004, with an option to extend the term of the lease for one
additional five-year period.
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The lease for the Las Vegas Facility granted the Company the exclusive
right to operate a motion simulator attraction within the Forum Shops mall.
However, pursuant to a December 1995 amendment to the lease between the Company
and the lessor of the Forum Shops, the Company agreed to waive, on a one-time
only basis, its exclusive right within the Forum Shops mall to permit a themed
simulator attraction to be located in the mall in exchange for several
concessions from the landlord. An IMAX Simulator Theater was opened in the
Forum Shops mall during December 1997.
West Edmonton Mall Facility:
During July 1995, the Company, through its wholly-owned Alberta, Canada
subsidiary, Cinema Ride Edmonton, Inc., entered into a lease agreement to
install and operate one capsule in the West Edmonton Mall, Alberta, Canada. The
lease agreement has a term of five years through June 2000, with an option to
extend the term of the lease for one additional five-year period.
The West Edmonton Mall consists of 5,200,000 square feet of rentable space,
combining recreation, entertainment and retail shops. The mall also includes a
360 room hotel, a gambling casino, several restaurants, an ice skating ring, a
dolphin show, a water park, 20 aquariums, a miniature golf course, a roller
coaster, and two motion simulators. The Company's facility is located within
the food court of the mall, thus capitalizing on the traffic that the food court
generates, especially in the high tourist season.
The West Edmonton Mall completed an expansion project in 1999 that included
an entertainment center and an IMAX Theater. Management is unable to estimate
the effect, if any, that such additional entertainment facilities will have on
its West Edmonton Mall Facility's operations.
New Jersey Facility:
During October 1999, the Company, through its wholly-owned New York
subsidiary, Cinema Ride Times Square, Inc., entered into a lease agreement to
install and operate two capsules in the Jersey Gardens Mall, Elizabeth, New
Jersey. The New Jersey Facility lease has a term of five years through January
2005, with an option to extend the term of the lease for one additional
five-year period. The Company opened this facility in January 2000. The Jersey
Gardens Mall consists of 1,500,000 square feet of rentable space, combining
factory outlet shops and entertainment, and is located near Newark Airport.
Corporate Offices:
The Company leases office space in Studio City, California as its corporate
headquarters. The lease is for a period of five years expiring June 2000, with
an option to extend the term of the lease for one additional three-year period.
The monthly rent is currently $5,639.
ITEM 3. LEGAL PROCEEDINGS
From time to time, the Company is involved in litigation arising in the
ordinary course of business. In the opinion of management, the ultimate
disposition of these matters will not have a material adverse effect on the
Company's consolidated financial position, results of operations or cash flows.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the Company's security holders
during the fourth quarter of the fiscal year ended December 31, 1999.
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PART II.
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Since March 12, 1998, the common stock of the Company has been traded on
the OTC Bulletin Board under the symbol "MOVE". From September 1994 through
March 11, 1998, the Company's common stock was traded on the Nasdaq SmallCap
Market. The Company's common stock was delisted from the Nasdaq SmallCap Market
on March 11, 1998 for failure to maintain compliance with the minimum bid price
and market value of public float requirements. The following table sets forth
the range of reported closing bid prices of the Company's common stock during
the periods indicated. Such quotations reflect prices between dealers in
securities and do not include any retail mark-up, mark-down or commission, and
may not necessarily represent actual transactions. The information set forth
below reflects the one-for-eight reverse stock split effective May 29, 1998.
The information set forth below was obtained from America Online, Inc.
<TABLE>
<CAPTION>
High Low
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<S> <C> <C>
Fiscal Year Ended December 31, 1998:
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Three months ended -
March 31, 1998. . . . . . . . . . . . . . $ 1.20 $ 0.50
June 30, 1998 . . . . . . . . . . . . . . 1.00 0.50
September 30, 1998. . . . . . . . . . . . 0.69 0.19
December 31, 1998 . . . . . . . . . . . . 0.14 0.13
Fiscal Year Ended December 31, 1999:
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Three months ended -
March 31, 1999 . . . . . . . . . . . 0.25 0.06
June 30, 1999. . . . . . . . . . . . 0.38 0.12
September 30, 1999 . . . . . . . . . 0.13 0.13
December 31, 1999. . . . . . . . . . 0.44 0.13
</TABLE>
As of March 17, 2000, the Company had 204 common shareholders of record,
excluding shares held in street name by brokerage firms and other nominees who
hold shares for multiple investors. The Company estimates that it had
approximately 1,100 beneficial common shareholders as of March 17, 2000
Holders of common stock are entitled to receive dividends if, as and when
declared by the Board of Directors out of funds legally available therefor,
subject to the dividend and liquidation rights of any preferred stock that may
be issued and outstanding. The Company has not paid cash dividends on its
common stock and has no present intention of paying cash dividends in the
foreseeable future. It is the present policy of the Board of Directors to
retain all earnings to provide for the future growth and development of the
Company's business operations.
During January 1998, the Company issued 6,474 shares of common stock to its
then Chief Financial Officer with an aggregate fair value of $3,107.
During the year ended December 31, 1998, the Company issued stock options
to its directors to purchase an aggregate of 2,500 shares of common stock with
an exercise price of $0.39 per share.
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During the year ended December 31, 1998, the Company issued stock options
to various employees to purchase an aggregate of 3,000 shares of common stock
with an exercise price of $0.40 per share.
During the year ended December 31, 1998, the Company issued stock options
to its Chief Executive Officer to purchase 25,000 shares of common stock with an
exercise price of $0.25 per share.
During the year ended December 31, 1999, the Company issued 6,473 shares of
common stock to its then Chief Financial Officer with an aggregate fair value of
$809.
During the year ended December 31, 1999, the Company issued warrants to its
Chief Executive Officer to purchase 1,538,461 shares of common stock with an
exercise price of $0.13 per share.
During the year ended December 31, 1999, the Company issued stock options
to its directors to purchase an aggregate of 2,500 shares of common stock with
an exercise price of $0.38 per share.
The shares of common stock, stock options and warrants were issued based on
an exemption from registration pursuant to Section 4(2) of the Securities Act of
1933, as amended, based on the representations of the recipients.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
Overview:
The Company was formed in April 1993, and operations of the Company
commenced in October 1994 when the Las Vegas Facility was opened. The Company
opened its other locations, the West Edmonton Mall Facility, the Times Square
Facility, the Atlanta Facility, and the New Jersey Facility, in August 1995,
September 1996, September 1998, and January 2000, respectively. The Company
closed the Times Square Facility in January 1998.
Going Concern:
The accompanying consolidated financial statements have been prepared
assuming that the Company will continue as a going concern, which contemplates
the realization of assets and the satisfaction of liabilities in the normal
course of business. The carrying amounts of assets and liabilities presented in
the accompanying consolidated financial statements do not purport to represent
the realizable or settlement values. The Company has suffered recurring
operating losses and had a working capital deficit at December 31, 1999 that has
impaired its ability to obtain additional outside financing. As a result of
these factors, the Company's independent certified public accountants have
expressed substantial doubt about the Company's ability to continue as a going
concern. The Company intends to manage its short-term liquidity concerns
through a modified financing arrangement with its Lender and borrowings under
its line of credit provided by its Chief Executive Officer, as described below.
The Company believes that its previous efforts to operate more efficiently will
result in reduced expenses and improved operating cash flows in the future.
Management believes that these previous efforts, combined with the modified
financing arrangement with the Lender and the line of credit provided by the
Chief Executive Officer, will be adequate to fund operations as well as the
costs associated with the New Jersey Facility. However, there can be no
assurances that the Company will be able to realize any benefit from improved
operating efficiencies that will result in increased operating cash flows.
The Company is also continuing its efforts to secure working capital for
operations, expansion and possible acquisitions, mergers or joint ventures. The
Company is also considering a wide range of other business opportunities, some
of which are unrelated to the Company's current business activities and could
result in a change in control of the Company. There can be no assurances that
the Company will be able to secure the working capital necessary to fund any
future business endeavor on a timely basis and/or under acceptable terms and
conditions.
Results of Operations:
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Years Ended December 31, 1999 and 1998 -
Revenues increased by $79,933 or 3.4% to $2,457,607 in 1999 from $2,377,674
in 1998. Included in 1998 revenues is approximately $70,000 of revenues from
the Times Square Facility prior to its closure in January 1998. However, as a
result of new marketing programs implemented during 1999, the Las Vegas Facility
generated a sufficient increase in revenues in 1999 to more than offset the loss
of revenues from the closure of the Times Square Facility.
Equity in net income of joint venture was $48,403 in 1999, as compared to
$5,578 in 1998. The joint venture with Dave & Buster's, Inc. commenced
operations in September 1998 (see "ITEM 1. DESCRIPTION OF BUSINESS - Joint
Venture").
Selling, general and administrative expenses were essentially unchanged in
1999 as compared to 1998. Selling, general and administrative expenses were
$2,309,862 in 1999 as compared to $2,308,453 in 1998. Included in selling,
general and administrative expenses in 1999 were $38,311 of start-up costs
related to the New Jersey Facility.
Depreciation and amortization decreased by 17.2% or $104,427, to $502,529
in 1999 from $606,956 in 1998, primarily as a result of depreciation and
amortization related to the Times Square Facility, which was closed in January
1998.
Interest expense decreased by $27,111 or 11.9%, to $200,893 in 1999 from
$228,004 in 1998, primarily as a result of a reduction in the outstanding
principal balance on the note payable to lender and a reduction in the
outstanding balance of capital lease obligations.
As consideration for providing a line of credit to the Company, the Company
granted the Chief Executive Officer warrants to purchase 1,538,461 shares of
common stock at an exercise price of $0.13 per share, the fair market value on
the date of the agreement, expiring on February 2, 2002. The Company calculated
the fair value of the warrants issued to the Chief Executive Officer on the date
of grant using the Black-Scholes option pricing model, and charged the fair
value of $64,620 to operations as a loan commitment fee during the year ended
December 31, 1999.
During 1998, the Company recorded a reserve for impairment of theater and
film equipment available for use and disposal of $1,399,797, to provide a
reserve for excess equipment that the Company determined will not be used in its
operations in the foreseeable future.
The Company recorded an extraordinary item relating to a settlement with
vendors of $56,413 during the year ended December 31, 1998.
The Company recorded a net loss of $559,941 in 1999, as compared to a loss
of $2,062,953 in 1998.
As of December 31, 1999, the Company had Federal and California net
operating loss carryforwards of approximately $6,833,987 and $3,219,370,
respectively, available to offset future Federal and California taxable income.
The unused net operating loss carryforwards expire in various amounts through
2019 for Federal and through 2004 for California state purposes.
Net deferred tax assets of approximately $2,600,000 at December 31, 1999
resulting from net operating losses, tax credits and other temporary differences
have been offset by a 100% valuation allowance since management cannot determine
whether it is more likely than not that such assets will be realized.
Liquidity and Capital Resources:
The Company utilized cash of $17,260 in operating activities during the
year ended December 31, 1999, as compared to utilizing cash of $369,569 during
the year ended December 31, 1998, excluding the collection of the $500,000
receivable from the Times Square landlord during the year ended December 31,
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1998. The reduction in cash utilized in operating activities in 1999 as
compared to 1998 of $352,309 was primarily a result of improved operating
results and a reduction in cash utilized for accounts payable and accrued
expenses. At December 31, 1999, the Company's cash and cash equivalents had
increased by $79,848, to $320,189, as compared to $240,341 at December 31, 1998.
As a result, the Company had a working capital deficit of ($47,006) at December
31, 1999, as compared to a working capital deficit of ($72,319) at December 31,
1998, resulting in current ratios of 0.88:1 and 0.81:1 at December 31, 1999 and
1998, respectively.
Net cash provided by investing activities was $73,162 in 1999, as compared
to net cash used in investing activities of $154,358 in 1998. Dividends from
the joint venture were $110,697 in 1999, as compared to $8,041 in 1998. The
Company received $85,000 as proceeds from the repayment of a loan to its Chief
Executive Officer in 1999, as compared to providing a loan of $35,000 to its
Chief Executive Officer in 1998. The Company expended $122,535 in 1999 for the
purchase of fixed assets, primarily with respect to the New Jersey Facility, as
compared to $18,662 in 1998 for the purchase of fixed assets and capitalized
film production costs.
In conjunction with the joint venture with Dave & Buster's, Inc., during
the year ended December 31, 1998, the Company incurred $95,924 in transportation
and installation costs and $367,683 in equipment costs.
Net cash provided by financing activities was $23,946 in 1999, as compared
to net cash used in financing activities of $441,362 in 1998. Principal
payments on notes payable were $73,722 in 1999, as compared to $334,241 in 1998.
Principal payments on capital lease obligations were $22,332 in 1999, as
compared to $107,121 in 1998. During November 1999, the Company borrowed
$120,000 from its Chief Executive Officer under the line of credit arranged in
February 1999. The Company also financed the acquisition of fixed assets
aggregating $65,384 for the New Jersey Facility through capital lease
obligations in 1999.
During 1997, 1998 and 1999, the Company relied on the proceeds from loans
and capital leases to provide the resources necessary to develop its facilities
and ride films and to operate its business. The Company funded the acquisition
of fixed assets in conjunction with the development of its New Jersey Facility
through the $120,000 line of credit provided by the Chief Executive Officer. As
of December 31, 1999, the Company did not have any capital expenditure
commitments. However, the Company incurred approximately $85,000 of start-up
costs in January 2000 in conjunction with the New Jersey Facility.
The Company generates the majority of its revenues from the Las Vegas
Facility. In connection with the December 1995 amendment to the Las Vegas
Facility lease, the Company waived, on a one-time only basis, its exclusivity
right within the Forum Shops at Caesar's Palace Hotel and Casino to allow an
IMAX Simulator Theater to be installed within the Forum Shops. However, the
Company obtained the right to terminate its lease if the Company's sales for any
full lease year after the opening of the IMAX Simulator Theater do not equal or
exceed $2,000,000, and in return the landlord obtained the right to terminate
the lease if sales for any full lease year do not equal or exceed $1,500,000.
The IMAX Simulator Theater opened during December 1997. Management does not
believe that the Company has experienced any significant decrease in revenues at
its Las Vegas Facility subsequent to that date as a result of the opening of the
IMAX Simulator Theater. However, there can be no assurances that revenues in
subsequent years at the Las Vegas Facility will not decrease below $1,500,000
annually and that the landlord will not terminate the lease.
On December 31, 1996, the Company completed a financing agreement with
Finova Technology Finance, Inc. (the "Lender") which was structured as a sale
leaseback transaction of certain equipment owned by the Company. Based on the
substance of this transaction, this financing agreement was accounted for as a
note payable for financial reporting purposes. The gross loan amount was
$1,575,027, repayable over a four-year period at $40,903 per month with a
balloon payment of $157,503. On March 10, 1999, the financing agreement was
amended to reduce the monthly payments from $40,903 to $21,789, and to extend
the maturity date from January 1, 2001 to January 1, 2004, with no change in the
balloon payment of $157,503. The loan bears interest at an annual rate of
-10-
<PAGE>
15.7%. The financing agreement requires the Company to repurchase the equipment
at the end of the lease for $1.00. The balance of the loan was $830,149 and
$894,235 at December 31, 1999 and 1998, respectively.
On February 2, 1999, the Company entered into a loan agreement with the
Company's Chief Executive Officer. The loan agreement amended outstanding notes
receivable, including accrued interest, of approximately $90,000 from such
officer so as to grant the Company the right to demand repayment within 90 days
of a written request. In addition, the loan agreement included a line of credit
of $120,000 from the Chief Executive Officer that expires on February 2, 2002,
with interest at 12% per annum, which is secured by a lien on the Company's
assets. As consideration for providing the line of credit, the Company granted
the Chief Executive Officer warrants to purchase 1,538,461 shares of common
stock at an exercise price of $0.13 per share, the fair market value on the date
of the agreement, expiring on February 2, 2002. Pursuant to this amended loan
agreement, during November 1999, the Chief Executive Officer repaid $85,000 of
his notes receivable, consisting of principal of $75,000 and accrued interest of
$10,000, and the Company borrowed $120,000 from him under the line of credit.
Company Outlook:
Identification and Development of New Sites for Attractions:
Subject to the availability of operating capital, the Company intends to
seek additional locations for attractions. The Company intends to target sites
for its attractions which are in large metropolitan areas or which are at
tourist destinations that attract more than three million persons per year. The
Company's objective is to lease high-profile, high-traffic space at a reasonable
cost in areas with a large number of permanent residents and which do not have
extreme seasonal attendance patterns, and which are at or near other
complementary tourist attractions.
The Company believes that each new attraction will take approximately four
to six months from lease execution to commencement of operations. Total cost of
developing new attractions, including construction, fixtures, equipment and
start-up costs after completion are estimated to be at least $400,000 per site.
These costs will vary depending on the leased space, the scope of any tenant
improvements required to be performed by the Company in connection with leasing
a given location and the number of theaters installed, as well as the size and
location of the planned attraction. In addition to the cost of the equipment
necessary to establish a new attraction location, the Company estimates that it
will add approximately ten employees per each additional location that it owns
and operates. There can be no assurances that the Company will be able to
locate acceptable new sites in which to establish new attractions, or that the
Company will be able to fund the development of any new sites that it may
select.
The Company currently owns two remaining capsules that it intends to use
exclusively for spare parts. Accordingly, the Company expects that any new ride
sites would therefore be based on newly-developed ride technology.
Joint Venture Efforts:
In order to reduce the out-of-pocket costs in the development of
attractions, the Company will also continue to pursue joint venture arrangements
with property owners and businesses that want to operate their own attractions.
The Company and its joint venture partner would split the profits, if any, from
the attraction based on negotiated terms. Joint ventures with third parties
would provide the Company with an additional source of revenues and profits with
less risk and capital investment than is associated with owning and operating
systems.
Year 2000 Issue:
The Year 2000 Issue results from the fact that certain computer programs
have been written using two digits rather than four digits to define the
applicable year. Computer programs that have sensitive software may recognize a
date using "00" as the year 1900 rather than the year 2000. This could result
in a system failure or miscalculations causing disruptions of
-11-
<PAGE>
operations, including, among other things, a temporary inability to process
transactions, sell tickets or engage in similar normal business activities.
As of December 31, 1999, the Company had completed any required
modifications to its software to ensure that its software systems were Year 2000
compliant. The cost of such modifications was not material.
Since the date rollover on January 1, 2000, the Company has not experienced
any material adverse effect from the Year 2000 Issue. While the primary risk to
the Company with respect to the Year 2000 Issue continues to be the ability of
third parties to provide goods and services in a timely and accurate manner, the
Company has not experienced any such disruption to date.
The Company does not expect any remaining risks with respect to the Year 2000
Issue to have a material adverse effect on the Company.
ITEM 7. FINANCIAL STATEMENTS
The consolidated financial statements are listed at the "Index to
Consolidated Financial Statements" elsewhere in this document.
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
-12-
<PAGE>
PART III.
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS;
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
The following table and text set forth the names and ages of all directors
and executive officers of the Company as of March 17, 2000. The Board of
Directors is comprised of only one class. All of the directors will serve until
the next annual meeting of stockholders and until their successors are elected
and qualified, or until their earlier death, retirement, resignation or removal.
There are no family relationships among directors and executive officers. Also
provided is a brief description of the business experience of each director and
executive officer during the past five years and an indication of directorships
held by each director in other companies subject to the reporting requirements
under the Federal securities laws.
Name Age Position(s)
- ---- --- -----------
Mitchell J. Francis 44 Chairman of the Board of Directors, President,
Chief Executive Officer and Chief Financial
Officer
Benjamin Frankel 64 Director
Norman Feirstein 51 Director
Biographies of Directors and Executive Officers:
Mitchell J. Francis. Mr. Francis has been the Chairman of the Board of
Directors since June 1993, has been Chief Executive Officer and President since
the Company's inception in April 1993, and has been Chief Financial Officer
since March 1, 1999. Prior to founding the Company, Mr. Francis was involved in
site acquisition, analysis, architectural design, construction, management and
marketing of numerous residential and commercial projects and has been the
general partner of numerous real estate limited partnerships. Mr. Francis is
also the President and principal shareholder of Francis Development Inc., a real
estate development company that he founded in 1981.
Benjamin Frankel. Mr. Frankel has been a director of the Company since March
17, 1995. Mr. Frankel is a certified public accountant and has been a partner
in the accountancy firm of Frankel, Lodgen, Lacher, Golditch & Sardi and its
predecessors since 1965.
Norman Feirstein. Mr. Feirstein has been a director of the Company since March
17, 1995. Mr. Feirstein practiced law as a sole practitioner from 1978 until
July 1993. Since such time, Mr. Feirstein has practiced law as the Law Offices
of Norman Feirstein, P.C.
Compliance with Section 16(a) of the Securities Exchange Act of 1934, as
Amended:
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires
the Company's directors and executive officers and persons who own more than 10%
of a registered class of the Company's equity securities to file various reports
with the Securities and Exchange Commission concerning their holdings of, and
transactions in, securities of the Company. Copies of these filings must be
furnished to the Company.
Based on a review of the copies of such forms furnished to the Company and
written representations from the Company's directors and executive officers, the
Company believes that all individual filing requirements applicable to the
Company's directors and executive officers were complied with under Section
16(a) during 1999, except that Form 4's were not timely filed by Mr. Frankel and
Mr. Feirstein with respect to the issuance of director's stock options issued to
them in May 1999.
-13-
<PAGE>
ITEM 10. EXECUTIVE COMPENSATION
The following table and text sets forth information with respect to the
compensation paid to the Chief Executive Officer and the other executive officer
of the Company whose total compensation exceeded $100,000 during the fiscal
years ended December 31, 1997, 1998 and 1999.
<TABLE>
<CAPTION>
Summary Compensation Table
Name and
Principal Other Annual All Other
Position(s) Year Salary Compensation Compensation
- ----------- ------- -------- ------------ ------------
<S> <C> <C> <C> <C>
Mitchell J. Francis 1999 $216,216 $28,665 (2) $64,620(8)
Chairman of the 1998 200,200 24,384 (3)
Board of Directors, 1997 177,330 22,934 (4)
President and Chief
Executive Officer
Toufic R. Bassil (1) 1999 23,328 809 (5) 69,984 (1)
Chief Financial 1998 129,600 3,107 (6)
Officer, Secretary 1997 125,000 19,000 (7)
and Treasurer
- ----------------------
<FN>
(1) Mr. Bassil's employment as an officer of the Company terminated
effective March 1, 1999, and in conjunction therewith, Mr. Bassil received
a termination payment of $69,984.
(2) Includes $4,575 in disability insurance premiums, $12,569 in automobile
expense, $5,731 in life insurance premiums and $5,790 in medical insurance
premiums paid to or on behalf of Mr. Francis in 1999.
(3) Includes $2,810 in disability insurance premiums, $11,001 in automobile
expense, $5,422 in life insurance premiums and $5,151 in medical insurance
premiums paid to or on behalf of Mr. Francis in 1998.
(4) Includes $4,688 in disability insurance premiums, $11,073 in automobile
expense, $2,409 in life insurance premiums and $4,764 in medical insurance
premiums paid to or on behalf of Mr. Francis in 1997.
(5) Represents the value of 6,473 shares of common stock issued to Mr. Basil
during 1999.
(6) Represents the value of 6,474 shares of common stock issued to Mr. Basil
during 1998.
(7) Represents the value of 6,250 shares of common stock issued to Mr.
Basil during 1997.
(8) Represents the value of warrants to purchase 1,538,461 shares of common
stock at an exercise price of $0.13 per share, the fair market value on the
date of issuance, expiring on February 2, 2002. The warrants were
issued as consideration for the Chief Executive Officer providing a
$120,000 line of credit to the Company (see "ITEM 6. MANAGEMENT'S
DISCUSSION AND ANALYSIS OR PLAN
OF OPERATION - Liquidity and Capital Resources" and "ITEM 12. CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS").
</TABLE>
Board of Directors:
During the year ended December 31, 1999, the Company had two meetings of
the Board of Directors. Each director attended all of the meetings of the Board
of Directors and all of the meetings of the committees on which he served. For
serving on the Board of Directors, directors who are not employees of the
Company receive $2,000 for each meeting of the Board of Directors, and
reimbursement for any expenses incurred in attending board meetings. Directors
who are employees of the Company receive no additional compensation for serving
on the Board of Directors. The non-employee directors are eligible to
participate in the 1995 Directors Stock Option Plan.
The Company does not have a nominating committee of the Board of
Directors, or any committee performing similar functions. The nominees for
election as a director are selected by the Board of Directors.
-14-
<PAGE>
The compensation committee of the Board of Directors consists of the three
directors of the Company, one of whom is an employee of the Company. The
compensation committee reviews the performance of the executive officers of the
Company and reviews the compensation programs for key employees, including
salary and bonus levels.
The audit committee of the Board of Directors consists of Benjamin Frankel
and Norman Feirstein, neither of whom is an employee of the Company. The audit
committee reviews, acts on and reports to the Board of Directors with respect to
various auditing and accounting matters, including the selection of the
Company's independent public accountants, the scope of the annual audits, the
nature of non-audit services, and the fees to be paid to the independent public
accountants, the performance of the Company's independent public accountants,
and the accounting practices of the Company.
The stock option committee of the Board of Directors consists of Benjamin
Frankel and Norman Feirstein, neither of whom is an employee of the Company.
The stock option committee is responsible for the operation and administration
of the Company's stock option plans, including the grants thereunder.
Employment Agreements:
Effective September 1, 1997, the Company entered into a three-year
employment agreement with Mitchell J. Francis to serve as Chairman, President
and Chief Executive Officer. The agreement provided for a base annual salary of
$195,000, annual increases of 8%, annual bonuses based on 6% of the Company's
annual earnings before interest, taxes, depreciation and amortization in excess
of $500,000. The agreement also provided for the issuance of 37,500 stock
options, with a current exercise price of $0.43 per share, through September 1,
2002, and vesting in equal annual increments over the three years subsequent to
their issuance. The agreement provided for the granting of additional
performance stock options based on various occurrences such as opening of new
locations, obtaining additional funds, and attaining and maintaining certain
market prices for the Company's common stock. During September 1998, in
conjunction with the opening of the Company's new facility in Atlanta, Georgia,
the Company granted Mr. Francis a bonus in the form of a stock option to
purchase 25,000 shares of common stock exercisable at the fair market value of
$0.25 per share for a period of five years. During January 2000, in conjunction
with the opening of the Company's new facility in Elizabeth, New Jersey, the
Company granted Mr. Francis a bonus in the form of a stock option to purchase
25,000 shares of common stock exercisable at the fair market value of $0.25 per
share for a period of five years.
Effective May 13, 1998, the Company entered into a severance agreement
with Mitchell J. Francis that provided for certain compensation to such
executive officer in the event of a change in control of the Company. The term
of the severance agreement is through June 30, 1999, at which time it is
automatically extended for one year periods commencing on July 1, 1999 and on
each subsequent July 1, unless the Company gives notice not later than December
31 of the preceding year that it does not wish to extend the severance
agreement. A change in control of the Company is defined as (a) the acquisition
by any person or entity of 20% or more of the Company's voting equity
securities, (b) a change in control of the Board of Directors, or (c) a merger
or consolidation of the Company with any other entity, unless the shareholders
of the Company prior to the merger or consolidation continue to represent at
least 80% of the combined voting power of the merged entity. In the event of a
change in control, among other compensation and benefits, the severance
agreement entitles Mr. Francis to receive a severance payment of five times his
current annual salary upon his termination without cause.
Stock Option Plans:
In June 1994, the Company adopted the Cinema Ride, Inc. Stock Option Plan
(the "Option Plan"), under which stock options to purchase a maximum of 112,500
shares of common stock of the Company may be issued pursuant to incentive and
non-qualified stock options granted to officers, employees, directors and
consultants of the Company. The Option Plan is administered by the Board of
Directors or, in the discretion of the Board of Directors, by a committee of not
less than two individuals with authority to determine employees to whom options
will be granted, the timing and manner of grants of options, the exercise
prices, the number of shares covered by the options, the
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<PAGE>
terms of the options, and all other determinations necessary or advisable for
administration of the Option Plan.
The purchase price for the shares subject to any incentive stock option
granted under the Option Plan shall not be less than 100% of the fair market
value of the shares of common stock of the Company on the date of the option is
granted (110% for stockholders who own in excess of 10% of the outstanding
common stock). No options shall be exercisable after the earliest of the
following: the expiration of 10 years after the date the option is granted;
three months after the date the optionee's employment with the Company
terminates if termination is for any reason other than permanent disability or
death; or one year after the date the optionee's employment terminates if
termination is a result of death or permanent disability. Unless sooner
terminated by the Board of Directors, the Option Plan expires on December 31,
2003.
In December 1995, the Company adopted the 1995 Directors Stock Option Plan
(the "Directors Plan"), under which stock options to purchase a maximum of
12,500 shares of common stock of the Company may be issued to non-employee
directors of the Company. The Directors Plan provides that on the fourth
business day following each annual meeting of stockholders, each director who is
not an employee of the Company automatically receives a non-statutory option to
purchase 1,250 shares at the fair market value on the date of grant. The Company
granted Mr. Frankel and Mr. Feirstein 1,250 options each under the Directors
Plan during 1998 and 1999.
All stock options shown below reflect the one-for-eight reverse stock
split effective May 29, 1998. On June 18, 1998, the Board of Directors
cancelled all issued and outstanding stock options at that time and reissued
them based on the then current fair market value of $0.39 per share, except for
the Chief Executive Officer's stock options, which were repriced at 110% of the
then current fair market value, or $0.43 per share.
During the year ended December 31, 1999, no officers of the Company were
granted stock options under the Option Plan.
A summary of stock options issued to the Company's officer under the
Option Plan as of December 31, 1999 is presented below. No stock options were
exercised during 1998 or 1999.
<TABLE>
<CAPTION>
Stock Option Value Table
Number of Value of
Shares of Unexercised
Common Stock in-the-Money
Underlying Stock Options at
Stock Options Weighted Fiscal Year-End (1)
------------------ Exercise -------------------
Name Unvested Vested Price Unvested Vested
- ---- -------- ------ ----- -------- ------
<S> <C> <C> <C> <C> <C>
Mitchell J. Francis 9,167 86,021 $0.43 $ - $ -
===== ====== ====== ======
- -------------------
<FN>
(1) The dollar values are calculated by determining the difference between the
weighted average exercise price of the stock options and the market price
for the common stock of $0.38 per share at December 31, 1999.
</TABLE>
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
As used in this section, the term beneficial ownership with respect to a
security is defined by Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, as consisting of sole or shared voting power (including the power to
vote or direct the vote) and/or sole or shared investment power (including the
power to dispose of or direct the disposition of) with respect to the security
through any contract, arrangement, understanding, relationship or otherwise,
subject to community property laws where applicable.
-16-
<PAGE>
As of March 17, 2000, the Company had a total of 779,823 shares of common stock
issued and outstanding, which is the only issued and outstanding voting equity
security of the Company. All common share amounts reflect the one-for-eight
reverse stock split effective May 29, 1998.
The following table sets forth, as of March 17, 2000: (a) the names and
addresses of each beneficial owner of more than five percent (5%) of the
Company's common stock known to the Company, the number of shares of common
stock beneficially owned by each such person, and the percent of the Company's
common stock so owned; and (b) the names and addresses of each director and
executive officer, the number of shares of common stock beneficially owned, and
the percentage of the Company's common stock so owned, by each such person, and
by all directors and executive officers of the Company as a group. Each person
has sole voting and investment power with respect to the shares of common stock,
except as otherwise indicated. Beneficial ownership consists of a direct
interest in the shares of common stock, except as otherwise indicated.
<TABLE>
<CAPTION>
Percent of
Name and Address Amount and Nature of Shares of Common
of Beneficial Owner Beneficial Ownership Stock Outstanding (2)
- ------------------- -------------------- -----------------
<S> <C> <C>
Mitchell J. Francis (1) 1,826,767 (3) 73.0%
Benjamin Frankel (1) 8,750 (4) 1.1%
Norman Feirstein (1) 6,250 (5) .8%
All directors and
executive officers
as a group (3 persons) 1,841,767 (6) 73.3%
- ----------------------
<FN>
(1) The address of each such person is c/o the Company, 12001 Ventura Place,
Suite 340, Studio City, California 91604.
(2) The calculation is based on the number of shares of common stock
outstanding on March 17, 2000, plus, with respect to each named person,
the number of shares of common stock which the stockholder has the right
to acquire upon exercise of stock options.
(3) Includes 1,721,149 shares of common stock issuable upon exercise of stock
options and warrants granted to Mitchell J. Francis (see "ITEM 10.)
EXECUTIVE COMPENSATION - Employment Agreements" and "- Stock Option
Plans" and "ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS").
Excludes 4,688 shares of common stock owned by Sandra Francis, the wife
of Mitchell J. Francis, and 3,125 shares of common stock issuable upon
exercise of options granted to Mrs. Francis, as to which Mr. Francis
disclaims beneficial ownership.
(4) Includes 6,250 shares of common stock issuable upon exercise of stock
options granted to Mr. Frankel. Also includes 2,500 shares of common
stock that were issued to the accountancy firm of Frankel, Lodgen,
Lacher, Golditch & Sardi in exchange for services rendered in 1994. Mr.
Frankel is a partner in such firm, but disclaims beneficial ownership of
such shares.
(5) Includes 6,250 shares of common stock issuable upon exercise of stock
options granted to Mr. Feirstein.
(6) Includes 1,733,649 shares of common stock issuable upon exercise of stock
options.
</TABLE>
Changes in Control:
The Company is unaware of any contract or other arrangement, the operation
of which may at a subsequent date result in a change in control of the Company.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During the year ended December 31, 1995, the Company made a $50,000 loan
to the Company's Chief Executive Officer, Mitchell J. Francis, with interest
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<PAGE>
at 8% per annum. The maturity date of the loan was originally June 30, 1998,
but was extended during 1998 to June 30, 2001. The note is secured by the
greater of 5,000 shares of common stock or the number of shares equivalent to
the unpaid value of the note. On January 29, 1998, the Company made an
additional $35,000 loan to the Chief Executive Officer, with interest at 8.5%
per annum. This loan was due on the earlier of June 30, 2001 or six months
after the Chief Executive Officer ceases to be an employee of the Company, and
was secured by shares of common stock equivalent to the unpaid value of the
note. The Chief Executive Officer made principal repayments of $5,000 each
during 1996 and 1997. As of December 31, 1998, the amount due from the Chief
Executive Officer in connection with these loans aggregated $89,631, consisting
of principal of $75,000 and accrued interest of $14,631. During November 1999,
the Chief Executive Officer repaid $85,000 of the loan balance, consisting of
principal of $75,000 and accrued interest of $10,000. As of December 31, 1999,
the remaining accrued interest due from the Chief Executive Officer was $8,069.
During the years ended December 31, 1998 and 1999, the Company issued
6,474 shares and 6,473 shares of common stock, respectively, to Toufic R.
Bassil, its then Chief Financial Officer, and recorded the fair market value of
the shares of $3,107 and $809, respectively, as compensation expense.
On February 2, 1999, the Company entered into a loan agreement with its
Chief Executive Officer, Mitchell J. Francis. The loan agreement amended
outstanding notes receivable, including accrued interest, of approximately
$90,000 from such officer so as to grant the Company the right to demand
repayment within 90 days of a written request. In addition, the loan agreement
included a line of credit of $120,000 from the Chief Executive Officer that
expires on February 2, 2002, with interest at 12% per annum, which is secured by
a lien on the Company's assets. As consideration for providing the line of
credit, the Company has granted the Chief Executive Officer warrants to purchase
1,538,461 shares of common stock at an exercise price of $0.13 per share, the
fair market value on the date of the agreement, expiring on February 2, 2002.
Pursuant to this amended loan agreement, during November 1999, the Chief
Executive Officer repaid $85,000 of his notes receivable, consisting of
principal of $75,000 and accrued interest of $10,000, and the Company borrowed
$120,000 from him under the line of credit.
-18-
<PAGE>
PART IV.
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
A list of exhibits required to be filed as part of this report is set forth in
the Index to Exhibits, which immediately precedes such exhibits, and is
incorporated herein by reference.
(b) Reports on Form 8-K:
The Company did not file any Current Reports on Form 8-K during or
related to the three months ended December 31, 1999.
-19-
<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned thereunto duly
authorized.
CINEMA RIDE, INC.
-----------------
(Registrant)
/s/ MITCHELL J. FRANCIS
Date: March 27, 2000 By: ___________________________
Mitchell J. Francis
Chief Executive Officer
In accordance with the Exchange Act, this report has been signed by the
following persons on behalf of the registrant and in the capacities and on the
dates indicated.
/s/ MITCHELL J. FRANCIS
Date: March 27, 2000 By: ___________________________
Mitchell J. Francis
Chief Executive Officer,
President, Chief Financial
Officer and Chairman of the
Board of Directors
/s/ BENJAMIN FRANKEL
Date: March 27, 2000 By: ___________________________
Benjamin Frankel
Director
/s/ NORMAN FEIRSTEIN
Date: March 27, 2000 By: ___________________________
Norman Feirstein
Director
-20-
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1999 AND 1998
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
CONTENTS
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS F-2
CONSOLIDATED FINANCIAL STATEMENTS
Balance sheets F-3
Statements of operations F-5
Statements of stockholders' equity F-6
Statements of cash flows F-7
SUMMARY OF ACCOUNTING POLICIES F-9
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS F-12
F-1
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors and Stockholders
Cinema Ride, Inc.
Studio City, California
We have audited the accompanying consolidated balance sheets of Cinema Ride,
Inc. and Subsidiaries as of December 31, 1999 and 1998 and the related
consolidated statements of operations, stockholders' equity and cash flows for
the years then ended. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in these financial statements. An audit also
includes assessing the accounting principles used and significant estimates made
by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Cinema Ride, Inc.
and Subsidiaries as of December 31, 1999 and 1998, and the results of their
operations and cash flows for the years then ended, in conformity with generally
accepted accounting principles.
