EXHIBIT 10.33
AGREEMENT OF LEASE
AGREEMENT made as of this 24th day of November, 1997, by and between
000 XXXXXX XXXXXX ASSOCIATES, L.L.C., A LIMITED LIABILITY COMPANY OF THE STATE
OF NEW JERSEY, with offices at c/o Pantheon Properties, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, hereinafter called "Landlord", and THE FRESH JUICE
COMPANY OF NEW YORK, INC., A CORPORATION OF THE STATE OF NEW JERSEY, with
offices at 00 Xxxxxx Xxxxxx, Xxxxx 0, Xxxxx, Xxx Xxxxxx 00000, hereinafter
called "Tenant".
FOR AND IN CONSIDERATION of the mutual covenants herein contained, the
parties hereto do hereby agree as follows:
1. The following terms are incorporated by reference into this Agreement:
(a) NAME AND ADDRESS OF LANDLORD:
000 Xxxxxx Xxxxxx Associates, L.L.C.,
a Limited Liability Company of the State of New Jersey.
(b) NAME AND ADDRESS OF TENANT:
The Fresh Juice Company of New York, Inc., a corporation of
the State of New Jersey.
(c) DESCRIPTION OF PREMISES:
A portion of premises in a building located at 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx, all as more particularly
designated and described on the attached diagram as set forth
herein.
(d) TERM OF LEASE:
To commence on the commencement date as defined in paragraph
3B and to terminate on August 31, 2007.
(e) FIXED RENTAL:
Tenant shall pay to the Landlord as annual basic rent for the
demised premises commencing on January 15, 1998 to and
through December 31, 2002 the annual sum of ONE HUNDRED SIXTY
THOUSAND NINE HUNDRED THIRTY EIGHTY AND NO/100($160,938.00)
DOLLARS payable in equal monthly
installments of THIRTEEN THOUSAND FOUR HUNDRED ELEVEN AND
NO/100 ($13,411.50) DOLLARS.
Tenant shall pay to the Landlord as annual basic rent for the
demised premises from and after January 1,2003 the annual
basic rent of ONE HUNDRED EIGHTY SEVEN THOUSAND SEVEN HUNDRED
SIXTY ONE AND NO/100 ($187,761.00) DOLLARS payable in equal
monthly installments of FIFTEEN THOUSAND SIX HUNDRED
FORTY-SIX AND 75/100 ($15,646.75) DOLLARS.
(f) TENANT'S SHARE:
32.98%
(g) BROKER:
Pantheon Properties, Inc. and SBWE, Inc.
(h) SECURITY DEPOSIT:
The sum of $30,000.00
(i) EXPENSE RENT:
Tenant shall pay the Landlord as additional rent, the
Tenant's share of expense rent as provided in Article 5.
(j) TENANT'S STANDARD INDUSTRIAL CLASSIFICATION NUMBER
("SIC"):
2033
(k) TENANT'S LEASED AREA:
Approximately 26,823 square feet subject to measurement as
provided in Paragraph 4
2. DESCRIPTION OF PREMISES. The Landlord set forth in Paragraph 1(a)above
hereby leases to the Tenant set forth in Paragraph 1(b) above and theTenant
hereby hires from the Landlord the space set forth in Paragraph 1(c) above
(hereinafter called the "Premises" or the "Demised Premises).
3. A. COMPLETION. The Landlord will complete the premises substantially
in accordance with the plans and specifications. Landlord shall
undertake work and shall complete the Premises and deliver the same to
the Tenant no sooner than thirty (30) days from the date Landlord
obtains a building permit and no later than one hundred twenty (120)
days from that date, provided however, that said time of completion
shall be extended by any delay occasioned by scarcity of materials,
installation of improvements requested by Tenant, approval of plans by
Tenant, strikes, labor disputes, weather conditions which inhibit
construction, fires or other casualties, governmental restrictions and
regulations, delays in transportation and other construction delays
beyond the reasonable control of the Landlord. In the event the
completion date is extended by reason of any of the foregoing events
occurring, then such completion date shall be extended only by a
period of time equal to the time lost due to the occurrence of any of
the foregoing events. For purposes of this paragraph, if Tenant should
elect to cancel for failure to complete on time, it shall give written
notice of such cancellation to Landlord within ten (10) days from the
date such completion, as extended by force majeure, shall have been
required under the terms of this Lease. Failure to notify Landlord
within said timeperiod shall constitute a waiver of the right of
cancellation. In the event thisLease is terminated, then, neither
party shall have any liability to the other,except, the return to the
Tenant of prepaid rent and the security deposit.
If Landlord constructs office area or areas in excess of 3,800 square
feet for Tenant, such additional construction shall be at Tenant's
expense, and shall be charged to Tenant at the cost of $35 per square
foot for all square footage in excess of 3,800 square feet. The
specification for thework, materials, quality and color of the
construction shall be pursuant to Landlord's Standard Construction
Criteria. Tenant shall pay such cost to Landlord at the rate of
4.16667% of such cost, monthly, commencing February 1,1998 and on the
first day of each month thereafter for the ensuing twenty-three
months. By way of example if the office area is 4,800 square feet,
then, Tenant will owe to Landlord the sum of $35,000 payable $1,458.33
per month for twenty-four months commencing February 1, 1998 and each
month thereafter until the sum of $35,000 is paid to Landlord by
Tenant. Such payment and obligation shall be considered additional
rent.
B. COMMENCEMENT DATE. Tenant's occupancy and the commencement date of
this Lease shall be deemed to have begun on the "Date of
Completion"which is hereby defined to mean the day of the month on
which a temporary or final certificate of occupancy shall be issued,
or upon earlier occupancy by theTenant. Landlord shall give to Tenant
verbal notification of the issuance of the Certificate of Occupancy
and shall confirm its verbal notification to Tenant subsequently, by a
writing, acknowledging the prior verbal notification, and shall
furnish to Tenant, a copy of, the Certificate of Occupancy as and when
issued.
C. TERM. The term of the Lease shall commence on thecommencement date
and shall terminate as set forth in Paragraph 21(d) above, unless
sooner terminated as this Lease otherwise provides.
D. LICENSE. Landlord hereby grants to Tenant a revocableLicense for
Tenant to enter the Premises prior to the Commencement Date for
thefollowing purposes: (I) installing telephones, racking, and similar
activitiesin preparation for Tenant's occupancy; and (II) storage of
non-refrigeratedproduct in the "cooler space". Tenant shall not
interfere with Landlord's workand this License may be terminated by
Landlord at any time prior to theCommencement Date of the Lease. In
consideration of Landlord permitting Tenantto exercise this license,
Tenant shall agree in writing that the provisions ofSections 17, 18,
19 and 20 hereof shall be in effect and binding on Tenant, asof the
first day Tenant wishes to exercise or use the revocable license
hereingranted.
E. Landlord agrees that Landlord will use best efforts to
makeavailable to Tenant the existing cooler/freezer area on or about
January 1,1998. Tenant, from and after the date Landlord advises
Tenant of theavailability of the cooler/freezer space, if such date is
prior to thecommencement date of the Lease, then, Tenant shall be
responsible for utilitiesand Tenant's share of real property taxes. If
Tenant avails itself of theability to use the cooler/freezer space as
aforesaid, then, fixed rental andexpense rent shall commence as of
January 15, 1998. If Tenant does not availitself of the use of the
cooler/freezer space and Landlord fails to obtain aCertificate of
Occupancy by January 1, 1998, then, each day thereafter that lapses
until the earlier of (i) the issuance of a Certificate of Occupancy
or(ii) Tenant taking possession of any part of the Premises, the date
of January15, 1998 for the commencement of a payment of fixed rental
as provided by Paragraph 1(e) shall be extended day for day until the
earlier of the issuance of the issuance of a Certificate of Occupancy
or, Tenant using the Premises.
4. FIXED RENTAL. As fixed rental, the Tenant shall pay to the Landlord at the
address set forth in Paragraph 1(a) above, or to such other person or at such
other place as the Landlord may from time to time designate, without previous
demand therefor and without counterclaim, deduction or set-off, the sum set
forth in Paragraph 1 (e) above, which sum shall be payable in equal monthly
installments as set forth in Paragraph 1(e) above in advance on the first day
of the month during the term of the Lease, except the first month's rent and
estimated expense rent shall be paid upon the execution hereof. Whenever the
rent as hereinabove set forth is stated as an annual rent and if there shall be
less than twelve (12) months in any year, the rate therein referred to shall be
the "annualized rate." The rental of paragraph 1(e) is computed on the basis of
the Premises having 26,823 square feet. Either Landlord or Tenant shall have
the right, during the first 30 days of the Lease, to measure the Demised
Premises, and if the Demised Premises so measured is more or less than 26,823
square feet, then the rent and Tenant's Share shall be adjusted proportionately
to reflect the plus or minus. The Premises shall be measured by measuring from
the exterior portion of the outside wall of the building to center line of
interior demising walls.
5. EXPENSE RENT. Tenant shall pay as additional rent during the term Tenant's
share (as per Paragraph 1(f)) of the operating expenses (as hereinafter
defined) of the property for each calendar year during the term of the lease.
The term "expense rent" or "expenses" shall mean all reasonable costs incurred
by Landlord in connection with the operation and maintenance of the entire
parcel of land and improvements thereon of which the Premises are a part (all
of which is hereinafter called the "Property") but excluding interest or
amortization payments of any mortgage, but including but not limited to real
estate taxes, common area expenses, common utility expenses, repair and
maintenance expenses and insurance expenses.
Landlord agrees, that it will exercise good faith, in undertaking its
responsibilities under this Article 5, so that, any repair, replacement or
addition will be undertaken, only if, Landlord believes such repair,
replacement or addition will, be reasonably necessary and of such nature as
would be undertaken by another professional landlord under similar
circumstances.
All payments Tenant is required to make pursuant to this Lease shall constitute
additional rent and if Tenant defaults in any such payments so as to create an
event of default (as hereinafter defined), Landlord shall have(in addition to
any rights and remedies granted hereby) all rights and remedies provided by law
for nonpayment of rent.
(i) REAL ESTATE TAXES shall include any tax or assessment levied,
assessed or imposed anytime by any governmental authority upon or
against the Property or any part thereof. Such terms shall also
include any assessment for public improvement imposed against the
Property during the term of the Lease. There shall not be included in
the foregoing definition any franchise, corporate, estate, inheritance
or transfer tax of Landlord, or any income, profits or revenue tax;
provided, however, that if at any time during the term of this Lease a
tax on rents is assessed against Landlord or the basic rent, as a
substitution in whole or in part for taxes assessed by the State of
New Jersey or political subdivision on land or buildings, such tax
shall be deemed to be included within the amount which the Tenant is
required to pay under this Article. Landlord agrees, at Tenant's
expense, upon Tenant's request to initiate a tax appeal.
(ii) COMMON AREA EXPENSES shall include all costs and expenses
reasonably incurred by Landlord for operating, maintaining, repairing,
and/or replacing any and all, or any part of the common area (or any
installation therein, thereon, there- under or thereover) including
but not limited to parking areas, sidewalks, curbs, grounds, outside
architectural lighting, on site water lines, electric lines, gas
lines, sanitary sewer lines and storm water lines, and the total costs
and expenses incurred by Landlord for security guard service, if any
landscaping and the removal of snow, ice and debris. If a replacement
of a capital nature is required, and if the replacement would cost
more than Ten Thousand Dollars ($10,000.00), in such instance, the
replacement shall be amortized and charged as a common area expense by
prorating the cost thereof over a ten (10) year useful life. Landlord
shall have the right on its own, or, upon the request of any tenant of
the building to institute a pest control service on a regular basis,
monthly or as often as so determined, in order, to keep the premises
free of vermin.
(iii) COMMON UTILITY EXPENSES shall include all costs and expenses
incurred by Landlord for water, sewer, gas and electricity and other
utility charges for utilities servicing the common areas and also
standby sprinkler charges.
(iv) REPAIR AND MAINTENANCE EXPENSES shall include allcosts and
expenses incurred by Landlord for replacement, repair and
maintenanceof all or any part of the entire parcel of land and
improvements of which thePremises are a part (including the roof,
roofdeck, outside walls & concretefloor) of which the Demised Premises
forms a part, except, any portion of thebuilding which is not
otherwise the obligation to repair of any Tenant of thebuilding. If
the entire roof of the building in which the Demised Premises
islocated has to be replaced, then, such replacement shall be at
Landlord'sexpense if it occurs during the first ten (10) years of the
term. Any partialreplacement of the roof, or any subsequent entire
replacement of the roof shallbe common area expense and amortized as
otherwise provided in this subparagraph.If, a repair to the concrete
floor is solely due to the acts of another Tenant,or, the replacement
or repair of the roof is due to the acts of another Tenant,then, such
Tenant shall be charged for the cost of repair of the floor or roofas
the case may be. Landlord agrees that it will enforce any roof
warranties itmay receive from the roofer at such time as the roof is
re-roofed.
(v) INSURANCE EXPENSE shall include all costs andexpense incurred by
Landlord for Liability and Casualty Insurance as Landlordmay from time
to time carry for Landlord's benefit on the property or
insuringLandlord's interest therein.
Operating expenses shall be determined on the accrual basis
inaccordance with generally accepted accounting principles which shall
beconsistently applied.
Tenant shall pay its Expense Rent in full no later than ten(10) days
after notice by Landlord of the amount thereof. If requested
byLandlord, Tenant shall pay its Expense Rent in twelve (12) monthly
installmentson the first day of each month on an estimated basis as
determined by Landlord.Any amount paid by Tenant which exceeds the
actual amount due shall be creditedto the next succeeding payments due
pursuant hereto. If Tenant has paid lessthan the actual amount due,
Tenant shall pay the difference to Landlord withinten (10) days after
receipt of Landlord's request therefor. During the first andlast years
of the term, the amount payable by Tenant hereunder shall be
proratedfor the fraction of the calendar year included in the term. As
to the ExpenseRent, there shall be a charge for a management fee added
monthly thereto of asum equal to 3.5% of the fixed rental payable by
Tenant pursuant to Paragraph1(e) to cover Landlord's administrative
overhead. The Management Fee shall befair and reasonable and
consistent with management fees incurred in managingbuildings of
similar size and use. Tenant
shall have the right at Tenant'sexpense during the first ninety (90)
days of each calendar year to auditoperating expense items for the
immediately preceding calendar year. Such auditshall be as to bills
and proof of payment.
6. SECURITY DEPOSIT. Tenant has deposited with Landlord on the signingof this
Lease the sum set forth in Paragraph 1(h) above as security for theperformance
of Tenant's obligations under this Lease. Landlord shall have theright to apply
any part or all of said security deposit to remedy any default ofTenant
hereunder, including, but not limited to payment of any fixed rent,additional
rent, service fees, or other debts of Tenant due to Landlord, repairof all
damage to the Premises or repair or replacement of damage to otherproperty of
Landlord caused by Tenant, or any of its agents, employees, inviteesor
licensees, or expenses of rerenting and redecorating the Premises in theevent
Tenant vacates October 31, 1997 same prior to the expiration of the term. If
Landlord applies any part of saidsecurity deposit to remedy any default of
Tenant, Tenant shall, upon demand,deposit with Landlord the amount so applied
so that Landlord shall have the fulldeposit on hand at all times during the
term of this Lease. Provided that theTenant has fully and faithfully complied
with all the terms and conditions ofthis Lease, Landlord shall return the said
security deposit to Tenant on thelatter of the date set forth for the
expiration of the term of this Lease orsixty (60) days after the surrender of
the Premises by Tenant. Landlord maydeliver the security deposit to the
purchaser or other transferee of theLandlord's interest in the Premises in the
event that such interest is sold orotherwise transferred and thereupon Landlord
shall be discharged from anyfurther liability with respect to said security
deposit. Landlord shall creditto the security deposit an interest factor, equal
to three percent. Suchinterest factor shall be simple interest, and shall not
earn interest on theinterest. The interest factor shall be paid to tenant upon
termination of thelease and tenants satisfying all of its obligations
hereunder.
7. USE. The Tenant shall use and occupy the Demised Premises foroffices,
storage, warehousing, distribution and refrigeration of food productsor food
processing and for no other purposes. Such permitted uses are furthersubject
that they shall be consistent with the Certificate of Occupancy to beissued.
Such Certificate of Occupancy so issued, shall not prohibit the usesotherwise
described in the first sentence of this Section 7. Such permitted usesshall not
permit or cause any odor, sound, vibration, effluent, pollution orother
condition that is either in Landlord's opinion or by law, noxious oroffensive.
It being a consideration of this Lease that the use of the premisesshall be
limited to those uses as otherwise hereinbefore specified and Tenantmay not use
the premises for manufacturing or for retail sales. The Tenant shallnot permit
the stacking of merchandise or materials against the walls so as tocreate a
load or weight factor upon the walls or to tie in Tenant's rackingsystems with
such walls, nor shall Tenant permit the hanging of equipment from(or otherwise
loading) the roof or structural members of the building withoutthe express
written consent of the Landlord. The Tenant shall not use or occupyor permit
the Demised Premises to be used or occupied, nor do or permit anythingto be
done in or on the Demised Property, in a manner which will in any wayviolate
any Certificate of Occupancy affecting the Demised Premises, or makevoid or
voidable any insurance then in force with respect thereto, or which willmake it
impossible to obtain fire, casualty or other insurance at
regular rates,or which will cause or be likely to cause structural damage to
the Building orany part thereof, or which will constitute a public or private
nuisance, orwhich would adversely affect the then value thereof, and shall not
use or occupyor permit the Demised Premises to be used or occupied in any
manner which willviolate any present or future laws or regulations of any
governmental authority.Tenant shall, at Tenant's sole cost and expense, take
all actions, including anyrequired alterations necessary, to comply with all
present or future laws orregulations, including the Americans With Disabilities
Act of 1990 ("ADA") whichshall impose any violation, order or duty upon
Landlord or Tenant arising from or in connection with Tenant's occupancy, use
of manner of use of the Premises(including such use that constitutes a "place
of accommodation" under the ADA. At no time during this Lease may Tenant store
upon the premises hazardous substances as that term may be defined from time to
time by the New Jersey Department of Environmental Protection or by the Federal
Environmental Protection Agency pursuant to Section 311 of the "Federal Water
Pollution Act, amendments of 1972" (33 U.S.C. Section 1321) and the list of
toxic pollutants designated by Congress or the Environmental Protection Agency
pursuant to Section 307 of that Act (33 U.S.C. Section 1317).Nothing herein
contained shall be deemed or construed to constitute a representation or
guaranty by the Landlord that any specific business may be conducted in the
Demised Premises or is lawful under the certificate of occupancy.
Landlord agrees with Tenant that during the term of this
Lease(including any extension term), it will not enter into a lease
with another tenant wherein, the use of such tenant as otherwise
expressed in the Lease would be for a purpose that would be by its
very nature constitute a material interference with the preparation,
distribution, storage, warehousing or refrigeration of food products.
8. REPAIRS.
A. Tenant shall keep, replace and maintain in good order,
condition and repair the premises and each and every part thereof
(except for repairs specifically required of Landlord pursuant to
subparagraph (c) of this Paragraph 8) including, without limitation,
refrigeration and cooling units, compressors and auxiliary equipment,
any air conditioning units and systems, heating units and systems,
plumbing units and systems; sprinkler systems; electrical systems;
equipment; facilities and fixtures. The aforesaid obligation of Tenant
shall also include, without limitation, all necessary painting and
decorating and the replacement of any glass which may be damaged or
broken. Notwithstanding the foregoing, all damage or injury to the
Premises or to any other part of the Property or to its fixtures or
appurtenances, whether requiring structural or non-structural repairs,
caused by the negligence or improper conduct of Tenant or its
employees, invitees, licensees or agents, shall be repaired promptly
by Tenant at its sole cost and expense. If Tenant refuses or neglects
to make such repairs or fails to diligently prosecute the same to
completion within fifteen (15) days after written notice from Landlord
to Tenant of the need therefor, Landlord may make such repairs at the
expense
of Tenant and such expense shall be collectible as additional rent
together with a service fee, as provided in Paragraph 23 hereof, if
Tenant shall fail to make such payment promptly.
B. Tenant shall obtain a maintenance contract for the
heating, ventilation and air conditioning systems in the building and,
similar contracts for the refrigeration and cooling units, compressors
and auxiliary equipment, any air conditioning units and systems,
heating units and systems, plumbing units and systems; sprinkler
systems; electrical systems; equipment; facilities and fixtures. Such
contract shall provide for semi-annual maintenance of the systems, and
copies of the maintenance agreement shall be submitted to Landlord,
together with an annual report of the maintenance company as to the
condition and repairs made to the systems. The firm or person
maintaining the refrigeration and cooling units, compressors and
auxiliary equipment, and systems, shall be a person who is certified
and licensed to service refrigerating equipment as such certification
or license may be required by law or any governmental agency and in
accordance with the manufacturer specifications.
C. Landlord shall keep, replace and maintain in good order
and condition and repair common areas and the roof, roofdeck, outside
walls and concrete floors, subject, however, the cost of same to
theextent applicable shall be paid by the Tenant, as the Tenant's
proportionateshare, pursuant to the provisions of Para.5 hereof.
D. On the commencement date of the Lease, all of the
plumbing,electrical, heating, refrigeration systems and refrigeration
equipment, and airconditioning equipment, shall be in good working
order. Tenant has accepted thecapacity of the refrigeration equipment,
and, landlord is not responsible forthe refrigeration equipment being
adequate for the needs of the Tenant. Thisdetermination as to the
adequacy of the equipment and its cooling capacity, hasbeen accepted
and/or waived by Tenant.