The accompanying consolidated financial statements have been prepared assuming
the Company will continue as a going concern. As discussed in Note 1 to the
consolidated financial statements, the Company has suffered recurring operating
losses that raises substantial doubt about its ability to continue as a going
concern. Management's plans in regard to these matters are also described in
Note 1. The consolidated financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
/s/ BDO SEIDMAN, LLP
Los Angeles, California
March 6, 2000
F-2
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31,
------------------------
1999 1998
----------- -----------
<S> <C> <C>
ASSETS (Note 9)
CURRENT ASSETS
Cash and cash equivalents . . . . . . . . . . . . $ 320,189 $ 240,341
Inventories . . . . . . . . . . . . . . . . . . . - 8,666
Prepaid expenses. . . . . . . . . . . . . . . . . 25,804 62,139
Other receivables . . . . . . . . . . . . . . . . - 438
----------- -----------
Total current assets . . . . . . . . . . . . . . . 345,993 311,584
----------- -----------
PROPERTY AND EQUIPMENT (Notes 6 and 8)
Office equipment and furniture. . . . . . . . . . 105,249 105,477
Equipment under capital lease . . . . . . . . . . 204,858 139,474
Lease improvements. . . . . . . . . . . . . . . . 1,051,723 946,515
Theater and film equipment. . . . . . . . . . . . 1,673,132 1,653,798
----------- -----------
3,034,962 2,845,264
Accumulated depreciation. . . . . . . . . . . . . (1,688,658) (1,390,528)
----------- -----------
1,346,304 1,454,736
----------- -----------
FILM LIBRARY, net of accumulated amortization of
869,930 and $676,293 at December 31, 1999
and 1998, respectively . . . . . . . . . . . . . 222,840 416,477
INVESTMENT IN JOINT VENTURE (Note 3) . . . . . . . 411,663 473,957
RECEIVABLES FROM OFFICERS (Note 2) . . . . . . . . 8,069 89,631
CONSULTING AGREEMENT (Note 2). . . . . . . . . . . 28,611 39,016
DEFERRED LEASE COSTS AND OTHER ASSETS. . . . . . . 123,967 156,679
----------- -----------
Total assets . . . . . . . . . . . . . . . . . . . $ 2,487,447 $ 2,942,080
=========== ===========
</TABLE>
See accompanying summary of accounting policies and notes to consolidated
financial statements.
F-3
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31,
----------------
1999 1998
------------ ------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable and accrued expenses . . . . . . . . . . . . $ 219,125 $ 243,480
Current portion of capital lease obligations (Note 6) . . . . 40,381 18,985
Current portion of note payable to lender (Note 8). . . . . . . . .133,077 111,386
Current portion of note payable to bank (Note 7). . . . . . . 416 10,052
----------- -----------
Total current liabilities. . . . . . . . . . . . . . . . . . . 392,999 383,903
----------- -----------
OBLIGATIONS UNDER CAPITAL LEASE, less current
portion (Note 6). . . . . . . . . . . . . . . . . . . . . . . 84,660 63,004
NOTE PAYABLE TO LENDER, less current portion (Note 8). . . . . 697,072 782,849
DEFERRED RENT (Note 12). . . . . . . . . . . . . . . . . . . . 84,061 109,157
LOAN PAYABLE TO OFFICER (Note 9) . . . . . . . . . . . . . . . 120,000 -
----------- -----------
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . 1,378,792 1,338,913
----------- -----------
COMMITMENTS (Note 12)
STOCKHOLDERS' EQUITY (Notes 10 and 11)
Preferred stock, $.01 par value, 500,000 shares . . . . . . . . - -
authorized, none issued
Common stock, $.08 par value, 20,000,000 shares authorized,
731,823 shares issued. . . . 58,546 58,546
Additional paid-in capital. . . . . . . . . . . . . . . . . . 9,212,209 9,175,780
Treasury stock, at cost, 0 and 6,474 shares at December 31,
1999 and 1998, respectively. - (29,000)
Accumulated deficit . . . . . . . . . . . . . . . . . . . . . (8,162,100) (7,602,159)
----------- -----------
Total stockholders' equity . . . . . . . . . . . . . . . . . . 1,108,655 1,603,167
----------- -----------
Total liabilities and stockholders' equity . . . . . . . . . $ 2,487,447 $ 2,942,080
=========== ===========
</TABLE>
See accompanying summary of accounting policies and notes to consolidated
financial statements.
F-4
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Years ended December 31,
------------------------
1999 1998
---------- -----------
<S> <C> <C>
REVENUES . . . . . . . . . . . . . . . . . . . . . . . . . $2,457,607 $ 2,377,674
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES . . . . . . . 2,309,862 2,308,453
IMPAIRMENT LOSS (Note 4) . . . . . . . . . . . . . . . . . - 1,399,797
DEPRECIATION AND AMORTIZATION. . . . . . . . . . . . . . . 502,529 606,956
---------- -----------
LOSS FROM OPERATIONS . . . . . . . . . . . . . . . . . . . (354,784) (1,937,532)
OTHER INCOME (EXPENSE)
Equity in net income of joint venture (Note 3). . . . . . 48,403 5,578
Interest income . . . . . . . . . . . . . . . . . . . . . 11,953 25,724
Miscellaneous income. . . . . . . . . . . . . . . . . . . - 12,950
Interest expense, exclusive of non cash interest expense
shown below . . . . . . . . . . . . . . . . . . . . . . (200,893) (228,004)
Fair value of warrants issued to officer as commitment
fee for line of credit. . . . . . . . . . . . . . . . . (64,620) -
---------- -----------
Operating loss before extraordinary item. . . . . . . . . (559,941) (2,121,284)
Extraordinary item - settlement with vendors . . . . . . . - 58,331
---------- -----------
NET LOSS . . . . . . . . . . . . . . . . . . . . . . . . . $ (559,941) $(2,062,953)
========== ===========
BASIC AND DILUTED LOSS PER COMMON SHARE:
Operating loss before extraordinary item. . . . . . . . . $ (0.77) $ (2.90)
Extraordinary item. . . . . . . . . . . . . . . . . . . . - 0.08
---------- -----------
NET LOSS . . . . . . . . . . . . . . . . . . . . . . . . . $ (0.77) $ (2.82)
========== ===========
BASIC AND DILUTED WEIGHTED AVERAGE COMMON SHARES
OUTSTANDING. . . . . . . . . . . . . . . . . . . . . . . 731,823 731,273
========== ===========
</TABLE>
See accompanying summary of accounting policies and notes to consolidated
financial statements.
F-5
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1999 AND 1998
<TABLE>
<CAPTION>
Common Stock Additional Total
(Notes 10 and 11) Paid-In Treasury Accumulated Stockholders'
Shares Amount Capital Stock Deficit Equity
<S> <C> <C> <C> <C> <C> <C>
BALANCE, January 1, 1998. . . . . . 725,349 $58,028 $9,173,191 $(29,000) $ (5,539,206) $ 3,663,013
------- ------- ----------- --------- ------------- ------------
Issuance of common stock to officer 6,474 518 2,589 - - 3,107
Net loss. . . . . . . . . . . . . . - - - - (2,062,953) (2,062,953)
------- ------- ----------- --------- ------------- ------------
BALANCE, December 31, 1998. . . . . 731,823 58,546 9,175,780 (29,000) (7,602,159) 1,603,167
Issuance of treasury
stock to officer, at
market value . . . . . . . . . . . - - (28,191) 29,000 - 809
Issuance of warrants to officer . . - - 64,620 - - 64,620
Net loss. . . . . . . . . . . . . . - - - - (559,941) (559,941)
------- ------- ----------- --------- -------------- ------------
BALANCE, December 31, 1999. . . . . 731,823 $58,546 $9,212,209 $ - $ (8,162,100) $ 1,108,655
======= ======= =========== ========= =============== ============
</TABLE>
See accompanying summary of accounting policies and notes to consolidated
financial statements.
F-6
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS Years ended December 31,
1999 1998
---------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . $(559,941) $ (2,062,953)
Adjustments to reconcile net loss to cash provided by (used in)
operating activities:
Depreciation and amortization . . . . . . . . . . . . . . . . 502,529 606,956
Stock issued for services rendered. . . . . . . . . . . . . . 809 3,107
Equity in net income of joint venture . . . . . . . . . . . . (48,403) (5,578)
Amortization of consulting agreement. . . . . . . . . . . . . 10,405 10,404
Amortization of deferred financing costs. . . . . . . . . . . 12,418 42,088
Settlement with vendors . . . . . . . . . . . . . . . . . . . - (58,331)
Warrants issued to officer. . . . . . . . . . . . . . . . . . 64,620 -
Interest income on loan to shareholder. . . . . . . . . . . . (3,438) -
Loss on exchange and other. . . . . . . . . . . . . . . . . . - 3,141
Impairment loss . . . . . . . . . . . . . . . . . . . . . . . - 1,399,797
Changes in operating assets and liabilities:
Inventories . . . . . . . . . . . . . . . . . . . . . . . . 8,666 12,948
Prepaid expenses and other current assets . . . . . . . . . 36,773 (1,538)
Other receivables . . . . . . . . . . . . . . . . . . . . . - (6,255)
Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . 9,532 -
Receivable from Times Square landlord . . . . . . . . . . . - 500,000
Accounts payable and accrued expenses . . . . . . . . . . . (26,134) (284,895)
Deferred rent . . . . . . . . . . . . . . . . . . . . . . . (25,096) (28,460)
---------- -----------
Net cash provided by (used in) operating activities. . . . . . . (17,260) 130,431
---------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of film production costs. . . . . . . . . . . . . . - (16,019)
Investment in joint venture . . . . . . . . . . . . . . . . . . - (108,737)
Dividends from joint venture. . . . . . . . . . . . . . . . . . 110,697 8,041
Loan made to officer. . . . . . . . . . . . . . . . . . . . . . - (35,000)
Payment received on loan receivable from officer. . . . . . . . 85,000 -
Purchase of fixed assets. . . . . . . . . . . . . . . . . . . . (122,535) (2,643)
---------- -----------
Net cash provided by (used in) investing activities. . . . . . . 73,162 (154,358)
---------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from loan payable to officer . . . . . . . . . . . . . 120,000 -
Payments made on notes payable. . . . . . . . . . . . . . . . . (73,722) (334,241)
Principal payments under capital lease obligation . . . . . . . (22,332) (107,121)
---------- -----------
Net cash provided by (used in) financing activities. . . . . . . 23,946 (441,362)
---------- -----------
</TABLE>
F-7
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Years ended December 31,
------------------------
1999 1998
-------- --------
<S> <C> <C>
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS . . . . . . 79,848 (465,289)
CASH AND CASH EQUIVALENTS, beginning of year . . . . . . . . . . 240,341 705,630
-------- ---------
CASH AND CASH EQUIVALENTS, end of year . . . . . . . . . . . . . $320,189 $ 240,341
======== =========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash paid for interest. . . . . . . . . . . . . . . . . . . . . $200,885 $ 198,276
======== =========
Non-cash financing and investing activities:
Issuance of common stock and warrants to employees and directors $ 64,620 $ 3,107
Purchase of fixed assets by leasing . . . . . . . . . . . . . 65,384 -
</TABLE>
During 1998, the Company transferred $367,683 of equipment into the joint
venture as part of its contributed capital.
See accompanying summary of accounting policies and notes to consolidated
financial statements.
F-8
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
SUMMARY OF ACCOUNTING POLICIES
BUSINESS ACTIVITY
Cinema Ride, Inc. (the "Parent") and Subsidiaries (the "Company") were
incorporated in Delaware in April 1993. The Company is in the business of
developing and operating rides consisting of motion simulator attractions
("attractions" or "rides") and filmed entertainment ("ride films") that combines
projected three-dimensional ("3-D") action films, of approximately four minutes
in duration, with computer-controlled, hydraulically-mobilized capsules that are
programmed to move in concert with the on-screen action. The Company opened its
first attraction in Las Vegas in October, 1994. The Company's executive offices
are located in Studio City, California.
During 1995, the Company established a wholly owned subsidiary, Cinema Ride
Edmonton, Inc., a Canadian corporation that operates one motion simulator ride
Facility located at the West Edmonton Mall in Alberta, Canada. During the years
ended December 31, 1999 and 1998, revenues and long-lived assets for Cinema Ride
Edmonton, Inc. were $236,308 and $222,961 and $302,712 and $219,633,
respectively.
The Company opened a new facility in Elizabeth, New Jersey under the Cinema Ride
Times Square, Inc. subsidiary on January 20, 2000. Long-lived assets for the
New Jersey location were $166,538 at December 31, 1999.
All significant intercompany transactions and balances have been eliminated in
consolidation.
CONCENTRATION OF CREDIT RISK
The Company maintains cash balances at various financial institutions. Deposits
not to exceed $100,000 for each institution are insured by the Federal Deposit
Insurance Corporation. At December 31, 1999 and 1998, the Company had uninsured
cash and cash equivalents in the amount of $207,719 and $58,412.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Depreciation is provided at the time
property and equipment is placed in service using the straight-line method over
the estimated useful lives of the assets which range from five to ten years.
FILM PRODUCTION COSTS
Film production costs are stated at the lower of amortized cost or market. Upon
completion, film production costs are amortized on an individual production
basis in the proportion that current gross revenues bear to management's
estimate of total gross revenues with such estimates being reviewed at least
quarterly. A minimum amount of costs are amortized each year.
DEFERRED LEASE COSTS
Deferred lease costs represent amounts paid in connection with the successful
negotiation of the Company's leases. Costs are amortized on a straight-line
basis over the term of the lease.
F-9
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
SUMMARY OF ACCOUNTING POLICIES
INCOME TAXES
The Company provides for income taxes in accordance with Statement of Financial
Accounting Standards No. 109, Accounting for Income Taxes. Deferred income
taxes are provided on the difference in earnings determined for tax and
financial reporting purposes and result primarily from differences in methods
used to amortize production costs.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts of financial instruments including cash and cash
equivalents and accounts payable approximate fair value because of their short
maturity.
The carrying amount of long-term debt and capital lease obligations approximate
fair value because the interest rates on these instruments approximate the rate
the Company could borrow at December 31, 1999.
The fair value of receivables from officers cannot be determined due to their
related party nature.
FOREIGN CURRENCY TRANSLATION
Foreign currency denominated assets and liabilities of the subsidiary where the
United States dollar is the functional currency and which have certain
transactions denominated in a local currency are remeasured as if the functional
currency was the U.S. dollar. The remeasurement of local currency into U.S.
dollars creates translation adjustments which are included in income. The
translation exchange losses in 1999 and 1998 were $1,746 and $7,843.
STOCK-BASED COMPENSATION
Statements of Financial Accounting Standards No. 123, "Accounting for
Stock-Based Compensation" (SFAS No. 123) establishes a fair value method of
accounting for stock-based compensation plans and for transactions in which an
entity acquires goods or services from nonemployees in exchange for equity
instruments. SFAS 123 also encourages, but does not require companies to record
compensation cost for stock-based employee compensation. The Company has chosen
to continue to account for stock-based compensation utilizing the intrinsic
value method prescribed in Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees" with pro forma disclosures of net
income as if the fair value method had been applied. Accordingly, compensation
cost for stock options is measured as the excess, if any, of the fair market
price of the Company's stock at the date of grant over the amount an employee
must pay to acquire the stock.
LOSS PER SHARE
The Company adopted Statement of Financial Accounting Standard No. 128,
"Earnings Per Share" (SFAS 128). SFAS 128 provides for the calculation of Basic
and Diluted earnings per share. Basic earnings per share includes no dilution
and is computed by dividing income available to common shareholders by the
weighted average number of common shares outstanding for the period. Diluted
earnings per share reflects the potential dilution of securities that could
share in the earnings of the entity. Since the Company incurred losses in 1999
and 1998, basic and diluted per share amounts are the same.
F-10
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
SUMMARY OF ACCOUNTING POLICIES
LOSS PER SHARE (CONTINUED)
For the year ended December 31, 1999, potential common stock representing
197,118 outstanding stock options and 1,899,535 outstanding warrants are not
included since their effect would be anti-dilutive. For the year ended December
31, 1998, potential common stock representing 194,188 outstanding stock options
and 372,074 outstanding warrants are not included since their effect would be
anti-dilutive.
STATEMENT OF CASH FLOWS
For purposes of the statement of cash flows, the Company considers all highly
liquid debt instruments with an original maturity of three months or less to be
cash equivalents.
SEASONALITY OF BUSINESS
Because of the seasonal nature of tourist traffic, attendance patterns at
attractions may vary. The nature and degree of this seasonality varies among
attractions depending on the nature of tourist and local traffic patterns at a
given location, as well as, the nature of entertainment alternatives available
to audiences. The Company expects that attendance at its facilities will be the
highest in June through August (the height of the tourist season) and lowest
during January and February. The West Edmonton Mall Facility is more affected
by seasonality as compared to the Las Vegas Facility due to the extreme weather
conditions during the winter months in Alberta, Canada. As a result, the
Company's results of operations at its facilities will depend upon sales
generated from the peak tourist periods and any significant decrease in sales
for such periods could have a material adverse effect upon the Company's
operations.
ACCOUNTING ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities, disclosure of contingent
assets and liabilities at the date of the financial statements and the reported
amounts of revenues and expenses during the reporting period. Actual results
could differ from those estimates.
IMPAIRMENT OF LONG-LIVED ASSETS
Statement of Financial Accounting Standards No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed of"
establishes guidelines regarding when impairment losses on long-lived assets,
which include plant and equipment, and certain identifiable intangible assets,
should be recognized and how impairment losses should be measured. The Company
periodically reviews such assets for possible impairment and expected losses, if
any, are recorded currently.
F-11
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - BASIS OF PRESENTATION
The accompanying consolidated financial statements have been prepared assuming
that the Company will continue as a going concern which contemplates the
realization of assets and the satisfaction of liabilities in the normal course
of business. The carrying amounts of assets and liabilities presented in the
financial statements do not purport to represent realizable or settlement
values. However, the Company has suffered recurring operating losses and, at
December 31, 1999, has a working capital deficit that impairs its ability to
obtain additional financing. These factors raise substantial doubt about the
Company's ability to continue as a going concern.
The Company has managed short-term liquidity concerns through the renegotiation
of the terms of the Note Payable to Lender and a line of credit provided by its
Chief Executive Officer. See Notes 9 and 10. The Company believes that its
past efforts to improve and utilize its operating efficiencies will reduce its
expenses and result in higher cash flows from operations. The Company believes
that the additional financing and the modified financing arrangement will
provide funding and improve working capital necessary to open new locations or
to enter into additional joint venture agreements which management believes will
significantly improve the Company's operating results. There can be no
assurance, however, that the Company will be able to open new locations, enter
into additional joint venture agreements and realize any benefit from improved
operating efficiencies that will result in higher cash flows provided by
operations.
In addition, the Company is continuing its efforts to secure working capital for
operations, expansion and possible acquisitions, mergers, joint ventures, and/or
other business combinations. However, there can be no assurance that the
Company will be able to secure additional capital, or that if such capital is
available, whether the terms or conditions would be acceptable to the Company.
NOTE 2 - RECEIVABLES FROM OFFICERS AND CONSULTING AGREEMENT
The Company is amortizing the balance of a consulting agreement with a former
officer over the period of the consulting contract. The balance of the
remaining unamortized consulting agreement at December 31, 1999 and 1998 are
$28,611 and $39,016.
The Company made a loan to its Chief Executive Officer in the amount of $50,000.
The loan bears interest at 8% per year and the maturity date was extended from
June 30, 1998 to June 30, 2001. On January 29, 1998, the Company made an
additional loan to its Chief Executive Officer in the amount of $35,000. The
loan bears interest at a rate of 8.5% per year and is due on the earlier of June
30, 2001 or six months after the officer ceases to be an employee of the
Company. As of December 31, 1998, the receivable balance due from this officer
was $89,631 and included accrued interest of $14,631. The principal of $75,000
and accrued interest of $10,000 was repaid during 1999. The remaining balance
of $8,069 at December 31, 1999 consists entirely of accrued interest.
F-12
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 3 - INVESTMENT IN JOINT VENTURE
On May 29, 1998, the Company entered into a three-year joint venture agreement
with Dave & Buster's, Inc., to install the Company's 3-D motion simulation
theater at Dave & Buster's, Inc. Atlanta facility. The Company was responsible
for the transportation and installation of the theater. The Company incurred
$95,924 in transportation and installation costs relating to this facility in
addition to $367,683 in equipment costs. Dave and Buster's, Inc., was
responsible for providing the space in its Atlanta facility and preparing the
premises for installation. The venture agreement can be terminated earlier by
either party if, among other things, certain sales and cash flow goals are not
met. The installation was completed and operational on September 14, 1998. The
Company accounts for its investment in the joint venture under the equity method
of accounting whereby the Company recognizes its 50% share of the joint
venture's net income or losses and, accordingly, the carrying value of
investment in joint venture in the accompanying consolidated balance sheets is
adjusted. The Company received dividends from the joint venture of $110,697 and
$8,041 in 1999 and 1998.
Summarized financial information for the joint venture is as follows:
<TABLE>
<CAPTION>
Period From
Year Ended May 29, 1998 to
December 31, December 31,
1999 1998
------------- -------------
<S> <C> <C>
Sales. . . . . . . $ 218,024 $ 81,313
Net income . . . . 171,664 67,791
December 31, . December 31,
1999 1998
------------- -------------
Non current assets $ 450,085 $ 403,725
</TABLE>
NOTE 4 - IMPAIRMENT LOSS
As of December 31, 1998, the Company established a reserve due to the
uncertainty in recovering the cost of the theater and film equipment held
available for use and disposal since these assets were not placed in service
during the year or sold. The reserve recorded was $1,399,797 as of December 31,
1998.
NOTE 5 - INCOME TAXES
The income tax effect of temporary differences between financial and tax
reporting gives rise to the deferred income tax assets as follows:
<TABLE>
<CAPTION>
December 31,
--------------------
1999 1998
------------ -----------
<S> <C> <C>
Net operating loss carryforward $ 2,581,105 $ 2,354,906
Less valuation allowance. . . . (2,581,105) (2,354,906)
------------ -----------
Net deferred tax asset. . . . . $ - $ -
============ =============
</TABLE>
F-13
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 5 - INCOME TAXES (CONTINUED)
The Company has provided a 100% valuation allowance as it cannot determine that
it is more likely than not that it will realize the deferred tax assets. As of
December 31, 1999, for federal income tax purposes, the Company has
approximately $6,833,987 in net operating loss carryforwards expiring through
2019. As of December 31, 1999, for State tax purposes, the Company has
approximately $3,219,370 in net operating loss carryforwards expiring through
2004.
NOTE 6 - OBLIGATIONS UNDER CAPITAL LEASES
Minimum future lease payments under capital lease obligations for equipment are
as follows:
<TABLE>
<CAPTION>
December 31, Amount
- --------------------------------------- ---------
<S> <C>
2000 . . . . . . . . . . . . . . . . . $ 56,098
2001 . . . . . . . . . . . . . . . . . 56,098
2002 . . . . . . . . . . . . . . . . . 35,091
2003 . . . . . . . . . . . . . . . . . 1,863
Thereafter . . . . . . . . . . . . . . 1,861
---------
151,011
Amount representing interest. . . . . . (25,970)
---------
Present value of minimum lease payments $125,041
=========
</TABLE>
At December 31, 1999, equipment included assets under capitalized lease
obligations of $204,858 less accumulated amortization of $111,579.
NOTE 7 - NOTE PAYABLE TO BANK
On March 6, 1996, Cinema Ride Edmonton, Inc. obtained a $40,328 loan ($55,000
Canadian dollars) from a Canadian bank at Canadian prime plus two percent (total
interest is 8.5% at December 31, 1999). The loan has a term of four years
requiring monthly payments of approximately $1,027 ($1,400 Canadian dollars) and
is guaranteed by the Parent. The lender has first security interest in the
equipment and improvements located at the West Edmonton Facility. The loan also
restricts transfer of funds to the Parent other than amounts in excess of cash
flow. The loan may be prepaid at any time without any penalties. As of
December 31, 1999 and 1998, $416 and $10,052, remained unpaid on this loan.
NOTE 8 - NOTE PAYABLE TO LENDER
On December 31, 1996, the Company closed a financing agreement (the "Financing
Agreement") with Finova Technology Finance, Inc. (The "Lender") structured as a
sale leaseback transaction of certain equipment owned by the Company. Based on
the substance of this transaction, the Financing Agreement was accounted for as
a note payable for financial reporting purposes. The gross loan amount was for
$1,575,027 and the original terms specified a four-year term at $40,903 per
month with a balloon payment of $157,503. On March 10, 1999, the financing
agreement was amended to reduce the monthly payments from $40,903 to $21,789 and
to extend the maturity date from January 1, 2000 to January 1, 2004, with no
change in the balloon payment of $157,503. The loan bears interest at an annual
rate of 15.7%. The financing agreement requires the Company to repurchase the
equipment at the end of the lease for $1. The balance of the loan at December
31, 1999 and 1998 was $830,149 and $894,235, respectively.
F-14
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 8 - NOTE PAYABLE TO LENDER (CONTINUED)
Minimum future payments under note payable to Lender is as follows:
<TABLE>
<CAPTION>
December 31, Amount
- ------------- --------
<S> <C>
2000. . . . . $133,077
2001. . . . . 157,150
2002. . . . . 185,382
2003. . . . . 354,540
---------
830,149
=========
</TABLE>
NOTE 9 - LOAN PAYABLE TO OFFICER
On February 2, 1999, the Company entered into a loan agreement with its Chief
Executive Officer. The loan agreement amends the existing notes payable to the
officer so as to allow the Company the right to demand repayment within 90 days
of a written request. Also, the loan agreement includes a line of credit in the
amount of $120,000 that matures on October 31, 2002 and bears interest at 12%
per annum. The line of credit provides a security interest in the Company's
assets. As consideration for executing this agreement, the Company has granted
the Chief Executive Officer 1,538,461 stock warrants. Each stock warrant allows
the holder the right to purchase one share of common stock at an exercise price
of $.13 per share, representing the per share market price on the date thereof,
and expires on February 2, 2002.
NOTE 10 - CAPITAL STOCK TRANSACTIONS
On January 21, 1998, the Company issued 6,474 shares of common stock to its
former Chief Financial Officer with an aggregate fair value of $3,107. The
Company recorded the then fair market value of the shares as additional
compensation to the employee.
On May 29, 1998, the Board of Directors approved a 1 for 8 reverse stock split
of outstanding common stock which increased the par value from $.01 to $.08.
Share amounts presented in the consolidated financial statements and footnotes
have been restated for prior periods to reflect the adjusted share amounts
outstanding for each period presented.
On February 2, 1999, the Company issued 6,473 shares of treasury stock to its
former Chief Financial Officer with an aggregate fair value of $809. The
Company recorded the then fair market value of the shares as additional
compensation to the employee, with the difference between the fair market value
of the shares and the amount recorded as treasury stock being recorded to
additional paid-in capital.
NOTE 11 - STOCK-BASED COMPENSATION PLANS
At December 31, 1999, the Company had various stock-based compensation plans,
which are described below.
F-15
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 11 - STOCK-BASED COMPENSATION PLANS (CONTINUED)
EMPLOYEE STOCK OPTION PLAN
The Company adopted a Stock Option Plan (the "Plan") for officers, employees,
directors and consultants of the Company or its subsidiaries. The Plan
authorizes the granting of incentive stock options and non-qualified stock
options to purchase an aggregate of not more than 112,500 shares of the
Company's common stock. The Plan provides that options granted will generally
be exercisable at any time during a ten-year period (five years for a
stockholder owning in excess of 10% of the Company's common stock). The
exercise price for non-qualified stock options shall not be less than the par
value of the Company's common stock. The exercise price for incentive stock
options shall not be less than 100% of the fair market of the Company's common
stock on the date of grant (110% of the fair market value of the Company's
common stock on the date of grant for a stockholder owning in excess of 10% of
the Company's common stock).
1995 DIRECTORS' STOCK OPTION PLAN
The Company adopted a Directors Stock Option Plan (the "Directors' Plan") for
non-employee directors of the Company. The Directors Plan authorizes the
granting of non-qualified stock options to purchase an aggregate of not more
than 12,500 shares of the Company's common stock. The Directors' Plan provides
that options granted will be exercisable during a ten year period and will vest
on a cumulative basis as to one third of the total number of shares covered
thereby at any time after one year from the date the option is granted and an
additional one-third of such total number of shares at any time after the end of
each consecutive one year period thereafter until the option has become
exercisable as to all of such total number of shares. The exercise price for
non-qualified stock options shall be the fair value of the Company's common
stock at the date of the grant.
OPTION ACTIVITY
During September 1998, the Company granted the Chief Executive Officer options
to purchase 25,000 shares of common stock exercisable at $0.25 per share for a
period of five years as part of an employee agreement.
On June 18, 1998, the Company's Board of Directors approved repricing the
exercise price of options already issued under both the Company's Stock Option
Plan, Directors' Plan and other options to the then current market value.
F-16
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 11 - STOCK-BASED COMPENSATION PLANS (CONTINUED)
Options activity during the years ended December 31, 1999 and 1998 is as
follows:
<TABLE>
<CAPTION>
Weighted
Average
Options Price
--------- ---------
<S> <C> <C>
Balance outstanding, January 1, 1998 . 164,188 $ 2.46
Options granted. . . . . . . . . . . . 30,500 $ 0.28
--------- ---------
Balance outstanding, December 31, 1998 194,688 $ 0.40*
Options granted. . . . . . . . . . . . 2,500 $ 0.38
--------- ---------
Balance outstanding, December 31, 1999 197,188 0.40*
========= =========
Options exercisable:
December 31, 1999 . . . . . . . . . . 160,063 $ 0.42
========= =========
<FN>
*Includes the effect of 164,188 options repriced in June 1998 from a weighted
average price of $2.46 to $0.39 per share.
</TABLE>
Information relating to stock options at December 31, 1999 summarized by
exercise price are as follows:
<TABLE>
<CAPTION>
Outstanding Exercisable
---------------- -----------------------
Weighted Average
Exercise Price Life Exercise Weighted Average
Per Share Shares (Years) Price Shares Exercise Price
- -------------- ------- --------- ------ ------- ---------------
<S> <C> <C> <C> <C> <C>
0.43 . . . . . 132,688 5.3 $ 0.43 122,506 $ 0.43
0.39 . . . . . 37,000 6.3 $ 0.39 30,890 $ 0.39
0.38 . . . . . 2,500 9.5 0.38 417 0.38
0.25 . . . . . 25,000 4.0 $ 0.25 6,250 $ 0.25
------- --------- ------ ------- ---------------
0.25 - $0.43 . 197,188 5.4 $ 0.40 160,063 $ 0.42
============= ======= ======== ====== ======= ===============
</TABLE>
F-17
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 11 - STOCK-BASED COMPENSATION PLANS (CONTINUED)
All stock options issued to employees have an exercise price not less than the
fair market value of the Company's common stock on the date of grant, and in
accordance with accounting for such options utilizing the intrinsic value method
there is no related compensation expense recorded in the Company's financial
statements. Had compensation cost for stock-based compensation been determined
based on the fair value at the grant dates consistent with the method of SFAS
123, the Company's net loss and loss per share for the years ended December 31,
1999 and 1998 would have been reduced to the pro forma amounts presented below:
<TABLE>
<CAPTION>
December 31,
---------------------------
1999 1998
---------- -----------
<S> <C> <C>
Net loss
As reported . $(559,941) $ (2,062,953)
Pro forma . . $(582,818) $ (2,116,139)
Loss per share
As reported . $ (.77 ) $ (2.82)
Pro forma . . $ (.80 ) $ (2.89)
============ ==============
</TABLE>
The fair value of option grants is estimated on the date of grants utilizing the
Black-Scholes option-pricing with the following weighted average assumptions for
1999 and 1998, expected life of 10.0 and 5.9 years: expected volatility of 665%
and 41%, risk-free interest rates of 6.5% and 6%, and a 0% dividend yield. The
weighted average fair value at date of grant for options granted during 1999 and
1998 approximated $.38 and $0.14 per option.
NOTE 12 - COMMITMENTS
The Company leases office space for its corporate headquarters in Studio City,
California. Additionally, the Company leases retail space for its attractions
in Las Vegas, Nevada and Edmonton, Canada.
An amendment of the Las Vegas Facility lease gave the Company a rent reduction
not to exceed $150,000. The rent reduction was deducted from the monthly rent
payment until the Company had recorded $150,000 as deferred rent and the rent is
being recorded on a straight-line basis through the expiration of lease which is
July 2004. Deferred rent at December 31, 1999 and 1998 was $84,061 and
$109,157, which also includes deferred rent on the corporate office lease.
Minimum future rental payments for each of the next five years and thereafter is
as follows:
<TABLE>
<CAPTION>
Annual
Year ending December 31, Rent
- ------------------------- --------
<S> <C>
2000 . . . . . . . . . . $262,826
2001 . . . . . . . . . . 216,000
2002 . . . . . . . . . . 216,000
2003 . . . . . . . . . . 216,000
Thereafter . . . . . . . 126,000
---------
1,036,826
=========
</TABLE>
CINEMA RIDE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Rent expense for the years ended December 31, 1999 and 1998 was $552,214 and
$514,407, respectively.
On January 20, 2000, the Company opened a new facility in Elizabeth, New Jersey
(see Note 13).
F-18
<PAGE>
CINEMA RIDE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 12 - COMMITMENTS (CONTINUED)
Effective September 1, 1997, the Company entered into a three-year employment
agreement with its Chief Executive Officer. The agreement provides for a base
annual salary of $195,000, annual increases of 8%, annual bonuses based on 6% of
the Company's annual earnings before interest, taxes, depreciation and
amortization in excess of $500,000, and issuance of 37,500 options exercisable
at $2.00 (repriced at $0.43 per share) per share vesting equally over the next
three years. The agreement also approves the granting of additional performance
options based on various occurrences such as the opening of new locations,
obtaining additional funds, and attaining and maintaining certain market price
for the Company's common stock. In conjunction with the opening of the
Company's new facility in Atlanta, Georgia in September 1998 the Company granted
the Chief Executive Officer a bonus in the form of options to purchase 25,000
shares of common stock exercisable at the fair market value of $0.25 for a
period of five years.
Effective May 13, 1998, the Company entered into a severance agreement with its
Chief Executive Officer that provided for certain compensation in the event of a
change in control of the Company. The terms of the severance agreement were
through June 30, 1999, at which time they were automatically extended for one
year periods commencing on July 1, 1999 and on each subsequent July 1, unless
the Company gives notice not later than December 31 of the preceding year that
it does not wish to extend the severance agreements. A change in control of the
Company is defined as (a) the acquisition by any person or entity of 20% or more
of the Company's voting equity securities, (b) a change in control of the Board
of Directors, or (c) a merger or consolidation of the Company with any other
entity, unless the shareholders of the Company prior to the merger or
consolidation continue to represent at least 80% of the combined voting power of
the merged entity. In the event of a change in control, among other
compensation and benefits, the severance agreement entitles the Chief Executive
Officer to receive a severance payment of five times his current annual salary
upon his termination without cause.
NOTE 13 - SUBSEQUENT EVENTS
On January 20, 2000, the Company opened a new facility in Elizabeth, New Jersey.
The lease related to the new facility commenced January 20, 2000, requiring
monthly payments of $8,575 during the years 1 through 3 and $9,065 during years
4 and 5. The Company is also to required to pay 10% of gross yearly sales in
excess of $1,029,000 during years 1 through 3 and in excess of $1,087,800 in
years 4 and 5. The Company has an option to renew the lease for an additional
five years at the end of the initial 5-year period.
In connection with the opening of the Elizabeth, New Jersey facility, the
Company has granted the Chief Executive Officer 25,000 stock warrants per his
employment agreement with the Company. Each stock warrant allows the holder the
right to purchase one share of common stock at an exercise price of $.13 per
share, representing the per-share market price on the date thereof, and expires
on January 20, 2003.
F-19
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
Exhibit
Number Description of Document
- ------ -----------------------
<S> <C>
3.1 Certificate of Incorporation, as amended. (1)(P)
3.2 Bylaws of the Company. (1)(P)
10.1 Cinema Ride, Inc. Stock Option Plan. (1)(P)(C)
10.2 Equipment lease between the Company and Sign Systems dated April
6, 1995. (2)(P)
10.3 Lease between the Company and Forum Developers Limited Partnership
dated July 2, 1993. (1)(P)
10.4 Amendment to lease between the Company and Forum Developers
Limited Partnership dated May 18, 1993. (1)(P)
10.5 Third lease amendment between the Company and Forum Developers
Limited Partnership dated July 27, 1994. (1)(P)
10.6 Fourth lease amendment between the Company and Forum Developers
Limited Partnership dated December 30, 1995. (2)(P)
10.7 Form of Promissory Note and Security Agreement (stock pledge) of
Mitchell J. Francis dated July 5, 1995. (3)(P)
10.8 Standard Office Lease Gross between the Company and WFC Ventures
L.P. dated March 21, 1995. (3)(P)
10.9 First Lease Amendment between the Company and WFC Ventures L.P.
dated April 15, 1995. (3)(P)
10.10 Lease between the Company and West Edmonton Mall Property Inc.
dated July 17, 1995. (3)(P)
10.11 Amendment to lease between the Company and West Edmonton Mall
Property Inc. dated April 7, 1998.
10.12 Master Equipment Lease Agreement between the Company and Finova
Technology Finance, Inc. dated December 12, 1996. (4)
10.13 Amendment to Master Equipment Lease Agreement between the Company
and Finova Technology Finance, Inc. dated March 10, 1999. (6)
10.14 Form of employment agreement with Mitchell J. Francis dated
September 1, 1997. (5)(C)
10.15 Stipulation and consent judgement between the Company and Three
Times Square Center Partners, L.P. dated October 28, 1997. (5)
10.16 Joint Venture Agreement with Dave & Buster's, Inc. dated May 29,
1998. (6)
10.17 Loan Agreement between the Company and Mitchell J. Francis dated
February 2, 1999. (6)
10.18 1995 Directors Stock Option Plan. (6) (C)
10.19 Warrant expiring February 2, 2002 to Mitchell J. Francis. (6)
10.20 Lease between the Company and Jersey Gardens Mall dated October
19, 1999.
21 Subsidiaries of the Registrant. (6)
27 Financial Data Schedule. (E)
- -----------------------
<FN>
(1) Previously filed as an Exhibit to the Company's Registration Statement on
Form SB-2, and incorporated herein by reference.
(2) Previously filed as an Exhibit to the Company's Quarterly Report on Form
10-QSB for the quarterly period ended March 31, 1995, and incorporated
herein by reference.
(3) Previously filed as an Exhibit to the Company's Quarterly Report on Form
10-QSB for the quarterly period ended June 30, 1995, and incorporated
herein by reference.
(4) Previously filed as an Exhibit to the Company's Current Report on Form 8-K
filed on January 28, 1997, and incorporated herein by reference.
(5) Previously filed as an Exhibit to the Company's Quarterly Report on Form
10-QSB for the quarterly period ended September 30, 1997, and incorporated
herein by reference.
(6) Previously filed as an Exhibit to the Company's Annual Report on Form
10-KSB for the fiscal year ended December 31, 1998, and incorporated
herein by reference.
(P) Indicates that the document was originally filed with the Securities and
Exchange Commission in paper form and that there have been no changes or
amendments to the document which would require filing of the document
electronically with this Annual Report on Form 10-KSB.
(C) Indicates compensatory plan, agreement or arrangement.
(E) Indicates electronic filing only.
</TABLE>
LEASE
CINEMA RIDE TIMES SQUARE, INC.
TENANT
"CINEMA RIDE"
TRADE NAME
CINEMA RIDE, INC.
GUARANTOR
JERSEY GARDENS
Elizabeth, New Jersey
A Regional Retail Development
c/o Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
(614) 621-9000
PROVISIONS ADDED TO THIS LEASE APPEAR ON THE ATTACHED RIDER AND, EXCEPT IN
INSTANCES OF ADDITIONAL SENTENCES OR PARAGRAPHS BEING ADDED AT THE END OF A
SECTION OR PARAGRAPH, ARE INDICATED IN THE TEXT BY AN UNDERSCORING OF THE LINE
NUMBER IN THE RIGHT-HAND MARGIN OF THE LINE BEING CHANGED. ADDITIONAL LANGUAGE
IS INSERTED EITHER IN PLACE OF DELETED LANGUAGE OR AFTER AN UNDERSCORED WORD,
EXCEPT AS OTHERWISE NOTED ABOVE.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C>
DATA SHEET. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1. GRANT AND TERM . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.01. LEASED PREMISES . . . . . . . . . . . . . . . . . 3
SECTION 1.02. TERM. . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.03. OPENING . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2. RENT
SECTION 2.01. MINIMUM RENT. . . . . . . . . . . . . . . . . . . 4
SECTION 2.02. PERCENTAGE RENT . . . . . . . . . . . . . . . . . 5
SECTION 2.03. GROSS SALES . . . . . . . . . . . . . . . . . . . 5
SECTION 2.04. FAILURE TO DO BUSINESS. . . . . . . . . . . . . . 5
SECTION 2.05. TAXES . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.06. ADDITIONAL RENT . . . . . . . . . . . . . . . . . 7
ARTICLE 3. BOOKS AND RECORDS
SECTION 3.01. TENANT'S RECORDS. . . . . . . . . . . . . . . . . 7
SECTION 3.02. REPORTS BY TENANT . . . . . . . . . . . . . . . . 7
ARTICLE 4. AUDIT
SECTION 4.01. RIGHT TO EXAMINE BOOKS. . . . . . . . . . . . . . 7
SECTION 4.02. AUDIT . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 5. CONSTRUCTION OF LEASED PREMISES
SECTION 5.01. CONSTRUCTION OF LEASED PREMISES . . . . . . . . . 8
SECTION 5.02. DELIVERY OF POSSESSION. . . . . . . . . . . . . . 8
SECTION 5.03. CHANGES AND ADDITIONS . . . . . . . . . . . . . . 8
ARTICLE 6. TENANT'S WORK
SECTION 6.01. TENANT'S WORK . . . . . . . . . . . . . . . . . . 3
SECTION 6.02. TIME OF THE ESSENCE . . . . . . . . . . . . . . . 9
ARTICLE 7. CONDUCT OF BUSINESS BY TENANT
SECTION 7.01. USE OF LEASED PREMISES. . . . . . . . . . . . . . 9
SECTION 7.02. OPERATION OF BUSINESS . . . . . . . . . . . . . . 9
SECTION 7.03. CARE OF LEASED PREMISES . . . . . . . . . . . . . 10
SECTION 7.04. RADIUS .. . . . . . . . . . . . . . . . . . . . . 11
SECTION 7.05. STORAGE, OFFICE SPACE . . . . . . . . . . . . . . 11
ARTICLE 8. COMMON AREAS
SECTION 8.01. OPERATION OF COMMON AREAS . . . . . . . . . . . . 11
SECTION 8.02. TENANTS PRO RATA SHARE OF EXPENSES .. . . . . . . 11
SECTION 8.03. COMMON AREAS. . . . . . . . . . . . . . . . . . . 12
ARTICLE 9. ALTERATIONS AND SIGNS
SECTION 9.01. INSTALLATION BY TENANT. . . . . . . . . . . . . . 12
SECTION 9.02. REMOVAL BY TENANT . . . . . . . . . . . . . . . . 12
SECTION 9.03. REFURBISHMENT . . . . . . . . . . . . . . . . . . 12
SECTION 9.04. SIGNS . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 10. MAINTENANCE OF LEASED PREMISES
SECTION 10.01. LANDLORD'S OBLIGATIONS FOR MAINTENANCE.. . . . . 13
SECTION 10.02. TENANT'S OBLIGATIONS FOR MAINTENANCE . . . . . . 13
ARTICLE 11. INSURANCE AND INDEMNITY
SECTION 11.01. TENANT'S INSURANCE . . . . . . . . . . . . . . . 14
SECTION 11.02. LANDLORD'S INSURANCE . . . . . . . . . . . . . . 15
SECTION 11.03. INDEMNITY .. . . . . . . . . . . . . . . . . . . 15
ARTICLE 12. UTILITIES
SECTION 12.01. UTILITIES. . . . . . . . . . . . . . . . . . . . 16
SECTION 12.02. ENERGY SHORTAGES . . . . . . . . . . . . . . . . 16
SECTION 12.03. SPRINKLER CHARGE . . . . . . . . . . . . . . . . 16
SECTION 12.04. INTERRUPTION OF SERVICE. . . . . . . . . . . . . 16
ARTICLE 13. ESTOPPEL STATEMENT, ATTORNMENT AND SUBORDINATION
SECTION 13.01. ESTOPPEL STATEMENT . . . . . . . . . . . . . . . 16
SECTION 13.02. ATTORNMENT . . . . . . . . . . . . . . . . . . . 16
SECTION 13.03. SUBORDINATION. . . . . . . . . . . . . . . . . . 17
SECTION 13.04. REMEDIES . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 14. ASSIGNMENT AND SUBLETTING
SECTION 14.01. PROHIBITION. . . . . . . . . . . . . . . . . . . 17
ARTICLE 15. WASTE
SECTION 15.01. WASTE OR NUISANCE. . . . . . . . . . . . . . . . 18
ARTICLE 16. TRADE NAME, PROMOTIONAL CHARGE
SECTION 16.01. TRADE NAME. . . . . . . . . . . . . . . . . . . 18
SECTION 16.02. SOLICITATION OF BUSINESS. . . . . . . . . . . . 18
SECTION 16.03. PROMOTIONAL CHARGE. . . . . . . . . . . . . . . 18
ARTICLE 17. DESTRUCTION OF LEASED PREMISES
SECTION 17.01. RECONSTRUCTION . . . . . . . . . . . . . . . . 19
SECTION 17.02. WAIVER OF SUBROGATION. . . . . . . . . . . . . 19
ARTICLE 18. EMINENT DOMAIN
SECTION 18.01. TOTAL CONDEMNATION OF LEASED PREMISES . . . . . 19
SECTION 18.02. PARTIAL CONDEMNATION. . . . . . . . . . . . . . 19
SECTION 18.03. LANDLORD'S AND TENANT'S DAMAGES . . . . . . . . 20
SECTION 18.04. GOVERNMENTAL REGULATION . . . . . . . . . . . . 20
ARTICLE 19. DEFAULT OF TENANT
SECTION 19.01. RIGHT TO REENTER. . . . . . . . . . . . . . . . 20
SECTION 19.02. RIGHT TO RELET. . . . . . . . . . . . . . . . . 21
(i)
<PAGE>
SECTION 19.03. LEGAL EXPENSES.. . . . . . . . . . . . . . . . . . 21
SECTION 19.04. WAIVER OF COUNTERCLAIMS AND TRIAL BY JURY.. . . . 21
SECTION 19.05. WAIVER OF RIGHT OF REDEMPTION. . . . . . . . . . . 21
ARTICLE 20. BANKRUPTCY OR INSOLVENCY
SECTION 20.01. TENANT'S INTEREST NOT TRANSFERABLE. . . . . . . 22
SECTION 20.02. LANDLORD'S OPTION TO TERMINATE . . . . . . . . . . 22
SECTION 20.03. TENANT'S OBLIGATION TO AVOID CREDITORS'
PROCEEDINGS. . . . . . . . . . . . . . . . . . . . 22
SECTION 20.04. APPLICATION OF BANKRUPTCY PROCEEDS . . . . . . . 22
SECTION 20.05. BANKRUPTCY . . . . . . . . . . . . . . . . . . . 22
ARTICLE 21. ACCESS BY LANDLORD
SECTION 21.01. RIGHT OF ENTRY . . . . . . . . . . . . . . . . . 22
SECTION 21.02. EXCAVATION . . . . . . . . . . . . . . . . . . . 23
ARTICLE 22. TENANT'S PROPERTY
SECTION 22.01. TAXES ON TENANT'S PROPERTY . . . . . . . . . . . 23
SECTION 22.02. LOSS AND DAMAGE. . . . . . . . . . . . . . . . . 23
SECTION 22.03. NOTICE BY TENANT . . . . . . . . . . . . . . . . 23
ARTICLE 23. HOLDING OVER
SECTION 23.01. HOLDING OVER . . . . . . . . . . . . . . . . . . 23
SECTION 23.02. SUCCESSORS.. . . . . . . . . . . . . . . . . . . 23
ARTICLE 24. RULES AND REGULATIONS
SECTION 24.01. RULES AND REGULATIONS. . . . . . . . . . . . . . 23
ARTICLE 25. QUIET ENJOYMENT
SECTION 25.01. LANDLORD'S COVENANT. . . . . . . . . . . . . . . 24
ARTICLE 26. SECURITY PROVISION
SECTION 26.01. SECURITY . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 27. REGULATED SUBSTANCES
SECTION 27.01. DEFINITION OF REGULATED SUBSTANCE .. . . . . . . 24
SECTION 27.02. TENANT'S RESTRICTIONS. . . . . . . . . . . . . . 24
SECTION 27-03. TENANT'S INDEMNITY . . . . . . . . . . . . . . . 25
SECTION 27.04. TENANT'S INDEMNITY . . . . . . . . . . . . . . . 25
ARTICLE 28. MORTGAGEE NOTICE AND CURE . . . . . . . . . . . . . . 25
ARTICLE 29. SPECIAL REAL ESTATE INVESTMENT TRUST PROVISIONS
SECTION 29.01. ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . 26
SECTION 29.02. REAL ESTATE INVESTMENT TRUST TAX PROVISIONS. . . . 26
ARTICLE 30. MISCELLANEOUS
SECTION 30.01. WAIVER.. . . . . . . . . . . . . . . . . . . . . 26
SECTION 30.02. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . 26
SECTION 30.03. RULES Of CONSTRUCTION. . . . . . . . . . . . . . 26
SECTION 30.04. DELAYS . . . . . . . . . . . . . . . . . . . . . 27
SECTION 30.05. NOTICES. . . . . . . . . . . . . . . . . . . . . 27
SECTION 30.06. CAPTIONS AND SECTION NUMBERS . . . . . . . . . . 27
SECTION 30.07. BROKER'S COMMISSION . . . . . . . . . . . . . . 27
SECTION 30.08. RECORDING . . . . . . . . . . . . . . . . . . . 27
SECTION 30.09. FURNISHING OF FINANCIAL STATEMENT . . . . . . . 27
SECTION 30.10. LANDLORD'S USE OF COMMON AREAS. . . . . . . . . 27
SECTION 30.11. TRANSFER OF LANDLORD'S INTEREST . . . . . . . . 27
SECTION 30.12. FLOOR AREA. . . . . . . . . . . . . . . . . . . 27
SECTION 30.13. LIABILITY OF LANDLORD . . . . . . . . . . . . . 28
SECTION 30.14. ACCORD AND SATISFACTION . . . . . . . . . . . . 28
SECTION 30.15. EXECUTION OF LEASE . . . . . . . . . . . . . . . 28
SECTION 30.16. LAWS OF THE STATE. . . . . . . . . . . . . . . . 28
SECTION 30.17. CONFIDENTIALITY. . . . . . . . . . . . . . . . . 28
SECTION 30.18. INTEREST . . . . . . . . . . . . . . . . . . . . 28
SECTION 30.19. CONSUMER PRICE INDEX. . . . . . . . . . . . . . 28
SECTION 30.20. SURVIVAL . . . . . . . . . . . . . . . . . . . . 28
EXHIBIT 'A' SITE PLAN
EXHIBIT 'B' LEGAL DESCRIPTION
EXHIBIT 'C' CONSTRUCTION
EXHIBIT 'D' SIGN CRITERIA
EXHIBIT 'E' COSTS AND EXPENSES
EXHIBIT 'F' RULES AND REGULATIONS
EXHIBIT 'G' CERTIFICATION
EXHIBIT(s) (other exhibits, if any)
ADDENDUM (If any)
RIDER (If any)
GUARANTY
</TABLE>
(ii)
<PAGE>
JERSEY GARDENS
Elizabeth, New Jersey
THIS LEASE, made as of this _ day of________, 19__ by and between Elizabeth
MetroMall LLC, a Delaware limited liability company, the address of which is 20
South Third Street, Columbus, Ohio 43215 (herein "Landlord"), and Cinema Ride
Times Square, Inc., a New York corporation, the address of which is 12001
Ventura Plaza, Suite 340, Studio City (herein "Tenant"). All of the provisions
of the Lease, including the Data Sheet, the standard provisions commencing with
Article 1 and continuing through Article 30 of the Lease (herein sometimes
referred to as the "Form Lease"), the Addendum, if any, all exhibits, and
Rider(s), if any, are incorporated in full in this preamble as if fully set
forth at this point.
DATA SHEET
This Data Sheet is an integral part of the Lease. The following
references furnish data to be incorporated in the specified Sections of the
Lease and shall be construed to incorporate all of the terms of the entire
Section as stated in the said Lease:
1. Section 1.01. Leased Premises: Store number 1111 and 1112, consisting of
approximately two thousand nine hundred forty (2,940) square feet of floor
area on the lower level of the Shopping Center.
2. Section 1.02. Term: The Commencement Date of the term of this Lease, and
Tenant's obligation to open and operate for business, pay Minimum Rent and
other charges shall be the earlier to occur of the following:
(a) sixty (60) days (the "Fixturing Period") after the latest of the
following (but in no event prior to the grand opening in October 1999):
(i) the date Landlord notifies Tenant in writing that Landlord's Work
is substantially completed (as provided in Section 5.02) and the delivery of
possession of the leased premises to Tenant; (ii) Landlord's approval of Store
Working Drawings and Specifications (if, and only if Tenant has
complied with all of the requirements and time requirements contained
in Exhibit Q; (iii) Landlord's delivery of a fully executed copy of
this Lease to Tenant; and (iv) Tenant obtaining a building permit, provided,
that Tenant shall have applied for the same within fifteen (15)
days after receiving Landlord's approval of Tenant's Store Working
Drawings and Specifications and further provided that Tenant shall have
diligently pursued issuance of same, complying in all respects with all
requirements of the issuing authorities. In the event Tenant shall not have
received such permit within one (1) year after the date of this
Lease or by the delivery of possession date, whichever is later, either
party shall have the right until Tenant commences construction in the
leased premises to terminate this Lease on prior written notice to the other
party. Tenant's right to terminate shall be conditioned on Tenant
having complied with the requirements of this paragraph; or
(b) The date upon which Tenant opens its store in said Premises for
business to the general public.
3. Section 1.02. Term: The length of the original term of this Lease shall
be: Five (5) lease years.
The length of the option period, if any, shall be: Five (5) lease years,
the term of which, if validly exercised, shall commence upon the expiration
of the original term of the Lease.
4. Section 2.01. Minimum Rent:
The annual Minimum Rent during the original term of this Lease shall be as
follows:
(i) From the Commencement Date of this Lease and continuing through the
third (3rd) lease year of the term hereof, the sum of One Hundred Two Thousand
Nine Hundred and 00/100ths Dollars ($102,900.00) annually, which sum shall be
payable by Tenant in equal consecutive monthly installments of Eight Thousand
Five Hundred Seventy-Five and 00/100ths Dollars ($8,575.00) each;
(ii) Beginning with the fourth (4th) lease year of the term hereof and
continuing through the balance of the original lease term, the sum of One
Hundred Eight Thousand Seven Hundred Eighty and 00/100ths Dollars ($108,780.00)
annually, which sum shall be payable by Tenant in equal consecutive monthly
installments of Nine Thousand Sixty-Five and 00/100ths Dollars ($9,065.00) each.
Each of the monthly installments of Minimum Rent called for hereunder shall be
payable by Tenant, on or before the first day of each month, in advance, at the
office of the Landlord or such other place as the Landlord may designate,
without any prior demand therefor and without any deductions or setoff
whatsoever.
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<PAGE>
In the event that Tenant exercises the option described in Section 1.02 to
extend the term of this Lease, the annual Minimum Rent during such extended term
hereof shall be as follows:
(i) Beginning with the sixth (6th) lease year of the term of this Lease and
continuing through the seventh (7th) lease year of the term hereof, the sum of
One Hundred Fourteen Thousand Six Hundred Sixty and 00/100ths Dollars
($114,660.00) annually, which sum shall be payable by Tenant in equal
consecutive monthly installments of Nine Thousand Five Hundred Fifty and
00/100ths Dollars ($9,550.00) each;
(ii) Beginning with the eighth (8th) lease year of the term hereof and
continuing through the balance of the lease term, the sum of One Hundred Twenty
Thousand Five Hundred Forty and 00/100ths Dollars ($120,540.00) annually, which
sum shall be payable by Tenant in equal consecutive monthly installments of Ten
Thousand Forty-Five and 00/100ths Dollars ($10,045.00) each.
Each of the monthly installments of Minimum Rent called for hereunder shall be
payable by Tenant, on or before the first day of each month, in advance, at the
office of the Landlord or such other place as the Landlord may designate,
without any prior demand therefor and without any deductions or setoff
whatsoever.
5. Section 2.02. Percentage Rent:
In addition to the payment of annual Minimum Rent, as hereinbefore
provided, Tenant shall pay to Landlord during each lease year of the term hereof
as annual Percentage Rent the following:
(i) From the Commencement Date of this Lease and continuing through the
third (3rd) lease year of the term hereof, a sum equal to ten percent (10%) (the
'percentage factor') of all 'Gross Sales' resulting from business conducted in,
on or from the leased premises during each lease year in excess of One Million
Twenty Eight Thousand Nine Hundred Ninety-Nine and 98/100ths Dollars
($1,028,999.98) ('Minimum Gross Sales');
(ii) Beginning with the fourth (4th) lease year of the term hereof and
continuing through balance of the original lease term, a sum equal to ten
percent (10%) (the 'percentage factor') of all 'Gross Sales' resulting from
business conducted in, on or from the leased premises during each lease year in
excess of One Million Eighty-Seven Thousand Seven Hundred Ninety-Nine and
98/100ths Dollars ($1,087,799.98) ('Minimum Gross Sales').
The annual Percentage Rent shall be payable at the times and in the manner
hereinafter set forth, at the office of the Landlord, or such other place as the
Landlord may designate, without any prior demand therefor and without any
deductions or setoff whatsoever.
In addition to the payment of the annual Minimum Rent, as hereinbefore
provided, in the event Tenant exercises the option described in Section 1.02 to
extend the term of this Lease, Tenant shall pay to Landlord during each lease
year of the extended term hereof as annual Percentage Rent the following:
(i) Beginning with the sixth (6th) lease year of the term hereof and
continuing through the seventh (7th) lease year of the term hereof, a sum equal
to ten percent (10%) (the 'percentage factor') of all Gross Sales resulting from
business conducted in, on or from the leased premises during each lease year in
excess of One Million One Hundred Forty-Six Thousand Five Hundred Ninety-Nine
and 98/100ths Dollars ($1,146,599.98) ('Minimum Gross Sales');
(ii) Beginning with the eighth (8th) lease year of the term hereof and
continuing through the balance of the lease term, a sum equal to ten percent
(10%) (the 'percentage factor') of all Gross Sales resulting from business
conducted in, on or from the leased premises during each lease year in excess of
One Million Two Hundred Five Thousand Three Hundred Ninety-Nine and 98/100ths
Dollars ($1,205,399.98) ('Minimum Gross Sales').
The annual Percentage Rent shall be payable at the times and in the manner
hereinafter set forth, at the office of the landlord, or such other place as the
Landlord may designate, without any prior demand therefore and without any
deductions or setoff whatsoever.
6. Section 7.01. Permitted Use:
For the following use and purpose and for no other use or purpose:
For the operation of a motion simulator ride and the sale of directly
related items.
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<PAGE>
7. Section 12.03 Sprinkler Charge: Nine Hundred Seventy and 00/100ths
Dollars ($970.00) annually, payable in equal consecutive monthly
installments of Eighty and 83/100ths Dollars ($80.83) each.
The annual sprinkler charge is calculated on the basis of fifty cents ($0.50)
per square foot of floor area of the leased premises per annum, but in no event
less than Five Hundred Dollars ($500.00) per annum.
8. Section 16.01 Trade Name: Tenant's Trade Name is: "Cinema Ride"
9. Section 16.03 Promotional Charge.
Original annual promotional charge: Seven Thousand Seven Hundred Sixty and
00/100ths Dollars ($7,760.00), payable in equal consecutive monthly installments
of Six Hundred Forty-Six and 67/100ths Dollars ($646.67), subject to increases.
The annual promotional charge is calculated on the basis of Four and 00/100ths
Dollars ($4.00) per square foot of floor area of the leased premises per annum,
but in no event less than Six Thousand and 00/100ths Dollars ($6,000.00) per
annum, and is subject to increases.
Initial promotional charge: One time payment of: Four Thousand Eight Hundred
Fifty and 00/100ths Dollars ($4,850.00).
The initial promotional charge is a one-time charge calculated on the basis of
Two and 50/100ths Dollars ($2.50) per square foot of floor area of the leased
premises, but in no event less than Three Thousand and 00/100ths Dollars
($3,000.00).
10. Section 26.01 Security Deposit: N/A
11. Guarantor: Cinema Ride, Inc.
12001 Ventura Place,
Suite 340
Studio City, CA 91604
2A
<PAGE>
ARTICLE 1. GRANT AND TERM
SECTION 1.01. LEASED PREMISES. (a) The regional development is located in
the City of Elizabeth, New Jersey and is commonly known as "Jersey Gardens" or
by such other name as Landlord may from time to time designate. Landlord, in
consideration of the rent to be paid and the covenants to be performed by
Tenant, does hereby demise and lease unto Tenant, and Tenant hereby rents from
Landlord for the term herein set forth, those certain premises (herein referred
to as the "leased premises") which are described as set forth in the Data Sheet.
As used in this Lease, the Addendum and/or Rider, if any, the following terms
shall have the following meanings: (i) the term "regional development" shall
refer to the Shopping Center and the sites of the Major Tenants; (ii) the term
"Major Tenant" shall refer to any occupant of premises containing 15,000 square
feet of floor area, or more; and (iii) the term "Shopping Center" shall refer to
the regional development excluding the areas occupied by Major Tenants, except
as otherwise specifically stated herein. The general layout of the regional
development is shown on page 1 of the attached Exhibit "A". Landlord does not
warrant or represent that the regional development will be, or has been,
constructed exactly as shown thereon. The approximate location of the leased
premises is designated on page 2 of Exhibit "A". The legal description of the
regional development is more particularly described on the attached Exhibit "B".
In the event Landlord elects to enlarge or reduce the Shopping Center, any
additional or reduced area may be included or excluded by Landlord in the
definition of the Shopping Center for purposes of this Lease. This Lease of the
leased premises is subject to all applicable budding restrictions, planning and
zoning ordinances, governmental rules and regulations, municipal liens and all
other encumbrances, covenants, restrictions and easements affecting the regional
development and the terms and provisions of certain declarations, underlying
leases, reciprocal easement and operating agreements now or hereafter entered
into by Landlord.
(b) The exterior walls, roof and the area beneath the leased premises
are not demised hereunder and the use thereof together with the right to
install, maintain, use, repair, and replace pipes, ducts, conduits, wires,
lines, flues, drains, access panels, sprinkler mains and valves, refrigerant
linins, tunnels, sewers and structural elements leading through the leased
premises in locations which will not materially interfere with the Tenant's use
thereof and serving other parts of the regional development are hereby reserved
unto Landlord. Landlord reserves an easement above Tenant's finished ceiling or
light line to the roof, or to the bottom of the floor dock above the leased
premises, for general access purposes and in connection with the exercise of
Landlord's other rights under this Lease.
(c) In the event that there shall be vacant premises on either side of the
leased premises then Landlord shall have the right at any time prior to the due
of delivery of the leased premises, by written notice to Tenant, to relocate the
leased premises in either direction (from side to side from the outside boundary
of the leased premises) by not more than ____________, and, upon any such
relocation, the size and description of the leased premises shall be
appropriately modified by an amendment to this Lease, which amendment shall also
reflect any resulting proportional adjustment in the rent based upon the change
in the size of the leased premises. Landlord further reserves the right at any
--------
time during the term hereof to change the location of the leased premises in the
-----
Shopping Center upon ninety (90) days' prior notice in writing to Tenants.
--------
During the ninety (90) day period Landlord shall offer to Tenant such
alternative location of approximately the sum square footage as may then be
available in the Shopping Center. In the event the parties agree on a specific
location, then this Lease shall be amended by substituting the new location for
the then present location and the square footage, Minimum Rent and Minimum Gross
Sales, shall be proportionately adjusted based upon the change in the size of
the leased premises. Landlord shall, at Landlord's cost and expense, complete
the leasehold improvements to the leased premises in accordance with the working
drawings originally approved by Landlord with respect to the Tenant's Work in
the original leased premises and Tenant shall, within Fifteen (15) days after
delivery of the new premises to Tenant, open for business in the new leased
premises. In the event Landlord and Tenant are unable to agree on an alternative
----
location, this Lease shall terminate at the end of the said ninety (90) day
period. In the event of such termination, Landlord shall pay to Tenant within
thirty (30) days following the date that Tenant shall have vacated the then
present leased premises, a sum equal to the then unamortized cost of Tenant's
leasehold improvements to its original leased premises, such amortization to be
on a straight line basis over the original stated term of the Lease, provided
Tenant shall furnish to Landlord such backup information as Landlord may
reasonably require. Tenant shall deliver possession of the then present leased
premises to Landlord on or before the termination and/or relocation date in the
condition required pursuant to this Least and subject to all charges which are
due and owing or which shall accrue up to such date (which charges shall be paid
to Landlord within thirty (30) days of such date) and Tenant shall be released
from any and all further obligations pursuant to this Lease accruing after such
date with respect to the vacated leased premises; however, in the event of
relocation, Tenant shall remain liable for all obligations accruing under this
Lease after the date of such relocation.
SEE ATTACHED RIDER FOR INSERTS
(d) Tenant hereby acknowledges that Landlord occupies the regional
development by virtue of a ground lease (herein referred to as "Master Lease" or
generically as an underlying lease) by and between N.J. Metromall Urban Renewal,
Inc., as Lessor, and Elizabeth MetroMall LLC, as Lessee, as the same may be
amended from time to time. This Lease is subject and subordinate to said Master
Lease.
- ------
SEE ATTACHED RIDER FOR INSERTS
SECTION 1.02. TERM. The term of this Lease shall be for a period commencing
upon the earlier of the following dates (i) on the expiration of the fixturing
period or other specified date described in the Data Sheet therein 'Fixturing
Period", or (ii) the date on which Tenant shall open the leased premises, or any
part thereof for business to the general public, whichever shall be the first to
occur (said date herein referred to as the "Commencement Date') but not prior to
the grand opening of the Shopping Center unless specifically approved in writing
by Landlord, and shall expire on the final day of the last lease year of the
term or other specified date as set forth in the Data Sheet (herein "Expiration
Date"), unless sooner terminated as herein provided. The term "lease year" as
used in this Lease shall be
3
<PAGE>
defined to mean a fiscal period of twelve (12) consecutive calendar months
commencing on February 1 of each year except that the first lease year shall
begin on the Commencement Date and shall end on the January 31 next and the last
lease year shall end on the Expiration Date or sooner termination of this Lease.
Following the Commencement Date, Tenant agrees, within ten (10) days of the
written request of Landlord, to execute and deliver to Landlord, without charge,
a written declaration, in form satisfactory to Landlord: (1) ratifying this
Lease; (2) confirming the Commencement Date and Expiration Date of the term of
this Lease; (3) certifying that Tenant is in occupancy of the leased premises,
the date Tenant commenced operating Tenant's business therein, and that this
Lease is in full force and effect and has not been assigned, modified,
supplemented or amended, except by such writings as shall be stated; (4) that
all conditions under this Lease to be performed by Landlord have been satisfied,
except such as shall be stated; (5) that there are no defenses or offsets
against the enforcement of this Lease by Landlord, or stating those claimed by
Tenant; (6) reciting the amount of advance rent, if any. paid by Tenant and the
date to which such I rent has been paid: and (7) reciting the amount of security
deposited with Landlord, if any.
SEE ATTACHED RIDER FOR INSERTS
SECTION 1.03. OPENING. Tenant covenants and agrees to complete its work
within the leased premises in accordance with the provisions of this Lease, and
to open its store for business to the public no later than the date established
for commencement of the term of this Lease pursuant to Section 1.02 hereof.
Notwithstanding the foregoing, Tenant agrees to cooperate to effect a grand
opening of the Shopping Center and, if so requested in writing by Landlord,
agrees to delay the opening of Tenant's business in the leased premises (and the
Commencement Date would be concurrently delayed) from the date Tenant otherwise
would have been required to open for business under the provisions of this
Lease. Landlord hereby notifies Tenant that the anticipated date of grand
opening of the Shopping Center is October, 1999 and Tenant shall be obligated to
open the leased premises for business on such date or such other date as
Landlord may establish from time to time. Landlord shall not be responsible or
liable to Tenant or those claiming by, through or under Tenant for loss or
damages caused by, or resulting from, a delayed or adjourned grand opening of
the Shopping Center.
ARTICLE 2. RENT
SECTION 2.01. MINIMUM RENT. (a) For the entire term of this Lease, Tenant
shall pay fixed minimum annual rent (herein "Minimum Rent") for the leased
premises in the amount set forth in the Data Sheet. subject to adjustments and
further increases pursuant to this Section 2.01 and other provisions of this
Lease, which sum shall be payable by Tenant in equal consecutive monthly
installments on or before the first day of each month, in advance, at the office
of the Landlord, or such other place as the Landlord may designate, without any
prior demand therefor and without any deduction or setoff whatsoever. The first
monthly installment of Minimum Rent shall be paid in advance upon the date of
Tenant's execution of this Lease. Should the term of this Lease commence on a
day other than the first day of a calendar month, then the second monthly
installment of Minimum Rent shall be prorated accordingly at a daily rate on the
basis of a thirty (30) day month. Should any lease year contain less than twelve
(12) calendar months, said annual rental shall be prorated.
(b) The Minimum Rent set forth in the Data Sheet is based upon a per square
foot per annum Minimum Rent multiplied by the approximate square footage of the
leased premises as set forth in the Data Sheet. Following completion of
Landlord's Work, Landlord's architect shall certify the actual square footage of
floor area in the leased premises and such certification shall be binding on
the parties hereto. Such determined square footage shall be used in all
calculations based on square footage in this Lease, and the annual Minimum Rent
and monthly installment(s) set forth in the Data Sheet shall be accordingly
adjusted (upwards or downwards). Tenant shall, within ten (10) days of request,
execute and deliver to Landlord an appropriate document reflecting the actual
square footage of the leased premises, Minimum Rent and monthly installment(s)
as determined hereunder.
4
<PAGE>
SECTION 2.02. PERCENTAGE RENT. (a) In addition to the payment of Minimum
Rent, Tenant shall pay to Landlord during and for each lease year of the term
hereof, annual percentage rent (herein "Percentage Rent") in an amount equal to
the percentage factor (which is set forth in the Data Sheet) multiplied by all
Gross Sales (as said term is defined in Section 2.03) resulting from business
conducted in, on or from the leased premises during such lease year in excess
of the Minimum Gross Sales (which is set forth in the Data Sheet). The
Percentage Rent shall be payable at the times and in the manner herein set
forth, at the office of the Landlord, or such other place as the Landlord may
designate, without any prior demand therefor and without any deductions or
setoffs whatsoever.
(b) Within ________ days following the close of the month in which
Gross Sales for the lease year to date exceed Minimum Gross Sales, Tenant shall
pay to Landlord Percentage Rent computed on such excess. Within _______ days
following the close of each month thereafter during such lease year, Tenant
shall pay to Landlord Percentage Rent computed on all Gross Sales for each such
month. Within ___________ days after the close of each lease year, Tenant shall
furnish to Landlord a statement certified by an officer of Tenant setting forth
the amount of Gross Sales during such lease year and showing the amount of
Percentage Rent required to be paid by Tenant for such lease year, if any. The
full amount of the Percentage Rent due for the entire lease year shall be paid
to Landlord no later than _________ days after the end of each lease year. Any
excess Percentage Rent paid by Tenant shall be credited against Tenant's next
due Percentage Rent payment, except for the final lease year of the term for
which any excess shall be refunded to Tenant.
SEE ATTACHED RIDER FOR INSERTS
(c) In the event that any lease year during the term hereof is less than
exactly twelve (12) full months or if Tenant shall fail to operate its business
in the leased premises in the manner and during the hours as required pursuant
to this Lease then, for the purpose of computing the Percentage Rent for any
such short lease year, or such lease year affected by Tenant's failure to
operate as required by this Lease, the Minimum Gross Sales for such lease year
shall be reduced by multiplying the Minimum Gross Sales applicable to such
lease year by a fraction, the numerator of which shall be the actual number of
days in such short lease year or the actual number of days in such lease year
during which Tenant failed to operate as required by the Lease, and the
denominator of which shall be "360".
SECTION 2.03. GROSS SALES. The term "Gross Sales" as used herein shall be
construed to include the entire amount of the actual sales price, whether for
cash, credit or otherwise, of all sales of merchandise or services and all other
receipts whatsoever of all business conducted in or from the leased premises,
including mail, telephone. telegraph. closed-circuit television, dial-a-buy,
and/or other devices, automated or otherwise, whereby orders are received or
filled at the leased premises, and including all deposits not refunded to
purchasers, orders taken, although said orders may be filled elsewhere, and
including sales by any sublessee, concessionaire, licensee or otherwise in or
from the leased premises. A "sale" shall be deemed to have been consummated for
purposes of this Lease. and the entire amount of the sales price shall be
included in Gross Sales, at such time as (i) the transaction is initially
reflected in the books or records of Tenant, or any sublessee, assignee or
concessionaire of Tenant, or (ii) Tenant or such other entity receives all or
any portion of the sales price, or (iii) the applicable goods or services are
delivered to the customer, whichever first occurs, irrespective of whether
payment is made in installments, the sale is for cash or credit or otherwise, or
all or any portion of the sales price has actually been paid at the time of
inclusion in Gross Sales at any other time. No deduction shall be allowed for
uncollected or uncollectible credit accounts. Said term shall not include,
however, any sums collected by Tenant and paid out by Tenant for any sales or
excise tax imposed by constituted governmental authority and which are
separately stated and in addition to the purchase price nor include the exchange
of merchandise between the stores of Tenant, if any, where such exchange of
goods or merchandise is made solely for the convenient operation of the business
of Tenant and not for the purpose of consummating a sale which has theretofore
been made in or from the leased premises and/or for the purpose depriving
Landlord of the benefit of a sale which otherwise would be made in or from the
leased premises. nor the term include the amount of returns to shippers or
manufacturers, nor proceeds from the sale of trade fixtures. There shall be
deductible from Gross Sales the amount of any cash or credit refund made upon
any sale in or from Leased premises where the merchandise sold is thereafter
returned by the purchaser and accepted by Tenant.
SECTION 2.04. FAILURE TO DO BUSINESS. The parties covenant and agree that
because of the difficulty or impossibility of determining Landlord's damages by
way of loss of the anticipated Percentage Rent from Tenant or other tenants or
occupants in or adjoining the Shopping Center, or by way of loss of value in the
property because of diminished salability or mortgagability or adverse
publicity or appearance by Tenant's actions, should Tenant (a) subject to
Sections 1.02 and 5.02 hereof, fail to take possession and open for business in
the leased premises fully fixtured, stocked and staffed on the Commencement
Date, or (b) vacate, abandon, or desert the leased premises or (c) cease
operating Tenant's business therein (except where the leased premises are
rendered untenantable by reason of fire, casualty, or condemnation), or (d) fail
or refuse to maintain business hours and days or any part thereof, as required
by this Lease. then and in any such event (hereinafter referred to as "failure
to do business"), Landlord shall have the right, at its option. in addition to
------
all remedies otherwise available to Landlord. (i) to collect not only the annual
5
<PAGE>
Minimum Rent and other rents and charges herein reserved. but also additional
rent equal to one-half, (1/2), of the annual Minimum Rent reserved for the
period of the Tenant's failure to do business, computed at a daily rate for each
and every day during such period. and such additional rent shall be deemed to be
liquidated damages payable by Tenant to Landlord in lieu of any Percentage Rent
that might have been earned by Landlord during such period and Landlord shall
not be required to prove actual damages, and/or (ii) to treat such failure to do
business as an event of default within the meaning of Article 19 hereof. Said
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liquidated damages shall be payable monthly, concurrently with monthly
installments of Minimum Rent. As used herein, the terms "vacate", "abandon" or
"desert" shall not be defeated because Tenant may have left all or any part of
its trade fixtures or other personal property in the leased premises. Nothing
herein shall be construed as a limitation upon Tenant's obligation to
continuously conduct business in the manner required by this Lease or upon
Landlord's remedies under any other provision of this Lease.