9. ASSIGNING AND SUBLETTING.
A. Tenant covenants and agrees for Tenant and its
successors,assigns, and legal representatives that neither this Lease
nor the term andestate hereby granted, nor any part hereof or thereof,
will be assigned,mortgaged, pledged, encumbered or otherwise
transferred (whether voluntarily,involuntarily, by operation of law,
or otherwise), and that neither the DemisedPremises, nor any part
thereof, will be encumbered in any manner by reason ofany act or
omission on the part of Tenant, or will be used or occupied,
orpermitted to be used or occupied, or utilized for desk space or for
mailingprivileges or as a concession, by anyone other than Tenant, or
for any purposeother than as hereinbefore set forth, or will be
sublet, without the priorwritten consent of Landlord in every case;
provided, however, that, if Tenant isa corporation, the assignment or
transfer of this Lease, and the term and estatehereby granted, to any
corporation into which Tenant is merged (such corporationbeing
hereinafter in this Article called "Assignee") or
to an affiliate orsubsidiary of Tenant or to principals of Tenant
without the prior writtenconsent of Landlord shall not be deemed to be
prohibited hereby if, and upon theexpress condition that, Assignee
shall promptly execute, acknowledge, anddeliver to Landlord an
agreement in form and substance satisfactory to Landlordwhereby
Assignee shall assume and agree to perform and to be personally bound
byand upon, all the covenants, agreements, terms, provisions, and
conditions setforth in this Lease on the part of Tenant to be
performed, so that the Assigneeshall assume jointly and severally with
the Assignor the performance of Tenant'sobligations hereunder, and
whereby Assignee shall expressly agree that theprovisions of this
Article shall, notwithstanding such assignment or transfer,continue to
be binding upon it with respect to all future assignments andtransfers
and provided such Assignee shall prove to the satisfaction of
Landlordthat its net worth is at least equal to that of Tenant as of
the date hereof.
B. Notwithstanding anything hereinabove contained in
subparagraph A of this Paragraph 9, in the event Tenant desires
Landlord's consent to an assignment or subletting of all or any part
of the Demised Premises, Tenant, by notice in writing, (i) shall
notify Landlord of the name and SIC number of the proposed assignee or
subtenant, such information as to the proposed assignee's or
subtenant's proposed use and financial responsibility and standing as
Landlord may require, and a copy of the proposed assignment or
sublease executed by all parties; and (ii) shall offer to vacate the
space covered by the proposed area to be subleased or the entire
Demised Premises in the event of an assignment (as the case may be)
and to surrender the same to Landlord as of a date (the "Surrender
Date") specified in said offer that shall be the last day of any
calendar month during the term hereof, provided, however, that the
Surrender Date shall not be earlier than the date occurring 120 days
after the giving of such notice nor be later than the effective date
of the proposed assignment or the commencement date of the term of the
proposed sublease. Landlord may accept such offer in writing by notice
to Tenant given within sixty (60) days after the receipt of such
notice from Tenant. If, Landlord accepts such offer, Tenant shall
surrender to landlord, effective as of the Surrender Date, all
Tenant's right, title, and interest in and to the portion of the
Demised Premises covered by the proposed sublease, or, if Tenant
proposes to sublet the entire Demised Premises, or assign this Lease,
all Tenant's right, title and interest in and to the entire Demised
Premises. In the event of such surrender by Tenant of a portion of the
Demised Premises, then, effective as of the date immediately following
the Surrender Date, the Basic Rent shall be reduced by an amount equal
to that portion of the Basic Rent that is allocable to the space so
surrendered, and the Additional Rent shall be equitably adjusted. If
the entire premises be so surrendered by Tenant, this Lease shall be
canceled and terminated as of the Surrender Date with the same force
and effect as if the Surrender Date were the date hereinbefore
specified for the expiration of the full term of this Lease.
In the event of any such surrender by Tenant of the Demised Premises
or a portion thereof, Landlord and Tenant shall, at the request of
either party, execute and deliver an agreement in recordable form to
the effect(s) hereinbefore stated.
C. In the event Landlord does not accept such offer of Tenant
referred to in subparagraph (B) of this Xxxxxxxxx 0, Xxxxxxxx
covenants not to unreasonably withhold its consent to such proposed
assignment or subletting by tenant of such space to the proposed
assignee or subtenant on said covenants, agreements, terms,
provisions, and conditions set forth in the notice to Landlord
referred to in clause (i) of the first sentence of subparagraph (B) of
this Paragraph 9; provided, however, that Landlord shall not in any
event be obligated to consent to any such proposed assignment or
subletting unless:
(i) The use of the proposed assignee or subtenant
is(a) for warehousing of products which are non-hazardous and
are not "toxic pollutants", (b) does not violate any of the
negative covenants as to use as contained in this Lease (c)
is in keeping with the then standards of the Landlord as to
use of the Building and (d) does not violate any negative
covenants as to use contained in any other Lease made between
Landlord and other Tenants of the Building;
(ii) The proposed assignee or subtenant is a
reputable party;
(iii) There shall be no default by Tenant under any
of the terms, covenants, and conditions of this Lease at the
time that Landlord's consent to any such assignment or
subletting is requested and on the effective date of the
assignment or the proposed sublease;
(iv) Tenant shall reimburse Landlord for any
reasonable expenses that may be incurred by Landlord in
connection with the proposed assignment or sublease,
including without limitation the reasonable costs of making
investigations as to the acceptability of a proposed assignee
or subtenant and reasonable legal expenses incurred in
connection with the granting of any requested consent to the
assignment or sublease;
(v) Such permitted assignment shall be conditioned
upon Tenant's delivery to Landlord of an executed instrument
of assignment(wherein the assignee assumes, jointly and
severally with Tenant, the performance of Tenant's
obligations hereunder).
(vi) Such permitted sublease shall be conditioned
upon Tenant's delivery to Landlord of an executed instrument
of sublease (wherein Tenant and such sublessee agree that
such sublease is subject to the Lease and such sublessee
agrees that, if the Lease is terminated because of Tenant's
default, such sublessee shall, at Landlord's option, attorn
to Landlord).
(vii) Tenant shall at Tenant's own expense first
comply with ISRA and fulfill all of Tenant's environmental
obligations under this Lease which also arise upon
termination of Tenant's Lease term. If this condition shall
not be satisfied,
then Landlord shall have the right, to withhold consent to a sublease
or assignment.
D. Each subletting pursuant to this Paragraph 9 shall be
subject to all the covenants, agreements, terms, provisions, and
conditions contained in this Lease. Tenant covenants and agrees that,
notwithstanding such assignment or any such subletting to any
subtenant and/or acceptance of Basic Rent or Additional Rent by
Landlord from any subtenant, Tenant shall and will remain fully liable
for the payment of the Basic Rent and Additional Rent due and to
become due hereunder and for the performance of all the covenants,
agreements, terms, provisions, and conditions contained in this Lease
on the part of Tenant to be performed. Tenant further covenants and
agrees that, notwithstanding any such assignment or subletting, no
other and further assignment, underletting, or subletting of the
Demised Premises or any part thereof shall or will be made except upon
compliance with the subject to the provisions of this Paragraph 9.
Tenant shall promptly furnish to Landlord a copy of each such
sublease.
E. If this Lease be assigned, or if the Demised Premises or
any part thereof be sublet or occupied by anybody other than Tenant,
Landlord may, after default by Tenant, collect rent from the assignee,
subtenant, or occupant, and apply the net amount collected to the rent
herein reserved, but no such assignment, subletting, occupancy, or
collection shall be deemed a waiver by Landlord of any of Tenant's
covenants contained in this Article or the acceptance of the assignee,
subtenant, or occupant as Tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant
herein contained.
F. If for any assignment or sublease, Tenant receives rent or
other consideration, either initially, or over the term of the
assignment or sublease, in excess of the rent called for hereunder, or
in the case of the sublease of a portion of the Demised Premises, in
excess of such rent fairly allocable to such portion, after
appropriate adjustment to assure that all other payments called for
hereunder are appropriately taken into account, Tenant shall pay the
Landlord, as additional rent hereunder, one-half (1/2) of the excess
of each such payment of rent or other consideration received by Tenant
promptly after its receipt. In computing the excess, for determination
of the one-half(1/2) to be paid to Landlord, such excess shall be
adjusted by deduction to reflect payments made by Tenant for its
reasonable attorneys fees, brokerage fees and alterations incurred to
effectuate the sublease or assignment. The consideration received by
Tenant pursuant to the sale of its business shall not be considered
"consideration" as defined in this paragraph.
10. CONFORM TO LAW. Tenant shall, at its own expense, in the use and
occupancy of the Premises, observe and comply with all laws, orders,
regulations of the federal, state and municipal governments, or any of
their departments, and if any of the foregoing requires that an
alteration, addition or other change be made to the demised premises
then, Tenant
will make such alteration, addition or change and bear all expense
connected therewith.
11. TENANT'S COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant agrees, that under
all circumstances, Tenant shall comply with all federal, state and
local laws, ordinances, rules and regulations which are applicable, as
to the conduction Tenant's business as it relates, to the environment,
including but not limited to, spillage, pollution, and storage. Tenant
agrees, that Tenant upon the request of Landlord from time to time
shall file such notices, declarations and obtain such permits as may
be necessary and as may be required by law, from the appropriate
government agency, that has jurisdiction over the premises, and/or
Tenant's business. Tenant shall at Tenant's own expense comply with
the Industrial Site Recovery Act ("ISRA"), N.J.S.A. 13:1K-6, et seq.,
and the regulations promulgated thereunder and any successor
legislation and regulations. Tenant shall at Tenant's own expense make
all submissions to, provide all information to and comply with all
requirements of the New Jersey Department of Environmental Protection
and Energy or its successor ("DEPE"). The Tenant's obligations shall
arise if there is any closing, terminating or transferring of
operations of an industrial establishment at the premises pursuant to
ISRA, whether triggered by Landlord or Tenant. Tenant shall commence
its submission to the DEPE in anticipation of the end of the Lease
Term no later than six (6) months prior the expiration of the Lease
Term. Tenant agrees it will supply copies of all written or oral
communications by or between it and any governmental agency in
reference to the foregoing to Landlord. Should DEPE determine that a
Remedial Action Work Plan be prepared and that a clean-up be
undertaken because of a spill or discharge of a hazardous substance or
waste at the Premises which occurred during the term of the Lease,
Tenant shall, at Tenant's own expense promptly prepare and submit the
required plan and financial assurances and shall promptly carry out
the approved plan. At no expense to Landlord, Tenant shall promptly
provide all information requested by Landlord or DEPE for preparation
of a non-applicability affidavit, de minimis quantity exemption
application, limited conveyance application or other submission and
shall promptly sign such affidavits and submissions when requested by
Landlord or DEPE. If Tenant's operations at the premises are outside
of those industrial operations covered by ISRA, Tenant shall obtain a
letter of non-applicability from the DEPE prior to termination of the
Lease and shall provide copies of all such submissions to Landlord.
Landlord shall have the right in such instance to request Tenant to
undertake a sampling at the premises to determine whether or not
Tenant's operations have resulted in a spill or discharge of hazardous
waste. If a spill or discharge of a hazardous substance or waste
occurs at the Premises, and it was not caused by Tenant, nor by
Tenant's employees, agents or invitees, then, Tenant shall have no
responsibility for the cost of clean-up of the spill or discharge. If
Landlord causes a triggering event that requires a filing under "ISRA"
Landlord shall in such instance reimburse Tenant for Tenant's
reasonable administrative cost in participating in the filing as
otherwise required by law.
The Tenant does hereby agree at its sole cost and expense, to defend,
indemnify and save harmless the Landlord against and from any and all
loss, cost, expenses, liabilities or claims by third parties,
including all governmental authorities, attorney's fees, court costs,
fines or penalties arising from or in connection with the lease
herein, and the use or occupancy of the demised premises by the
Tenant, and in case any action or proceeding is brought against
Landlord or Tenant by reason of any hazardous waste or contaminants
located in or on the demised premises by Tenant. Tenant, upon notice
from Landlord, agrees to resist and defend such action or proceedings
by Counsel reasonably satisfactory to Landlord. Counsel for Tenant's
insurance carrier shall be deemed satisfactory. Tenant covenants that
it shall not dump chemical waste on the premises nor use or store
hazardous materials in the Premises, except for normal quantities of
such substances as which are typically used in the preparation,
warehousing and distribution, of food products, all of which shall be
stored, used and disposed of in accordance with applicable law.
If Tenant fails to obtain either a non-applicability letter, or a
negative declaration or a No Further Action Letter from DEPE or fails
to clean up the premises as hereinbefore provided prior to the
expiration of the term, then upon the expiration of the term Landlord
shall have the option to consider and to treat Tenant as a holdover
Tenant in possession of the premises until, Tenant complies with the
foregoing. In such event, Tenant shall be responsible for the rental
obligations as a Tenant from month to month as otherwise provided in
Paragraph 13 hereof.
Landlord agrees to provide copies of all environmental reports
Landlord has received as to the property in which the Demised Premises
are located. Tenant acknowledges receiving a Phase I from Landlord.
12. ADDITIONAL COVENANTS. Tenant covenants and agrees that at all times
during the term it shall not at any time without first obtaining
Landlord's prior written consent:
A. NOT MAKE ALTERATIONS. Tenant shall not make any
alterations, improvements, and/or additions to the Premises or any
part thereof except, Tenant shall have the right to install additional
office space in the demised premises necessary for the conduct of
Tenant's business, subject to the following:
(i) Tenant shall first obtain requisite permits and
authorizations from governmental authorities having
jurisdiction;
(ii) Obtain Landlord's, and if required, the fee
mortgagee's prior written consent (which Landlord's consent
not to be withheld if the change or alteration would not, in
the reasonable opinion of the Landlord, impair the value or
usefulness of the premises);
(iii) Any such alteration shall be made
promptly(unavoidable delays excepted) in a workmanlike manner
in accordance with any alteration plans and in compliance
with applicable laws and governmental regulations;
(iv) The cost of the alteration shall be paid by
Tenant so that the demised premises remain free of any liens;
(v) If the cost of removal of an alteration to be
installed by Tenant, is greater than Ten Thousand Dollars
($10,000.00), then, Tenant agrees, if requested by Landlord,
post with Landlord adequate security to assure restoration of
the Premises at the end of the term;
(vi) Maintain proper insurance as requested by
landlord;
(vii) No alteration for offices shall be undertaken
until detailed plans and specifications have first been
submitted to and approved in writing by Landlord and if
required, by the fee mortgagee. At completion of the
alteration "as built" plans shall be delivered to Landlord.
(viii) Tenant shall agree to remove such alternation
and to restore the Premises prior to the end of the Lease.
B. NOT CHANGE EXTERIOR ARCHITECTURE. Change (whether by
alteration, replacement, rebuilding or otherwise) the exterior color
and/or architectural treatment of the Premises or of the building in
which the same is located, or any part thereof.
C. NOT MISUSE PLUMBING FACILITIES. Use the plumbing
facilities for any purpose other than that for which they were
constructed, or dispose of any garbage or other foreign substance
therein, whether through the utilization of so-called "disposal" or
similar units or otherwise.
D. NO LIENS. Subject any fixtures, furnishings or equipment
in or on the Premises which are affixed to the realty, to any
mortgages, liens, conditional sales agreements, security interests
or encumbrances.
E. NOT DAMAGE THE PREMISES. Perform any act or carry on any
practice which may damage, mar or deface the Premises or any other
part of the Building. No truck or other internal combustion engine
shall be vented in the Building, inclusive of trucks, fork lift
trucks, hi-los and similar vehicles. Material handling equipment used
by Tenant shall be of a kind so that it shall not mar or deface the
floors.
F. NOT EXCEED FLOOR LOADS. Place a load on any floor in the
Premises, or in any area of the Building, exceeding the floor load per
square foot which such floor was designated to carry; or install,
operate or maintain therein any heavy item or equipment except in such
manner as to achieve a proper distribution of weight.
G. NOT EXCEED ELECTRICAL LOAD. Install, operate or maintain
in the Premises, any electrical equipment which does not bear
underwriters' approval, and would overload the electrical system
therein, or any part thereof, beyond its reasonable capacity for
proper and safe operation.
H. NOT PERMIT ODORS, ETC. Suffer, allow or permit any
offensive or obnoxious vibration, noise, odor or other undesirable
effect to emanate from the Premises, or any machine or other
installation therein, or otherwise suffer, allow or permit the same to
constitute a nuisance or otherwise unreasonably interfere with the
safety, comfort or convenience of Landlord or any other occupants of
the Building; upon notice by Landlord to Tenant that any of the
aforesaid is occurring, Tenant shall forthwith (but in all events
within five (5) days)remove or control the same.
I. NOT INTERFERE WITH INSURANCE, COMPLIANCE, IMPROPER USE.
Use or occupy the Premises or do or permit anything to be done thereon
in any manner which shall prevent Landlord and/or other Tenants from
obtaining at standard rates any insurance required or desired, or
which would invalidate or increase the cost to Landlord of any
existing insurance, or which might cause structural injury to the
building, or which would constitute a public or private nuisance or
which would violate any present or future laws, regulations,
ordinances or requirements (ordinary or extraordinary, foreseen or
unforeseen) of the federal, state or municipal governments, or of any
department, subdivisions, bureaus or offices thereof, or of any other
governmental public or quasi-public authorities now existing or
hereafter created having jurisdiction in the Premises, or the
Industrial Building of which the premises forms a part. If, at any
time, and from time to time, as a result of, or in connection with,
any failure by Tenant to comply with the foregoing or any act of
omission or omissions by Tenant, its employees, agents, contractors or
licensees, or as a result of, or in connection with, the use to which
the Premises are put (notwithstanding that such use maybe for purposes
hereinbefore permitted, or that such use may have been consented to by
Landlord), the insurance rates applicable to the Premises, or the
building in which same are located, or to any other Premises in said
building and/or to the contents in any or all of the aforesaid
properties (including rent insurance relating thereto) shall be higher
than that which would be applicable for food, packaging, warehousing
and distribution, Tenant agrees that it will pay to Landlord, on
demand, as additional rent, such portion of the premiums for all fire
insurance policies in force with respect to the aforesaid
properties(including rent insurance relating thereto) and the contents
of any occupant thereof as shall be attributable to such higher rates.
13. EXPIRATION OF TERM - RETURN OF PREMISES IN GOOD CONDITION. On the
last day or sooner termination of the Lease, Tenant shall quit and
surrender the demised Premises broom-clean, in good condition and
repair, together with all alterations, additions and improvements
which may have been made in, on, or to the Demised Premises, except
movable furniture or unattached movable trade fixtures put in at the
sole expense of the Tenant (provided Tenant has not been in default
under this Lease) provided, however, that Tenant shall ascertain from
Landlord at least thirty (30) days before the end of the Term whether
Landlord desires to have the Demised Premises, or any part thereof,
restored to the condition in which it was originally delivered to
Tenant, and if Landlord shall so desire then Tenant, at its own cost
and expense, shall restore the same before the end of the Term. All
trade fixtures, equipment, furniture, alterations, additions and
improvements not so removed will conclusively be deemed to have been
abandoned by Tenant and may be appropriated, sold, stored, destroyed,
or otherwise disposed of by Landlord without notice to Tenant or to
any other person and without obligation to account for them. Tenant
will pay landlord all expenses incurred in connection with Landlord's
disposition of such property, including without limitation the cost of
repairing any damage to the Building or Premises caused by removal of
such property. Tenant agrees upon termination of the lease, the
air-conditioning, refrigeration, cooling systems, heating equipment
and plumbing and electrical systems shall be in good, operable
condition, and, all lighting fixtures shall be operable, and, in the
same location as when delivered to Tenant by Landlord and bulbs where
necessary, replaced. Tenant shall comply with the provisions of
paragraph 11 prior to termination of the Lease. If the Demised
Premises is not surrendered within fourteen (14) days of the date when
it should have been surrendered, then, Tenant shall indemnify Landlord
against loss or liability resulting from the delay by Tenant in so
surrendering the premises including, without limitation, any claims
made by any succeeding occupant founded on such delay. Tenant's
obligations under this section shall survive the expiration or sooner
termination of the Term. In the event Tenant remains in possession of
the demised Premises after the expiration of the Term and without the
execution of anew lease, Tenant, at the option of the Landlord, shall
be deemed to be occupying the Demised Premises as a tenant from
month-to-month, at a monthly rental equal to three (3) times the sum
of (i) the Basic Rent payable for the last month of the Term under
Section 1(E) and (ii) one twelfth (1/12th) of all items of Expense
Rent, such as, but not limited to, taxes, insurance, common area
charges, repair charges, utilities, payable or paid during the last
lease year.
14. ACCESS TO PREMISES. Upon prior reasonable notice to Tenant, unless an
emergency has occurred, Landlord shall have the right to enter the
Premises at any reasonable time to examine same, to maintain the same,
or to make such repairs, replacements or improvements to the Premises
or to the Property as Landlord may deem desirable, and Tenant shall
have no claim against Landlord by reason thereof. Landlord will use
reasonable efforts so as to minimize interference with Tenant's use of
the Premises. Landlord may install, maintain, or replace and use pipes
and conduits in and through the
Premises for the purpose of installing utilities for other premises
located within the building.
15. DAMAGE BY FIRE OR OTHER CASUALTY.
A. SUBSTANTIAL DAMAGE. If the Building or any part thereof
shall be damaged by fire or other casualty, Tenant shall give prompt
written notice thereof to Landlord. If as a result the Building is so
damaged that substantial alterations or reconstruction of the building
shall, in Landlord's sole opinion, be required (whether or not the
premises shall have been damaged)or if any Mortgagee of the Building
requires the proceeds payable be used to retire the Mortgage debt,
Landlord may, at its option, terminate this Lease by notifying Tenant
in writing of such termination within sixty (60) days after the date
of such damage. If this Lease is so terminated, rent shall be abated
as of the date of such damage.