SEE ATTACHED RIDER FOR INSERTS
SECTION 2.05. TAXES. (a) Tenant shall pay to Landlord its proportionate
share of all taxes, rates and assessments which may be levied or assessed by any
lawful authority during each calendar year falling in whole or in part during
the term of this Lease against the land, buildings and improvements comprising
the regional development and any other taxes Landlord becomes obligated to pay
with respect to the regional development (whether or not such taxes are assessed
against real or personal property) including all taxes, charges, rates and
assessments, general and special, imposed in connection with any special taxing
district ("Taxes"). For purposes of determining Taxes the term regional
development shall be deemed to include any land upon which off-site parking
facilities, berms, landscaping, lighting and/or off-site sewer and utility
systems (including drainage and flood control and retention ponds) serving the
regional development are located. with all improvements situated thereon,
provided however that once any such area or portion thereof, is sold or leased
by Landlord, then such area, or portion thereof, would no longer be so included.
If any Taxes or assessed valuation(s) are contested by Landlord, then Tenant's
proportionate share of Taxes shall also include Tenant's proportionate share of
the cost and expense, including reasonable attorneys' fees, of contesting such
Taxes or assessed valuation(s). The term "Taxes" shall also include all payments
in lieu of taxes that are payable by Landlord pursuant to agreements reached or
arrangements made with governmental agencies and/or entities having the
authority to levy, assess and/or impose taxes or charges, including, without
limitation, amounts payable arising out of a bond offering to pay for
infrastructure relating to, or required by, the development and operation of the
regional development. The term "Taxes" shall include all payments in lieu of
taxes and all amounts payable concerning that certain Landfill Reclamation
Improvement District assessment arising out of a bond offering to pay for
certain infrastructure relating to or required by the development and operation
of the regional development. Should the State or any political subdivision
thereof or any governmental authority having jurisdiction (i) levy, assess or
impose a tax, excise and/or assessment of any kind or nature upon, against or
with respect to the rents payable by tenants in the regional development to
Landlord or on the gross receipts of Landlord derived from the regional
development or with respect to the ownership of the Landlord, or the individual
or entities which form the Landlord herein, of the land and buildings comprising
the regional development, either by way of substitution for all or any part of
the taxes and assessments levied or assessed against such land and such
buildings, or in addition thereto, and/or (ii) impose a tax or surcharge of any
kind or nature, upon. against or with respect to the parking areas or the number
of parking spaces in the regional development, then in either or both of such
events, such tax assessment and/or surcharge shall be deemed to be included
within the term "Taxes" as used in this Section and Tenant shall be obligated to
pay its proportionate share thereof as provided herein.
(b) Tenant's proportionate share of Taxes shall be equal to the product
obtained by multiplying such Taxes by a fraction, the numerator of which shall
be the square footage of floor area in the leased premises and the denominator
of which shall be the square footage of constructed gross leased and occupied
floor area in the Shopping Center. Prior to the proration and determination of
Tenant's proportionate share of the foregoing Taxes, there shall be deducted
from the total thereof all Taxes reimbursed to Landlord by any Major Tenant.
Tenant's proportionate share of all Taxes for or during the term hereof as
determined by the Landlord, shall be paid in monthly installments on or before
the first (1st) day of each calendar month, in advance, in an amount estimated
by Landlord. Upon receipt of all tax bills and assessment bills attributable to
any calendar year during the term hereof, Landlord shall furnish Tenant with a
written statement of the actual amount of Tenant's proportionate share of Taxes
for such year. In the event no tax bill is available, Landlord will compute the
amount of such Taxes. If the total amount paid by Tenant under this Section for
any calendar year during the term of this Lease shall be less than the actual
amount due from Tenant for such year, as shown on such statement. Tenant shall
pay to Landlord the difference between the amount paid by, Tenant and the actual
amount due, such deficiency to be paid within ten (10) days after demand
therefore by Landlord. and if the total amount paid by Tenant hereunder for any
such calendar year shall exceed the actual amount due from Tenant for such
calendar year, such excess shall be credited against the next installment of
Taxes due from Tenant to Landlord hereunder. All amounts due hereunder shall be
payable to Landlord at the place where Minimum Rent is payable for the calendar
years in which this Lease commences and terminates, the provisions of this
Section shall apply and Tenant's liability for its proportionate share of Taxes
for such years shall be subject to a pro rata adjustment based on the number of
days of said calendar years during which the term of this Lease is in effect. A
copy of a tax bill or assessment bill submitted by Landlord to Tenant shall at
all times be sufficient evidence of the amount of taxes and or assessments
assessed or levied against the property to which such bill relates. Prior to or
at the commencement of the term of this Lease and from time to time thereafter
through the term hereof, Landlord shall notify Tenant in writing of Landlord's
estimate of Tenant's monthly installments due hereunder. Landlord's and Tenant's
obligations under this Section shall survive the expiration of the term of this
Lease.
SEE ATTACHED RIDER FOR INSERTS
(c) Tenant shall also pay to the appropriate agency or entity all
Franchise Assessment Fees (as defined below) "Franchise Assessment Fees" shall
mean all fees payable by Tenant arising out of the fact that the leased
premises are located in a Landfill Reclamation Improvement District as defined
in and authorized by P. L. 1995. C. 173 and amended by P. L. 1996. C. 73.
Landlord represents that. under the current law, Franchise Assessment Fees may
total no more than three percent (3%) of gross receipts from sales. and that
Franchise Assessment Fees are payable separate and apart from, and in addition
to, any and all sales, excise or value added taxes that Tenant may be obligated
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to pay concerning gross receipts and such Franchise Assessment Fees may be
separately stated and charged to customer at the point of sale. Landlord
represents that the Franchise Assessment Fees, as presently enacted, are subject
to the sale price of the same merchandise and products which are subject to the
New Jersey Sales and Use Tax Act (N.J.S.A. 54:32B-1 et. seq.) (excepting only
retail sales of motor vehicles, theater tickets, manufacturing machinery,
equipment or apparatus). Pursuant to local ordinance, Landlord must require all
leases with tenants of the Shopping Center to contain language granting the City
of Elizabeth ("City") the right to inspect the books and records of the Tenant
with respect to the leased premises. Accordingly, Tenant hereby grants to the
City the right to inspect the books and records of Tenant with respect to the
leased premises at all reasonable times during normal business hours, for the
purpose of auditing and confirming gross receipts so as to enable the City to
properly determine the amount of Franchise Assessment Fees due from Tenant and
to aid the City in the collection thereof. Tenant further warrants and covenants
that Tenant shall not directly or indirectly, challenge, dispute or contest the
validity or enforceability of the ordinance imposing the Franchise Assessment.
Nothing herein shall prohibit Tenant from contesting, in an appropriate forum
the amount of the Franchise Assessment Fees allegedly due from Tenant. In
connection with such Franchise Assessment Fees, Landlord represents to Tenant
the following: (i) under presently applicable State law, the otherwise
applicable State sales tax of six percent (6%) shall be reduced to three percent
(3%) for businesses in the Shopping Center, and (ii) the imposition of the
three percent (3 %) Franchise Assessment Fees will, consequently, be offset by
such reduction in the State sales tax.
SECTION 2.06. ADDITIONAL RENT. Unless otherwise stated, all sums of money
or charges of any kind or nature in addition to Minimum Rent and Percentage Rent
payable by Tenant to Landlord under this Lease or the exhibits attached hereto
shall be defined as 'additional rent" and shall be due and payable ten (10) days
after demand therefor, without any deductions or setoff whatsoever, and Tenant's
failure to pay any such amounts or charges when due shall carry the same
consequences as Tenant's failure to pay rent. All such amounts or charges shall
be payable to Landlord at the place where Minimum Rent is payable. The term
"rent" shall be defined in this Lease as the sum of Minimum Rent, Percentage
Rent, and all additional rent, when and as the same shall be due and payable
hereunder. Any rent or sums payable by Tenant to Landlord under this Lease which
is not paid when due, shall incur, and Tenant shall pay, a service charge equal
to Five Cents ($0.05) for each One Dollar ($1.00) of every such payment that is
late. It is agreed that the service charge is a fair and reasonable charge under
the circumstances to help Landlord defray the expense of handling late payments,
and shall not be construed as interest on a debt payment, and shall not be
construed " to extend the date for payment of any rent or sums due hereunder.
ARTICLE 3. BOOKS AND RECORDS
SECTION 3.01. TENANT'S RECORDS. Tenant shall prepare and keep at the leased
premises or at Tenant's executive offices within the continental United States
complete, accurate and proper books, records and accounts of Gross Sales made
in, upon or from the leased premises in each lease year whether for cash or
credit and for each separate department at any time operated in the leased
premises. The books, records and accounts shall be kept in accordance with
generally accepted accounting principles and shall include without limitation
(i) detailed original records of all sales at, in or from the leased premises,
(ii) detailed original records of any exclusions or deductions from Gross Sales,
(iii) sales tax records and reports, and (iv) all other records, if any, which
would normally be examined by an independent accountant pursuant to accepted
auditing standards in performing an audit of Tenant's sales. Said books records
and accounts, including true copies of any sales reports that Tenant may be
required to furnish to any government or governmental agency, shall at all
reasonable times be open to the inspection of the Landlord, Landlord's auditor
---------
or other authorized representative or agent for a period of at least three (3)
years after the expiration of the lease year to which they have reference.
SEE ATTACHED RIDER FOR INSERTS
SECTION 3.02. REPORTS BY TENANT. Tenant shall furnish to Landlord within
fifteen (15) days after the expiration of each month of each lease year a
complete statement, certified by an officer of Tenant, of the amount of Gross
Sales made in, on or from the leased premises during said month. Tenant shall
also furnish to Landlord within thirty (30) days after the expiration of each
lease year a complete statement, certified by an independent certified public
accountant employed by Tenant, or by Tenant's financial officer (if Tenant is a
publicly traded corporation), showing in all reasonable detail the amount of
Gross Sales made by Tenant in, on or from the leased premises during such lease
year. Tenant shall cause and require all of its concessionaires or subtenants,
if any, to furnish statements at the times and in the form required herein
relating to their operations within the leased premises. All Gross Sales
statements to be supplied by Tenant to Landlord shall be in such form and with
such detail as Landlord shall reasonably deem necessary.
ARTICLE 4. AUDIT
SECTION 4.01. RIGHT TO EXAMINE BOOKS. Landlord shall have the right from
time to time and upon at least ten (10) days notice to examine the Tenant's
books, records and accounts of Gross Sales in order to verify the amount of
annual Gross Sales made by the Tenant in and from the leased premises.
SEE ATTACHED RIDER FOR INSERTS
SECTION 4.02. AUDIT. Landlord may at any reasonable time. and from time to
time upon at least ten (10) days prior written notice to Tenant cause a complete
- ----
audit to be made of Tenant's entire books and records relating to Gross Sales
(including the books and records of any concessionaire, subtenant or licensee).
If such audit shall disclose that Tenant's statement of Gross Sales is at
variance to the extent of two percent (2%) or more. Tenant shall pay to Landlord
within ten (10) days after demand the cost of such audit. Any Percentage Rent
found due and owing as a result of any audit shall be immediately paid by Tenant
to Landlord with interest pursuant to Section 30.18 from 6t the date the
deficiency in Percentage Rent was properly due and payable to Landlord. In the
event, upon audit, there is a variance of reported Gross Sales by four percent
(4 %) or more in one lease year, or (ii) two percent (2%) or
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more in two (2) consecutive lease years, Landlord reserves the right, at its
sole option, to declare Tenant in default, without further notice or right to
cure, and to exercise any or all of its remedies and rights under Article 19.
SEE ATTACHED RIDER FOR INSERTS
ARTICLE 5. CONSTRUCTION OF LEASED PREMISES
SECTION 5.01. CONSTRUCTION OF LEASED PREMISES. Landlord shall construct the
leased premises substantially in accordance with the work described as
"Landlord's Work" in Exhibit "C" attached hereto and made a part hereof. It is
expressly agreed that Landlord's Work shall be limited to the scope of
construction delineated as Landlord's Work in said Exhibit "C" and shall in no
event include the performance, procurement and/or installation of those items of
work, fixtures and equipment which are to be performed, procured and/or
installed by Tenant, at Tenant's expense, and which are hereinafter described as
Tenant's Work in Exhibit "C" attached hereto and made a part hereof. If (i)
Landlord shall have not commenced construction of the Shopping Center and/or the
building of which the leased premises forms a part within two (2) years from the
date of this Lease, or (ii) the leased premises are not delivered to Tenant
within three (3) years from the date of this Lease, then for a period of thirty
(30) days following the expiration of the period described in (i) and (ii) above
Tenant shall have the option, and for forty-five (45) days following such period
Landlord shall have the option, to cancel and terminate this Lease upon at least
thirty (30) days prior written notice to the other party and, in such event,
this Lease shall thereafter be null and void and of no further force or effect,
and any money or security deposited hereunder shall be returned to Tenant and
thereafter neither party shall have any further liability to the other, either
for damages or otherwise, by reason of such cancellation as though this Least
had not been executed in the first instance. Under no circumstances, except as
provided in the immediately preceding sentence, shall Tenant be permitted to
rescind or terminate this Lease, and under no circumstances shall Landlord be
liable to Tenant in damages for any delay in commencing or completing the leased
premises, or for a total failure to complete same or for a failure to deliver
same in the condition provided for in this Lease.
SECTION 5.02. DELIVERY OF POSSESSION. Upon substantial completion (as
hereinafter defined) of Landlord's Work in the leased premises, Landlord, by at
least five (5) days prior written notice to Tenant setting forth the date upon
which Landlord's Work is, or will be, substantially completed, shall deliver
possession of the leased premises to Tenant, which date shall be the delivery of
possession date. As used herein, "substantial completion" shall mean the
completion of the Landlord's Work to an extent sufficient to permit the
commencement of construction of all or part of Tenant's Work in the leased
premises (except for finishing operations, including items of work necessarily
waiting the performance of Tenant's Work), as determined by Landlord's architect
or construction personnel.
SECTION 5.03. CHANGES AND ADDITIONS. Neither the site plan (Exhibit " A")
nor any additions thereto shall be deemed to be a warranty, representation or
agreement on the part of the Landlord that the Shopping Center or regional
development will be constructed or located exactly as indicated on said plans.
Landlord hereby reserves the right at any time, and from time to time, (a) to
increase, reduce or change the number, size, height, layout, or locations of the
buildings, walks, parking and/or other common areas and facilities now or
hereafter forming a part of the regional development in any manner whatsoever as
Landlord may, from time to time, deem proper, (b) to make alterations or
additions to, and to build additional stories on the building in which the
leased premises are located and to buildings adjoining the same, (c) to
construct other buildings and improvements in the Shopping Center or the
regional development, and to reinforce, relocate or enlarge the Shopping Center
or the regional development and to make alterations therein or additions
thereto, and to build additional stories on any building or buildings within the
Shopping Center or the regional development, and to build adjoining thereto and
to construct decks or elevated parking facilities. and (d) to sell or lease any
part of the land comprising the regional development, as said land is described
on Exhibit "B', for the construction thereon of a building(s) to be occupied by
a department store(s) or a Major Tenant(s) which may or may not be a part of the
Shopping Center, and (e) to change, modify, or abolish any off-site utility
serving the regional development. Tenant consents to the exercise by Landlord of
the rights set forth in this Section 5.03 and agrees that the exercise of such
rights shall not diminish Tenant's obligations under this Lease.
ARTICLE 6. TENANTS WORK
SECTION 6.01. TENANT'S WORK. Tenant agrees, prior to the commencement of
the term of this at Tenant's sole cost and expense, to perform all work of
whatever nature in accordance with Tenant's obligations forth in Exhibit "C" as
"Tenant's Work". Tenant shall prepare and submit to Landlord store design and
working drawings of Tenant's Work with respect to the leased premises prepared
in the manner and within the time periods specified in Exhibit "C". No material
deviations from the final plans and specifications, once approved by Landlord
shall be permitted. Landlord's review of Tenant's plans and specifications shall
not constitute the assumption of any responsibility by Landlord for their
accuracy or sufficiency. and shall in no event create an express or implied
confirmation that Tenant's design and/or working drawings have been prepared in
accordance with the requirements of applicable laws, codes, ordinances and
regulations, and Tenant shall be solely responsible with respect to all
necessary compliance with laws, codes, ordinances and regulations. In the event
Tenant's plans and specifications, in the sole judgment of Landlord or
Landlord's architect, are incomplete, inadequate or inconsistent with the terms
of this Lease and/or do not conform to the standards of design, motif, decor and
quality established or adopted by Landlord and/or would tend to create an
imbalance with or be incompatible with adjoining premises, and/or would subject
Landlord to additional costs or expenses in the performance of Landlord's Work,
and/or would provide for or require any installation or work which is or might
be unlawful or create an unsound or dangerous condition or adversely affect the
structural soundness of the leased premises or the building of which the same
forms a part, and/or would interfere with the use and enjoyment of any adjoining
space in the building in which the leased premises are located, then, in
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the event Landlord determines that Landlord and Tenant are unable to agree upon
store design drawings and, or working drawings Landlord shall have the option,
upon ten (10) days' written notice to Tenant to declare this Lease null and void
and of no further force and effect, in which event this Lease shall terminate,
but Tenant shall remain liable for all obligations arising during the original
stated term as provided in this Lease. All work performed by Tenant shall comply
with such rules and regulations as Landlord and its representatives may make. It
is further understood and agreed that: Landlord shall have no responsibility or
liability whatsoever for any loss of, or damage to, any fixtures, equipment,
merchandise, or other property belonging to Tenant, installed or left in the
leased premises. Tenant shall obtain at its sole cost and immediately thereafter
furnish to Landlord all certificates and approvals with respect to work done and
installations made by Tenant that may be required for the issuance of a
certificate of occupancy for the leased premises, so that such certificate of
occupancy shall be issued and the leased premises shall be ready for the opening
of Tenant's business on the Commencement Date. Upon the issuance of the
certificate of occupancy, a copy thereof shall be immediately delivered to the
Landlord. Tenant hereby expressly agrees that the entry or occupancy of the
leased premises by Tenant or Tenant's agents or contractors prior to the date
herein fixed for the commencement of the term of this Lease shall be governed by
and shall be subject to all of the terms and provisions of this Lease, and
Tenant shall observe and perform all its obligations under this Lease,
including, without limitation, its obligation to pay charges for temporary
water, heating, cooling, lighting, insurance and other charges pursuant to the
provisions of Exhibit "C", but excepting its obligations to pay Minimum Rent,
Percentage Rent, Taxes, common area maintenance expenses and annual promotional
charge, from the date upon which the leased premises are made available to
Tenant for its work (or from the date when Tenant commences to perform Tenant's
Work, if earlier) until the actual commencement of the term of this Lease
pursuant to Section 1.02 hereof. From and after delivery of possession of the
leased premises to Tenant, Tenant shall be obligated to complete Tenant's Work
in the leased premises, and to cause Tenant's trade fixtures and merchandise to
be installed and stocked in the leased premises and be ready to open for
business as provided in Section 1.02 hereof. The opening by Tenant of Tenant's
business in the leased premises shall constitute an acknowledgment by Tenant
that Landlord has performed all of Landlord's Work with respect to the leased
premises.
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SEE ATTACHED RIDER FOR INSERTS
SECTION 6.02. TIME OF THE ESSENCE. Time is of the essence with respect to
Tenant's performance of each of the provisions concerning construction and the
opening of the leased premises for business. If Tenant fails or omits to make
timely submission to Landlord of any plans or specifications or unreasonably
delays in the correction or revision of the same, or in commencing to perform or
performing or completing Tenant's Work, or interferes with the performance of
Landlord's Work, Landlord, in addition to any other right or remedy it may have
at law or in equity, may pursue any one or more of the following remedies: (a)
until Tenant shall have commenced Tenant's Work. Landlord may give Tenant a ten
(10) day written notice stating that if a specified failure, omission or delay
is not cured by the date therein specified, this Lease shall be deemed cancelled
and terminated, and if such notice shall not be complied with, this Lease shall,
on the date therein stated, ipso facto be cancelled and terminated without
prejudice to Landlord's rights hereunder; or (b) Landlord, may, after written
notice of its intention to do so at Tenant's cost and expense including, without
limitation, expense for such overtime as Landlord's architect may deem
necessary, proceed with the completion or revision of any such plans or
specifications or the construction of Tenant's Work, as the case may be, and
such performance by Landlord shall have the same effect hereunder as if the
desired plans, specifications, work or other action by Tenant had been done, as
herein required. Tenant shall pay to Landlord upon demand as additional rent
hereunder, the cost to Landlord of completing the leased premises, exclusive of
the Landlord's Work; or (c) Landlord may treat such failure, omission or delay
on the part of Tenant as an event of default within the meaning of Article 19
hereof. In exercising any of the remedies hereinabove set forth, Landlord shall
be entitled to retain and have recourse to any bond, escrow deposit, advance
rent or security deposit previously deposited by Tenant under this Lease. If
Tenant intends to claim that Tenant's Work is delayed or about to be delayed,
because of Landlord's Work or the act of Landlord's architect or contractors,
and as a condition precedent of Tenant claiming or relying upon such delay,
Tenant shall, within twenty-four (24) hours after such delay notify Landlord in
writing thereof.
ARTICLE 7. CONDUCT OF BUSINESS BY TENANT
SECTION 7.01. USE OF LEASED PREMISES. Tenant shall continuously use and
occupy the leased premises during the term of this Lease solely for the purpose
of conducting the business specifically described in the Data Sheet (herein
referred to as "Permitted Use") and for no other purpose or purposes. If any
governmental or permit shall be required for the proper and lawful conduct of
Tenant's business or other activity carried on leased premises or if a failure
to procure such a license or permit might or would, in any way adversely affect
Landlord or the Shopping Center, then Tenant, at Tenant's expense. shall duly
procure and thereafter maintain such license or permit and submit the same for
inspection by Landlord. Tenant, at Tenant's expense, shall, at all times, comply
with the requirements of each such license or permit.
SECTION 7.02. OPERATION OF BUSINESS. (a) Tenant agrees to continuously
operate its business in the entire area of the leased premises during the entire
term of this Lease and to conduct. its business at all times in a reputable
manner, maintaining at all times a full staff of employees and a full and
complete stock of seasonable merchandise. Tenant shall keep the leased premises
open for business in good faith and in a lawful manner during, all days and
hours established by Landlord. Landlord shall establish the days and hours upon
notice to Tenant, but Landlord shall have the right to make such changes as it
deems necessary and desirable. In the event the maximum hours during which the
Shopping Center is legally permitted to be open to the public are regulated by
any lawful authority, then Landlord shall be the sole judge of which days and
hours shall be the Shopping Center business days and hours. Tenant shall install
and maintain at all times a display of merchandise in the display windows, if
any, of the leased premises and shall keep the same well-lighted during all
hours that the Shopping Center is open to the general
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public and at least one-half hour thereafter, and during such other hours as may
be reasonably designated by Landlord. Tenant shall promptly comply with all
laws and ordinances and lawful orders and regulations affecting the local laws
in effect from time to time prohibiting discrimination or segregation by reason
of race, color, creed, age, religion, sex, or national origin. No auction,
liquidation, going out of business, fire or bankruptcy sales may be conducted in
the leased premises. Tenant's sales practices shall be consistent with the
standards and practices generally acceptable in enclosed value-oriented regional
retail shopping centers. Tenant agrees that it will conduct its business in the
leased premises in a lawful manner and in good faith, and will not do any act
tending to injure the reputation of the Shopping Center as determined by
Landlord. Tenant shall not sell or display any paraphernalia used in the
preparation or consumption of controlled substances. In the event Landlord has
approved Tenant remaining open for business after normal Shopping Center hours,
then such approval shall be conditioned upon Tenant paying for all additional
costs incurred by Landlord as a result thereof. Tenant shall not permit noise
or odors in the leased premises which are objected to by Landlord, and upon
written notice from Landlord, Tenant shall immediately cease and desist from
causing such noise or odor, and failing of which Landlord may deem the same a
material breach of this Lease. Tenant shall not permit the operation of any
coin operated or vending machines or pay telephones on the leased premises,
other than in areas reserved solely for the use of Tenant's employees. Tenant
shall not use the areas adjacent to the leased premises for business purposes.
Tenant agrees that all receiving and deliver of goods and merchandise and all
removal of merchandise, supplies, equipment, trash and garbage and all storage
of trash and garbage shall be made only by way of or in the areas provided
therefor by Landlord. Tenant shall not use or permit the use of any portion of
the leased premises as sleeping apartments, lodging rooms, or for any unlawful
purposes. No radio or television or similar devise shall be instilled exterior
to the leased premises and no aerial shall be erected on the roof or exterior
walls of the building in which the leased premises are located. Landlord may
direct the use of all pest extermination and scavenger contractors at such
intervals as Landlord may require.
SEE ATTACHED RIDER FOR INSERTS
SECTION 7.03. CARE OF LEASED PREMISES. (a) Tenant shall keep the leased
premises (including the service areas adjacent to the leased premises, display
windows and signs) orderly, neat, safe and clean and free from rubbish and dirt
at all times and shall store all trash and garbage only in the areas designated
by Landlord for such storage and accumulation. Tenant shall not burn any trash
or garbage at any time in or about the building. Tenant shall comply with
codes, ordinances and lawful orders of municipalities having jurisdiction
governing trash and storage and removal. Landlord may direct the use by Tenant
at Tenant's expense of all trash removal contractors at such intervals as
Landlord may require. If Landlord shall provide or contract for any services or
facilities for trash removal or compaction, then Tenant shall be obligated to
use the same and shall pay a proportionate share of any and all costs and
expenses thereof. Tenant's proportionate share shall be determined, at
Landlord's option, either (i) as a fraction, the numerator of which is the
square footage of floor area in the leased premises, and the denominator of
which is the square footage of constructed gross leased and occupied floor area
in the Shopping Center, or (ii) on the basis of a separate metering or
monitoring of Tenant's use of such services or facilities. Tenant's
proportionate share of such costs and expenses for each least year shall be paid
in advance, in equal monthly installments, in the same manner and at the same
time as monthly Installments of Minimum Rent are payable hereunder without
deductions or diminution of any kind, based on an amount estimated in advance
from time to time by Landlord.
SEE ATTACHED RIDER FOR INSERTS
(b) 0ENJ Corporation, Inc. and N.J. MetroMall, LLC entered into a consent
decree with the New Jersey Department of Environmental Protection ("NJDEP") to
remediate and clean up the site on which the regional development is located, in
the case NJDEP v. OENJ Corporation, Incet al., Case No. 96-3276 (DRD) (U.S.
District Court for the District of New Jersey) ("Consent Decree"). The Consent
Decree was approved by Order of the U.S. District Court for the District of New
Jersey on October 29. 1996. A "No Further Action Letter" is expected from NJDEP
upon the completion of certain remedial activities, the plan for which has been
approved by NJDEP. The
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Consent Decree, as modified, extends contribution protection and covenants not
to sue to future lessees at the site provided the future lessees execute
certifications that they did not contribute to the contamination at the site.
This certification is set forth in Exhibit "G" (herein "Certification"), a copy
of which is attached to this Lease and made a part hereof. All tenants which
execute the Certification in the form set forth in Exhibit "G" shall be
beneficiaries of the Consent Decree, including the covenant not to sue from
NJDEP and the protection from contribution actions under CERCLA, as provided in
42 U.S.C. 9613(f)(2).
(c) Tenant hereby takes the leased premises subject to the restrictions
of the Consent Decree (as herein defined) and agrees to comply with all, and not
to violate any, of the conditions of the Declaration of Environmental
Restrictions required by, and as defined, by the Consent Decree. Pursuant to
the Consent Decree, Landlord must require all leases with tenants to contain
language granting the NJDEP, its agent and employees, the right to have access
to the leased premises, at reasonable times, for the purpose of performing the
NJDEP pursuant to the aforementioned right to enter, except for damage or loss
caused by the negligence or malfeasance of Landlord, the underlying lessor,
their respective agents or employees if such damage or loss is not required to
be insured against by Tenant pursuant to Article 11.
SECTION 7.04. RADIUS. From and after the date of this Lease and
continuing throughout the term of this Lease, in the event Tenant or any person,
form or corporation who or which controls, is under common control with, or is
controlled by Tenant shall directly or indirectly, either individually or as a
partner or stockholder or otherwise, own, operate, or become financially
interested in any similar or competing business within a radius of _________
miles from the Shopping Center (the "Area"), then the Gross Sales (as defined in
this Lease) of any such business or businesses within said Area shall be
included in Tenant's Gross Sales made from the lease premises and the
Percentage Rent hereunder shall be computed upon the aggregate of Tenant's Gross
Sales made from the leased premises and by any such other business or businesses
then conducted within said Area. This Section 7.04 shall not apply to any such
business or business which are open and are being operated by Tenant within said
Area on the date of full execution of this Lease, If Tenant fails to made
payments required pursuant to this Section 7.04, Landlord or Landlord's
authorized representative or agent shall have the right at all reasonable times
during the term hereof and for a period of a least (2) years after the
expiration of the tem of this Lease, to inspect, audit, copy and/or make extract
of the books, source documents, records and accounts pertaining to such other
business based upon Tenant's Gross Sales in the leased premises, and the
additional Percentage Rent generated from the inclusion of such estimated sales
and tenant's Gross Sales shall be deemed additional rent to be paid by Tenant in
accordance with the provisions of this Lease.
SEE ATTACHED RIDER FOR INSERTS
SECTION 7.05. STORAGE, OFFICE SPACE. Tenant shall store or stock in the
lease premises only such goods, wares and merchandise as Tenant intends to offer
for sale at retail at, inn from or upon the leased premises. This shall not
preclude occasional emergency transfers of merchandise from the other stores of
Tenant, if any, not located in the Shopping Center. Tenant shall use for
office, clerical, or other non-selling purposes only such space in the leased
premises as is from time to time reasonably required for Tenant's business in
the leased premises. Tenant shall not store anything in service or exit
corridors.
SEE ATTACHED RIDER FOR INSERTS
ARTICLE 8. COMMON AREAS
SECTION 8.01. OPERATION OF COMMON AREAS. Landlord agrees to cause to
be operated, managed and maintained during the terms of this Lease all common
areas within the Shopping Center. The manner in which such areas and facilities
shall be maintained, managed and operated, and the expenditure therefore, shall
be at the sole discretion of the Landlord and the use of such areas and
facilities shall be subject to such reasonable regulations and rules as Landlord
shall make from time to time.
SECTION 8.02. TENANT'S PRO RATA SHARE OF EXPENSES. (a) Tenant agrees to pay
to Landlord in the manner hereinafter provided, but not more often than once
each calendar month, Tenant's proportionate share of all costs and expenses of
every kind and nature paid or incurred by Landlord in operating, managing,
equipping, lighting, heating, air conditioning, providing sanitation and sewer
and other services, providing a music and public address system, insuring,
repairing, replacing and maintaining the (i) common areas; (ii) foundation,
exterior walls and roofs within the Shopping Center; (iii) all other areas,
facilities and buildings used in connection with the maintenance and/or
operation of the regional development whether located on or off the regional
development and such costs and expenses shall include but not be limited to the
costs and expenses described in the attached Exhibit "E" and an amount equal to
fifteen percent (15 %) of the total of all of the foregoing costs and expenses
as Landlord's administrative fee. Services performed may be by Landlord or
related companies or by third party contractors. The Tenant's proportionate
share shall be a fraction computed on the basis that the square footage of floor
area in the leased premises bears to the square footage of constructed gross
leased and occupied floor area in the Shopping Center. The gross leased and
occupied floor area in effect for the whole of any lease year or partial lease
year shall be the average of the gross leased and occupied floor area in effect
on the first day of each calendar month in such lease year or partial lease
year. Prior to the proration and determination of Tenant's proportionate share
of the foregoing costs and expenses as provided in
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this Section, there shall be deducted from the total thereof all amounts paid to
Landlord by any Major Tenant toward such cost and expenses.
SEE ATTACHED RIDER FOR INSERTS
(b) Tenant's proportionate share of such costs and expenses for each
calendar year and partial calendar year shall be paid in monthly installments of
the first (1st) day of each calendar month, in advance, in an amount estimated
by Landlord from time to time in the same manner as the monthly installments of
Minimum Rent are payable hereunder without deduction offset or diminution of any
kind. Subsequent to the end of each calendar yeas, Landlord shall furnish
Tenant with a statement of the actual amount of Tenant's proportion share of
such costs and expenses for such period. If the total amount paid by Tenant
under this section for any calendar year shall be less than the actual amount
due from Tenant for such year as shown on such statement, Tenant shall pay to
Landlord the difference between the amount paid by Tenant and the actual amount
due, such deficiency to be paid within thirty (30) days after the furnishing of
each such statement, and if the total amount paid by Tenant hereunder for any
such calendar year shall exceed such actual amount due from tenant for such
calendar year, such excess shall be credited against the next installment due
from Tenant to Landlord under this Section 8.02.
SECTION 8.03. COMMON AREAS. As used in this Lease, the term "common
areas" shall mean (i) the following areas within the regional development: the
parking areas and facilities, roadways, pedestrian sidewalks, truckways, loading
docks, delivery areas, landscaped areas, the enclosed mall, elevators and
escalators and stairs and ramps not contained in the lease areas, public
bathrooms and comfort stations, pedestrian plazas, pedestrian passage areas,
driveways, public transportation loading and unloading facilities, service and
fire exit corridors, retention ponds ( if applicable) and other areas,
amenities, facilities and improvements which may be provided by Landlord, (ii)
those areas within the regional development and areas adjacent to the regional
development which from time to time may be provided by the owners of such areas
for the convenience and use of Landlord, the tenant of the Shopping Center, the
owners and occupants of Major Tenant premises, and their respective
concessionaires, agents, employees, customers, invitees and all other licensees
and others entitled to use thereof, and (iii) any other facilities or areas,
whether within or outside the regional development, as may be designated by
Landlord from time to time. This use and occupancy by the Tenant of the lease
premises shall include the use of the common areas in common with the Landlord
and with all others for whose convenience and use the common areas have been or
may hereafter be provided by Landlord or by the owners of common areas not
within the Shopping Center, subject, however, to rules and regulations for the
use thereof as prescribed from time to time by the Landlord, including
Landlord's right to impose parking charges whether by meter or otherwise. In
no event, however, shall Tenant, its agents or employees, use the common areas
for the display or sale of merchandise. Tenant and its employees shall park
their cars only in areas specifically designate d from time to time by Landlord
for that purpose. Landlord will designate and area for Tenant's employees'
parking and Tenant covenants that it will enforce the parking by its employees
in such designated area. Automobile license numbers of employees' cars shall be
furnished to Landlord upon Landlord's request. Tenant authorized Landlord to
attach violation stickers or notices to and to tow away from the regional
development all such cars of Tenant's employees as are improperly parking and
agrees to reimburse Landlord for the cost thereof, and to pay the Landlord the
sum of Fifty Dollars ($50.00) per day per car for each such car improperly
parked. Landlord may at any time close temporarily any common area to make
repairs or changes, to prevent the acquisition of public rights in such area or
to discourage non-customer parking; and may do such other acts in and to the
common areas as in its judgment may be desirable to improve the convenience
thereof. All common areas and facilities, other than the leased premises, which
Tenant may be permitted to use and occupy pursuant to this Lease are to be used
and occupied under a revocable license, and if the amount of such areas be
diminished pursuant to this Lease, Landlord shall not be subject to any
liability nor shall Tenant be entitle to any compensation or diminution or
abatement of rent, nor shall diminution of such areas be deemed constructive or
actual eviction.
ARTICLE 9. ALTERATIONS AND SIGNS
Section 9.01. INSTALLATION BY TENANT. Tenant shall not make or cause to
be made any alterations, additions, or improvements to the leased premises, or
install or cause to be installed any exterior signs, floor covering, interior or
exterior lighting, plumbing fixtures, shades, canopies or awnings or make any
changes to the storefront, electronic detection devises, mechanical, electrical
or sprinkler systems without the proper written approval of Landlord. Tenant
shall present to the Landlord plans and specifications for such work at the time
approval is sought.
SECTION 9.02. REMOVAL BY TENANT. All alterations, decorations, additions
and improvements made by Tenant shall be deemed to have attach to the leasehold
and to have become the property of Landlord upon the expiration or termination
of this Lease, and upon termination of this Lease or any renewal term thereof,
the Tenant shall not remove any such alterations, decorations, additions and
improvements, except that trade fixtures installed by Tenant may be remove if
all rents due herein are paid in full and Tenant is not otherwise in default
hereunder.
SEE ATTACHED RIDER FOR INSERTS
SECTION 9.03 REFURBISHMENT. During the term of this Lease, Tenant
agrees to refurbish (carpet, paint, replace fixtures, etc.) the leased premises
as needed and required in order to maintain a high quality appearance. Upon the
expiration of one-half (1/2) of the term of this Lease, Tenant shall, within
(30) days after direction from Landlord, submit drawings and specifications
showing the work performed by Tenant to completely refurbish the interior
portions of the lease premises. Tenant shall not be requires, pursuant to this
Section 9.03 to reconstruct the
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leased premises. The work required of Tenant hereunder shall specifically
include work with respect to the following items: wall covering, floor covering,
ceiling, storefront, storefront sign, and surfaces visible to customers. Tenant
will cause such work to be performed not later than ninety (90) days following
the date of Landlord's direction in accordance with drawings and specifications
approved by Landlord specifying the refurbishing work to be done by Tenant. All
such work shall be carried out in accordance with the provisions of this Lease,
including the provisions of this Lease governing construction of the leased
premises.
SECTION 9.04. SIGNS. In accordance with Landlord's sign policies and
criteria set forth in Exhibit `D' attached hereto and made a part hereof, Tenant
shall affix a sign to the exterior surface of the storefront of the leased
premises fronting on the enclosed mall, and shall maintain said sign in good
condition and repair during the term of this Lease. Said sign shall be subject
to Landlord's written approval as to dimension, material, color, design and
content and shall be installed at a location designated by Landlord. Except for
such sign, Tenant will not place or cause to be placed or maintained on any
exterior door, wall or window of the leased premises, on the glass of any window
or door of the leased premises, within any display windows, or within five (5)
feet of the storefront leaseline or opening, or within any entrance to the
leased premises, any sign (flashing, moving, hanging, handwritten, or
otherwise), decal, placard, decoration, lettering, or any other advertising
matter of any kind or description, without Landlord's prior written consent. No
symbol, design, name, mark or insignia adopted by the Landlord for the Shopping
Center shall be used without the prior written consent of Landlord. No
illuminated signs located in the interior of any store and which are visible
from outside the leased premises shall be permitted without the prior written
approval of Landlord. All signs located in the interior of any store shall be in
good taste so as not to detract from the general appearance of the store and the
Shopping Center. Tenant agrees to maintain any sign, decoration, lettering, or
other advertising matter, as may be approved by Landlord, in good condition and
repair at all times during the term of this Lease. All of Tenant's signs shall
be governed by the criteria set forth in Exhibit "D" hereof.
SEE ATTACHED RIDER FOR INSERTS
ARTICLE 10. MAINTENANCE OF LEASED PREMISES
SECTION 10.01. LANDLORD'S OBLIGATIONS FOR MAINTENANCE. Landlord shall, upon
written notice from Tenant of the necessity therefor, keep and maintain the
foundation, exterior walls, and roof of the building in which the leased
premises are located (exclusive of doors, door frames, door checks, windows and
window frames which are not part of common area) in good repair except that
Landlord shall not make any such repairs occasioned by the act or negligence of
Tenant, its agents, employees, invitees, licensees; or contractors, except to
the extent that Landlord is reimbursed therefor under any policy of insurance
permitting waiver of subrogation in advance of loss. Landlord shall not be
called upon to make any other improvements or repairs of any kind upon the
leased premises and appurtenances, except as may be required under Articles 17
and 18 hereof, and nothing contained in this Section 10.01 shall limit
Landlord's right to reimbursement from Tenant for maintenance, repair costs and
replacement costs conferred elsewhere in this Lease.
SECTION 10.02. TENANTS OBLIGATIONS FOR MAINTENANCE. (a) Except as provided
in Section 10.01 of this Lease, Tenant shall keep and maintain in good order,
condition and repair (including replacement of parts and equipment if necessary)
the leased premises and every part thereof and any and all fixtures, and
equipment therein or thereon, and any appurtenances thereto, wherever located,
including, but without limitation, the exterior and interior portion of all
doors, door frames, door checks, windows, window frames, plate glass,
storefronts, all plumbing and sewage facilities exclusively serving the leased
premises including free flow up to the main sewer line, fixtures. heating and
air conditioning systems and electrical systems and sprinkler systems
exclusively serving the leased premises (located in the leased premises), walls,
--------
floors and ceilings, signs, and all other repairs, replacements, renewals and
restorations, interior and exterior, ordinary and extraordinary, foreseen and
unforeseen, structural and nonstructural, and all other work performed by or on
behalf of Tenant pursuant to Exhibit "C" and Articles 6 or 9 hereof
SEE ATTACHED RIDER FOR INSERTS
(b) Tenant shall keep and maintain the leased premises in a clean,
sanitary and safe condition in accordance with the laws of the State and in
accordance with all directions, rules and regulations of the health officer,
fire marshall, building inspector, or other proper officials of the governmental
agencies having jurisdiction, at the sole cost and expense of Tenant, and
Tenant shall comply with all requirements of law, ordinance and otherwise,
affecting the leased premises. If Tenant refuses or neglects to commence and to
complete repairs promptly and adequately, Landlord may, but shall not be
required to do so, make and complete said repairs, and Tenant shall pay the cost
thereof to Landlord upon demand. At the time of the expiration of the tenancy
herein, Tenant shall surrender the leased premises in good condition, reasonable
wear and tear excepted.
(c) Tenant shall keep the leased premises and all other parts of the
regional development free from any and all liens arising out of any work
performed, materials furnished or obligations incurred by, or from, Tenant.
Prior to commencing or causing to be commenced any work on the leased premises,
Tenant shall file a Notice of Commencement (or other similar instrument limiting
lien rights related to Tenant's Work) as provided by applicable law and shall
deliver a copy thereof to Landlord. In the event that any construction,
mechanic's, materialman's or other lien or any notice of claim (herein "lien")
is filed against the leased premises or the regional development as a result of
any work, labor, services or materials performed or furnished, or alleged to
have been performed or furnished to Tenant or to anyone holding the leased
premises through or under Tenant, Tenant, at its expense, shall cause the lien
to be discharged or fully bonded to the satisfaction of Landlord within ten (10)
days after written request therefor. If
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Tenant fails to discharge or bond against said mechanic's, materialman's or
other lien. Landlord may, in addition to any other remedies Landlord may have,
but without obligation to do so, bond against or pay the lien without inquiring
in to the validity or merits of such lien and all sums so advanced, including
reasonable attorneys' fees incurred by Landlord in defending against such lien,
procuring the bond or in the discharge of such lien, shall be paid by Tenant on
demand as additional rent. Tenant shall reimburse Landlord for any costs and
expenses which may be incurred by Landlord by reason of the Filing of any such
liens and/or the removal of same and/or any court action in connection
therewith, such reimbursement to be made within ten (10) days after receipt by
Tenant from Landlord of a statement setting forth the amount of such costs and
expenses. The failure of Tenant to pay any such amount to Landlord within said
ten (10) day period shall carry with it the same consequences as failure to pay
rent. In addition, Tenant shall replace any bonds posted by Landlord pursuant
hereto with a suitable bond of equivalent amount within seven (7) days after
Landlord's demand therefor. Tenant shall give Landlord at least _______ notice
prior to commencing or causing to be commenced any work in the leased premises
(whether prior to or subsequent to the commencement of the lease term), so that
Landlord shall have reasonable opportunity to file and post notices of
non-responsibility for Tenant's Work.
SEE ATTACHED RIDER FOR INSERTS
(d) Tenant, at its own expense, shall install and maintain fire
extinguishers and other fire protection devices as may be required from time to
time by any agency having jurisdiction thereof and the insurance underwriters
insuring the building in which the leased premises are located.
(e) Tenant agrees to operate its heating and air conditioning units serving
the leased premises so as to adequately heat and cool the same, as the case may
be, during the regular business hours of the Shopping Center and to maintain
temperatures in the leased premises consistent with the temperatures in the
enclosed mall so as not to cause any decrease or increase in the temperature in
the enclosed mall when the same is being heated or cooled, as the case may be.
Tenant agrees to purchase and maintain throughout the term of this Lease a
maintenance and service contract from a Landlord approved qualified service
contractor to inspect, adjust, clean and repair all of Tenant's heating,
ventilating and air conditioning equipment, including changing filters. Heating,
ventilating and air conditioning units shall be set for continuous fan operation
during the regular business hours of the Shopping Center and such unit dampers
shall be adjusted to a minimum ten percent (10%) outside air setting. If
Tenant's use of the leased premises results in special exhaust requirements,
Tenant shall have the exhaust fans interlocked with the make-up air units.
(f) If Tenant fails, refuses or neglects to properly maintain the leased
premises or to commence or complete any of the repairs or replacements required
to be made by Tenant hereunder promptly and adequately, Landlord may. in
addition to any other remedy Landlord may have, but shall not be required to,
make or complete said maintenance, repairs or replacements and Tenant shall pay
the cost and expense thereof, plus a charge of fifteen percent (15%) thereof, to
Landlord upon demand as additional rent.
(g) Tenant expressly waives all rights to make repairs at the expense of
Landlord as provided for in any statute or law in effect during the term of this
Lease.
ARTICLE 11. INSURANCE AND INDEMNITY
SECTION 11.01. TENANT'S INSURANCE. (a) Tenant, at Tenant's sole cost and
expense, shall obtain and maintain in effect commencing with the delivery of
possession date and continuing throughout the term of this Lease, insurance
policies providing for the following coverage: (i) all risk property insurance
against fire, theft, vandalism. malicious mischief, sprinkler leakage and such
additional perils as now are or hereafter may be included in a standard extended
coverage endorsement from time to time in general use in the State, insuring
Tenant's merchandise. trade fixtures, furnishings, equipment and all items of
personal property of Tenant located on or in the leased premises, in an amount
equal to not less than eighty percent (80%) of the full replacement value
thereof. Any and all proceeds of such insurance, so long as the Lease shall
remain in effect, shall be used only to repair or replace or pay for the items
so insured; (ii) a comprehensive general liability policy, including insurance
naming Landlord and any mortgagee of the Shopping Center or the regional
development as additional insureds, protecting against any and all claims for
injury to persons or property occurring in or about the leased premises and
protecting against assumed or contractual liability under this Lease with
respect to the leased premises and the operations of Tenant and any subtenant of
Tenant in on or about the leased premises, with such policy to be in the minimum
amount of Two Million Dollars ($2,000.000), single limit coverage, provided
however, that at Landlord's option, such minimum limit may from time to time, be
increased by not more than ten percent (10%) per annum, on a cumulative basis,
with such increase to occur not more often than once during each lease year
during the term hereof; (iii) product liability insurance for merchandise
offered for sale or lease from the leased premises, including (if this Lease
covers leased premises in which food and/or beverages are sold and/or consumed)
liquor liability coverage (if applicable to Tenant's business) and coverage for
liability arising out of the consumption of food and/or alcoholic beverages on
or obtained at the leased premises, of not less than Two Million Dollars
($2,000,000) per occurrence for personal injury and death and property damage,
(iv) workers' compensation coverage as required by law: (v) with respect to
alterations, improvements and the like required or permitted to be made by
Tenant hereunder, contingent liability and builders risk insurance in amounts
satisfactory to Landlord, and (vi) the insurance required under Exhibit "C."
(b) All insurance policies herein to be procured by Tenant shall; (i) be
issued by insurance companies with an A.M. Best & Company rating of "A-XIII" or
better and authorized to do business in the State; (ii) be written as primary
policy coverage and non-contributing with respect to any coverage which Landlord
may carry and that any coverage carried by Landlord shall be excess insurance:
(iii) insure and name Landlord, Landlord's managing agent.
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any mortgagee of the Shopping Center and any parties to interest designated by
Landlord as additional insureds, as their respective interests may appear
(except with respect to workers' compensation insurance) and (iv) shall contain
an express waiver of any rights of subrogation by the insurance company against
Landlord, Landlord's managing agent and their respective agents, employees and
representatives which arises or might arise by reason of any payment under such
policy or by reason of any act or omission of Landlord, its agents, employees or
representatives. Neither the issuance policy required hereunder, nor the minimum
limits specified herein with respect to Tenant's insurance coverage, shall be
deemed to limit or restrict in any way Tenant's liability arising under or out
of this Lease. With respect to each and every one of the insurance policies
herein required to be procured by Tenant, on or before the commencement of
Tenant's Work and before nay such insurance policy shall expire, Tenant shall
deliver to Landlord a duplicate original or certified copy of each such policy
or a certificate of the insurer, certifying that such policy has been issued,
providing the coverage required by this Section and containing provisions
specified herein, together with evidence of payment of all applicable premiums.
Any insurance required to be carried hereunder may be carried under evidence of
payment of all applicable premiums. Any insurance required to be carried
hereunder may be carried under evidence of payment of all applicable premiums.
Any insurance required to be carried hereunder may be carried under a blanket
policy covering the leased premises and other locations of Tenant. Each and
every insurance policy required to be carried hereunder by or on behalf of
Tenant shall provide (and any certificate evidencing the existence of each such
insurance policy shall certify) that, unless Landlord shall first have been
given thirty (30) days' prior written notice thereof, the insurer will not
cancel, materially change or fail to renew the coverage provided by such
insurance policy. The term "insurance policy" as used herein shall be deemed
to include any extensions or renewals of such insurance policy. In the event
that the Tenant shall fail to promptly furnish any insurance coverage hereunder
required to be procured by Tenant, Landlord, at its sole option, shall have the
right to obtain the same and pay the premium therefor for a period not exceeding
one (1) year in each instance, and the premium so paid by Landlord together with
and amount equal to fifteen percent (15%0 of such premium shall be immediately
due and payable by Tenant to Landlord as additional rent.
(c) Tenant shall not carry any stock of goods or do anything in or about
the leased premises with will in any way tend to increase the insurance rates on
the leased premises and/or the building of which they are a part. If Tenant
installs any electrical equipment that overloads the lines in the leased
premises, Tenant shall, at its own expense, make whatever changes are necessary
to comply with the requirements or the insurance underwriters and governmental
authorities having jurisdiction.
SECTION 11.03. INDEMNITY (a) Tenant hereby agrees to defend, pay,
indemnify and save free and harmless Landlord (and/or any fee owner or ground or
underling lessors of the Shopping Center) its officers, directors, stockholders,
beneficiaries, partners, representatives, agents, and employees from and against
any and all claims, demands, fines, suites, actions, losses, liabilities,
proceedings, orders, decrees and judgments of any kind or nature by or in favor
of anyone whomsoever and from and against any and all costs and expenses,
including attorneys fees, resulting from or in connection with loss of life,
bodily or personal injury, or property damage arising, directly or indirectly,
out of or from or on account of any occurrence in, upon, at, or from the leased
premises or occasioned wholly or in part through the use and occupancy of the
leased premises or any improvements therein or appurtenances thereto, or by any
act or omission of Tenant or any subtenant, concessionaire or licensee of
Tenant, or their respective employees, agents, contractors or invitees in, upon,
at, or from the leased premises or its appurtenances or any common areas of the
Shopping Center complex.
SEE ATTACHED RIDER FOR INSERTS
(b) Tenant and all those claiming by, through or under Tenant shall
store their property in and shall occupy and use the leased premises and any
improvements therein and appurtenances thereto and all portions of the Shopping
Center complex solely at their own risk and Tenant and those claiming by,
through or under Tenant hereby release Landlord, to the full extent permitted by
law, from all claims of every kind, including loss of like, personal or bodily
injury, damage to merchandise, equipment, fixtures or other property, or damage
to business or for business interruption arising directly or indirectly out of
or from or on account of such occupancy and use resulting from any present or
future condition or state of repair thereof.
(c) Landlord shall not be responsible or liable at any time to Tenant,
or to those claiming by, through or under Tenant, for any loss of life, bodily
or personal injury, or damage to property or business, or for business
interruption, that may be occasioned by or through the acts, omissions or
negligence of any other persons, or any other tenants or occupants of any
portion of the Shopping Center.
(d) Landlord shall not be responsible or liable at any time for any
defects, latent or otherwise, in any buildings or improvements in the Shopping
Center or any of the equipment, machinery, utilities, appliances or apparatus
therein, nor shall Landlord be responsible or liable at any time for loss of
like, injury or damage to any person or to any property or business of Tenant,
or those claiming by, through or under Tenant, caused by or resulting from the
15
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bursting, breaking, leaking, running, seeping, overflowing or backing up of
water, steam, gas, sewage, snow or ice in any part of the leased premises or
caused by or resulting from acts of God or the elements, or resulting from any
defect or negligence in the occupancy, construction, operation or use of any
buildings or improvements in the Shopping Center, including the leased premises,
or any of the equipment, fixtures, machinery, appliances or apparatus therein.
(e) In case Landlord, without fault on its part, shall be made a party to
any litigation commenced by or against Tenant, then Tenant shall indemnify and
hold Landlord harmless therefrom and shall pay Landlord all costs and expenses,
including reasonable attorneys' fees which Landlord may sustain by reason
thereof.
(f) Tenant expressly acknowledges that all of the foregoing provisions of
this Section 11.03 shall apply and become effective from and after the date
Landlord shall deliver possession of the leased premises to Tenant for
commencement of Tenant's Work in accordance with the terms of this Lease.
(g) Notwithstanding the provisions of this Section 11.03, Landlord shall be
responsible for its negligence, provided, however, Landlord is first given
written notice and a reasonable time has lapsed without Landlord taking the
corrective action.
ARTICLE 12. UTILITIES
SECTION 12.01. UTILITIES. Tenant shall be solely responsible for and shall
promptly pay all charges for all utilities used upon or furnished to the leased
premises including, but not limited to, gas, water, electricity, and sanitary
sewer. In the event, for any reason whatsoever, any particular utility is not
separately metered, then; and in that event, Tenant shall be responsible for its
pro rata share based upon the formula that Landlord, in its reasonable
discretion, deems appropriate.
SECTION 12.02. ENERGY SHORTAGES. The parties hereto acknowledge that energy
shortages in the region in which the Shopping Center is located may, from time
to time, necessitate reduced or curtailed operation of the Shopping Center and
the business conducted by Tenant in the leased premises. Tenant agrees to and
shall comply with such rules and regulations as may be promulgated from time to
time by the Landlord with respect to energy consumption, provided that the same
apply uniformly to all tenants in the Shopping Center, and during such periods
of time when, in the opinion of Landlord, energy shortages so dictate, Tenant
shall reduce or curtail business operations in the leased premises as shall be
directed by Landlord. Compliance with such rules and regulations and such
reduction or curtailment of business operations shall not constitute a breach of
Landlord's covenant of quiet enjoyment, nor shall the same constitute an actual
or constructive eviction of Tenant, or otherwise invalidate or effect this
Lease, and Tenant shall not be entitled to any diminution, reduction or
abatement of rent during periods of reduction or curtailment of business
operations. Failure to keep and observe said rules and regulations and/or to
reduced or curtail business operations as herein provided shall constitute an
event of default under Article 19 hereof.
SEE ATTACHED RIDER FOR INSERTS
SECTION 12.03. SPRINKLER CHARGE. Tenant agrees to pay Landlord, as Tenant's
share of the cost and expense of installing, maintaining, repairing and
operating the sprinkler system for the common areas including the mains or feeds
to leasable areas (but not including the sprinkler system within leasable
areas), an annual sprinkler charge in the amount set forth in the Data Sheet.
Said annual sum shall be payable by Tenant to Landlord, in twelve (21) equal
consecutive monthly installments, in advance, on the first (1st) day of each
calendar month during the term of this Lease.
SECTION 12.04. INTERRUPTION OF SERVICE. Landlord shall not be liable to
Tenant for damages or otherwise (i) if any utilities shall become unavailable
from any public utility company, public authority or any other person or entity
supplying or distributing such utility, or (ii) for any interruption in any
utility service (including, but without limitation, any heating, ventilation or
air conditioning) caused by the making of any repairs or improvements
or by any cause beyond Landlord's reasonable control, and the same shall not
constitute a default. termination or an eviction.
SEE ATTACHED RIDER FOR INSERTS
ARTICLE 13. ESTOPPEL STATEMENT, ATTORNMENT AND SUBORDINATION
SECTION 13.01. ESTOPPEL STATEMENT. Tenant agrees within ten (10) days after
request by Landlord or from any mortgagee under any mortgage or any trustee
under any deed of trust on the real property on which the building containing
the leased premises is located or of which the leased premises are a part, to
execute in recordable form and deliver to Landlord, to the party requesting said
statement or to any person, firm or corporation designated by Landlord, a
statement, in writing, certifying (a) that this Lease is in full force and
effect, (b) the date of commencement of the term of this Lease, (c) that rent is
paid currently without any offset or defense thereto, (d) The amount of rent, if
any. paid in advance, (e) whether the Lease has been modified and, if so,
identifying the modifications, (f) that there be no uncured defaults by Landlord
or stating in detail those claimed by Tenant, and (g) any other matters relating
to the status of this Lease provided, that in fact, such facts are accurate and
ascertainable.
SECTION 13.02. AT'TORNMENT. Tenant understands and hereby acknowledges that
the Landlord herein is the lessee under the Master Lease and that this Lease is
subject and subordinate to such Master Lease and any amendments thereto. Tenant
covenants and agrees that if, by reason of any default upon the part of the
Landlord herein as lessee under such Master Lease, the Master Lease is
terminated by summary proceedings, voluntary agreement or as otherwise permitted
or required by law, Tenant shall attorn to and recognize the lessor under such
Master Lease as
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Tenant's landlord under this Lease. The provisions of this Section 13.02 are
automatically effective without the necessity of further action by Tenant,
Landlord or the lessor under the Master Lease. Tenant agrees to execute and
deliver at any time, upon request of Landlord or of the lessor under the Master
Lease or of any person. firm or corporation which shall succeed to the interest
of Landlord or of such lessor, an instrument to evidence such attornment. Tenant
waives the provisions of any law now or hereinafter in effect or any other
provision of this Lease which may give Tenant any right of election to terminate
this Lease or to surrender possession of the leased premises in the event that
any proceeding is brought by the lessor under such Master Lease to terminate
such Master Lease or in the event that any proceeding is brought by any
mortgagee to foreclose any mortgage affecting the fee title to, or Landlord's
interest in, the leased premises or the Master Lease. In the event any
proceedings are brought for the foreclosure of, or in the event of the
conveyance by deed in lieu of foreclosure of, or in the event of exercise of the
power of sale under any mortgage made by Landlord covering the leased premises,
or in the event Landlord sells, conveys or otherwise transfers its interest in
the Shopping Center or any portion thereof containing the leased premises, this
Lease shall remain in full force and effect and Tenant hereby attorns to, and
covenants and agrees to execute an instrument in writing reasonably satisfactory
to the new owner whereby Tenant attorns to such successor in interest and
recognizes such successor as the Landlord under this Lease.
SECTION 13.03. SUBORDINATION. Tenant agrees that this Lease shall, at the
request of the Landlord, be subordinate to any first mortgages or deeds of trust
that may hereafter be placed upon the leased premises and to any and all
advances to be made thereunder, and to the interest thereon, and all renewals,
replacements and extensions thereof, provided the mortgagee or trustee named in
said mortgages or deeds shall agree to recognize the Lease of Tenant in the
event of foreclosure if Tenant is not in default. Tenant also agrees that any
mortgagee or trustee may elect to have this Lease a prior lien to its mortgage
or deed of trust, and in the event of such election, and upon notification by
such mortgagee or trustee to Tenant to that effect, this Lease shall be deemed
prior in lien to the said mortgage or deed of trust, whether this Lease is dated
prior to or subsequent to the date of said mortgage or deed of trust. Tenant
agrees, that upon the request of Landlord, any mortgagee or any trustee, Tenant
shall execute whatever instruments may be required to carry out the intent of
this Section.
SECTION 13.04. REMEDIES. Failure of the Tenant to execute any statement or
instruments necessary or desirable to effectuate the foregoing provisions of
this Article within ten (10) days after written request to do so by Landlord,
shall constitute a breach of this Lease and the Landlord shall have the right by
not less than ten (10) days notice to Tenant to declare this Lease terminated
and the term ended, in which event, this Lease shall cease and terminate on the
date specified in such notice with the same force and effect as though the date
set forth in such notice were the date originally m forth herein and fixed for
the expiration of the term, and Tenant shall vacate and surrender the leased
premises but shall remain liable as provided in this Lease. Further, Tenant
hereby irrevocably appoints Landlord as attorney in fact for the Tenant with
full power and authority to execute and deliver in the name of the Tenant any
such statements or instruments.
ARTICLE 14. ASSIGNMENT AND SUBLETTING
SECTION 14.01. PROHIBITION (a) Notwithstanding any references to assignees,
subtenants, concessionaires or other similar entities in this Lease, Tenant
shall not (i) assign or otherwise transfer, or mortgage or otherwise encumber,
this Lease or any of its rights hereunder, (ii) sublet the leased premises or
any part thereof. Or permit the use of the leased premises or any part thereof
by anyone, or (iii) permit the assignment or other transfer of this Lease or any
of Tenant's rights hereunder by operation of law. Any such attempted or
purported transfer. assignment, mortgaging or encumbering of this Lease or any
of Tenant's interest hereunder and any attempted or purported subletting or
grant of a right to use or occupy all or a portion of the leased premises in
violation of the foregoing sentence, whether voluntary or involuntary or by
operation of law or otherwise, shall be null and void and shall not confer any
rights upon any purported transferee, assignee, sublessee, mortgagee, or
occupant, and shall, at Landlord's option, terminate this Lease without
relieving Tenant of any of its obligations hereunder for the balance the stated
term. Nothing contained elsewhere in this Lease shall authorize Tenant to enter
into any franchise concession, license. permit, subtenancy, departmental
operation arrangements or the like, except pursuant provisions of this Article
14. In the event that Tenant, notwithstanding the foregoing prohibition, does
assign or manner transfers this Lease or any estate or interest therein, Tenant
shall in no way be released from any of its obligations under this Lease. The
sale, issuance, or transfer of any voting capital stock, of Tenant or Tenant's
Guarantor or any corporate entity which directly or indirectly controls Tenant
(if Tenant or Tenant's Guarantor or such entity be a non-public corporation the
stock of which is not traded on any exchange or over the counter), which
results; in a change in the voting control of Tenant, or Tenant's Guarantor or
the corporate entity which directly or indirectly controls Tenant shall be
deemed to be an assignment of this Lease within the meaning of this Section. If
the Tenant is a partnership or an unincorporated association, then the sale,
issuance or transfer of a majority interest therein. the transfer of a majority
interest in or a change in the voting control of any partnership or
unincorporated association or corporation which directly or indirectly controls
Tenant, or the transfer of any portion or all of any general partnership or
managing interest in Tenant or in any such entity, or any change or conversion
of Tenant or of any such entity to a limited liability entity, shall be deemed
to be a prohibited assignment of this Lease within the meaning of this Article
14. The consent by Landlord to any assignment, transfer, or subletting to any
party shall not be construed as a waiver or release of Tenant under the terms of
any covenant or obligation under this Lease, nor shall the collection or
acceptance of rent from any such assignee, transferee, subtenant or occupant
constitute a waiver or release of Tenant of any covenant or obligation contained
in this Lease. Violation(s) of the foregoing shall constitute a default under
the provisions of Article 19.
SEE ATTACHED RIDER FOR INSERTS
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(b) Without conferring any rights upon Tenant not otherwise provided in
this Article 14, in the event of an assignment or transfer of Tenant's interest
in this Lease, or a sublease of all or a portion of the leased premises, to a
third party, any monthly rent or other payment accruing to Tenant as the result
of any such assignment, transfer, or sublease, including any lump sum or
periodic payment in any manner relating to such assignment, transfer, or
sublease, which is in excess of the rent then payable by Tenant under the Lease
shall be paid by Tenant to Landlord monthly as additional rent. Landlord may
require a certificate from Tenant specifying the full amount of any such payment
of whatsoever nature. Notwithstanding any assignment, subletting or transfer of
this Lease or Tenant's rights hereunder, Tenant shall remain fully liable on
this Lease and for the performance of all terms, covenants and provisions of
this Lease.
(c) Any costs and expenses, including attorneys' fees incurred by Landlord
in connection with any proposed or purported assignment, transfer or sublease
shall be borne by Tenant and shall be payable to Landlord as additional rent. It
is understood and agreed that the restrictions set forth in this Article are of
primary importance in enabling Landlord to control the mix of tenants in the
Shopping Center.
ARTICLE 15. WASTE
SECTION 15.01. WASTE OR NUISANCE. Tenant shall not commit or suffer to be
committed any waste upon the leased premises, and Tenant shall not place a load
upon any floor of the leased premises which exceeds the floor load per square
foot area which such floor was designed to carry. Tenant shall not commit or
suffer to be committed any nuisance or other act or thing which may disturb the
quiet enjoyment of any other occupant or tenant of the Shopping Center. Tenant
shall not use or permit the use of any medium that might constitute a nuisance,
such as loud speakers, sound amplifiers, phonographs, radios, televisions, or
any other sound producing device which will carry sound outside the leased
premises. Tenant agrees that business machines and mechanical- equipment used by
Tenant which causes vibration or noise that may be transmitted to the building
or buildings comprising the Shopping Center or to the leased premises to such a
degree as to be reasonably objectionable to Landlord or to any occupants or
tenants in the Shopping Center shall be placed and maintained by Tenant at its
expense in settings of cork. rubber or spring-type vibration eliminators
sufficient to eliminate such vibrations or noise.
ARTICLE 16. TRADE NAME, PROMOTIONAL CHARGE
SECTION 16.01. TRADE NAME. Tenant agrees (a) to operate its business in the
leased premises under the trade name described in the Data Sheet and under no
other, so long as the same shall not be held to be in violation of any
applicable law, and (b) not to change the advertised name or character of the
business operated in the !eased premises, and (c) to refer to the Shopping
Center by name, ("Jersey Gardens" or such other name as Landlord may designate
from time to time) in designating the location of the leased premises in all
newspaper and other advertising and in all other references to the location of
the leased premises; and (d) to include in all of its newspaper advertising
during the thirty (30) day period prior to the date of the grand opening of the
Shopping Center the designation in bold type that Tenant is opening for business
in the Shopping Center.
SECTION 16.02. SOLICITATION OF BUSINESS. Tenant and Tenant's employees and
agents shall not solicit business in the parking or other common areas, nor
shall Tenant distribute any handbills or other advertising matter in the parking
area or other common areas. The foregoing shall also apply to any other person
occupying the leased premises under arrangement with Tenant.
SECTION 16.03. PROMOTIONAL CHARGE. (a) Landlord shall provide or cause to
be provided a program of advertising and promotional events which shall, in
Landlord's judgment, serve to enhance and promote the regional development.
Landlord may establish a promotional service to furnish and maintain promotion
which in Landlord's judgment, will benefit the regional development. In
conjunction with such service, Landlord may provide a marketing director and
other personnel and equipment as reasonably required, in Landlord's opinion, to
promote the regional development and Landlord shall be reimbursed for all such
costs and expenses out of the promotional charges collected each year by
Landlord. As Tenant's share of the cost and expense of said advertising and
promotion, Tenant shall pay to Landlord an annual promotional charge in the
amount set forth in the Data Sheet, subject to increases is herein provided.
Said annual sum shall be payable by Tenant to Landlord in twelve (12) equal
monthly installments, in advance on the first day of each calendar month without
deduction or offset. Failure of Tenant to pay all amounts when due shall carry
the same consequences as failure to pay rent. The annual promotional charge
payable by Tenant will be adjusted commencing on the February 1 immediately
succeeding the Commencement Date of this Lease, and annually thereafter, by a
percentage equal to the percentage increase from the base period of the Consumer
Price Index (to the respective February 1st or the closest month thereto that
the Index is published (but in no event shall Tenant pay less than the minimum
specified above). The term "base period" shall initially refer to the date of
the grand opening of the Shopping Center (as determined by Landlord) and
following the first increase hereunder shall refer to the month of January
immediately preceding the lease year for which the promotional charge was last
adjusted. Tenant also agrees to pay to Landlord an initial promotional charge in
addition to the foregoing charge, in the amount set forth in the Data Sheet,
within ten (10) days after demand therefor.
(b) Landlord reserves the right and option to cease providing
promotional services and to cause a Merchants Association to be formed. In such
event, (i) Tenant shall become a member thereof and will maintain membership in
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good standing and will abide by the regulations thereof and cooperate in the
activities of such Merchants' Association during the term of this Lease; and
(ii) in lieu of payment to Landlord, as above, Tenant shall pay monthly dues to
the Merchants' Association, subject to adjustment as above provided, in an
amount equal to the monthly promotional charge.
ARTICLE 17. DESTRUCTION OF LEASED PREMISES
SECTION 17.01. RECONSTRUCTION. In the event the leased premises shall be
partially or totally destroyed by fire or other casualty insured under the
insurance carried by Landlord pursuant to Section 11.02 of this Lease as to
become partially or totally untenantable, then the damage to the leased premises
shall be promptly repaired, unless Landlord shall elect not to rebuild as
hereinafter provided, and the Minimum Rent and other charges (to the extent such
charges are based on the square footage of the leased premises) shall be abated
in proportion to the amount of the leased premises rendered untenantable and the
Minimum Gross Sales above which annual Percentage Rent is computed and payable
shall likewise be proportionately reduced until so repaired. Payment of full
rent and charges so abated shall commence and Tenant shall be obligated to
reopen for business on the thirtieth (30th) day following the date the leased
premises are tenantable unless Tenant opens earlier in the damaged area or
remains open in such area following destruction or damage, in which event there
shall be no abatement or an abatement shall terminate as of the date of Tenant's
earlier reopening. Landlord shall be obligated to cause such repairs to be made
unless Landlord, at its sole option, elects to cause Tenant to make such
repairs, in which event Tenant shall promptly complete the same, and Landlord
will make available to Tenant for the sole purpose of reconstruction of the
leased premises such portion of the insurance proceeds received by Landlord from
its insurance carrier, under policies carried pursuant to Section 11.02 of this
Lease, allocated to the leased premises. Any amount expended by Tenant in excess
of such insurance proceeds received by Landlord and made available to Tenant
shall be the sole obligation of Tenant. In the event of reconstruction or repair
by Landlord, any amount expended by Landlord in repairing the improvements to
the leased premises in excess of the proceeds of the insurance received by
Landlord pursuant to Section 11.02 of this Lease allocated to the leased
premises shall be repayable by Tenant to Landlord within ten (10) days after
receipt by Tenant from Landlord of a statement setting forth the amount of such
excess. Landlord's insurance carrier shall determine the amount of insurance
proceeds attributable to the damage to such improvements, which determination
shall be binding upon Landlord and Tenant. The party required hereunder to
repair the damage to the leased premises shall reconstruct such leased premises
in accordance with the working drawings originally approved by Landlord. In no
event shall Landlord be required to repair or replace Tenant's merchandise,
trade fixtures, furnishings or equipment. If more than thirty-five percent (35%)
of the floor area of the building in which the leased premises are located shall
be damaged or destroyed by fire or other casualty, or if during the last three
(3) years of the term hereof more than twenty-five percent (25 %) of the leased
premises or of the floor area of the building in which the leased premises are
located shall be damaged or destroyed by fire or other casualty, then Landlord
may either elect that the building and/or the leased premises, as the case may
be, be repaired or rebuilt or, at its sole option, terminate this Lease by
giving written notice to Tenant of its election to so terminate, such notice to
be given within ninety (90) days after the occurrence of such damage or
destruction. If Landlord is required or elects to repair or rebuild or requires
the Tenant to repair or rebuild the leased premises as herein provided Tenant
shall, at Tenant's sole cost, repair or replace its merchandise. trade fixtures,
furnishings and equipment in a manner and to at least a condition equal to that
prior to its damage or destruction.
SECTION 17-02. WAIVER OF SUBROGATION. Each party hereto does hereby remise,
release and discharge the other party hereto and any officer, agent, employee or
representative of such parry, of and from any liability whatsoever hereafter
arising from loss, damage or injury caused by fife or other casualty for which
insurance (permitting waiver of liability and containing a waiver of
subrogation) is carried or required hereunder to be carried by the injured party
at the time of such loss, damage or injury, to the extent of any recovery by the
injured party under such insurance.
ARTICLE 18. EMINENT DOMAIN
SECTION 18.01. TOTAL CONDEMNATION OF LEASED PREMISES. If the whole of the
leased premises shall be taken by any public authority under the power of
eminent domain or sold to a public authority under threat or in lieu of such a
taking, then the term of this Lease shall cease as of the day possession shall
be taken by such public authority and the rent shall be paid up to that day with
a proportionate refund by Landlord of such rent as may have been paid in advance
for a period subsequent to the date of the taking.
SECTION 18.02. PARTIAL CONDEMNATION. (a) If less than the whole but more
than forty percent (40%) of the leased premises or more than forty percent (40%)
of the common areas shall be taken under eminent domain, Tenant shall have the
right either to terminate this Lease and declare same null and void as of the
day possession is taken by public authority or, subject to Landlord's right of
termination as set forth in Section 18.02(c) of this Article, to continue in
possession of the remainder of the leased premises, and shall notify Landlord,
in writing within ten ( 10) days after such taking of Tenant's intention. In the
event Tenant elects to remain in possession, all of the terms herein provided
shall continue in effect, except that the annual Minimum Rent shall be reduced
in proportion to the amount of the leased premises taken and the Minimum Gross
Sales above which annual Percentage Rent is computed and payable shall likewise
be proportionately reduced. and Landlord shall, at its own cost and expense,
make all the necessary repairs or alterations to the basic building, as
originally installed by Landlord, so as to constitute the remaining leased
premises a complete architectural unit.
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(b) If forty percent (40%) or less of the leased premises shall be so
taken, the lease term shall cease only as to the part so taken as of the day
possession shall be taken by such public authority, and Tenant shall pay rent up
to that day, with appropriate refund by Landlord of such rent as may have been
paid in advance for a period subsequent to the date of the taking, and
thereafter the annual Minimum Rent shall be reduced in proportion to the amount
of the leased premises taken and the Minimum Gross Sales above which annual
Percentage Rent is computed and payable shall likewise be proportionately
reduced. Landlord shall, at its expense, make all necessary repairs or
alterations to the basic building, as originally installed by Landlord, so as to
constitute the remaining leased premises as a complete architectural unit.
(c) If more than forty percent (40%) of the building in which the leased
premises are located or more than forty percent (40%) of the leased premises or
more than forty percent (40%) of the common areas shall be taken under the power
of eminent domain or sold to a public authority under threat or in lieu of such
a taking, Landlord may, by written notice to Tenant, delivered on or before the
tenth (10th) day following the date of surrendering possession to the public
authority, terminate this Lease as of the day possession is taken by public
authority. The rent shall be paid up to that day with a proportionate refund by
Landlord of such rent as may have been paid in advance for a period subsequent
to the taking.