B. RESTORATION. If Landlord does not terminate this Lease
pursuant to Subsection A of this Xxxxxxxxx 00, Xxxxxxxx shall, within
seventy-five (75) days after receipt by Landlord of the proceeds
payable in respect of such fire or other casualty, proceed with
reasonable diligence to restore the building (subject to force
majeure) to substantially the same condition in which it was
immediately prior to the occurrence of the casualty. Landlord shall
not be required to rebuild, repair or replace any part of Tenant's
furniture, furnishings, fixtures or equipment. Such work shall include
the scope of the work done by the Landlord when originally finishing
the premises in accordance with the working drawings provided the
Landlord shall not be required to spend for such work an amount in
excess of the proceeds actually received by the Landlord and allocable
thereto. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant, resulting in
any way from damage or repair thereof, except that, subject to the
provisions in the next sentence, Landlord shall allow Tenant a fair
diminution of basic rent during the time and to the extent the
premises are unfit for occupancy. If the premises or any portion of
the building be damaged by fire or other casualty resulting from the
fault or negligence of Tenant or any of Tenant's agents, employees or
invitees, the rent hereunder shall not be diminished during repair of
such damage.
C. TERMINATION. Irrespective of Subparagraphs A and B above,
if Landlord does not complete restoration within one hundred twenty
(120) days from the date a building permit is issued for such
reconstruction, then either Landlord or Tenant may terminate this
Lease provided such notice of termination is given no later than the
one hundred thirtieth (130th) day following the issuance of the
building permit.
16. EMINENT DOMAIN.
A. The term "Total Taking" means the taking of the Fee Title
Estate to so much of the premises or a portion of the building in
which the Demised Premises is located, by right of Eminent Domain or
other authority of law or a voluntary transfer under the threat of the
exercise of the right of Eminent Domain or other authority. The term
"Partial Taking" means the taking of only a portion of the premises or
a portion of the building in which the premises is located which does
not constitute a Total Taking.
B. If a Total Taking occurs during the term of this Lease
this Lease will terminate as of the date of the Taking. The phrase
"Date of Taking"means the date of taking actual physical possession by
the condemning authority or such earlier date as the condemning
authority gives notice that it is deemed to have taken possession.
C. If a Partial Taking occurs during the term of this Lease,
Landlord may cancel this Lease by written notice given within sixty
(60) days after the date of the Taking and this Lease will terminate
on the date of the Taking. If the Lease is not so terminated, this
Lease will continue in full force and effect as to the remainder of
the premises. The fixed rental payable by Tenant under Paragraph 1(e)
for the balance of the Term will be abated in the proportion that the
leasable area of the premise taken bears to the leasable area of the
premises immediately prior to such taking, and Landlord will make all
necessary repairs or alterations to make the remaining premises a
complete architectural unit.
D. If, this Lease has not otherwise been canceled as
hereinabove provided, and, if a Partial Taking occurs of more than ten
(10%) of the Demised Premises during the term of this Lease, then, in
such event, Tenant may cancel this Lease by written notice given
within sixty (60) days after the date of the Taking and this Lease
will terminate as of the date of the Taking. If access used by Tenant
is materially effected by any taking, then, Tenant may cancel this
Lease by written notice given within sixty (60) days after the date of
the taking and this Lease will terminate as of the date of the taking.
E. AWARD AND PROCEEDS. All compensation awarded for any such
taking or conveyance, whether for the whole or in part of the Demised
Premises or otherwise, shall be the property of the Landlord, whether
such damages shall be awarded as compensation for the diminution or
total loss in value of the leasehold or of the fee of the Demised
Premises, and Tenant hereby assigns to Landlord all of Tenant's right,
title and interest in and to any such compensation. Tenant shall be
entitled to separately petition the condemning authority for a
separate award for its moving expenses and trade fixtures, but only if
such separate award will not diminish the amount of proceeds payable
to Landlord.
F. If this Lease is terminated pursuant to the provisions of
this Paragraph, then all rentals and all other charges payable by
Tenant to Landlord under this Lease will be paid up to the date of the
Taking and any rentals and other charges paid in advance and
allocable to the period after the date of the Taking will be repaid to
Tenant by Landlord. Landlord and Tenant will then be released from all
further liability under this Lease.
17. WAIVER OF LANDLORD'S LIABILITY, TENANT'S OWN INSURANCE. Tenant
agrees, in addition to complying with Tenant's insurance requirements,
to take such steps as it may deem necessary and adequate for the
protection of itself and its agents, employees, invitees, and
licensees, and the property of the foregoing by insurance, as a
self-insurer or otherwise. Landlord shall not be liable for any injury
to persons or damage to property located in the Demised Premises
resulting from any cause whatsoever, including, without limitation,
theft, fire, explosion, water, rain, snow, frost, steam, gas,
electricity, heat, cold, dampness, sewers, odors, noise, leaks from
any part of the building or the roof, the bursting or leaking of
pipes, plumbing, electrical wiring and equipment, and fixtures of all
kinds, or by any act or neglect of others, tenants or occupants of the
building or any other person, or caused by any manner whatsoever, nor
shall Landlord be liable for any latent defects in the building.
Tenant hereby waives all right of recovery which it might have against
Landlord, Landlord's agents and employees for loss or damage to
Tenant's furniture, Tenant Improvements, inventory, furnishings,
fixtures, chattels and articles of personal property located on or in
the demised premises, notwithstanding that such loss or damage may
result from the negligence or fault of Landlord. Tenant shall obtain
insurance policies covering its furnishings, Tenant Improvements,
inventory, fixtures, equipment and articles of personal property
(collectively, "Tenant's property") in the demised premises and Tenant
shall either cause Landlord to be named as an insured party under such
policies(without entitling Landlord to receive any loss proceeds
thereof) or obtain the insurer's waiver of all rights of subrogation
against Landlord with respect to losses insured under such policies.
Before Tenant takes possession of the leased premises and throughout
the term thereof, the Tenant shall, at its own cost and expense,
provide and keep in force comprehensive general public liability
insurance on an occurrence basis in respect of the Demised Premises
and the conduct and operation of Tenant's business therein with
Landlord and its mortgagee as additional insureds, with limits per
occurrence of not less than$5,000,000 combined single limit for bodily
injury or property damage including water damage and sprinkler leakage
legal liability, with an endorsement providing that such aggregate
limit shall apply to the Property separately from any other locations
covered by the policy; and contractual liability insurance.
Certificates evidencing same shall be furnished to Landlord, together
with proof of payment of premiums. If Tenant fails or neglects to
carry such insurance, Landlord shall have the right to cause such
insurance to be issued at Tenant's cost and expense and the cost
thereof shall be added to the rent and shall be due and payable as
rent under this Lease.
18. WAIVER OF SUBROGATION. Landlord and Tenant waive all rights to recover
against each other or against the officers, directors, shareholders,
partners, joint ventures, employees, agents, customers, invitees, or
business visitors of each other or of any other Tenant or occupant of
the Building, for any loss or damage arising from any cause
covered by any insurance required to be carried by each of them
pursuant to this paragraph or any other insurance actually carried by
each of them. Landlord and Tenant will cause their respective insurers
to issue appropriate waiver of subrogation rights endorsements to all
policies of insurance carried in connection with the building or the
Premises or the contents of either of them. Tenant will cause all
other occupants of the Premises claiming by, under, or through Tenant
to execute and deliver to Landlord a waiver of claims similar to the
waiver in this paragraph and to obtain such waiver of subrogation
rights endorsement.
19. INDEMNIFICATION BY TENANT. Tenant shall indemnify Landlord against all
liability and expense including reasonable attorneys' fees, incurred
by Landlord by reason of:
(a) Any action by Tenant (or Landlord to cure an Event of
Default) on or about the demised premises;
(b) Any use, non-use or maintenance of the demised premises;
(c) Any Negligence of Tenant;
(d) Any injury or damage to any person or property occurring
on or in the demised premises; or
(e) Any failure by Tenant to perform its obligations under the
Lease.
20. BUILDING SERVICES. Landlord shall not be required to provide any
services to Tenant and Tenant agrees to pay for all charges for gas,
electricity, light, heat and power. Landlord shall not be liable in
damages or otherwise for any delay or failure in Tenant's receiving
any such utilities and in no event shall such delay or failure,
regardless of cost, constitute an eviction of Tenant or terminate this
Lease. Domestic water for lavatories, Tenant shall reimburse Landlord
a pro rata charge as determined by Landlord for Tenant's consumption
of domestic water.
The water, electric, sprinkler and other utilities servicing the
building in which the demised premises are located, as of the
execution of this Lease are not separately metered or sub-metered.
Landlord, at its option, shall either separately meter, or sub-meter,
or estimate, the usage of water, electric, gas and sprinkler service,
and, allocate to Tenant, Tenant's fair share and cost thereof. In any
event, Tenant, whether by payment directly to the utility, or to
Landlord, by an estimated amount, or by sub-metering, shall be
responsible to pay for all charges for gas, electric, light, heat,
power and sprinkler. Landlord, if economically feasible, will use best
efforts to sub-meter the electric and gas service.
21. DEFAULTS AND REMEDIES.
A. If any one or more of the following events (hereinafter
called "events of default") occurs:
(i) Tenant shall default in payment of any
installments of rent or other sums required to be paid by
Tenant under this Lease, which default shall continue for ten
(10) days after written notice thereof by Landlord to Tenant;
or in the observance or performance of any other covenant or
provision of this Lease and such default continues for thirty
(30) days after notice of such default from Landlord (unless
such default cannot be cured within(30) days) and Tenant
commences to cure such default within such 30 days and
diligently proceeds to cure such default; or
(ii) If the Demised Premises shall be abandoned for
a period of thirty (3) days; or
(iii) Tenant shall make an assignment for the
benefit of creditors or shall assign or sublet, except as
permitted hereunder; or
(iv) A voluntary petition is filed by Tenant under
any laws for the purpose of adjudication of Tenant as a
bankrupt or the extension of the time of payment,
composition, arrangement, adjustment, modification,
settlement or satisfaction of the liabilities of Tenant, or
the reorganization of Tenant under the Bankruptcy Act of the
United States or any future laws of the United States having
the same general purpose, or receivers appointed for Tenant
by reason of insolvency or alleged insolvency of Tenant; an
involuntary petition shall be filed against Tenant for such
relief and shall not bedismissed within sixty (60) days;
Landlord, notwithstanding any other right or remedy it mayhave under
the Lease, at law or in equity, may terminate the Lease, by notice
toTenant setting forth the basis therefor and effective not less than
five (5)days thereafter, whereupon, upon such effective date, the
Lease shall terminate(with the same effect as if such date were the
date fixed herein for the naturalexpiration of the Term), Tenant shall
surrender the demised premises to Landlordand Tenant shall have no
further rights hereunder, but Tenant shall remainliable as hereinafter
provided. In such event, Landlord may, without furthernotice, enter
the demised premises, repossess the same and dispossess Tenant andall
other persons and property therefrom.