SECTION 18.03. LANDLORD'S AND TENANT'S DAMAGES. All damages awarded for
taking under the power of eminent domain, whether for the whole or a part of the
leased premises, shall belong to and be the property of Landlord whether such
damages shall be awarded as compensation for diminution in value to the
leasehold or to the fee of the leased premises and Tenant shall have no claim
against either Landlord or the condemning authority with respect thereto;
provided, however, that Landlord shall not be entitled to any award specifically
designated as compensation for depreciation to, and cost of removal of, Tenant's
stock and trade fixtures.
SECTION 18.04. GOVERNMENTAL REGULATION. It is mutually agreed that (i) any
reduction in the parking area, number of parking spaces in the Shopping Center,
and/or restriction on the number of motor vehicles that may enter the Shopping
Center by action or order of any governmental authority, quasi-governmental
authority, and/or by any court having jurisdiction over the leased premises,
shall not constitute such a taking or condemnation under this Lease that would
entitle Tenant to terminate the Lease, (ii) any such reduction, restriction,
action or order, and/or any compliance by Landlord with any order, rule or
regulation of any such authority, with any such judicial decree, and/or any such
existing or future order, rule, regulation, judicial decree or law shall not
constitute a default under this Lease by Landlord so as to entitle Tenant to
terminate this Least and the Lease shall remain in full force and effect, and
(iii) as between Landlord and Tenant, Landlord may, but shall not be obligated
to, comply with any such order. rule, regulation, judicial decree or law.
SEE ATTACHED RIDER FOR INSERTS
ARTICLE 19. DEFAULT OF TENANT
SECTION 19.01. RIGHT TO REENTER (a) In the event of (1) any failure of
Tenant to pay any rent or other charges due hereunder within ten (10) days after
the same shall be due, (2) any failure of Tenant to move into the leased
premises and to open for business on the date specified in Article I hereof, or
to continuously operate its business pursuant to Section 7.02 for the purposes
specified in Section 7.01 hereof, or (3) if Tenant shall abandon or vacate the
leased premises, or permit this Lease to be taken under any writ of execution or
similar writ or order or if there shall be any default by Tenant or any entity
affiliated with Tenant with respect to any financing instrument or arrangement,
if any, relating to any items used in, or operation of business upon the leased
premises, or (4) any failure to perform any of the other terms, covenants or
conditions of this Lease to be observed or performed by Tenant or more than
thirty (30) days after written notice of such default shall have been mailed to
Tenant; then Landlord, besides any other rights or remedies it may have, shall
have the right to declare this Least terminated and the term ended in which
event Tenant shall vacate and surrender the leased premises but shall remain
liable for all obligations arising
during the balance of the original stated term as hereafter provided as if this
Lease had remained in full force and effect and Landlord shall have the right to
bring a special proceeding to recover possession from Tenant holding over
Landlord shall have the immediate right, in any such event, of re-entry by
summary proceedings or otherwise and remove all persons and property from the
leased premises and such property may be removed and stored in a public
warehouse or elsewhere at the cost of, and for the account of Tenant, without
evidence of notice or resort to legal process and without being deemed guilty of
trespass, or conversion, or becoming liable for any loss or damage, which may be
occasioned thereby.
(b) Notwithstanding the foregoing provisions of this Section, in the
event Tenant shall fail to perform or shall default in the performance of any
term, covenant or condition of this Lease on two (2) or more separate occasions
during any twelve-month period, then, even though such failures or defaults may
have been cured by Tenant, any further failure or default by Tenant during the
term of this Lease shall be deemed a default without the ability for cure by
Tenant. During the continuance of any failure of performance or any default by
Tenant in the performance of any term, covenant or condition of this Lease,
Tenant shall not be entitled to exercise any rights or options, or to receive
any funds or proceeds being held under or pursuant to this Lease,
notwithstanding any contrary provisions contained herein. In the event of
re-entry by Landlord, Landlord may remove all persons and property from the
leased premises and such property may be stored in a public warehouse or
elsewhere at the cost of, and for the account of Tenant. without notice or
resort to legal process and without Landlord being deemed guilty of trespass, or
becoming liable for any loss or damage which may be occasioned thereby. In the
event Tenant shall not remove its property from the leased premises within ten
(10) days after Tenant has vacated the leased premises, then such property shall
---------
be deemed
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abandoned by Tenant and Landlord may dispose of the same without liability to
Tenant. To the extent that this Lease specifically provides for any abatement of
rent otherwise payable by Tenant under this Lease, or any payment by Landlord to
Tenant, such abatement shall not be effective, nor shall such payment be
required to be made, if Tenant shall have failed to observe or perform any of
Tenant's obligations hereunder or if Tenant shall otherwise be in default
hereunder, and Tenant shall be obligated to immediately repay to Landlord the
amount of any rent previously abated or the amount of any payment previously
made by Landlord to Tenant hereunder, notwithstanding anything contained in this
Lease to the contrary.
SEE ATTACHED RIDER FOR INSERTS
SECTION 19.02. RIGHT TO RELET. Should Landlord elect to re-enter, as herein
provided, or should it take possession pursuant to legal proceedings or pursuant
to any notice provided for by law, it may either terminate this Lease or it may
from time to time, without terminating this Lease, make such alterations and
repairs as may be necessary in order to relet the leased premises, and relet the
leased premises or any part thereof for such term or terms (which may be for a
term extending beyond the term of this Lease) and at such rent or rents and upon
such other terms and conditions as Landlord in its sole discretion may deem
advisable. Upon each such reletting all rents and other sums received by
Landlord from such reletting shall be applied, first, to the payment of any
indebtedness other than rent due hereunder from Tenant to Landlord; second, to
the payment of any costs and expenses of such reletting; including reasonable
brokerage fees and attorneys' fees and of costs of such alterations and repairs;
third, to the payment of rent and other charges due and unpaid hereunder; and
the residue, if any, shall be held by Landlord and applied in payment of future
rent as the same may become due and payable hereunder. If such rents and other
sums received from such reletting during any month be less than that to be paid
during that month by Tenant hereunder, Tenant shall pay such deficiency to
Landlord; if such rents and sums shall be more, Tenant shall have no right to,
and shall receive no credit for the excess. Such deficiency shall be calculated
and paid monthly. No such reentry or taking possession of the leased premises by
Landlord shall be construed as an election on its part to terminate this Lease
unless a written notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach. Should
Landlord at any time terminate this Lease for any breach, in addition to any
other remedies it may have, it may recover from Tenant all damages it may incur
by reason of such breach, including the cost of recovering the leased premises,
reasonable attorneys' fees, and including the worth at the time of such
termination of the excess, if any, of the amount of rent and charges equivalent
to rent reserved in this Lease for the remainder of the stated term over the
then reasonable rental value of the leased premises for the remainder of the
stated term, all of which amounts shall be immediately due and payable from
Tenant to Landlord. In determining the rent which would be payable under this
Lease by Tenant subsequent to default, the Percentage Rent for each year of the
unexpired portion of the term shall be equal to the average annual Percentage
Rent payable by Tenant from the commencement of the term to the time of default,
or during the preceding three (3) full least years, whichever period is shorter,
the failure or refusal of Landlord to relet the leased premises shall not affect
Tenant's liability. The terms "entry" and "re-entry" are not limited to their
technical meanings. Nothing contained in this Lease shall be construed to limit
or prejudice the right of Landlord to prove for and obtain as damages by reason
of the termination of this Lease or re-entry of the leased premium for the
default of Tenant under this Lease an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings
in which, such damages are to be proved, whether or not such amount shall be
greater than any of the sums referred to in this Section 19.02.
SECTION 19.03. LEGAL EXPENSES. In case suit shall be brought for recovery
of possession of the leased premises, for the recovery of rent or any other
amount due under the provisions of this Lease, or because of the breach of any
other covenant herein contained on the part of Tenant to be kept and performed,
and a breach shall be established, Tenant shall pay to Landlord all expenses
incurred therefor including reasonable attorneys' fees.
Section 19.04. WAIVER OF COUNTERCLAIMS AND TRIAL BY JURY. It is mutually
agreed by and between Landlord and Tenant that the respective parties hereto
shall, and they hereby do, waive trial by Jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other (except
for personal injury or property damage) on any matters whatsoever arising out of
or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use of or occupancy of the leased premises, and any emergency
statutory or any other statutory remedy. Tenant shall not interpose any
counterclaim or counterclaims in a summary proceeding or other action based on
termination or holdover, it being the intent of the parties hereto that Tenant
be strictly limited in such instance to bringing a separate action in the court
of appropriate jurisdiction. The foregoing waiver is a material inducement to
Landlord making, executing and delivering this Lease and Tenant's waiver of its
right to counterclaim in any summary proceeding or other action based on
termination or holdover is done so knowingly, intelligently and voluntarily.
SECTION 19.05. WAIVER OF RIGHT OF REDEMPTION. Mention in this Lease of any
particular remedy shall not preclude Landlord from any other remedy, in law or
in equity. Tenant hereby expressly waives and all rights of redemption granted
by or under any present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Landlord obtaining possession of
(he leased premises by reason of the violation by Tenant of any of the covenants
and conditions of this Lease, or otherwise.
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of Tenant, or otherwise. During the six (6) months prior to the expiration of
the term of this Lease or inv renewal term, Landlord may exhibit the leased
premises to prospective tenants and place upon the leased premises the usual
notices "To Let" or "For Rent" which notices Tenant shall permit to remain
thereon without molestation.
SECTION 21.02. EXCAVATION. If any excavation shall be made upon land
adjacent to the leased premises, Tenant shall permit the party authorized to
cause such excavation to be made to enter upon the leased premises for the
purpose of doing such work as such party may deem necessary to preserve the wall
of the building of which the leased premises forms a part from damage and to
support the same by proper foundations and shorings, and Tenant hereby waives
all claims for inconvenience, disturbance, loss of business or other damages
against Landlord therefor and without in any mariner affecting Tenant's
obligations under this Lease, nor shall the same constitute any grounds for an
abatement of any rents hereunder.
ARTICLE 22. TENANT'S PROPERTY
SECTION 22.01. TAXES ON TENANT'S PROPERTY. Tenant shall be responsible for
and shall pay before delinquency, all municipal, county, state and federal taxes
assessed during the term of this Lease against any leasehold interest or
personal property of any kind, owned by or placed in, upon or about the leased
premises by the Tenant.
SECTION 22.02. LOSS AND DAMAGE. The Landlord shall not be responsible or
liable to the Tenant for any loss or damage that may be occasioned by or through
the acts or omissions of persons occupying adjoining premises or any part of the
premises adjacent to or connected with the leased premises or any part of the
budding of which the leased premises are a part, or for any loss or damage
resulting to the Tenant or its property from bursting, stoppage or leaking of
water, gas, sewer or steam pipes or for any damage of loss of property within
the leased premises from any cause whatsoever.
SECTION 22.03. NOTICE BY TENANT. Tenant shall give immediate notice to
Landlord in case of fire or accidents in the leased premises or in the building
of which the leased premises are a part.
ARTICLE 23. HOLDING OVER
SECTION 23.01. HOLDING OVER. Any holding over without Landlord's consent
shall entitle Landlord to immediately re-enter the leased premises and
dispossess Tenant. No holding over by Tenant after the expiration or termination
of the term of this Lease shall operate to extend the term of this Lease. In the
event of any unauthorized holding over, Tenant shall indemnify and hold harmless
Landlord against all claim for damages by any other tenant to whom Landlord may
have leased all or any part of the leased premises effective upon the
termination of this Lease. In the event of any holding over by Tenant after
expiration or termination of this Lease without the consent of Landlord, Tenant
shall pay as holdover rental for each month of the holdover tenancy an amount
equal to the greater of (x) fair market rental value of the leased premises for
such month (as reasonably determined by Landlord) and (y) twice the monthly
Minimum Rent herein specified plus one-twelfth (1/12th) of the average annual
Percentage Rent and additional rent payable hereunder for the three (3) least
years immediately preceding, or the entire portion of the !ease term, if less
than three (3) lease years. Any holding over after the expiration of the term
hereof with the consent of the Landlord, shall be construed to be a tenancy from
month to month (at twice the monthly Minimum Rent herein specified plus
one-twelfth (1/ 12th) of the average annual percentage rent payable hereunder
for the three (3) lease years immediately preceding, or the entire portion of
the lease term, if less than three (3) lease years), and shall otherwise be on
the same terms and conditions herein specified so far as applicable. Nothing
contained in this Section shall imply any right of Tenant to remain in the
leased premises after the expiration or termination of this Lease without the
execution of a new lease, (ii) imply any obligation of Landlord to grant a new
lease or (iii) be construed to limit any right or remedy that Landlord has
against Tenant as a holdover tenant or trespasser.
SECTION 23.02. SUCCESSORS. All rights and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, successors, and assigns of the said
parties; and if there shall be more than one Tenant, they shall all be bound
jointly and severally by the terms, covenants and agreements herein. No rights,
however, shall inure to the benefit of any assignee or transferee of Tenant and
no rights or benefits shall be conferred upon any such assignee or transferee by
reason of this Section 23.02 unless such rights or benefits shall be expressly
otherwise set forth in this Lease.
ARTICLE 24. RULES AND REGULATIONS
SECTION 24.01. RULES AND REGULATIONS. Tenant agrees to comply with and
observe the rules and regulations set forth on Exhibit 'F", attached hereto and
made a part hereof, and with all other rules and regulations established by
Landlord from time to time, provided the same shall apply uniformly to all
tenants of the Shopping Center. Tenant's failure to observe said rules and
regulations shall constitute a breach of the terms of this Lease in the mariner
as if the same were contained herein as covenants.
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ARTICLE 25. QUIET ENJOYMENT
SECTION 25.01. LANDLORD'S COVENANT. Upon payment by the Tenant of the rents
herein provided. and upon the observance and performance of all the covenants,
terms and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the leased premises for the term hereby
demised without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under the Landlord,
subject, nevertheless, to the terms and conditions of this Lease, and any
mortgages to which this Lease is subordinate.
ARTICLE 26. SECURITY PROVISION
SECTION 26.01. SECURITY. Simultaneously with the execution of this Lease,
Tenant shall deposit with Landlord a sum in the amount set forth in the Data
Sheet as a security deposit. Such security deposit shall be considered security
for the faithful payment and performance, by Tenant of all covenants, conditions
and agreements of this Lease, but in no event shall the Landlord be obliged to
apply the same upon rents, or other charges in arrears or upon damages for the
Tenant's failure to perform the said covenants, conditions and agreements; but
the Landlord, may so apply the security, at its option; and the Landlord's right
to bring a special proceeding to recover or otherwise to obtain possession of
the leased premises before or after Landlord's declaration of the termination of
this Lease for non-payment of rent or for any other reason, shall not, in any
event, be affected by reason of the fact that the Landlord holds this security.
The said sum, if not applied toward the payment of rent in arrears or toward the
payment of damages suffered by the Landlord by reason of the Tenant's breach of
the covenants, conditions and agreements of this Lease, is to be returned to the
Tenant without interest, except as provided by law, when this Lease is
terminated, according to these terms, and in no event is the said security to be
returned until the Tenant has vacated the leased premises and delivered
possession to the Landlord. In the event that the Landlord repossesses itself of
the leased premises whether by special proceeding or re-entry or otherwise
became of the Tenant's default or because of the Tenant's failure to carry out
the covenants, conditions and agreements of this Lease, the Landlord may apply
the said security upon all damages suffered to the date of said repossession and
may retain the said security to apply upon such damages as may be suffered or
accrue thereafter by reason of the Tenant's default or breach. In the event any
bankruptcy, insolvency, reorganization or other creditor-debtor proceedings
shall be instituted by or against Tenant, or its successors or assigns, or any
guarantor of Tenant hereunder, such security deposit shall be deemed to be
applied First to the payment of any rents and/or other charges due Landlord for
all periods prior to the institution of such proceedings and the balance, if
any, of such security deposit may be retained by Landlord in partial liquidation
of Landlord's damages. The Landlord shall not be obligated to keep the said
security deposit as a separate fund, but may commingle the said security deposit
with its own funds. In the event Landlord shall from time to time elect to apply
all or pan of the security deposited by Tenant pursuant to this section, then
Tenant shall, in such event upon five (5) days notice in writing, deposit with
Landlord additional security so that at all times Landlord shall have in its
possession security in the amount set forth in this section. In the event of the
sale or transfer of Landlord's interest in the building in which leased premises
are located, Landlord shall transfer the security deposit to such purchaser or
transferee, in which event Tenant shall be entitled to look to the new landlord
for the return of the security deposit, and Landlord shall thereupon be released
from all liability to Tenant for the return of such security deposit. Tenant
agrees that it will not took to any trustee, mortgagee or successor in tide to
the budding, for accountability for any security deposit or related sums held by
Landlord or its successor landlords hereunder, unless and only to the extent
such sums have actually been received by said mortgagee, trustee or successor in
tide.
ARTICLE 27. REGULATED SUBSTANCE
SECTION 27.01. DEFINITION OF REGULATED SUBSTANCE. The term "regulated
substance' shall be defined to include, without limitation, flammables,
explosives, radioactive materials, asbestos, polychlorinated biphenyls (PCB),
chemicals known to cause cancer or reproductive toxicity, pollutants,
contaminants, hazardous waste, toxic substance or related matters, petroleum and
petroleum products, and any substance or material defined or classified as
hazardous, toxic, dangerous, or a waste or a pollutant under any law or
regulation now or hereafter enacted or promulgated by any governmental authority
having proper jurisdiction (such law or regulation sometimes hereinafter
referred to as an "Environmental Law"). The term "Environmental Law" shall
include, without limitation, Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. 9601 et seq., as amended ("CERCLA"); the Federal
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., as amended
("RCRA") and to each federal. state or local law, code, ordinance, permit,
regulation or guideline now in effect or which may hereafter be enacted or go
into effect, relating to or affecting the leased premises, the Shopping Center,
and the real estate of which the Shopping Center is a part, and relating to
pollution or concerning the impact on the environment of construction, land use,
maintenance and operation of structures, and the conduct of business. Tenant
will not cause. or permit to be caused, any act or practice, by negligence,
omission, or otherwise, that would adversely affect the environment, or do
anything or permit anything to be done that would violate any Environmental Law.
Any violation of this covenant shall be deemed to be an event of default
pursuant to Article 19 hereof.
SECTION 27.02. TENANT'S RESTRICTIONS. Tenant shall not cause or permit to
occur the following: (a) any violation of any federal, state or local
Environmental Law, laws, ordinances or regulations, now or hereinafter enacted.
related to environmental conditions on, under, or about the leased premises or
arising from Tenant's use or occupancy of the leased premises, including, but
not to be limited to, air, soil, and ground water conditions, or (b) the
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use, generation. release, manufacturing, refining, production, processing,
storage or disposal of any regulated substance. on, under, or about the leased
premises, or the transportation to or from the leased premises of any regulated
substance.
SECTION 27.03. TENANT'S OBLIGATIONS. (a) Tenant shall, at Tenant's expense,
comply with any Environmental Law and with all laws, ordinances and regulations
regulating the use, generation, storage, transportation, or disposal of a
regulated substance.
(b) Tenant shall, at Tenant's own expense, make all submissions to
provide all information required by, and shall comply with, all requirements of
all governmental authorities.
(c) Should any authority demand that a clean-up plan be prepared and that
clean-up be undertaken because of any deposit, spill, discharge, or other
release of a regulated substance that occurred during the term of this Lease, at
or from the leased premises which arise at any time from Tenant's use or
occupancy of the leased premises, then Tenant shall, at Tenant's own expense,
prepare and submit the required plans and all related bonds and other financial
assurances and Tenant shall carry out all such clean-up plans.
(d) Tenant shall promptly provide all information regarding the use,
generation, storage, transportation or disposal of regulated substances as
relating to the leased premises to Landlord. If Tenant fails to fulfill any duty
imposed under this Section, Landlord may do so and, in such case, Tenant shall
cooperate with Landlord in order to prepare all documents Landlord may deem
necessary or appropriate to determine the applicability of the laws to the
leased premises and Tenant's use thereof, and for the compliance therewith, and
Tenant shall execute all documents promptly upon Landlord's request. No such
action by Landlord and no attempt by Landlord to mitigate damages under any law
shall constitute a waiver of any of Tenant's obligations under this Lease. In
addition, Landlord shall be reimbursed within thirty (30) days of demand, for
any and all costs and expenses incurred by Landlord on behalf of Tenant.
(e) Tenant shall, at Tenant's own expense, comply with the New Jersey
Industrial Site Recovery Act and the regulations promulgated thereunder
("ISRA"), with respect to any ISRA-triggering event. Notwithstanding any other
terms to the contrary contained in this Lease, Tenant shall not pursue or
implement: any engineering control. institutional control (including without
limitation, a declaration of environmental restriction or classification
exception area), or the like, without Landlord's prior written authorization and
consent. The Tenant's obligations and liabilities under this Article shall
survive the expiration or earlier termination of the Lease.
SECTION 27.04. TENANT'S INDEMNITY. Tenant shall indemnify, defend, and hold
harmless the Landlord, mortgagees, and any other party setting forth an interest
in the property and their respective officers. directors, beneficiaries,
shareholders, partners, agents, and employees from all fines, suits, procedures,
claims, and actions of every kind and all costs associated therewith, including
attorneys' and consultant fees, arising out of or in any way connected with any
deposit, spill, discharge, or other release of a regulated substance that occurs
during the term of this Lease, at or from the leased premises or which arise at
any time, from Tenant's use or occupancy of the leased premises, or from Team's
failure to provide all information, make all submissions, or to take all steps
required by all authorities under the laws and all other Environmental Laws.
Said indemnity shall survive the expiration or earlier termination of the lease
term.
SECTION 27.05. LANDLORD'S INDEMNITY. Landlord shall indemnify, defend and
hold harmless Tenant, its officers, directors, beneficiaries, shareholders,
partners, agents and employees (herein "Indemnitee") from all fines, suits,
procedures, claims, and actions, of every kind and all costs associated
therewith, including attorney and consultant fees, arising out of or in any way
connected with any deposit, spill, discharge, or other release or a regulated
substance (herein "Occurrence"), at or from the regional development, that
occurred prior to the date on which the NJDEP (as defined in 7.03) issued the No
Further Action Letter (as defined in 7.03), except to the extent that the
Indemnitee contributed to the Occurrence and except to the extent that Tenant
fails to give notice(s) to Landlord as herein required (and then only to the
extent of the additional cost or prejudice which is due to the failure to give
notice(s)), but in no event shall the foregoing indemnity be of any force or
effect if Tenant fails to execute timely deliver to Landlord the Certification
as defined in 7.03. Tenant acknowledges and agrees to execute and deliver to
Landlord, simultaneous with Tenant's execution of this Lease and delivery
thereof to Landlord, the Certification as defined in 7.03. Tenant further
agrees to immediately give notice to Landlord, to the extent Tenant has
knowledge of any Occurrence or any event which may give rise to an Occurrence,
including without limitation, notice of any governmental inquiry, action or
proceeding and a copy of any written notice, document, violation or inquiry
related an Occurrence or pursuant to any Environmental Law. Notwithstanding
anything in this Lease to the contrary, in no event shall Landlord be liable for
indirect or consequential damages including, without limitation, lost profits
and in no event shall Landlord be liable to the extent the damage is covered by
Tenant's insurance or is required to be covered by the insurance which Tenant is
obligated to maintain hereunder (inclusive of self-insurance and deductibles
which are Tenant's risk). The indemnity provisions in this Article shall survive
the expiration or earlier termination of the term of this Lease.
ARTICLE 28. MORTGAGEE NOTICE AND CURE
Tenant agrees that in the event Landlord is in default under this Lease,
any mortgagee or trustee under a deed of trust of Landlord's interest in the
leased premises shall be permitted (but not required) to enter the leased
premises for the purpose of correcting or remedying such default, and Tenant
agrees to accept performance by such mortgagee or trustee in lieu of performance
by Landlord. Tenant further agrees that, from and after written notice from
Landlord of the name and address of any mortgagee or trustee, Tenant will
deliver notice to any such mortgagee or trustee of a default by Landlord under
this Lease. Notwithstanding any provision of this Lease, Tenant agrees that no
termination
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of this Lease or abatement or reduction of rent or any other amounts under this
Least shall be effective unless and until such mortgagee or trustee has received
notice and fails within thirty (30) days of the date on which Landlord's cure
period expires to cure the default of Landlord in question, or if the default
cannot be cured within said thirty (30) days, fails to commence and diligently
prosecute the cure of such default. After notice is given by any trustee under a
deed of trust or mortgagee of Landlord's interest in the leased premises that
the mortgage or deed of trust is in default and that rentals under this Lease
should be paid to such mortgagee or trustee, Tenant shall immediately commence
to pay all such rentals to such mortgagee or trustee as they shall become due
pursuant to this Lease.
ARTICLE 29. SPECIAL REAL ESTATE INVESTMENT TRUST PROVISIONS
During the term of this Lease or any extension thereof, should a real
estate investment trust be or become Landlord (or a part of Landlord) hereunder,
all provisions of this Lease shall remain in full force and effect except as
modified by this Article 29.
SECTION 29.01. ASSIGNMENT AND SUBLETTING. Without limiting any of the
provisions of Section 14.01 hereof, neither Tenant nor any other person having
an interest in the possession, use, occupancy or utilization of the leased
premises shall enter into any lease, sublease, license, concession or other
agreement for use, occupancy or utilization of space in the leased premises
which provides for rent or other payment for such use, occupancy or utilization
based in whole or in part on the net income or profits derived by any person
from the property leased, used, occupied or utilized (other than an amount based
on a fixed percentage or percentages of receipts or sales), and any such
purported lease, sublease, license, concession or other agreement shall be
absolutely void and ineffective as a conveyance of any right or interest in the
possession, use, occupancy or utilization of any part of the leased premises.
SECTION 29.02. REAL ESTATE INVESTMENT TRUST TAX PROVISIONS. If Landlord in
good faith determines that its status as a real estate investment trust under
the provisions of the Internal Revenue Code of 1986, as heretofore or hereafter
amended, will be jeopardized because of any provision of this Lease, Landlord
may request reasonable amendments to this Lease and Tenant will not unreasonably
withhold, delay or defer its consent thereto, provided that such amendments do
not (a) increase the monetary obligations of Tenant pursuant to this Lease or
(b) in any other manner adversely affect Tenant's interest in the leased
premises.
ARTICLE 30. MISCELLANEOUS
SECTION 30.01. WAIVER. One or more waivers of any covenant or condition by
Landlord shall not be construed as a waiver of subsequent breach of the same
covenant or condition, and the consent or approval by Landlord to or of any act
by Tenant requiring Landlord's consent or approval shall not be deemed to render
unnecessary Landlord's consent or approval to or of any subsequent similar act
by Tenant. No breach of a covenant or condition of this Lease shall be deemed to
have been waived by Landlord, unless such waiver be in writing signed by
Landlord. The failure of Landlord to insist upon a strict performance of any
term, condition or covenant contained in this Lease shall not be deemed a waiver
of any rights or remedies that Landlord may have and shall not be deemed a
waiver of any subsequent breach or default in the terms, conditions or covenants
herein contained, and any such failure shall not be construed as creating a
custom of Landlord's accepting other than strict performance or as modifying in
any way the terms, covenants or conditions of this Lease. No act or thing done
by Landlord or Landlord's agents shall be deemed an acceptance of surrender of
the leased premises and no agreement to accept such surrender shall be valid
unless in writing signed by Landlord. The rights and remedies of Landlord under
this Lease or under any specific section, subsection or clause hereof shall be
cumulative and in addition to any and all other rights and remedies which
Landlord has or may have elsewhere under this Lease or at law or equity, whether
or not such section, subsection or clause expressly so states. Landlord shall
have the right to obtain specific performance of any and all of the covenants or
obligations of Tenant under this Lease, and nothing contained in this Lease
shall be construed as or shall have he effect of abridging such right.
SECTION 30.02. ENTIRE AGREEMENT. All exhibits, and riders, if any, attached
hereto form a part of this Lease and shall be given full force and effect, as
fully as if set forth at length herein. This Lease and the exhibits and rider,
if any, attached hereto and forming a part hereof, set forth all the covenants,
promises, agreements. conditions and understandings between Landlord and Tenant
concerning the leased premises and there are no covenants. promises, agreements,
conditions or understandings, either oral or written, between them other than
are herein set forth. No alteration, amendment, change or addition to this
Lease shall be binding upon Landlord or Tenant unless reduced to writing and
signed by each party.
SECTION 30.03. RULES OF CONSTRUCTION. Nothing contained herein shall be
deemed or construed by the parties hereto, nor by any third party, as creating a
relationship of principal and agent or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of computation of rent, nor any other provision contained herein, nor any
acts of the parties herein, shall be deemed to create any relationship between
the parties hereto other than the relationship of Landlord and Tenant. Whenever
herein the singular number is used, the same shall include the plural, and the
masculine gender shall include the feminine and neuter genders. Time is of the
essence in this Lease. Notwithstanding the fact that certain references
elsewhere in this Lease to acts required to be performed by Tenant hereunder
omit to state that such acts shall be performed at Tenant's sole cost and
expense, unless the context clearly implies to the contrary, each and every act
to be performed or obligations to be fulfilled by Tenant pursuant to this Lease
shall be performed or fulfilled at Tenant's sole cost and expense.
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SECTION 30.04. DELAYS. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of its initial
construction or maintenance and/or repair obligations required hereunder by
reason of strikes, lockouts, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war or other reason of a similar nature not the fault of the party
delayed in performing work, then performance of such act shall be excused for
the period of delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay. The provisions of
this Section 30.04 shall not operate to delay the commencement of the term of
this Lease or excuse Tenant From prompt payment of rent, Minimum Rent,
Percentage Rent or any other payments required by the terms of this Lease
provided, however, that the obligation of Tenant to initially open for business
pursuant to Sections 1.02 and 1.03 may be delayed pursuant to this Section.
Nothing in this Section shall relieve Tenant from the obligation to continuously
operate the leased premises in accordance with Section 7.02 except to the extent
it may be necessary during the period of any strikes, lockouts or other cause
beyond Tenant's control, so long as Tenant shall make all reasonable and
diligent efforts to shorten such period and to resume and continue to operate as
soon as possible.
SECTION 30.05. NOTICES. Unless specifically stated to the contrary in this
Lease, any notice, demand, request or other instrument which may be or is
required to be given by Tenant under this Lease or by law shall be sent by
United States certified mail, return receipt requested, postage prepaid, or, by
a national air courier service (i.e. one which delivers service in at least 48
states, such as Federal Express) provided that any such courier service provides
written evidence of delivery, and shall be deemed to have been given as of the
third day following receipt of same by Landlord; or, if required to be given by
Landlord under this Least or by law, such notice, demand, request or other
instrument may be sent by certified mail, by regular mail, by personal delivery,
by a national air courier service (i.e. one which delivers service in at least
48 states, such as Federal Express) provided that any such courier service
provides written evidence of delivery, or by other comparably reliable means,
and shall be deemed to have been given upon the date of mailing or the date of
other submission to Tenant, whichever of such dates shall be the first to occur;
and shall be addressed (a) if to Landlord, to 20 South Third Street, Columbus,
Ohio 43215, or at such other address as Landlord may designate by written
notice, together with copies thereof to such other parties designated by
Landlord, and (b) if to Tenant, to the leased premises or the address set forth
for Tenant on page 1 of this Lease, or at such other address as Tenant shall
designate by written notice.
SECTION 30.06. CAPTIONS AND SECTION NUMBERS. The captions, section numbers,
article numbers and index appearing in this Lease are inserted only as a matter
of convenience and in no way define, limit, construe or describe the scope or
intent of such sections or articles of this Least nor in any way affect this
Lease.
SECTION 30.07. BROKER'S COMMISSION. Tenant represents and warrants to
Landlord that there are no claim for brokerage commissions or finder's fees in
connection with this Lease, and Tenant agrees to indemnify Landlord and hold it
harmless from all liabilities arising from any such claim (including, without
limitation, the cost of counsel fees in connection therewith). Such agreement
shall survive the termination of this Lease.
SECTION 30.08 RECORDING. Tenant shall not record this Lease, or a
memorandum or so-called 'short form" of this Lease, without the prior written
consent of Landlord.
SECTION 30.09. FURNISHING OF FINANCIAL STATEMENTS. Upon Landlord's written
request, Tenant shall promptly furnish to Landlord, from time to time, financial
statements reflecting Tenant's current Financial condition, which financial
statements shall be certified as being true and correct by the chief financial
officer and by the chief executive officer of Tenant, and shall upon Landlord's
written request promptly furnish Landlord, from time to time. financial
statements reflecting the current financial condition of each Guarantor of this
Lease, which financial statements shall be certified as being true and correct
by the chief financial officer and by the chief executive officer of each such
Guarantor.
SECTION 30.10. LANDLORD'S USE OF COMMON AREAS. Landlord reserves the right,
from time to time, to utilize portions of the common areas for carnival type
shows, rides and entertainment, outdoor shows, displays, automobile and other
product shows, the leasing of kiosks, or such other uses which in Landlord's
judgment tend to attract the public. Further, Landlord reserves the right to
utilize the lighting standards and other areas in the parking facilities for
advertising purposes.
SECTION 30.11. TRANSFER OF LANDLORD'S INTEREST. In the event of any
transfer or transfers of Landlord's interest in the leased premises, including a
so-called sale-leaseback, the transferor shall be automatically relieved of any
and all obligations on the part of Landlord accruing from and after the date of
such transfer, including but not limited to, any obligation to Tenant with
respect to the security deposit referred to in Section 26.01 of this Lease upon
assignment of the same to the transferee, provided that the interest of the
transferor, as Landlord, in any funds then in the hands of Landlord in which
Tenant has an interest shall be turned over, subject to such interest, to the
then transferee. Upon the termination of any Lease in a sale-leaseback
transaction prior to termination of this Lease, the former lessee thereunder
shall become and remain liable as Landlord hereunder until a further transfer.
No holder of a mortgage or deed of trust to which this Lease is, or may be
subordinate, shall be responsible in connection with the security deposited
hereunder, unless such mortgagee or holder of such deed of trust of lessor shall
have actually received the security deposited hereunder.
SECTION 30.12. FLOOR AREA. The term "floor area", as used in this Lease,
means with respect to leasable area in the Shopping Center, the aggregate number
of square feet of floor space measured from the lease line
27
<PAGE>
(fronting the enclosed mall), exterior faces of exterior walls (defined as a
wall not shared with an adjacent tenant room), and the center line of party
walls (defined as walls shared with an adjacent tenant room). No deduction or
exclusion from floor area shall be made by reason of columns, stairs, elevators,
escalators, shafts, ducts or other interior construction or equipment. For the
purpose of this Lease, in determining the gross leasable floor area or the gross
leased and occupied floor area of the regional development, there shall be
excluded therefrom, at the sole option of Landlord, the area of any building not
owned by Landlord, the floor area of any premises leased for the operation of a
post-office type or packaging or delivery facility or other
public/consumer-service or governmental facility, the floor area of any space
without direct customer access from the enclosed Mall, and the total floor area
utilized by Landlord for the operation of a skating rink or other recreational
area, child care center, community room, library, project offices, and related
rooms, common areas and project areas, which shall be deemed amenities to the
Shopping Center.
SECTION 30.13. LIABILITY OF LANDLORD. If Landlord shall fail to perform any
covenant, term or condition of this Lease upon Landlord's part to be performed,
and if, as a consequence of such default, Tenant shall recover a money judgment
against Landlord, such judgment shall be satisfied only out of the proceeds of
sale received upon execution of such judgment and levied thereon against the
right, tide and interest of Landlord in the Shopping Center site, subject
nevertheless to the rights of Landlord's mortgagee, and neither Landlord nor any
co-partner nor anyone owning an interest in or affiliated with Landlord herein
shill be liable for any deficiency.
SECTION 30.14. ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest due stipulated rent, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment as rent be deemed an accord and satisfaction, and Landlord
shall accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or other charges or pursue any other remedy in
this Lease or in law or in equity.
SECTION 30.15. EXECUTION OF LEASE. The submission of this Lease for
examination does not constitute a reservation of or option for the leased
premises, and this lease shall become effective as a lease only upon execution
and delivery thereof by Landlord and Tenant.
SECTION 30.16. LAWS OF THE STATE. This Lease shall be governed by and
construed in accordance with the laws of the State of New Jersey where the
regional development is located. If any provisions of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby and each provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
SECTION 30.17. CONFIDENTIALITY. Tenant covenants to not disclose any part
of this Lease to anyone other than its attorneys, accountants, employees, or
lenders who need to know of its contents in order to perform their duties for
Tenant. Any other disclosure be an event of default under this Lease.
SEE ATTACHED RIDER FOR INSERTS
SECTION 30.18 INTEREST. Any rent or sums payable by Tenant to Landlord
under this Lease which is not paid when due, shall accrue interest from the date
due until paid, at a monthly rate equal to one and one-half percent (1-1/2%) per
month or the maximum lawful monthly contract rate permitted by usury laws,
whichever is less. The payment of such interest shall not excuse or cure any
default by Tenant under this Lease. In the event any charge imposed under this
Lease is stated to be or construed as interest, then no such interest charge
shall be calculated at a rate which is higher than the maximum rate which is
allowed under applicable usury laws, which maximum rate shall be substituted for
the rate in excess thereof, if any, computed under this Lease.
SECTION 30.19. CONSUMER PRICE INDEX. The terms "Consumer Price Index",
"CPI", and "Index", as used in this Least shall mean the Consumer Price Index
for Urban Wage Earners and Clerical Workers (1982 - 1984 = 100), U.S. City
Average, All Items, as published by the United States Department of Labor,
Bureau of Labor Statistics of the United States Department of Labor. In the
event such Index is discontinued, comparable statistics on the purchasing power
of the consumer dollar, as published at the time of said discontinuance by a
responsible financial authority shall be selected at the reasonable discretion
of Landlord and shall be used in lieu of such index.
SECTION 30.20. SURVIVAL. The obligations of Tenant for payment of rent and
charges under this Lease shall survive the expiration of the term or earlier
termination of this Lease.