B. LANDLORD'S DAMAGES. If Landlord so terminates the Lease,
Tenantshall pay Landlord, as damages:
(i) A sum which represents any excess of (i)
theaggregate of the rent, impositions and additional rent for
the balance of theterm if the Lease were not so terminated,
over (ii) the net rental valuedetermined in accordance with
this Lease of the demised premises at theeffective date of
such termination, both discounted at the rate of four
(4)percent per annum; or, at Landlord's option;
(ii) Sums equal to the rent, impositions and
additionalrent, when the same would have been payable if not
for such termination, lessany net rents received by Landlord
from any reletting, after deducting all costsincurred in
connection with such termination and reletting (but Tenant
shall not receive any excess of such net rents over such
sums). Nothing herein contained shall placeany duty or
obligation on the part of Landlord to mitigate Tenant's
damages.Except, Landlord agrees that it will engage the
services of an exclusive brokerto market the Premises for
relet.
Landlord may commence actions or proceedings to recover suchdamages or
installments thereof at any lawful time. No provision hereof shall
beconstrued to preclude Landlord's recovery from Tenant of any other
damages towhich landlord is lawfully entitled.
C. NONEXCLUSIVITY. No right or remedy herein conferred
uponLandlord is intended to be exclusive of any other right or remedy
herein or bylaw provided, but each shall be cumulative and subject to
the grace and noticeprovisions of subparagraph (A) of this Paragraph
21, in addition to every otherright or remedy given herein or now or
hereafter existing at law or in equity orby statute.
D. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS. If
Tenantshall fail to pay any tax, pay for or maintain or deliver any of
the insurancepolicies or shall fail to make any other payment or
perform any other act whichTenant is obligated to make or perform
under this Lease, then, Landlord afternotice to Tenant may perform for
the account of Tenant any covenant in theperformance of which Tenant
is in default. Tenant shall pay to the Landlord asadditional rent,
upon demand, any amount paid by Landlord in the performance ofsuch
covenant in any amount which Landlord shall have paid by reason of
failureof Tenant to comply with any covenant or provision of this
Lease, includingreasonable counsel fees incurred in connection with
the prosecution or defenseof any proceedings instituted by reason of
default of Tenant, together withinterest at the rate of two (2%)
percent per month from the date of payment byLandlord until paid by
Tenant.
E. NO WAIVER. No waiver by Landlord of any breach by Tenant
ofany of Tenant's obligations hereunder shall be a waiver of any
subsequent breachor of any obligation, agreement or covenant, nor
shall any forbearance byLandlord to seek a remedy for any breach by
Tenant be a waiver by Landlord ofLandlord's rights and remedies with
respect to such or by subsequent breach.
F. RIGHT OF RE-ENTRY. In the event that the termination of
this Lease is the result of any election exercised by Landlord
pursuant to the terms of this Article, the Landlord shall be entitled
to the rights, remedies and damages set forth in this Article and
elsewhere in this Lease. Tenant waives the service of notice of
intention to re-enter as provided for in any statute and also waives
any and all right of redemption in case Landlord obtains possession by
reason of Tenant's default. Tenant waives any and all right to atrial
by a jury in the event that summary proceedings shall be instituted by
Landlord. The terms "enter", "re-enter", "entry" or "reentry", as used
in this Lease are not restricted to their technical legal meaning.
G. PAYMENT OF LANDLORD'S COUNSEL FEES AND OTHER COSTS,
INTEREST. Tenant shall pay the Landlord as additional rent upon demand
Landlord's reasonable counsel fees incurred by Landlord in connection
with the prosecution or defense of any proceedings instituted by
reason of default of Tenant, together with interest at the rate of two
percent (2%) per month from the date of payment by Landlord until paid
by Tenant, this covenant to survive the expiration or sooner
termination of this Lease.
22. OMIT.
23. LATE CHARGE/SERVICE FEE. If payment of Basic Rent or Additional Rent
or any part thereof shall not be made on or prior to a date which is
ten(10) days after the date on which it is due and payable, Landlord
shall be entitled to charge as an additional rent the service fee
equal to four percent(4%) of the rent due for each and every five (5)
day period which has elapsed between the day said rent is due and the
date the rent is received by Landlord. Such service fee that accrues
during any month shall be payable on the first day of the following
month. No failure by Landlord to insist upon the strict performance by
Tenant of Tenant's obligations to pay service fee shall constitute a
waiver by Landlord of its right to enforce the provisions of this
section and any instance thereafter occurring, nor shall acceptance of
a late fee be deemed to extend the time of payment of fixed rent or
expense rent or any part thereof. Notwithstanding the foregoing in
each calendar year upon the first three (3) occasions when Tenant
shall fail to make timely rent payments, Landlord agrees to give
written notice to Tenant of such failure prior to Landlord asserting
the late charge. If Landlord gives such notice and Tenant does not
make payment within ten (10) business days thereafter, then a late
charge shall be imposed as hereinabove provided from the date such
payment was otherwise due and payable. If any such three (3) instances
of serving notice on Tenant in any calendar year, Landlord need not
give further notice prior to asserting a late charge.
24. EASEMENTS. Tenant shall permit Landlord or its designees to erect,
use, maintain and repair pipes, cables, conduits, plumbing, vents and
wires, in, to and through the Premises, as and to the extent that
Landlord may now or hereafter deem to be necessary or appropriate for
the proper operation and maintenance of the building in which the
Premises are located or any other portion of the Building. All such
work shall be done, so far as practicable, in such manner as to avoid
unreasonable interference with Tenant's use of the premises.
25. LANDLORD'S INABILITY TO PERFORM. This Lease and the obligation to pay
rent hereunder and perform all of the other terms to be performed by
Tenant hereunder shall not be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease.
26. PARKING. Tenant shall have the right to use 20 parking spaces for the
parking of trucks not to exceed 24 feet in length and forty (40)
parking spaces for the parking of automobiles, all of which shall be in
areas designated on diagram attached hereto. Tenant agrees that it and
its employees and invitees shall not park their automobiles in parking
spaces allocated to others by Landlord and shall comply with such rules
and regulations for use of the parking area as Landlord may from time
to time prescribe. Landlord shall not be responsible for any damage or
theft of any vehicle in the parking area and shall not be required to
keep parking spaces clear of unauthorized vehicles or to otherwise
supervise the use of the parking area. The parking spaces to be
provided to Tenant for the parking of automobiles shall be used for
parking only by vehicles no larger than full-sized passenger
automobiles. Tenant shall not permit or allow any vehicle that belongs
to or is controlled by Tenant or Tenant's employees, suppliers,
shippers, customers or invitees to be loaded or parked in areas other
than those designated by Landlord for such activities. If Tenant
permits or allows any of the prohibited activities described in this
Section, Landlord shall have the right, in addition to all other rights
and remedies that it may have under this Lease, to remove or tow away
the vehicles involved without prior notice to Tenant, and the cost
thereof shall be paid to Landlord as Additional Rent within ten (10)
days after delivery to Tenant of bills therefor.
27. MECHANIC'S LIEN. Tenant shall discharge any mechanic's lien filed
against the Property for work done or claimed to have been done for
Tenant, or materials furnished or claimed to have been furnished to
Tenant within ten (10)days after notice from Landlord thereof. Notice
is hereby given that Landlord is not liable for any work performed at
the premises by or for Tenant and that no mechanic's lien arising
therefrom shall attach to, or affect the estate of, or interest of
Landlord.
28. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. If Tenant defaults in the
observance or performance of any term to be observed or performed by
Tenant under this Lease, Landlord may immediately or at any time
thereafter and without notice to Tenant, perform the same for the
account of Tenant and the expenses incurred with respect to such
performance together with attorneys' fees and interest thereon shall
be deemed additional rent hereunder and shall be paid by Tenant to
Landlord on demand therefor.
29. SUBORDINATION. At the option of Landlord, this Lease shall either be:
(a) Subject and subordinate to all mortgages which may now or
hereafter affect the Demised Premises, and to all renewals,
modifications, consolidations, replacements or extensions thereof,
provided however, that the holder of any such mortgage shall execute
with Tenant a Non-Disturbance Agreement hereinafter described; or
(b) This lease shall be paramount in priority as an
encumbrance against the Demised Premises with respect to the lien of
any mortgage which may now or hereafter affect the Demised Premises
and to all renewals, modifications, consolidations, replacements and
extensions thereof.
(c) The non-disturbance agreement referred to above shall
bean agreement in recordable form between Tenant and the holder of
such mortgage, binding on such holder and on future holders of such
mortgages, or an agreement by such holder expressed in such mortgage,
which shall provide in substance that, so long as Tenant is not in
default beyond the applicable grace periods under any of the terms,
covenants, provisions or conditions of this Lease, neither such holder
nor any other holder of such mortgage shall name or join Tenant as a
party-defendant or otherwise in any suit, action or proceeding to
enforce, nor will this Lease or the term hereof be terminated (except
as permitted by the provisions of this Lease) or otherwise affected by
enforcement of, any rights given to any holder of such mortgage,
pursuant to the terms, covenants or conditions contained in such
mortgage or any other document held by any holder or any rights given
to any holder as a matter of law. Upon request of holder of a mortgage
to which this Lease becomes subordinate, Tenant shall execute,
acknowledge and deliver to such holder an agreement to attorn to such
holder as Landlord if such holder becomes Landlord hereunder and/or
execute, acknowledge and deliver to such holder an agreement not to
pay the Basic Rent for a period of more than one (1) month in advance.
30. LANDLORD'S RIGHT TO SHOW PREMISES. Throughout the term of this Lease,
Landlord shall have the right to enter the Premises at reasonable
hours for the purpose of showing the same to prospective purchasers or
mortgagees of the Property, and during the last six (6) months of the
term for the purpose of showing the same to prospective tenants.
31. QUIET ENJOYMENT. Landlord covenants that if and so long as Tenant pays
the rent and additional rent and performs the covenants hereof, Tenant
shall peaceably and quietly have hold and enjoy the Premises for the
term herein mentioned, subject to the provisions of this Lease and to
any mortgage to which this Lease is subordinate.
32. TENANT'S ESTOPPEL. Tenant shall from time to time, upon not less than ten
(10) days prior written request by Landlord, execute, acknowledge and deliver
to Landlord a written statement, in form satisfactory to Landlord, certifying
that this Lease is unmodified and in full force and effect (or that same is in
full force and effect as modified, listing the instruments of
modification) the dates to which the rent and additional rent have been paid
and whether or not, to the best of Tenant's knowledge, Landlord is in default
hereunder (and if so, specifying the nature of the default), existence of any
offsets, counterclaims or defenses thereto on the Tenant's part against
Landlord, a statement as to the term commencement date and stated expiration
date, and as to any other matters as may reasonably be so requested. It being
intended that any such statement delivered pursuant to this Paragraph may be
relied upon by a prospective purchaser of Landlord's interest, or mortgagee of
Landlord's interest, or assignee of any mortgage upon Landlord's interest in
any underlying lease or in the Property.
33. FINANCIAL INFORMATION. Tenant has furnished the Landlord with Profit
and Loss Statements and Balance Sheets for the fiscal years
beginning1996, prepared by a Certified Public Accountant. Tenant
further agrees that it will furnish to the Landlord a Certified Profit
and Loss Statement and Certified Balance Sheet prepared by a Certified
Public Accountant for the preceding fiscal year but Landlord shall not
request such statement more than once in each calendar year. So long
as Tenant is a "public company", annual statements provided to
shareholders, and, 10K and 10Q SEC report forms, shall be deemed
conformance and compliance with the provisions of this Section 33.
34. NO ABATEMENT OF RENT. Except as expressly provided herein, there shall
be no abatement, diminution or reduction of Fixed Rent, Expense Rent
or Additional Rent or other charges or other compensation due to the
Landlord by Tenant or any person claiming under it under any
circumstances, including, but not limited to, any inconvenience,
discomfort, interruption of business or otherwise.
35. NOTICES. Any notice hereunder shall be sufficient if sent by certified
mail, return receipt requested, addressed given by the Landlord to the
Tenant to the Premises, or if given by the Tenant to the Landlord, at
the address set forth in Par. l(a) above, or at such other place as
the Landlord may notify Tenant in writing from time to time.
36. NO PERSONAL LIABILITY OF LANDLORD. There shall be no personal
liability of the Landlord or any principal of the Landlord in
connection with this Lease. Tenant agrees to look solely to the equity
of Landlord in the Property for the collection of any judgment or
other judicial process requiring the payment of money by Landlord in
the event of any default or breach by Landlord with respect to this
Lease or in any way relating to the Premises or Property, and no other
assets of Landlord or any principal of Landlord shall be subject to
levy, execution or other procedures for the satisfaction of Tenant's
remedies.
37. SUBMISSION OF LEASE. Submission of this Instrument for examination or
signature by Tenant does not constitute a reservation of, or option to
lease, and it is not effective as a lease or otherwise until execution
and delivery by both Landlord and Tenant.
38. NO REPRESENTATIONS. Landlord has made no representations or promises
with respect to the Premises or the Property except as expressly
contained herein. Tenant has
inspected the Premises and agrees to take the same in an "as is"
condition, except as otherwise expressly set forth herein, including
Landlord's work as contemplated by Section 3A hereof. Landlord shall
have no obligation, except as herein set forth, to do any work in and
to the premises to render them ready for occupancy and use by Tenant.
39. CAPTIONS. The captions in this Lease are included for convenience only
and shall not be taken into consideration in any construction or
interpretation of this Lease or any of its provisions.
40. NO WAIVER OR CHANGES. The failure of either party to insist obstruct
performance of any covenant or condition hereof, or to exercise any
option herein contained, shall not be construed as a waiver of such
covenant, condition or option in any other instance. This Lease cannot
be changed or terminated orally.
41. RECORDING. The Tenant shall not record this Lease or a memorandum
hereof.
42. BROKER. Tenant represents that it did not deal with or negotiate with
any broker in connection with this Lease other than the Broker listed
in Paragraph 1(g) and indemnifies and holds Landlord harmless from and
against any claim for a commission or other fee made by any broker
with whom it has dealt or negotiated except as to the Broker listed in
Paragraph 1(g). Landlord, base upon Tenant's representation, agrees,
that Landlord shall pay the brokerage commission otherwise designated
in Paragraph 1G hereof, and, shall indemnify Tenant from and against
such obligation to said brokers.
43. BINDING EFFECT. The provisions of this Lease shall apply to, bind and
inure to the benefit of Landlord and Tenant and their respective
successors, legal representative and permitted assigns, it being
understood that the term"Landlord" as used in this Lease means only
the owner, or the mortgagee in possession, or the lessee for the time
being of the property so that in the event of any sale or sales of the
property or of any lease thereof, or if the mortgagee shall take
possession of the property, the Landlord named herein shall be and
hereby is entirely freed and relieved of all covenants and obligations
of Landlord hereunder accruing thereafter.
44. ACCEPTANCE. Neither the Landlord nor its agents have made any
representation with respect to the building, the land upon which it is
erected, or the demised premises, except as expressly set forth herein
and no rights, easements or licenses are acquired by the Tenant by
implication or otherwise except as expressly set forth in the
provisions of this Lease. The taking of possession of the demised
premises by the Tenant shall be conclusive evidence that the Tenant
shall have accepted the same in an "as is" condition and that the
demised premises and the building were in good condition at the time
of the commencement of the term. In no event shall the Landlord be
liable for any defect in such property or for any limitation on its
use.
45. FIRST EXTENSION OF TERM: Upon the expiration of the term herein
demised, if immediately prior thereto this Lease shall be in full
force and effect and no uncured event of default shall have occurred,
then subject to the provisions of this section, the Tenant shall have
and is hereby given the option to renew and extend this Lease for an
additional term of five (5) years to commence on September 1, 2007 and
to terminate on August 31, 2012. The renewal term shall be upon the
same terms, covenants and conditions as those herein contained insofar
and applicable to such renewal term (including all provisions as to
the items of payment of additional rent) except as to the amount of
fixed rental. The said renewal shall be exercised by Tenant in the
following manner:
(a) Not later than six (6) months prior to the end of the
initial term, the Tenant shall notify Landlord in writing that the
Tenant desires to extend said Lease by exercising this option.
(b) In the event the Tenant exercises its option to extend
the term of this Lease as hereinabove set forth, the fixed rental as
set forth in sub-paragraph (e) of paragraph 1 of this Lease, during
such renewal term shall be the higher of $187,761.00 per annum,
payable in equal monthly installments of$15,646.75 due and payable the
first day of each and every month in advance or, such higher rent as
determined as follows: The Landlord and the Tenant shall each select
an appraiser, such appraiser shall be a licensed real estate broker,
specializing the renting of office and/or industrial premises in
northern New Jersey and each such appraiser shall be a member of the
Society of Industrial and Office Realtors. Such appraisers shall be
engaged to determine the fair market rental on a net basis in
accordance with the terms of this Lease of the Demised Premises. The
nomination must be in writing and must be given by each party to the
other no later than sixty (60) days prior to the termination date of
the Lease. If the two appraisers shall agree in writing upon a fair
market rental then that value shall be binding upon the parties, but
if they are unable to agree within thirty (30) days after their
appointment, they shall then appoint a third appraiser, with their
credentials and the opinion of the majority as to the fair market
rental shall be controlling. If the two appraisers do not agree or
otherwise fail to appoint a third appraiser within thirty (30) days,
then the third appraiser shall be appointed on application of either
party by the Essex County Assignment Judge of the Superior Court of
New Jersey. If, prior to the appointment of a third appraiser, the
first two appraisers do not agree, but the difference between their
two appraisals is ten (10%) percent or less of the higher appraisal,
then the fair market rent shall be the mean of the two appraisals. If
the difference between the two appraisals is more than ten
(10%)percent, then the appraisal of the third appraiser shall be
binding. If the fair market rental of the premises pursuant to the
appraisal is greater than $187,761.00 per annum, ora sum equal to 95
percent of the fair market rental as determined by the appraisers. The
determination of the appraisers shall be in accordance with the
provisions of the terms of this Lease, for a five (5) year term. Such
rental shall be determined as of September 1, 2007. Pending the
determination of the fixed rental for the renewal term, the Tenant
shall continue to pay the rent at the rate of $187,761.00 per
annum and when the adjusted rent has been determined, the Tenant on
the first day immediately following the furnishing by the appraisers
to the Landlord and Tenant of the computation thereof, shall pay the
Landlord the number of installments that shall have elapsed since
September1, 2007 to and including the first day of such month. During
the extension of term, the fixed rental shall be the higher of
$187,761.00 per annum or 95% of the fair market rental as determined
by the appraisers.
46. \ SECOND EXTENSION OF TERM: Upon the expiration of the first extension
of term, if immediately prior thereto this Lease shall be in full
force and effect and no uncured event of default shall have occurred,
then subject to the provisions of this section, the Tenant shall have
and is hereby given the option to renew and extend this Lease for an
additional term of five(5) years to commence on September 1, 2012 and
to terminate on August 31, 2017.The extension of term shall be upon
the same terms, covenants and conditions as those herein contained
insofar and applicable to such extension of term(including all
provisions as to the items of payment of additional rent) except to
the amount of fixed rental. The said extension of term be exercised by
Tenant in the following manner:
(a) Not later than six (6) months prior to the end of the
first extension of term, the Tenant shall notify Landlord in writing
that the Tenant desires to extend said Lease by exercising this
option.
(b) In the event the Tenant exercises its option to extend
the term of this Lease as hereinabove set forth, the fixed rental as
set forth in sub-paragraph (e) of paragraph 1 of this Lease, during
such extension of term shall be the higher of the fixed annual rental
payable during the last 12 months of the first extension of term, or
such higher rent as determined as follows:
The Landlord and the Tenant shall each select an appraiser, such
appraiser shall be a licensed real estate broker, specializing the
renting of office and/or industrial premises in northern New Jersey
and each such appraiser shall be a member of the Society of Industrial
and Office Realtors. Such appraisers shall be engaged to determine the
fair market rental on a net basis in accordance with the terms of this
Lease of the Demised Premises. The nomination must be in writing and
must be given by each party to the other no later than sixty (60) days
prior to the termination date of the Lease. If the two appraisers
shall agree in writing upon a fair market rental then that value shall
be binding upon the parties, but if they are unable to agree within
thirty (30) days after their appointment, they shall then appoint a
third appraiser, with their credentials and the opinion of the
majority as to the fair market rental shall be controlling. If the two
appraisers do not agree or otherwise fail to appoint a third appraiser
within thirty (30) days, then the third appraiser shall be appointed
on application of either party by the Essex County Assignment Judge of
the Superior Court of New Jersey. If, prior to the appointment of a
third appraiser, the first two appraisers do not agree, but the
difference between their two appraisals is ten (10%) percent or less
of the higher appraisal, then the
fair market rent shall be the mean of the two appraisals. If the
difference between the two appraisals is more than ten (10%)percent,
then the appraisal of the third appraiser shall be binding. If the
fair market rental of the premises pursuant to the appraisal is
greater than the fixed annual rental payable during the last 12 months
of the first extension of then, then the fixed rental shall be
adjusted to such new higher rent or a sum equal to 95 percent of the
fair market rental as determined by the appraisers. The determination
of the appraisers shall be in accordance with the provisions of the
terms of this Lease, for a five (5) year term. Such rental shall be
determined as of September 1, 2012. Pending the determination of the
fixed rental for the second extension of term, the Tenant shall
continue to pay the rent at the rate of the rent paid during the
calendar year 2006 and when the adjusted rent has been determined, the
Tenant on the first day immediately following the furnishing by the
appraisers to the Landlord and Tenant of the computation thereof,
shall pay the Landlord the number of installments that shall have
elapsed since September 1, 2012 to and including the first day of such
month. During the second extension of term, the fixed rental shall be
the higher of the fixed annual rental payable during the last 12
months of the first extension of term or 95% of the fair market rental
as determined by the appraisers.