[END OF TEXT OF FORM LEASE, SIGNATURE AND ACKNOWLEDGMENT PAGES FOR LEASE FOLLOW
IMMEDIATELY; THE ADDENDUM AND/OR THE RIDER, IF ANY, FOLLOW IMMEDIATELY AFTER THE
EXHIBITS TO THE LEASE]
28
<PAGE>
EXECUTION/ACKNOWLEDGMENT
In confirmation of their agreement to enter into this Lease (including the
preamble, Data Sheet, Addendum, Form Lease, all exhibits, and the rider (if any)
attached hereto), and intending to be bound hereby, Landlord and Tenant have
signed and sealed this Lease as of the day and year first above written on page
1 of this Lease.
WITNESS: LANDLORD:
Elizabeth MetroMall LLC, a Delaware limited
liability company
BY: Glimcher New Jersey Metromall LLC, a
Delaware limited liability company,
Managing Member
By: Glimcher Properties Limited Partnership, a
Delaware limited partnership, Managing
Member
- ----------------------------
By: Glimcher Properties Corporation, a
Delaware corporation, General Partner
_________________________________________
- ---------------------------- By: Michael P. Glimcher,
Senior Vice President of Leasing
WITNESS/ATTEST: TENANT:
Cinema Ride Times Square , Inc.
/s/ Teresa C. Hurd By: /s/ Mitch Francis
- --------------------------------- ---------------------------------------
/s/ Teresa C. Hurd Its: President
- ---------------------------------- ---------------------------------------
ACKNOWLEDGMENT OF LANDLORD
STATE OF OHIO )
)ss.
COUNTY OF FRANKLIN )
On this _____day of ____________,19___, before me personally appeared Michael P.
Glimcher to me personally known, who being by me duly sworn, did for himself say
that he is the Senior Vice President of Leasing of Glimcher Properties
Corporation, the general partner of Glimcher Properties Limited Partnership, the
managing member of Glimcher New Jersey Metromall LLC, the managing member of
Elizabeth Metromall LLC, and that he executed the foregoing Lease for the
purposes therein contained on behalf of such entity.
--------------------------------------------
Notary Public,
My Commission expires:
29
<PAGE>
CORPORATE ACKNOWLEDGMENT
STATE OF California )
)ss.
COUNTY OF Los Angeles )
On this day of 19th day of October ,1999 , before me personally
---- ----------- --
appeared Mitch Francis, to me personally known, who, being by me duly sworn,
----------------
did each for himself say that they are respectively the President of Cinema
--------- ------
Ride Times Square, Inc., the corporation named in and which executed the within
-----------------
instrument, and that the seal affixed to said instrument is the corporate seal
of said corporation, and that said instrument was signed and sealed in behalf of
said corporation by authority of its board of directors; and said Mitch Francis
-------------
acknowledged before me said instrument to be the free act and deed of said
corporation.
[NOTARY SEAL] /s/ Susan Harrison
----------------------------------
Notary Public, California
County, Los Angeles
My commission expires: March 14, 2000
30
<PAGE>
EXHIBIT "A"
This Exhibit is not a representation as to the identity, size, location or
opening date of any store tenant, space user, occupant, or facility or the
occupancy of any premises, building, or future premises or building or future
building within the regional development. Landlord reserves the right to not
construct or to construct differently (in any manner, including, without
limitation, location, size, shape, height and/or design) any item shown on this
Exhibit as well as the right, after any buildings common areas or other
improvements have been constructed, to change, after, modify, delete or add
buildings, common areas or other improvements to and from the Shopping Center
and/or the regional development (including, without limitation any future phases
or additions - there being no representation that any future phase or addition
will, in fact, be built). Landlord further reserves the right to change the
access points to the regional development, the parking area, and/or the common
areas and to otherwise modify any items or matters indicated on this Exhibit at
any time and from time to time.
[DIAGRAM OF SHOPPING CENTER - "SITE PLAN"]
Exhibit "A", page 1 of 3
<PAGE>
EXHIBIT "A"
[DIAGRAM - LOWER LEVEL]
[DIAGRAM - UPPER LEVEL]
Jersey Gardens
Elizabeth, New Jersey
Exhibit "A", page 2 of 3
<PAGE>
JERSEY GARDENS
EXHIBIT "A"
[DIAGRAM - CINEMA RIDE (1111) RETAIL]
SPACE NUMBER 111, LOWER LEVEL
Exhibit "A", page 3 of 3
<PAGE>
EXHIBIT "B"
Legal Description
WRITTEN DESCRIPT ION OF PARCEL "F"
JERSEY GARDENS MALL
CITY OF ELIZABETH, UNION COUNTY, NEW JERSEY
1345801
Commencing at the intersection of the southwesterly line of Central Railroad
Company of New Jersey, the easterly line of Kapkowski Road (80 foot r.o.w.),
said point being 1,455.00 feet from the intersection of the easterly r.o.w. of
Kapkowski Road with the southerly r.o.w. of North Avenue East and running;
thence along the following coarse to the Point of Beginning:
A. Traveling along a common boundary line with the properties owned by
Central Railroad Company of New Jersey and Allied Signal Corporation, South
62*29'49" East a distance of 10.00 feet to said Point of Beginning, said
point being marked by concrete monument, thence;
1. South 62*29'49" East, a distance of 2619.25 feet, thence
2. South 27 * 30'11 " West, a distance of 356.30 feet; thence
3. South 62*29'49" East, a distance of 165.00 feet; thence
4. South 27*30'11" West, a distance of 1056.00 feet; thence
5. North 62*29'49" West, a distance of 165.00 feet; thence
6. South 27 * 30'11" West, a distance of 200.00 feet; thence
7. North 61*23'38" West, a distance of 639.36 feet; thence
8. North 60*02'16" West, a distance of 1631.50 feet; thence
9. North 46*58'22" West, a distance of 373.63 feet; thence
10. North 45*23'39" West, a distance of 88.80 feet; thence
11. North 44*36'21" West, a distance of 263.93 feet to the beginning of a
curve tangent to said line; thence
12. Northeasterly a distance of 116.40 feet along the curve concave to the
northwest, having a radius of 390.00 feet and a central angle of
17*06'10"; thence
13. North 27*30'11" East tangent to said curve, a distance of 1036.92 feet
to the Point of Beginning.
Encompassing an area of 98.41 Acres.
Exhibit "B" page 1 of 1
<PAGE>
EXHIBIT "C"
VANILLA BOX WITH STOREFRONT
Reference is made to that certain memorandum entitled "Tenant Handbook" ("Tenant
Handbook"), and all addenda thereto issued by Landlord, a copy of which has been
or will be furnished to Tenant and all of the terms and provisions of which are
incorporated herein in full by this reference. Notice is given to Tenant that
the terms and provisions of this Exhibit "C" are general and approximate due to
the varying physical characteristics of the several premises comprising the
Shopping Center. Tenant is advised to review the Tenant Handbook carefully in
order to determine the particular construction details applicable to the leased
premises. In view of the foregoing, it is understood and agreed that in the
event of a conflict between the provisions of this Exhibit "C" and the Tenant
Handbook, the provisions of the Tenant Handbook shall govern.
-------
SEE ATTACHED RIDER FOR INSERTS
I. DESCRIPTION OF LANDLORD'S WORK
The following work shall be (or has been) performed by the Landlord, at
Landlord's expense, except as otherwise provided:
A. Utilities
1. Plumbing. As required by code, Landlord shall install, for leased
premises in excess of the minimum square footage, the necessary plumbing for a
toilet room, inclusive of a toilet, sink, hot water system, and related
fixtures. Work shall include all necessary waste piping, vent piping, water and
waste connections to laterals and stubs at a location indicated on the Vanilla
Box drawings to provide a complete handicapped accessible restroom.
2. Electrical. A 277/480 volt - three (3) phase, five (5) wire or as
required by code, service panel shall be located in leased premises by Landlord.
----
Landlord shall provide a five wire service meeting code requirements.
SEE ATTACHED RIDER FOR INSERTS
Landlord's electrical work in leased premises shall be limited to:
a . Electrical panel with sufficient amperage to accommodate Landlord's standard
"Vanilla Box" specifications, not to exceed fifteen (15) watts per square foot
(inclusive of power, lighting and heating loads).
b. Landlord will install 24" x 48" 3 lamp lay-in florescent lighting fixtures
with electronic ballast and parabolic tens (one [1] fixture for every 100 square
feet of floor area). The aforesaid shall be Landlord's sole responsibility as to
lighting fixtures and installation thereof except as set forth in item 2.c.
below. All additional lighting will be by Tenant, at Tenant's expense, and
subject to Landlord's approval.
C. Landlord shall provide track only for track lighting at storefront. Track
fixtures shall be furnished and installed by Tenant, at Tenant's expense, per
Landlord's specifications in the Tenant Handbook.
d. Wall receptacles to be provided on the basis of one (1) duplex outlet per
every 20 lineal feet along the perimeter of the leased premises plus one (1)
duplex receptacle adjacent to the electrical service panel and one (1) duplex
receptacle adjacent to Tenant's storefront as required by code.
e. Exit sign(s) per code.
f. One (1) electrical feed for Tenant's storefront sign, terminated in a
junction box located adjacent to the Tenant's storefront.
g. Electrical work related to one (1) toilet room as a part of Item A. 1.
above.
h. Electrical hook-tip of fire alarm and smoke exhaust as required by code.
3. Telephone Service. A telephone terminal with cable capacity for the Tenant's
use, will be (or has been) installed at a location determined by the Landlord,
Tenant shall, at Tenant's expense, provide telephone wiring and connections from
a common operation board to the leased premises. The Tenant shall pay the
telephone company for any charges imposed by the telephone company for any work
which affects the leased premises.
Exhibit "C" page 1 of 8
<PAGE>
B. Fire Protection
1 . Sprinklers. An automatic fire sprinkler system shall be (or has been)
installed throughout the leased premises to accommodate Landlord's described
Vanilla Box in compliance with the Landlord's insurance underwriter and local
and state governmental agencies. Said hydraulic system will be engineered and
installed to accommodate Landlord's Work as described in this Exhibit "C".
Any modifications required to accommodate Tenant's requirements such as interior
partitions, soffits, bulkheads or displays, shall be performed by Landlord's
sprinkler contractor, at Tenant's expense of ($140.00), per head, if added prior
-----
to Landlord's Vanilla Box construction; and at Tenant's expense of $185.00, per
head, if added or relocated after system has been installed.
-----
After the sprinkler system is activated, a shut down fee of $300.00 per shut
down will be charged to Tenant, at Tenant's expense.
2. Fire Extinguishers. Tenant shall furnish and install fire extinguishers as
required by applicable governmental authorities, including the local fire
department and Landlord's insurance carriers and underwriters.
Any additional fire suppression systems, such as used in food preparation
equipment, must be provided by Tenant, at Tenant's expense, and approved by
Landlord.
C. Heating, Ventilating and Air Conditioning
1. Landlord shall provide and install a complete heating, ventilating and air
conditioning ("HVAC") system necessary to service the leased premises in
accordance with the Tenant Handbook and applicable code requirements Landlord's
system has been designed to utilize the area above Tenant's ceiling line as a
return air plenum. The equipment to be installed by Landlord shall include air
distribution equipment, VAV boxes, heating where applicable and cooling coils,
diffusers, grills, fire dampers, duct work, duct installation, temperature
controls, wiring, special exhaust equipment, final hook-up, smoke detectors,
smoke evacuation system, and any other items required for a complete HVAC
system.
2. HVAC equipment is permitted on the roof only in locations designated by the
Landlord. Special exhaust equipment as required by applicable governmental
authorities and by Landlord for special tenant needs such as, nail salons, hair
salons, pet stores or other uses as determined by Landlord shall be installed by
Tenant, at Tenant's expense, per Landlord's specifications. See also item C.3
below for roof walkway treads.
3. Roof walkway treads will be installed by Landlord's roofing contractor at
Tenant's expense
at all Tenant added roof mounted equipment, as described in C.2. above.
4. Landlord will furnish and install a smoke evacuation system as may be
required by code.
D. Floors
Landlord shall install (or has installed) structural floor slabs within the
leased premises in accordance with standard project details and specifications.
No cutting, boring or penetrations of structural slabs shall be permitted.
E. Partitions
Landlord shall provide demising partitions complete with drywall to 12'-0" above
finish floor and ready for Tenant's finish. Landlord's responsibility shall be
limited to the demising partitions between lease spaces or exterior walls (if
applicable) or lease line.
F. Service Door
Landlord will install service doors complete with hardware between the leased
premises and the truck receiving facilities, project corridor or exterior, if
indicated on Landlord's plans, and elsewhere when required by code. Landlord
shall provide Tenant's identification signage on service door, at Tenant's
expense.
Exhibit "C" page 2 of 8
<PAGE>
G. Storefront
1. Landlord will construct the Landlord approved storefront, including all
required supports, storefront framing, track lighting fixtures, gates or
grilles, glass, glazing and finishes.
2. The design of the storefront shall be determined by Landlord and as indicated
in the standards of design and construction contained in the Tenant Handbook. In
any event, the storefront shall be subject to the prior approval of the
Landlord's Design Representative.
3. All rollup gates, grilles or doors shall be in accordance with the Tenant
Handbook, and subject to Landlord's approval.
4. Neutral Piers Between Tenant Stores. Where desirable in the Landlord's
opinion, a vertical pier will be located at the storefront line between stores
at Tenant's expense.
5. Storefront signage is by Tenant at Tenant's expense.
6. All storefront design and construction to be in accordance with the Tenant
Handbook.
H. Ceiling Grid
1. Landlord shall install a 2' x 2' white commercial grade acoustic metal grid
only at a height of 11'-6" above concrete floor. Said grid system shall be
installed 45 degrees from Tenant's demising partitions. Any alteration to the
grid or the addition of acoustic tile shall be by Tenant at Tenant's expense,
and subject to Landlord's approval.
2. No combustible materials will be permitted above the ceiling. The Tenant
shall not hang any materials or fixtures from the roof deck, floor deck, joist,
truss bridging, or bottom chord of bar joints except at joist panel points. All
hanging shall be done from the top chord of joists by means of trapeze-type
hangers. Any such "hangers" shall be subject to the prior approval of the
Landlord.
3. Tenant shall not hang anything from the ceiling grid system or the storefront
system.
SEE ATTACHED RIDER FOR INSERTS
I. Energy Service Charge
1. It is Landlord's intent to establish an Energy Service Charge which will
cover Tenant's usage charges for receiving a group of utility services such as
sanitary sewer, gas, domestic water, electrical service, heating, cooling and
ventilation, at the leased premises, as Landlord shall determine, from time to
time.
2. The Energy Service Charge established by Landlord shall be equal to, or less
than, what those utility usage charges would be if Tenant was charged directly
from the applicable utility provider(s).
3. Tenant shall complete and submit a certified Energy Consumption Report which
report shall be verified by Landlord's representative. This report shall be the
basis of calculating the Energy Service Charge. Tenant shall submit said report
on an annual basis to Landlord.
11. DESCRIPTION OF TENANT'S WORK
A. All finish work in leased premises, in accordance with this Exhibit and
the Tenant Handbook.
B. Store fixtures inclusive of acquisition and placement.
C. All other construction work or costs not specifically set forth as
Landlord's Work.
D. Tenant shall furnish or install all signs in accordance with the Lease
Exhibit "D" and the Tenant
Handbook.
E. All of Tenant's work shall conform to and comply with, all applicable
statutes, ordinances, regulations, codes and to the requirements of Landlord's
insurance underwriters. The Landlord's approval of plans and specifications
shall not constitute an acknowledgment that work done in accordance therewith
will so conform, and the Tenant shall be solely responsible for corrections in
the Tenant's work required by any governmental agency or insurance underwriters.
Exhibit "C" page 3 of 8
<PAGE>
F. No approval by the Landlord shall be valid unless the same be in writing
and signed on behalf of the Landlord.
G. All storefront signage and graphics in accordance with Exhibit D and the
Tenant Handbook.
H. PROCEDURES AND SCHEDULES FOR THE COMPLETION OF PLANS AND
SPECIFICATIONS
Tenant's plans for design and completion of improvements to the leased
premises shall be prepared by an architect or registered engineer licensed in
the State of New Jersey, the City of Elizabeth or other applicable governmental
authority. Within ten (10) days of execution of the Lease, Tenant shall notify
Landlord of the name, address and contact person of its architect or registered
engineer, and construction representative.
A. Store Preliminary, Design Drawings
Following execution of the Lease by Landlord, Landlord shall furnish Tenant
with one (1) set of prints of Space Layout Drawings (Shell Package), including
one (1) copy of Landlord's Tenant Handbook, giving technical and design
information relative to the leased premises.
B. Store Preliminary Design Drawings
1. Within fifteen (15) days of whichever of the following shall be the later to
occur: (a) receipt of Space Layout Drawings from Landlord or (b) the execution
of this Lease, Tenant shall submit to Landlord one (1) set of reproducible
prints and three (3) sets of blueprints of Store Preliminary Design Drawings,
showing the intended design, character, and finishes of the leased premises. The
Store Preliminary Design Drawings shall comply with the design criteria of the
project as set forth in the Tenant Handbook and shall set forth the requirements
of Tenant within the leased premises. Said Drawings shall include, but not be
limited to the following: architectural design of the premises, including
signage, floor plans, elevations, sections, renderings and color boards,
indicating material and color selections and finishes.
2. As soon as practicable after receipt of Store Preliminary Design Drawings,
Landlord shall return to Tenant one (1) set of prints of Store Preliminary
Design Drawings with its suggested modifications and/or approval. If, upon
receipt of approved Store Preliminary Design Drawings bearing Landlord's
comments, Tenant wishes to take exception thereto, Tenant may do so in writing,
by certified or registered mail addressed to Landlord, within seven (7) days
from date of receipt of Store Preliminary Design Drawings. Unless such action is
taken, it will be deemed that all comments made by Landlord on the Store
Preliminary Design Drawings are acceptable to and adopted by Tenant.
3. If Store Preliminary Design Drawings are returned to Tenant with
comments, but not bearing approval of Landlord, said Preliminary
Design Drawings shall immediately be revised by Tenant and resubmitted to
Landlord for approval within seven (7) days of their receipt by Tenant.
4. Tenant's plans shall be submitted in accordance with the Tenant Handbook,
space layout drawings and the executed Lease.
C. Store Working Drawings and Specifications
1. Store Working Drawings and Specifications shall be prepared in strict
compliance with the design criteria, as set forth in the Tenant Handbook and
requirements as set forth and incorporated into this Exhibit and shall adhere to
the Store Preliminary Design Drawings as approved by Landlord. Store Working
Drawings shall be submitted to Landlord within twenty-one (21) days from receipt
by Tenant of Landlord's written approval of Tenant's Store Preliminary Design
Drawings.
2. All Store Working Drawings and Specifications prepared by Tenant's
architect shall be submitted to Landlord for approval, in the form set forth in
the Tenant Handbook.
3. Prior to the start of Tenant's construction or within ten (10) days of
receipt of Landlord's invoice, whichever is earlier, Tenant shall pay Landlord a
Plan Review Fee which shall reimburse Landlord for the review time, reproduction
costs and postage or delivery cost:
Exhibit "C" page 4 of 8
<PAGE>
Shell spaces $.50/SF, but not less than $1,500.00
Food Court $.75 SF, but not less than $1,800.00
Restaurants $.50 SF, but not less than $2,500.00
Vanilla Box $.25 SF, but not less than $ 750.00
4. Tenant shall submit sign drawings to Landlord for approval. Said approval
shall be in accordance with Exhibit "D" and the Tenant Handbook. Tenant shall
not install signs without Landlord's written approval.
5. As soon as practicable after Landlord's receipt of Store Working Drawings and
Specifications, Landlord shall return to Tenant one (1) set of prints of Store
Working Drawings and Specifications with its suggested modifications and/or
approval. If, upon receipt of approved Store Working Drawings and Specifications
bearing Landlord's comments, Tenant wishes to take exception thereto, Tenant may
do so in writing, by certified or registered mail addressed to Landlord within
seven (7) days from the date of receipt of Store Working Drawings and
Specifications. Unless such action is taken, it will be deemed that all comments
are acceptable to and adopted by Tenant.
6. If Store Working Drawings and Specifications are returned to Tenant with
comments, but not bearing approval of Landlord, said Store Working Drawings and
Specifications shall immediately be revised by Tenant and resubmitted to
Landlord for approval within seven (7) days of their receipt by Tenant.
D. Commencement of Construction
1. Tenant shall start construction of the leased premises not later than seven
(7) days from either of the following dates, whichever shall be the later to
occur: (1) The date of receipt by Tenant of written notice from Landlord that
Landlord has substantially completed Landlord's Work (other than such work which
cannot be performed by Landlord until Tenant makes leased premises ready for the
performance thereof) and that the leased premises are ready for Tenant's Work,
in accordance with approved plans and specifications; or (2) the date on which
Tenant receives Landlord's approval of drawings and specification for the leased
premises. Tenant shall carry such construction to completion with all due
diligence.
2. Prior to commencement of construction, Tenant or Tenant's contractor shall
meet with Landlord's On-Site representative to assure Tenant's understanding and
adherence to the requirements defined in the Tenant Handbook.
3. Prior to commencement of construction, Tenant shall submit to Landlord
all required submittals as listed in the Tenant Handbook.
E. General Requirements
1. Tenant's plans must conform to the requirements of the State of New Jersey
and all other applicable codes and governing agencies inclusive of the Americans
With Disability Act (ADA) and the City of Elizabeth.
2. Tenant shall not commence Tenant's Work prior to receipt of Landlord's
written approval of the working drawings and specifications. Tenant's Work shall
be coordinated with the work being done by Landlord and/or other tenants' of
Landlord in order that such work will not interfere with, damage or delay the
completion of work by Landlord and/or other tenants' of Landlord. A copy of
Tenant's approved working drawings bearing Landlord's stamp of approval shall be
available at Tenant's location, during construction and after.
3. Tenant's Work shall be performed in a first-class, workmanlike manner and
shall be in good and usable condition at the date of completion thereof.
4. Landlord shall have tile right (but shall not he obligated) to have performed
by its own contractor or subcontractors, on behalf of and for tile account of
Tenant, any of Tenant's Work which Landlord determines, in the interest of the
expediting the work of the project, should be so performed. Landlord
contemplates that the work which Landlord shall in any event require to be done
by Landlord's contractor or subcontractors will include, without limitation,
work which affects any structural components of, or the general utility systems
for, the building in which the leased premises are located. Landlord shall
notify Tenant of work which will be required to be done by Landlord's contractor
or subcontractor before Tenant commences performance of any substantial part of
its work. Tenant shall promptly, on demand, reimburse Landlord for all costs of
planning and performing such work when and as incurred by Landlord and for any
cost incurred by Landlord in
Exhibit "C" page 5 of 8
<PAGE>
obtaining all permits in connection therewith. Notwithstanding the
aforementioned, it is the responsibility of Tenant to obtain all pen-nits and
approvals.
5. No approval by Landlord shall be valid unless same be in writing and
signed on behalf of Landlord.
6. Prior to commencement of Tenant's Work and until the last to occur of (a)
the completion of Tenant's Work, or (b) the Commencement Date, Tenant shall
maintain, or cause to be maintained, casualty insurance in builder's risk form,
covering Landlord, Landlord's mortgagee, Landlord's agents and beneficiaries,
Landlord's architect, Landlord's contractor or subcontractors, Tenant and its
contractors as their interest may appear, against loss or damage by fire,
vandalism and malicious mischief, and such other risks as are customarily
covered by the so-called "extended coverage endorsement" upon all Tenant's Work
in place, and all materials stored at the site of Tenant's Work and all
materials, equipment, supplies and temporary structures of all kinds incidental
to Tenant's Work and builder's machinery, tools and equipment, all while forming
part of, or contained in, such improvements or temporary structures while on the
leased premises or when adjacent thereto while on malls, drives, sidewalks,
streets or alleys, all in the full insurable value thereof at all times. In
addition, Tenant shall require all contractors and subcontractors engaged in the
performance of Tenant's Work to effect, maintain and deliver to Tenant (with
copies thereof to Landlord) certificates evidencing the existence of, prior to
the commencement of Tenant's Work and continuing through completion thereof, the
following insurance coverages:
a. Workers' Compensation Insurance in accordance with the laws of the-State of
New Jersey, including Employer's Liability Insurance, with a limit of Two
Million Dollars ($2,000,0000.00) per accident, or such higher limit as may be
required by law.
b. Comprehensive General Liability Insurance against bodily injury, including
death resulting therefrom, with limits of Two Million Dollars ($2,000,000.00)
per occurrence and against property damage to the limit of Two Million Dollars
($2,000,000.00).
C. Automobile Insurance, including "non-owned" automobiles, against bodily
injury, including death resulting therefrom, to the limits of Two Million
Dollars ($2,000,000.00) per occurrence and against property damage to the limit
of Two Million Dollars ($2,000,000.00).
7. In any contract or undertaking which Tenant may make with a contractor
for work in the leased premises, provision shall be made for the dismissal from
the job of a worker whose work is, in Landlord or Landlord's representative's
reasonable judgment, unskilled or otherwise objectionable, and any such worker
shall be discharged and Tenant shall exonerate, indemnify and hold Landlord, its
agents and employees harmless from any loss, cost, damage or liability incurred
by reason of compliance with any such demand. Tenant shall require its
contractor or subcontractors to use every legal effort to prevent work stoppages
on the leased premises, or elsewhere in the Project, to the extent attributable
to work being performed on the leased premises, irrespective of the reason for
any such stoppage, in recognition of the fact that it is of the utmost
importance to Landlord and all those occupying or to occupy space in the Project
that there be no interruption in the progress of the work and to that end, in
the event that the conduct or presence of any employee(s) of Tenant or its
contractor(s) or subcontractor(s) cause a labor -dispute or work stoppage,
Tenant expressly agrees to have such employee(s) immediately removed from the
Project upon Landlord's request, and Tenant's failure to do so shall constitute
a default under the Lease. Tenant shall exonerate, indemnify and hold Landlord,
its agents and employees harmless from any loss, cost, damage, or liability
incurred by reason of compliance with any such demand.
Landlord's contractor has included in its contract with all subcontractors the
following Harmony Clause. Tenant shall require this Clause to be included in all
contracts with Tenant's general contractor, Tenant's subcontractor's as well as
requiring Tenant's general contractor to include same in their contract with
subcontractors so that there shall be no interruption in the process of work.
Harmony Clause:
"It is understood that contracts will be awarded by the contractor and labor
will be employed on the Project without discrimination as to whether employees,
agents, suppliers and/or subcontractors of the contractor or any other
subcontractor, including those that may be employed by the Owner of the Project,
are members or non-members of any labor or collective bargaining organization,
and the Subcontractor accepts this contract with this understanding.
There shall be no manifestations on the Project of any dispute between any labor
organization and the subcontractors. The contractor and subcontractor agrees to
employ men, agents, suppliers and subcontractors who will perform the work under
his subcontract, whether or not other employees or
Exhibit "C" page 6 of 8
<PAGE>
mechanics on the Project are members or non-members of any labor or collective
bargaining organization.
The contractor and subcontractor agree not to participate in or permit any
cessation of work which may occur as a result of any labor dispute. Should there
be a work stoppage caused by a strike, picketing, boycott, or any cessation of
work by employees of the subcontractor, his agents, suppliers and/or
subcontractors, which in the sole judgment of the contractor will cause, or is
likely to cause, unreasonable delay in the progress of construction, then upon
forty-eight (48) hours of written notice, delivered either in hand, by telegram,
or registered mail, the contractor shall have the right to declare the
subcontractor in default of this subcontract, and upon such notice, the
contractor shall have the right to take such steps as are necessary to finish
the uncompleted portion of the work to be performed by the subcontractor. In
such event, the contractor shall have the right to take possession of and use
all of the subcontractor's materials (exclusive of tools), intended for the use
on the subcontractor's remaining interest in the subcontracted price. If the
cost of completion exceeds the subcontractor's remaining interest in the
contract price, then the subcontractor agrees to pay the contractor such excess
within thirty (30) days after presentation of documented written demand for such
excess has been made upon him by the contractor. "
Notwithstanding the foregoing, Landlord has required its contractors and
subcontractors to employ union labor at a rate of pay not less than prevailing
wages as provided in statutes applicable to the City's public work statutes,
including without limitation N.J.S.A34:11-56.25 et seq. and valid regulations
thereunder to the extent legally required - and that each shall comply with the
valid affirmative action obligations imposed by the City of Elizabeth, New
Jersey.
8. Tenant's Work shall be subject to the inspection and approval of Landlord and
Landlord's architect. Landlord shall have the right to stop Tenant's Work
whenever necessary to obtain compliance with applicable building and safety
codes or the approved Working Drawings and Specifications. Any of Tenant's Work
which does not comply with Tenant's approved Store Working Drawings and
Specifications shall be corrected within seven (7) days of notification to
Tenant.
9. Tenant shall apply and pay for all required gas utility meters.
10. Upon the completion of Tenant's Work, all facilities shall be in full use
without defects.
11. Landlord shall have the right to order Tenant or Tenant's contractors who
willfully violate any of the above requirements to cease work, and to remove
their equipment and employees from the Project.
12. Tenants' contractors whose contract values are in excess of $50,000.00
shall furnish 100% Performance and Labor and Material Payment Bonds, naming both
Tenant and Landlord.
13. When required, Tenant will provide temporary heat for the leased premises
during construction. No "open burners" are permitted; the use of all temporary
heating fuel must be approved by Landlord.
14. If required by law, Tenant shall cause Tenant's Contractor (Contractor) to
obtain a Notice of Commencement form from Tenant and shall serve the Notice upon
all subcontractors within ten (10) days of receipt. In addition, Tenant's
Contractor shall post and maintain the Notice of Commencement posting at all
times at the jobsite. Tenant shall cause Tenant's Contractor to obtain lien
waivers from all subcontractors or suppliers who have a contract with Tenant's
Contractor or provide services or supplies, or have provided Notices of
Furnishing, and shall deliver such lien waivers and Tenant's Contractor's lien
waivers to Tenant with each pay request.
15. Tenant shall submit to Landlord, at time of final submission of final
working plans to Landlord for approval, an itemized statement of the estimated
costs of construction and fixturing, including architectural and engineering
costs and contracting fees. See paragraph III.F. below for furnishing evidence
of subject expenditures to Landlord.
16. Tenant shall cause its contractor to provide a minimum one-year warranty,
naming both Tenant and Landlord, against defects in workmanship, materials and
equipment, inclusive of a five (5) year compressor warranty on heating/cooling
equipment for mechanical equipment supplied by the Tenant, copies of which will
be submitted to Landlord (if applicable).
17. Tenant and Tenant's Contractor will comply fully with P.L. 1975, C. 127
(N.J.A.C. 17:27).
Exhibit "C" page 7 of 8
<PAGE>
F. Close-Out Requirements
Upon the completion of Tenant's construction and fixturing work within the
leased premises, Tenant shall submit to Landlord, as provided in this Exhibit
and the Tenant Handbook the following:
1. Evidence of the satisfactory completion by Tenant of the work to be performed
by Tenant under this Exhibit, in accordance with good workmanship and the
approved Working Drawings and Specifications therefor.
2. Waivers of lien and sworn statements in such form as may be required by
Landlord, from all contractors, subcontractors and other persons performing
labor and/or supplying materials in connection with such work showing that all
of said persons have been compensated in full.
3. Detailed breakdown or Tenant's final and total improvement costs, together
with receipted final invoices showing payment of such costs.
4. Submission by Tenant to Landlord of the warranties for the benefit of
Landlord on the workmanship, materials and equipment incorporated into the
leased premises as required by this exhibit.
5. A copy of the certificate of occupancy for the leased premises.
6. One (1) set of as-built construction drawings.
7. Copy of required service contracts.
8. Tenant shall complete and submit a certified Energy Consumption Report which
report shall be verified by Landlord's representative. This report shall be the
basis of calculating the Energy Service Charge. Tenant shall submit said report
on an annual basis to Landlord.
Exhibit "C" page 8 of 8
<PAGE>
EXHIBIT "D"
SIGN CRITERIA
1. SIGN CRITERIA
A. Tenant is required to establish its identity in the leased premises
by a Primary Sign mounted in the designated area above the storefront entrance.
The general criteria for the design of Tenant's signage ("signage criteria") is
set forth below. More specific sign criteria for the project as a whole and
certain tenants in certain designated locations such as in food courts and mall
courts is set forth in the Tenant Handbook hereinafter referred to as *Tenant
Handbook". Graphic design, materials, construction and installation of all signs
must be reviewed and approved by the Landlord.
B. Costs incurred in design, construction and installation as well as
maintenance shall be the responsibility of Tenant. The Team must obtain permits
to erect and connect the sign from local community officials before the sign is
installed.
C. It is intended that the signage be developed in an imaginative and
varied manner as to create a lively atmosphere and to enhance the architectural
treatment of the facade in general and be harmonious with the overall
architecture and thematic consideration of the mall in particular. Although
current signage practices of the Tenant shall be considered, they will not
govern the signs to be installed.
D. The Tenant's storefront sign shall occupy an area of the storefront
facade designated in the Tenant Handbook and/or the Lease Outline Drawing,
and/or by the Project Architect. The area shall total no more than eight (8)
square feet for up to a thirty foot (30') storefront; twelve (12) square feet
for up to a forty foot (40') storefront; sixteen (16) square feet for up to a
fifty foot (50') storefront. The design of the storefront is to be considered by
Tenant in the development of signage. In general, signs will be mounted on the
signband above the door. Variation of this criteria shall be subject to
Landlord's prior written approval, which shall be solely at the discretion of
Landlord. No sign shall be installed closer than three feet (3'00) from the end
of the storefront on both sides.
E. Signage shall be limited to the trade name of the store. Additional
elements will be considered as long as they enlarge, expand, or otherwise
clarify the name of the store.
F. Signs which are comprised of unaltered sans serif typefaces are, in
general, unacceptable, as will be signs or type faces which am difficult to
read.
G. The use of corporate identifications or logos will be considered,
but prior use or identification with the particular sign or logo will not govern
Landlord's approval for Tenant use. Tenant agrees that Landlord's rejection of a
particular logo or sign shall not constitute a violation of Lease by Landlord.
In the case of conflict between the sign criteria and other provisions of the
Lease, Tenant agrees that the sign criteria and Landlord's discretion shall
prevail. Tenant shall not hold Landlord liable for damage or injury as a result
of the sign criteria or the implementation of the sign criteria by agreement of
both parties.
H. A variety of fabrication materials shall be considered, however
construction shall be guaranteed for a period of at least five (5) years against
peeling, cracking, crazing, blistering, or any other degradation of surface or
materials. Tenant shall obtain, from manufacturer of the sign, a Five year
warranty covering the condition of finished surfaces, construction and operation
of sign.
I. All electrical signs shall carry approval of Underwriters
Laboratories on all component parts and on the complete display. Maximum
brightness of lit signs shall be fifty (50') Lambers measured one foot (l')
from the source of light. No blinking, moving or flashing lights shall be
allowed. Surface lighting may be reduced in order to accentuate lit signage.
There will be no special advantage in terms of visibility of internally lit over
externally lit signs.
J. No exposed raceways, ballast boxes or electrical transformers will be
permitted except as required to be exposed by local building codes.
K. Landlord shall not be responsible for signs improperly installed or
manufactured. and those signs not meeting code requirements shall, at Tenant's
expense, be removed and built W Code specifications before reinstallation. Signs
meeting landlord's sign criteria but not meeting local Code requirements shall
be the responsibility of Tenant, and Tenant agrees not to hold Landlord liable
for costs due to conflict between these sign criteria and Code, should such
conflict exist under present Code or to future changes in Code.
Exhibit "D" page 1 of 2
<PAGE>
L. Notwithstanding anything herein contained to the contrary, Tenant
shall have the right to replace any existing sign(s) of said Tenant as long as
such replacement meets the sign criteria listed within this document, the Tenant
Handbook, and is accompanied by Landlord's prior written approval prior to
installation.
M. No other signs of any type or purpose, permanent or temporary,
shall be permitted to be displayed upon the facade, windows or within the
dimensions prescribed in Section 8.2 of the Lease, behind an unobstructed window
unless and until such sign has been submitted to Landlord and has received
Landlord's prior written approval. Landlord shall be the sole judge of what
constitutes an unobstructed window. Signage of any type installed without
Landlord approval shall be removed before said sign shall be considered by
Landlord for installation.
N. Landlord shall not be required to approve signage for any reason
other than conformance with sign criteria in this Exhibit D and the Tenant
Handbook. Scheduled opening dates and other time constraints shall not be reason
to approve signage which Landlord otherwise would consider unsuitable for
manufacture or installation. Tenant agrees not to hold Landlord liable for any
damage caused to Tenant due to signage or lack of signage as a result of
Landlord's insistence upon conformance with the sign criteria or the Landlord's
withholding of approval of submitted signage.
0. In the event that Tenant is unable to supply satisfactory signage
design by the fixturing period of Tenant's store, Landlord shall have the option
of providing such design. In such a case, Tenant agrees to pay, prior to store
opening, all expenses involved in the design, manufacture, and installation of
said signage plus 15% cost of administration, and Tenant agrees to waive any
right to reject said signage and agrees not to oppose installation of said
signage.
P. Signage indicated on drawings submitted for reasons other than
signage evaluation (as described in Exhibit D and the Tenant Handbook) shall not
constitute a signage submittal. No approval of such drawings and/or mechanicals
shall constitute approval of signage.
Q. Food court tenants shall be permitted to install one menu board
within the leased premises, subject to Landlord's prior design review and
written approval. Refer to the Tenant Handbook for type, size and location
allowed.
R. Procedure for Submittal and Approval of Sip Drawings:
1 . Approval of store design drawings or working drawings and
specifications for Tenant's leased premises does not constitute approval of
any sip work. Approval of signs shall be solely the right of Landlord, and
Tenant must submit all candidates for signage to the Landlord for approval
in the form of sign designer's working drawings and/or manufacturer's shop
drawings before or assembly begins. Drawings by Tenant, its architect or anyone
not qualified to produce signage drawings are not acceptable. At the same
time as Tenant's initial submission of store working drawings and
specifications to the Landlord, Tenant shall submit one (1) set of
reproducible prints and specifications and three (3) sets of blue prints,
along with samples of all material and colors, for all its proposed sip work.
The drawings shall clearly show location of sip on storefront elevation
drawing, size and stroke dimensions, graphics, color, construction, and
attachment details. Full information regarding electrical load requirements
and brightness in foot-candles shall also be included. Landlord reserves the
right to reject signs not conforming to approved drawings regardless of stage of
completion or installation.
2. As soon as practical after receipt of sign drawings, Landlord shall
return to Tenant one (1) set of such sign drawings with the suggested
modifications and/or drawings with the suggested modifications and/or
approval. If. upon receipt of approved sign drawings bearing Landlord's
comments, Tenant wishes to take exception thereto, Tenant my do so in writing,
by certified or registered mail addressed to Landlord within seven (7) days from
the date of Tenant's receipt of such sign drawings. Unless such action is
taken, it will be deemed that all comments made by Landlord on the sign
drawings are acceptable to and approved by Tenant.
3. If sign drawings and specifications are returned to Tenant with
comments, but not bearing approval of Landlord, said drawings and
specifications shall be revised immediately by Tenant and resubmitted to
Landlord for approval within seven (7) days of their receipt by Tenant.
Exhibit "D" page 2 of 2
<PAGE>
EXHIBIT "E"
The cost and expenses of every nature and kind as may be paid or incurred
by Landlord as generally described in Section 8.02 of the Lease shall include,
but not be limited to; the cost and expense of: water, gas, sewage, electricity,
refuse disposal and other utilities, including without limitation all usage,
service, hook-up, connection, availability and/or standby fees or charges
pertaining to same, illumination and maintenance of regional development signs,
whether located on or off the regional development site; salaries of all
management personnel; maintenance, repair and replacement of directories;
cleaning, lighting, snow removal, line painting and landscaping; the cost of
obtaining and operating public transportation or shuttle bus systems; all
security systems, devices, and personnel, which Landlord, in its sole
discretion, elects to provide and then only for so long as Landlord continues to
provide such security; uniforms for maintenance, administrative and security
personnel for the regional development; die cost and expenses of maintaining and
operating any off-site landscaping. berms, retention ponds, drainage areas,
lighting, and/or private roads which serve the regional development (including
any tax or assessment on such land and such improvements but only to the extent
such are not reimbursed to Landlord under any other provision of this Lease).
but in no event shall the same be included once such off-site am or facility is
sold or leased by Landlord; premiums for insurance to the extent maintained by
Landlord, for liability, casualty and property damage, including insurance
against vandalism, plate glass breakage, fire and extended coverage insurance
and such other coverage as determined by Landlord, and liability for defamation
and claims of false arrest occurring in and about such areas (including payment
of deductibles under applicable insurance policies); maintaining and replacing
the equipment supplying music to the common areas; the reasonable depreciation
of equipment used in the operation and maintenance of such areas; personal
property taxes; all costs and expenses of enforcing the rules and regulations
established by Landlord for the Shopping Center; operation, maintenance, repair
and replacement of all or any pan of any parking structure located in or about
such areas, total compensation and benefits (including premiums for workers'
compensation and other insurance) paid to or on behalf of persons involved in
the performance of the work specified in Section 8.02 and this Exhibit;
accounting and legal fees in connection with the performance of the work and
responsibilities described in Section 8.02 and this Exhibit; repair, maintenance
and cleaning of such areas; operation, maintenance, repair and replacement of
mechanical equipment, elevators, escalators, lighting Fixtures (including
replacement of poles, tubes and bulbs), compliance with laws, codes, ordinances,
rules and regulations of any governmental authority; the operation, maintenance
and repair of any smoke evacuation system(s), energy management system, security
alarm system, and all other items of equipment used in connection with such
areas; supplies; restrooms, if any, located in or about such areas; cleaning,
lighting, striping and landscaping, curbs, gutters, sidewalks, drainage and
irrigation systems, conduits, pipes and canals serving the regional development.
<PAGE>
EXHIBIT F
RULES AND REGULATIONS
A. The following rules and regulations shall apply to leased premises:
1. All portions of the leased premises, including entrances and
returns, doors, loading and delivery areas. windows and plate glass shall be
maintained in a safe, neat and clean condition.
2. Neither sidewalks, nor pedestrian walkways shall be used to display
or store any merchandise, equipment or devices.
3. All trash, refuse and waste materials shall be regularly removed
from the leased premises and until such removal shall be stored (a) in
adequate containers, which containers shall be located so as not to be
visible to the general public, and (b) so as not to constitute any health or
fire hazard or nuisance.
4. No advertising medium shall be utilized within the leased premises
which can be heard or experienced outside of the leased premises, including
without limiting the generality of the foregoing, flashing lights, search
lights, loudspeakers, audio and/or visual equipment, radios, television or
remote control devices.
5. No use shall be made of the leased premises, or any portion thereof,
which would (a) violate any law, ordinance or regulation, (b) constitute a
nuisance, (c) constitute an extra hazardous use or (d) violate, suspend or
void any policy or policies of insurance.
6. Unless Tenant is specifically permitted by the Lease to operate a
restaurant, no cooking shall be done or permitted by the Tenant in the
leased premises without the prior written consent of the Landlord. Under no
circumstances shall Tenant cause or permit any unusual or objectionable
noise or odor to be produced upon or emitted from the leased premises.
7. No flammable, combustible, highly toxic, corrosive or explosive
fluid, chemical or substance to be used for resale purposes shall at any
time be brought onto or kept upon or at the leased premises, nor shall any
such material be brought upon or kept at the leased premises except to the
extent expressly permitted by law and then only with the prior written
consent of Landlord.
B. The following rules and regulations shall govern the use of roadways,
walkways, common areas, parking areas and other facilities provided, from time
to time, for the use of patrons and employees:
1. No person shall use any roadway, walkway, common area or parking
area except as a means of egress from or ingress to any store and the common
area, or adjacent public streets. Such use shall be in an orderly manner, in
accordance with the directional or other signs or guides. Roadways shall not
be used at a speed in excess of the posted mile per hour limit and shall not
be used for parking or stopping, except for the immediate loading or
unloading of passengers. No walk-way shall be used for other pedestrian
travel.
2. No person shall use the puking areas except for the parking of motor
vehicles and incidental pedestrian ingress and egress. All motor vehicles
parked in the automobile parking areas shall be parked :n an orderly manner
within the painted lines defining individual parking places.
3. No person shall use any utility area, truck court or other area
reserved for use in connection conduct of business, except for the specific
purpose for which permission to use such area is given.
4. No employee of any occupant shall use the automobile parking areas
for motor vehicle parking except in the area specifically designated for
employee parking for the particular period of time such use s be made. No
occupant shall designate any area for employee parking except such area or
areas is designated in writing by Landlord. Landlord reserves the right to:
(a) tow the vehicle(s) of employee's working for merchants or occupants of
the Shopping Center which vehicles are parked outside of the area(s)
designated for employee parking; and/or (b) to impose a fine upon the
merchant or other mall occupant and/or its employee, for each occasion upon
which the employee of such merchant or occupant parks his/her vehicle
outside of the area designated for employee parking.
5. No person shall do any of the following within the common area
without the prior written consent of Landlord:
a. vend, peddle or solicit orders for the sale or distribution of
any merchandise, device. service. periodical, book, pamphlet
or other matter whatsoever;
Exhibit "F" page 1 of 2
<PAGE>
b. exhibit any sign, placard, banner, notice or other written
material;
c. distribute any circular, booklet, handbill, placard or other
material;
d. solicit membership in any organization, group or association or
solicit contribution for any purpose;
e. parade, rally, patrol, picket, demonstrate or engage in any
conduct that may tend to interfere with or impede the use of
any of the common area by any patron, create a disturbance,
harass or annoy any other person or disparage or be
detrimental to the interest of any occupant;
f. use any common area for any purpose when no occupant within the
Shopping Center is open for business or employment;
g. throw, discard or deposit any paper, glass or extraneous matter
of any kind, except in designated receptacles, or cream litter
or hazards of any kind;
h. use any sound making device of any kind or create or produce in
any manner noise or sound that is annoying, unpleasant or
distasteful;
i. operate any remote control devices; or
j. deface, damage or demolish any sign, light standard or fixture,
landscaping material or other improvement of property
within the Shopping Center.
The foregoing listing of specified prohibited items is not intended to be
exclusive, but to indicate in general the manner in which the right to use the
common areas in the Shopping Center is limited and controlled by the Landlord.
C. The following shall govern all of the foregoing rules and regulations:
1 . Landlord reserves the right to amend or rescind any of these rules
or make, amend and rescind new rules to the extent Landlord, in its sole
judgment, deems suitable for the safety, care, order and cleanliness of the
Shopping Center, common areas and other facilities, and the conduct of high
standards of merchandising and services therein. Tenant agrees to conform to
such new or amended rules upon receiving written notice of the same.
2. Landlord reserves the right to waive any rule in a particular
instance or as to any particular person or occurrence, but no such waiver by
Landlord will be construed as a waiver of such rules and regulations in favor of
any other tenant or tenants, nor prevent Landlord from enforcing any such rules
and regulations against any or all of the tenants of the Shopping Center after
such waiver.
3. Landlord reserves the right to impose reasonable fines upon Tenant
for violations of the rules and regulations applicable to the Shopping Center.
4. Whenever any notice, approval, consent, request or election is given
or made pursuant to the rules and regulations it shall be in writing.
5. As used in these rules and regulations, the term Tenant includes the
employees, agents, invitees and licensees of Tenant and others permitted by
Tenant to use or occupy the leased premises.
6. These rules and regulations are in addition to the terms, covenants,
agreements and conditions the Lease. and in the event of conflict, the terms of
the Least shall govern.
Exhibit "F" page 2 of 2
<PAGE>
EXHIBIT "G"
CERTIFICATION CONCERNING PRIOR CONDUCT AND COVENANT NOT TO SUE
Cinema Ride Times Square, Inc. makes this Certification with respect to the
site described in the Consent Decree entered by the United States District Court
for the District of New Jersey on October 29, 1996 in the matter of the New
Jersey Department of Environmental Protection v. OENJ Corporation Inc. and N.J.
Metromall, LLC (the "Consent Decree").
1 . The undersigned certifies that, prior to the date of this
Certification, the undersigned did not: (1) dispose of any contaminants,
including hazardous substances at the site; (2) arrange (by contract, agreement
or otherwise) for the disposal of any hazardous substances at the site; (3)
transport any hazardous substances to the site; or (4) own or operate the site.
2. The undersigned promises that it will not sue or assert any claims or
causes of action against the New Jersey Department of Environmental Protection
("NJDEP"), its Funds, employees or successors, with regard to the matters set
forth in the Consent Decree. 'However, this promise does not apply to
counterclaims by the certifying entity for breach of covenant in the event NJDEP
breaches its covenants under Section XVI of the Consent Decree in the matter of
New Jersey Department of Environmental Protection vs. OENJ Corporation and N. J.
Metromall, LLC and institutes suit against this certifying entity in violation
of that Consent Decree.
The undersigned is the duly authorized representative of the undersigned
and has full authority to make this Certification on behalf of the undersigned.
The undersigned has conducted a full, complete and diligent investigation
of the matters addressed in this Certification and the Certification made herein
is based on this investigation. If in the future, the certifying entity becomes
aware of information which would render this Certification inaccurate, such
entity will promptly notify the New Jersey Department of Environmental
Protection, or its successor, of such newly discovered information.
The undersigned declares under penalty of perjury, under the laws of the
State of New Jersey and any State under which the certifying entity is
incorporated, that the foregoing statements are true and correct.
Dated: ________________
Cinema Ride Times Square, Inc.,
A New York corporation
---------
By: /s/ Mitch Francis
------------------------------------------
Title: President
------------------------------------------
State of Incorporation (if applicable):
Exhibit "G" page 1 of 1
<PAGE>
RIDER ATTACHED TO AND MADE A PART OF LEASE DATED _____________19___, ENTERED
INTO BY AND BETWEEN ELIZABETH METROMALL LLC, A DELAWARE LIMITED LIABILITY
COMPANY, AS LANDLORD, CINEMA RIDE TIMES SQUARE, INC. AS TENANT.
- ----------------------------------------------------------------------
Section 1.01(c): On page 3, line 34, in place of the deletion insert "five"
(5)"
On page 3, line 36, after the word "premises.", insert "If Tenant has
already prepared its Store Working Drawings and Specifications for the leased
premises at the time Landlord elects to relocate the leased premises, and if
said relocation requires Tenant to revise its Store Working Drawings and
Specifications, then Landlord shall pay to Tenant the actual costs incurred to
revise its Store Working Drawings and Specifications. "
On page 3, line 37, after the word "hereof", insert "after the end of the
second (2nd). lease year (and only on one occasion during the entire term)"
On page 3, line 38, after the word "Tenant.", delete the period and insert
"if, and only if, the leased premises is directly affected by Landlord (i)
expanding or contracting the Shopping Center or the regional retail development,
or (ii) creating a Major Tenant or enlarging an existing Major Tenant."
On page 3, line 45, after the word "premises.", insert "In addition,
Landlord shall pay the actual costs of moving Tenant within the Shopping Center.
Tenant shall supply Landlord with reasonable supporting documentation to
demonstrate the amount of the actual moving costs.
At the end of the Subsection, insert "Tenant shall not be required to
relocate or terminate under this Subsection 1. 0 1 (c) between October I and
December 31 of any calendar year."
Section 1.01(d): On page 3, line 61, after the word "Lease.", delete the
period and insert ", provided that the Landlord under the Master Lease hereby
agrees not to disturb the possession of Tenant, or name Tenant a party in any
action against the Tenant under the Master Lease, provided Tenant is not in
default beyond the expiration of any applicable notice and cure period."
Section 1.02: At the end of the Section, insert "Provided that Tenant is not
in default hereunder on the date upon which notice is given or at any time
thereafter through and including the commencement of the option, if any, Tenant
shall have the option to extend the term of this Lease for an additional period
of five (5) lease years. All of the covenants, agreements, terms and conditions
of this Lease shall apply during such extended term for which the option is
exercised by Tenant, except the Minimum Rent and Minimum Gross Sales shall be as
provided for in Sections 2.01 and 2.02. To exercise the option, if at all,
written notice to renew this Lease must be delivered by Tenant to Landlord at
least
one hundred eighty (180) days prior to the Expiration Date hereof. Such notice
must be delivered to Landlord by certified mail, return receipt requested. In
the event Tenant does not exercise the option to renew within the required time
period, and after ten (10) days written notice of the failure to do so, then the
option shall be null and void and of no further force
or effect.
Further, in the event that a movie theater has not opened at the regional
development within eighteen (18) months of the Commencement Date, Tenant shall
have the right, within sixty (60) days of the end of the aforementioned eighteen
(18) month period, to terminate this Lease by written notice to Landlord. In the
event the movie theater opens during the aforementioned sixty (60) day period,
and before Tenant has given Landlord written notice that it is terminating the
Lease, such right to terminate shall be void and of no further force and effect
as of the date the movie theater opens. "
Section 2.02(b): On page 5, line 18, in place of the deletion insert "thirty
(30)"
On page 5, line 19, in place of the deletion insert "thirty (30)"
On page 5, line 21, in place of the deletion insert "seventy-five
(75)"
On page 5, line 24, in place of the deletion insert "seventy-five
(75)"
Section 2.04: On page 5, line 69, after the word "right", insert
"(provided Tenant has paid Percentage Rent to Landlord in the lease year
preceding the violation of this Section 2.04)"
On page 6, line 6, after the word "hereof.", delete the period and insert
"provided Landlord shall not have such remedies on the first three (3) occasions
during a twelve (12) month period that Tenant ceases operating Tenant's business
(not to exceed twenty-four (24) hours) or fails to maintain business hours and
days or any part thereof because the leased premises are left unattended due to
emergency events beyond Tenant's anticipation and control."
At the end of the Section, insert "This Section shall not apply to times when
Tenant is permitted to not operate as expressly provided elsewhere in this
Lease."
1
<PAGE>
Section 2.05(b): At the end of the Subsection, insert "Notwithstanding the
foregoing, the denominator in such proportionate share fraction shall not be
deemed to be less than seventy-five percent (75 %) of the gross leasable floor
area of all buildings in the Shopping Center."
Section 3.01: On page 7, line 43, after the word "Landlord," insert "at the
principal offices of Tenant"
Section 4.01: On page 7, line 61, in place of the second deletion insert
"principal offices of Tenant"
Section 4.02: On page 7, line 64, after the word "time," insert "at the
principal offices of Tenant"
Section 6.01: On page 9, line 24, after the word "premises.", delete the
period and insert "except for defects in Landlord's Work of which Tenant
notifies Landlord in writing within thirty (30) days from date of possession and
(if the leased premises have not previously been occupied) latent defects in
Landlord's Work of which Tenant notifies Landlord in writing within one (1) year
from the date of taking possession."
At the end of the Section, insert "if Landlord shall fail to respond to
Tenant's submissions of plans and specifications within twenty (20) days
following receipt, then the commencement date set forth in the Data Sheet (or
the required remodel completion date, if Tenant currently occupies the leased
premises) shall be extended one (1) day for each day beyond such twenty (20) day
period that Landlord fails to respond (unless Tenant opens earlier in which
event the commencement date shall coincide with Tenant's opening)."
Section 7.02(a): On page 9, line 64, after the word "Landlord. ", insert
"Tenant shall be obligated to operate only during the days and hours which at
least eighty percent (80%) of the other Shopping Center tenants are similarly
obligated to operate (excluding any food tenants). Notwithstanding the
foregoing, Tenant may close its store on Thanksgiving Day,
Easter and Christmas Day. Further, it shall not be a violation of the
obligations under this Section 7.02(a) nor shall Landlord have its default
remedies (i) on the first three (3) occasions during a twelve (12) month period
that Tenant ceases operating Tenant's business (not to exceed twenty-four (24)
hours) or fails to maintain business hours and days or any part thereof because
the leased premises are left unattended due to emergency events beyond Tenant's
anticipation and control, or (ii) on three (3) days per year when Tenant shall
be permitted to close for inventory provided said inventory days do not occur in
November, in December, national holidays, and/or weekends."
On page 10, line 14, after the word "Lease.", insert "Notwithstanding the
foregoing, Landlord acknowledges that Tenant's business does generate some
noise; therefore, the reasonably necessary noise associated with Tenant
operating its permitted use of the leased premises shall not constitute a
violation of this Subsection."
At the end of the Subsection, insert "Notwithstanding anything contained in
this Lease to the contrary, Tenant shall be permitted to have costumed or
uniformed employees in the area directly in front of the leased premises (who
shall not interfere with the operation of any other tenant in the regional
development) to interact with customers and potential customers by providing
them with information about Cinema Ride. Further, Landlord acknowledges that
lines for ticket sales for the motion simulator may lengthen into the common
areas, and Landlord shall not deem the formation or maintenance of this line for
ticket buyers in the common areas as a violation of this Lease, provided Tenant
shall work with Landlord to make sure that any ticket line or other reasonably
necessary use of the common areas directly in front of the leased premises shall
be reasonable and done in a manner that would least interfere with or distract
from the operations of other tenant or interfere with or distract from the
operation of the common areas. In no event, shall Tenant's permitted use of the
common areas directly in front of the leased premises give Tenant exclusive
rights to those areas or make them a part of the leased premises."
Section 7.03(a): On page 10, line 54, after the word "require.", insert "The
rates charged by such contractors shall be competitive with those charged by
other trash removal contractors doing business in the vicinity of the Shopping
Center."
At the end of the Subsection, insert "Notwithstanding the foregoing, the
denominator in such proportionate share fraction shall not be deemed to be less
than seventy-five percent (75%) of the gross leasable floor area of all
buildings in the Shopping Center."
Section 7.04: On page 11, line 24, in place of the deletion insert "fifteen
(15)"
On page 11, line 25, after the word "Center" insert "except Manhattan"
Section 7.06: Exclusive Use: Provided Tenant is not in default of this
Lease beyond any applicable and notice and cure period, Landlord agrees, during
the term (including any extension/option validly exercised by Tenant) of this
Lease (excluding the last one hundred eighty [1801 days of the term hereof),
that Landlord has not leased and will not lease space in the Shopping Center to
a tenant whose permitted use shall be for the operation of a motion simulator
ride and who shall operate for such purpose at any time when Tenant is already
operating in the Shopping Center. Any such use is hereinafter referred to as a
"Competing Tenant". In the event Landlord shall lease space to a Competing
Tenant in violation of this provision, Tenant's sole and exclusive remedy shall
be to elect to pay "Interim Rent" as hereafter
2
<PAGE>
defined in lieu of Minimum Rent and additional rent for twelve (12) months
beginning the date the Competing Tenant opens for business, and, at the end of
the twelve (12) month period return to paying Minimum Rent and additional rent
as provided for in this Lease or terminate this Lease upon ninety (90) days
notice to Landlord, which remedy shall be exercised by Tenant, if at all, within
ninety (90) days of the last day of the twelfth (12th) month after the opening
of such Competing Tenant. In the event Tenant elects to terminate, this Lease
shall terminate and be of no further force or effect upon the expiration of the
ninety (90) day notice period, subject to the payment of Tenant to Landlord of
all sums then due and owing or having accrued to Landlord. In the event of such
termination, within thirty (30) days following the date that Tenant shall have
vacated the premises, Landlord shall pay to the Tenant a sum equal to the then
unamortized cost paid by Tenant in constructing Tenant's initial leasehold
improvements as required by Section 5.01(b) of this Lease, such amortization to
be on the straight line basis over the full stated term of the Lease. Tenant
shall furnish to Landlord such backup information as Landlord may reasonably
require. Tenant agrees to indemnify Landlord, its officers, directors, partners,
employees and agents, from and against any and all third party claims, actions,
suits, losses, damages, liabilities, costs and expenses including, without
limitation, reasonable attorney's fees, court costs and disbursements, that
arise from or out of the foregoing covenant not to lease space to a Competing
Tenant under the circumstances described hereinabove. For purposes of this
Section, Interim Rent shall be equal to ten percent (10%) of Gross Sales.
Interim rent shall be payable monthly within thirty (30) days after expiration
of each month in question.
Section 8.02(a): At the end of the Subsection, insert "Notwithstanding the
foregoing, the denominator in such proportionate share fraction shall not be
deemed to be less than seventy-five percent (75%) of the gross leasable floor
area of all buildings in the Shopping Center."
Section 9.02: On page 12, line 59, after the word "fixtures" insert
"(including equipment, signs, video displays, and wall decorations/panels)
Section 9.04: At the end of the Section, insert "Nothing contained in this
Section 9.04 shall prevent Tenant from employing its standard professionally
prepared or electronically generated interior signage within the leased premises
in areas visible from the enclosed mall to the extent such signage is consistent
with that presently (i.e. on the date of this Lease) used at Tenant's other
stores located in first class regional enclosed value or discount shopping
centers."
Section 10.02(a): On page 13, line 46, after the word "premises" insert
"within the Lease premises"
Section 10.02(c): On page 14, line 11, in place of the deletion insert "ten
(10)"
Section 11.03(a): At the end of the Subsection, insert "Landlord covenants
to indemnify Tenant, and save it harmless (except for loss or damage resulting
from the negligence of Tenant, its agents or employees) from and against any and
all claims, actions, damages, liability and expense, including attorneys' fees,
in connection with loss of life, personal injury and/or damage to property
arising from or out of any occurrence (excluding an Occurrence as defined in
Section 27.05 and other than any occurrence caused by Tenant, its agents or
employees or arising in connection with Tenant's business operations) in the
common areas of the Shopping Center. Notwithstanding anything in this Lease to
the contrary, in no event shall Landlord be liable for indirect or consequential
damages including, without limitation, lost profits, and in no event shall
Landlord be liable to the extent the damage is covered by Tenant's insurance or
is required to be covered by the insurance which Tenant is obligated to maintain
hereunder (inclusive of self-insurance and deductibles which are Tenant's risk).
The indemnity provisions of this Article shall survive the expiration or earlier
termination of the term of this Lease."
Section 12.02: At the end of the Section, insert "Notwithstanding the
foregoing, if Tenant is required to curtail its operations or close as the
result of an energy shortage or as the result of rule and regulations enacted in
connection with an energy shortage, Tenant shall be entitled to an abatement of
Minimum Rent and additional rent proportionate to
the level of curtailment required until full operations are again permitted."
Section 12.04: At the end of the Section, insert "Notwithstanding the
foregoing, if utility service to the leased premises is interrupted due solely
to the negligence of Landlord, its agents or employees (as determined by a court
of competent jurisdiction or by agreement between the parties) and such
interruption in service prevents Tenant from operating its business and Tenant
closes its business for more than two (2) consecutive business days, then
commencing retroactively with the start of such two (2) business day period and
continuing until utility service is restored to the point where Tenant can
reopen, Minimum Rent and all charges shall be abated as Tenant's sole remedy."
Section 14.01 (a): At the end of the Subsection, insert "Notwithstanding the
foregoing, the issuance or trading of stock on a U.S. Government regulated and
recognized exchange or on the NASDAQ over the counter market shall not be deemed
to result in a prohibited assignment hereunder.
Notwithstanding the provisions of this Section 14.01 to the contrary,
Landlord shall not withhold its consent to an assignment of this Lease by Tenant
(by merger, consolidation or otherwise) to another entity to which Tenant (and
Tenant's Guarantor [if any]) shall simultaneously be transferring a controlling
interest in its (their) stock or all of its (their) assets, including, without
limitation, the entire chain of stores conducted under the trade name herein set
forth, provided that: (1) the assignee shall simultaneously be acquiring control
of the entire chain of stores conducted
3
<PAGE>
under the trade name herein set forth and such chain must consist of at least as
many stores on the date of and prior to the effective date of the assignment as
such chain presently consists of an din no event shall such chain consist of
less than three stores, (2) Tenant shall not at the time of such assignment be
in default under any of the terms, covenants and conditions of this Lease, (3)
such assignee shall, as of the date immediately prior to the effective date of
the assignment, have a net worth (based on assts contained within the United
States) equal to or greater than the combined net worth of the Tenant and
Tenant's Guarantor (if any) as of the date of Tenant's execution of this Lease
or as of the date immediately preceding the effective date of such transfer,
whichever of such net worth amounts shall be the greater, (4) such assignee
(and any person or entity acquiring a controlling interest in Tenant's stock)
shall agree in writing to assume and perform all of the terms, covenants and
conditions of this Lease (whether accruing prior to, on, or after the effective
date of the assignment), (5) Tenant and Tenant's Guarantor (if any) shall agree
in writing to at all times remain primarily obligated for the performance of the
terms, covenants and conditions of this Lease.
Notwithstanding the foregoing, an assignment of this Lease to a parent
corporation of Tenant, to a wholly owned subsidiary of Tenant or to an entity
which is under common ownership and control with Tenant, shall be permitted
provided (1) Tenant shall not at the time of such assignment be in default under
any of the terms, covenants and conditions of this Lease, (2) such assignee
shall agree in writing to perform all of the unperformed terms, covenants and
conditions of this Lease (whether accruing prior to, on, or after the effective
date of the assignment), and (3) Tenant and Tenant's Guarantor (if any) shall
agree in writing to at all times remain primarily obligated for the performance
of the terms, covenants and conditions of this Lease. As used in this paragraph,
the term 'control' shall mean the ownership of and the power to vote more than
fifty percent (50%) of the voting stock of a corporation or more than fifty
percent (50%) of the ownership interests in any partnership or other business
entity.
Section 18.04: At the end of the Section, insert "If so much of the parking
facilities shall be taken that a reasonable number of parking spaces necessary,
in Landlord's sole (but reasonable) judgment, for the continued operation of the
building in which the leased premises are located shall not be available for use
by patrons of the building, then and in any such event Landlord may terminate
this Lease upon thirty (30) days written notice to Tenant and all rent shall be
paid up to the day possession is taken."
4
<PAGE>
Section 19.01(b): On page 20, line 69, after the word "premises," insert
"unless otherwise stayed by an order from a court of competent Jurisdiction"
Section 30.17: On page 28, line 38, after the word "Tenant.", delete
the period and insert ", delete the period and insert "provided Tenant may
disclose the contents of this Lease (i) to comply with any governmental orders,
laws, rules or regulations applicable to it or its principals, (ii) to
professionals assisting Tenant to so comply and (iii) to any potential investors
in, lenders to or purchasers of Tenant's business, and to (iv) Tenant's
consultants and brokers; provided however Tenant shall advise all of the
individuals who, and entities which, are recipients of such information of the
confidentiality provisions of this Section."
Exhibit "C"
On page 1 of 8, line 13, after the word "govern.", insert "In the event of
conflict between the express terms of Tenant's Landlord-approved plans and
specifications and the terms of this Exhibit 'C' and the Tenant Handbook, then
Tenant's Landlord-approved plans and specifications shall govern. "
On page I of 8, line 29, after the word "code," insert "or Tenant's
approved plans"
On page 3 of 8, line 33, insert "4. Landlord shall work with Tenant to
relocate ceiling lines and systems as necessary to accommodate Tenant's
permitted use."
WITNESS: LANDLORD:
Elizabeth MetroMall LLC, a Delaware limited
Liability company
BY: Glimcher New Jersey Metromall LLC, a
Delaware limited liability company, Managing
Member
By: Glimcher Properties Limited Partnership, a
Delaware limited partnership, Managing Member
- ---------------------------
By: Glimcher Properties Corporation, a Delaware
corporation, General Partner
____________________________________________
- --------------------------- By: Michael P. Glimcher, Senior
Vice President of Leasing
WITNESS/ATTEST: TENANT:
Cinema Ride Times Square , Inc.
/s/ Teresa C. Hurd By: /s/ Mitch Francis
- ------------------------- ---------------------------------------------------
/s/ Teresa C. Hurd Its: President
- ------------------------- ---------------------------------------------------
5
<PAGE>
GUARANTY
Annexed to and forming a part of Lease dated __________, by and between
Elizabeth Metromall LLC, a Delaware limited liability company, as Landlord, and
Cinema Ride Times Square, Inc., as Tenant.
The undersigned, Cinema Ride, Inc. (hereinafter sometimes referred to as
the "Guarantor" or "Guarantor(s)"), whose address is 12001 Ventura Place, Suite
340, Studio City, CA 91604, in consideration of the leasing of the leased
premises described in the annexed Lease ("Lease") to the above named Tenant
("Tenant"), does hereby covenant and agree as follows:
A. The undersigned does hereby absolutely, unconditionally and irrevocably
guarantee the full, faithful and timely payment and performance by Tenant of all
of the payments, covenants and other obligations of Tenant under or pursuant to
the Lease. If Tenant shall default at any time in the payment of any rent or any
other sums, costs or charges whatsoever, or in the performance of any of the
other covenants and obligations of Tenant, under or pursuant to the Lease, then
the undersigned, at its expense, shall on demand of said Landlord ("Landlord")
fully and promptly, and well and truly, pay all rent, sums, costs and charges to
be paid by Tenant, and perform all the other covenants and obligations to be
performed by Tenant, under or pursuant to the Lease, and in addition shall on
Landlord's demand pay to Landlord any and all sums due to Landlord, including
(without limitation) all interest on past due obligations of Tenant, costs
advanced by Landlord, and damages and all expenses (including attorneys' fees
and litigation costs), that may arise in consequence of Tenant's default. The
undersigned hereby waives all requirements of notice of the acceptance of this
Guaranty and all requirements of notice of breach or non-performance by Tenant.
B. The obligations of the undersigned hereunder are independent of, and may
exceed, the obligations of Tenant. A separate action or actions may, at
Landlord's option, be brought and prosecuted against the undersigned, whether or
not any action is first or subsequently brought against Tenant, or whether or
not Tenant is joined in any such action, and the undersigned may be joined in
any action or proceeding commenced by Landlord against Tenant arising out of, in
connection with or based upon the Lease. The undersigned waives any right to
require Landlord to proceed against Tenant or pursue any other remedy in
Landlord's power whatsoever, any right to complain of delay in the enforcement
of Landlord's rights under the Lease, and any demand by Landlord and/or prior
action by Landlord of any nature whatsoever against Tenant, or otherwise.
C. This Guaranty shall remain and continue in full force and effect and
shall not be discharged in whole or in part notwithstanding (whether prior or
subsequent to the execution hereof) any alteration, renewal, extension,
modification, amendment or assignment of, or subletting, concession,
franchising, licensing or permitting under, the Lease. Without limiting the
foregoing, this Guaranty shall be applicable to any obligations of Tenant
arising in connection with a termination of the Lease, whether voluntary or
otherwise. The undersigned hereby waives notices of any of the foregoing, and
agrees that the liability of the undersigned hereunder shall be based upon the
obligations of Tenant set forth in the Lease as the same may be altered,
renewed, extended, modified, amended or assigned. For the purpose of this
Guaranty and the obligations and liabilities of the undersigned hereunder,
"Tenant" shall be deemed to include any and all concessionaires, licensees,
franchisees, department operators, assignees, subtenants, permittees or others
directly or indirectly operating or conducting a business in or from the leased
premises, as fully as if any of the same were the named Tenant under the Lease.
D. The undersigned's obligations hereunder shall remain fully binding
although Landlord may have waived one or more defaults by Tenant, extended the
time of performance by Tenant, released, returned or misapplied other collateral
at any time given as security for Tenant's obligations (including other
guaranties) and/or released Tenant from the performance of its obligations under
the Lease or terminated the Lease.
E. This Guaranty shall remain in full force and effect notwithstanding the
institution by or against Tenant, of bankruptcy, reorganization, readjustment,
receivership or insolvency proceedings of any nature, or the disaffirmance of
the Lease in any Such proceedings or otherwise.
F. If this Guaranty is signed by more than one party, or if more than one
Guaranty shall be given as security for the performance of Tenant's obligations
under the Lease, then the obligations of such parties and any other guarantors
shall be joint and several, and the release of one of such guarantors shall not
release any other of such guarantors.
G. This Guaranty shall be applicable to and binding upon the heirs,
executors, administrators, representatives, successors and assigns of Landlord,
Tenant and the undersigned. Landlord may, without notice, assign this Guaranty
in whole or in part.
1
<PAGE>
H. In the event that Landlord should institute any suit against the
undersigned for violation of or to enforce any of the covenants or conditions of
this Guaranty or to enforce any right of Landlord hereunder, or should the
undersigned institute any suit against Landlord arising out of or in connection
with this Guaranty, or should either party institute a suit against the other
for a declaration of rights hereunder, or should either party intervene in any
suit in which the other is a party to enforce or protect the intervening party's
interest or rights hereunder, Landlord shall receive from the undersigned all
costs and expenses paid or incurred by Landlord in connection therewith,
including, without limitation, the fees of its attorney(s), to be determined by
the court and taxed as a part of the costs therein.
I. The undersigned hereby waives trial by jury in any action, proceeding or
counterclaim brought by any person or entity with respect to any matter
whatsoever arising out of or in any way connected with: this Guaranty; the
Lease; any liability or obligation of Tenant in any manner related to the leased
premises; any claim of injury or damage in any way related to the Lease or the
leased premises; any act or omission of Tenant, its agents, employees,
contractors, suppliers, servants, customers or licensees; or any aspect of the
use or occupancy of, or the conduct of business in, on or from the leased
premises. The undersigned shall not impose any counterclaim or counterclaims or
claims for set-off, recoupment or deduction of rent in any action brought by
Landlord against the undersigned under this Guaranty. The undersigned shall not
be entitled to make, and hereby waives, any and all defenses against any claim
asserted by Landlord or in any suit or action instituted by Landlord to enforce
this Guaranty or the Lease. In addition, the undersigned hereby waives, both
with respect to the Lease and with respect to this Guaranty, any and all rights
which are waived by Tenant under the Lease, in the same manner as if all such
waivers were fully restated herein. The liability of the undersigned under this
Guaranty is primary and unconditional.
J. The undersigned shall not be subrogated, and hereby waives any and all
rights of subrogation (if any), to any of the rights of Landlord under the Lease
or otherwise, or to or in the leased premises thereunder, which may arise by
reason of any of the provisions of this Guaranty or by reason of the performance
by the undersigned of any of its obligations hereunder. The undersigned shall
look solely to Tenant for any recoupment of any payments made or costs or
expenses incurred by the undersigned pursuant to this Guaranty.
K. Any default or failure by the undersigned to perform any of its
obligations under this Guaranty shall be deemed to be an immediate default by
Tenant under the Lease.
L. The execution of this Guaranty prior to execution of the Lease shall not
invalidate this Guaranty or lessen the obligations of Guarantor(s) hereunder.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty this ___ day of
____________________, 19______
WITNESSES: Cinema Ride, Inc.
/s/ Teresa C. Hurd /s/ Mitch Francis
- ------------------------- ---------------------------------
/s/ Teresa C. Hurd
- ------------------------- ---------------------------------
2
<PAGE>
CORPORATE ACKNOWLEDGMENT
STATE OF California )
)ss.
COUNTY OF Los Angeles )
On this 19th day of October , 1999 before me personally appeared
-------- ------------- --
Mitch Francis_, to me personally known, who, being by me duly sworn, did each
-----------
for himself say that they are respectively the President of Cinema Ride,
----------- --------------
Inc., corporation named in and which executed the within instrument, and that
---
the seal affixed to said instrument is the corporate seal of said corporation,
and that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors; and said Mitch Francis acknowledged
----------------
before me said instrument to be the free act and deed of said corporation.
[NOTARY SEAL] /s/ Susan Harrison
----------------------------------
Notary Public, California
County, Los Angeles
My commission expires: March 14, 2000
3
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 320189
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 345993
<PP&E> 3034962
<DEPRECIATION> 1688658
<TOTAL-ASSETS> 2487447
<CURRENT-LIABILITIES> 392999
<BONDS> 781732
0
0
<COMMON> 58546
<OTHER-SE> 1050109
<TOTAL-LIABILITY-AND-EQUITY> 1108655
<SALES> 0
<TOTAL-REVENUES> 2457607
<CGS> 0
<TOTAL-COSTS> 502529
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 200893
<INCOME-PRETAX> (559941)
<INCOME-TAX> 0
<INCOME-CONTINUING> (559941)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (559941)
<EPS-BASIC> (.77)
<EPS-DILUTED> (.77)
</TABLE>