47. MISCELLANEOUS.
A. ADDITIONAL CONSTRUCTION COSTS TO BE PAID BY TENANT TO
LANDLORD. If Tenant requests any work to be done by Landlord which is
not otherwise specified in the plans and specifications, and if
Landlord is willing to make such change or undertake such work, Tenant
shall pay to Landlord the cost of such work and materials as required
and all other expenses incurred, such as, permits, licenses,
architect's fees, materialmen's cost, supplier's cost, etc. All such
costs shall be subject to an additional element of costs to be added
thereto, equal to 24% of the cost otherwise incurred or to be
incurred. The total of such costs shall be billed by the Landlord to
Tenant during construction as they are incurred and payment shall be
made by Tenant to Landlord on the first day of the month following the
date Tenant is billed by Landlord. All such costs, so billed by
Landlord to Tenant shall be deemed additional rent.
B. RULES AND REGULATIONS: tenant shall comply with the Rules
and Regulations attached hereto and as same may be amended or
promulgated by Landlord from time to time.
C. NO UNDERGROUND STORAGE TANKS: Tenant warrants and
represents that it will, at no time, install any underground storage
tanks on the Demised Premises. A breach of this covenant shall be
deemed a default under the Lease, and Landlord shall have the right to
terminate the Lease upon the happening of such event.
D. REFUSE REMOVAL: Tenant shall be responsible for removal of
its own trash.
E. LANDLORD'S CONSENT: If Tenant believes that the Landlord
has unreasonably withheld its consent and/or delayed its consent, then
Tenant's sole remedy shall be to seek a declaratory judgment. The
Tenant shall have no right to seek money damages.
F. CORPORATE AUTHORITY: If Tenant is a corporation, each
individual executing this Lease on behalf of said corporation
represents and warrants that he is duly authorized to execute and
deliver this Lease on behalf of said corporation in accordance with a
duly adopted resolution of the Board of Directors of said corporation
or in accordance with the By-Laws of said corporation, and that this
Lease is binding upon said corporation in accordance with its terms.
If Tenant is a corporation, Tenant shall, within thirty (30) days
after execution of this Lease, deliver to Landlord a certified copy of
a resolution of the Board of Directors of said corporation authorizing
or ratifying the execution of this Lease.
G. CERTIFICATE OF OCCUPANCY: This Lease is subject and
contingent upon Landlord obtaining either temporary or permanent
Certificate of Occupancy as otherwise provided in paragraph "3"
hereof. In the event Landlord does not obtain a Certificate of
Occupancy, then Landlord shall notify Tenant of such fact, and
thereafter this Lease shall be void, without further liability of
either party to the other except to return to Tenant the prepaid rent
and security deposit, if any. If Landlord obtains only a temporary
Certificate of Occupancy, and, if an act of the Tenant or failure to
act of the Tenant has not caused Landlord not to obtain a permanent
Certificate of Occupancy, then, it shall be Landlord's responsibility
to obtain a permanent Certificate of Occupancy.
H. ALTERNATIVE DISPUTE RESOLUTION: Landlord and Tenant shall
attempt to settle any claim or controversy arising out of it through
consultation and negotiation in the spirit of mutual friendship and
cooperation. If such attempts fail, then the dispute shall first be
submitted to a mutually acceptable neutral advisor for mediation,
fact-finding or other form of alternate dispute resolution. Neither of
the parties may unreasonably withhold acceptance of such an advisor,
and his or her selection will be made within thirty (30) days after
notice by the other party demanding such mediation. The cost of such
mediation or any other alternate dispute resolution agreed upon by
both parties shall be shared equally by Landlord and Tenant. Any
dispute which cannot be so resolved between the parties within ninety
(90) days of the date of the initial demand by either party for such
mediation shall be finally determined by the courts. The use of such a
procedure shall not be construed to affect adversely the rights of
either party under the doctrines of laches, waiver or estoppel. And
nothing in this paragraphs shall prevent either party from resorting
to judicial proceedings if (a) good faith efforts to resolve a dispute
under these procedures have been unsuccessful or (b) interim resort to
a court is necessary to prevent serious and irreparable injury to a
party or to others.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
or caused these presents to be signed by their proper corporate officers, and
their proper corporate seal to be hereto affixed, in the day and year first
above written.
WITNESS: 000 XXXXXX XXXXXX ASSOCIATES, L.L.C., Landlord
By: /s/ Xxx Xxxxx
------------------ --------------------
Name: Xxx Xxxxx, Member
ATTEST: THE FRESH JUICE COMPANY OF NEW YORK, INC., Tenant
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxx Xxxxx
------------------ --------------------
Name: Xxxxxx Xxxxx, Chief Executive Officer
STATE OF NEW JERSEY )
) ss.:
COUNTY OF )
BE IT REMEMBERED, that on this _____ day of 1997, before me, the subscriber,
personally appeared _____________, who, I am satisfied, is the person named in
and who executed the within Instrument, and thereupon he acknowledged that he
signed, sealed and delivered the same as his act and deed, and the act and deed
of the said 000 XXXXXX XXXXXX ASSOCIATES, L.L.C., for the uses and purposes
therein expressed.
STATE OF NEW JERSEY )
)ss.:
COUNTY OF )
BE IT REMEMBERED, that on this _____ day of __________ 1997, before me the
subscriber, a notary public, personally appeared ______________ who, I am
satisfied, is the person who signed the within instrument as President of THE
FRESH JUICE COMPANY OF NEW YORK, INC., the corporation named therein, and he
thereupon acknowledged that the said instrument was signed, sealed with the
corporate seal and delivered by him as such officer and is the voluntary act
and deed of the corporation.
EXHIBIT A
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF LEASE
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and public parts of the Property shall not be obstructed
or encumbered by Tenant or used by Tenant for any purpose other than ingress
and egress to and from the Premises. The Tenant will not use or permit to be
used the sidewalk area by motor vehicles, and will limit such vehicles to the
driveway and parking areas.
2. No awnings, air conditioning units or other projections shall be attached to
the outside walls or windowsills of the building on the Property or otherwise
project from the building.
3. The Tenant shall not erect, make or maintain on or attach or affix to any
part of the Premises including the windows and doors, any sign, picture or
other representation or advertisement or notice of any kind, without the
express written consent of the Landlord obtained in advance. Tenant shall have
the right to apply on the main entrance door to the Premises lettering of
approved type, size and style as well as company logo where applicable.
4. Tenant shall not lay linoleum or other similar floor covering so that the
same shall come in direct contact with the floor of the Premises, and if
linoleum or other similar floor covering is desired to be used, an interlining
of builder's deadening felt shall first be fixed to the floor by a paste or
other material that may easily be removed with water, the use of cement or
other similar adhesive material being expressly prohibited.
5. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises nor interfere with other tenants or those having business with them.
Tenant shall not place office machines or other equipment against walls which
divide the Premises from space leased to other Tenants.
6. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by Tenant, and Tenant shall upon the termination of this
tenancy, deliver to Landlord all keys to the Premises either furnished to, or
otherwise procured by, Tenant and in the event of the loss of any keys so
furnished, Tenant shall pay to Landlord the cost thereof.
7. Tenant shall not keep in the Premises any explosives, cleaning fluid or any
inflammable material. Tenant shall not bring or place any bed or bedding in the
Premises and shall not use the Premises and shall not use the Premises asa
lodging place.
8. Landlord shall not be responsible to Tenant for the non-observance or
violation of any of these Rules and Regulations by any other tenants.
9. Tenant shall have the right, provided same is done in accordance with the
zoning ordinance of the municipality, to park trucks on the property along the
area wherein are located the loading docks. The Tenant shall not park trucks in
any other portion of the premises demised.
10. The Tenant shall advise Landlord, if Tenant's S.I.C. number is changed from
that otherwise indicated in paragraph 1(j).
11. Tenant agrees that Tenant will supply the names, addresses and telephone
numbers of at least two representatives of the Tenant who can be contacted in
the event of an emergency. Tenant will keep such "emergency list"current. Upon
notice by the Landlord to the Tenant of a breach of any of the rules and
regulations Tenant shall, within five (5) days thereafter, comply with such
rule and regulation and in the event Tenant shall not comply, then the Landlord
may at its discretion either: (1) cure such condition and add any cost and
expense incurred by the Landlord therefor to the next installment of rental due
under this Lease and the Tenant shall then pay such amount as additional rent
hereunder; or (2) treat such failure on the part of the Tenant to remedy such
condition as a material default of this Lease on the part of the Tenant
hereunder.
GUARANTY OF LEASE
THE FRESH JUICE COMPANY, INC., A DELAWARE CORPORATION
("Guarantor"),whose address is 00 Xxxxxx Xxxxxx, Xxxxx 0, Xxxxx, Xxx Xxxxxx
00000, being the owner of all the issued capital stock of THE FRESH JUICE
COMPANY OF NEW YORK, INC. and in full control of said stock, as a material
inducement to and inconsideration of 000 XXXXXX XXXXXX ASSOCIATES, L.L.C.
("Landlord") entering into a written lease ("the Lease") with THE FRESH COMPANY
OF NEW YORK, INC.("Tenant")dated as of October 17, 1997 pursuant to which
Landlord leased to Tenant, and Tenant leased from Landlord, premises located in
the County of Essex, State of New Jersey, commonly known as 000 XXXXXX XXXXXX,
XXXXXX, XXX XXXXXX, all as more particularly described in the Lease,
irrevocably guaranties to Landlord, its successors and assigns, of all the
terms, obligations, covenants and agreements under the Lease, and each of them,
on the part of the Tenant, its successors and assigns, to be observed or
performed, and, without limiting the foregoing, the full and punctual payment
by Tenant and its successors and assigns of all rentals, additional rentals and
other sums of money, as and when they become due and payable by Tenant, its
successors and assigns, as provided in the Lease.
In accordance with the foregoing, and in order to induce Landlord to
enter into the Lease with Tenant and for good and valuable consideration, whose
receipt and adequacy are acknowledged by Guarantor, Guarantor agrees as
follows:
48. The Guarantor irrevocably and unconditionally guaranties to the Landlord,
and the successors and assigns of the Landlord, the Tenant's full and punctual
performance of its obligations under the Lease and, without limiting the
foregoing, the full and punctual payment by Tenant of all rentals, additional
rentals and other sums of money, as and when they become due and payable by
Tenant, as provided in the Lease. The Guarantor waives notice of any breach or
default by the Tenant under the Lease. If Tenant defaults in the performance of
its obligations under the Lease, upon the Landlord's request, the Guarantor
will perform the Tenant's obligations under the Lease.
49. Any act of the Landlord, or the successors or assigns of the Landlord,
consisting of a waiver of any of the terms or conditions of the Lease, or the
giving of any consent to any matter related to or thing relating to the Lease,
or the granting of any indulgences or extensions of time to the Tenant, may be
done without notice to the Guarantor and without affecting the obligations of
the Guarantor under this Guaranty.
50. The obligations of the Guarantor under this Guaranty will not be released
by the Landlord's receipt, application, or release of security given for the
performance of the Tenant's obligations under the Lease, not by any
modification of the Lease. In case of any such modification, the liability of
the Guarantor will be deemed modified in accordance with the terms of any such
modification. If, by application of any funds by Landlord as aforesaid,
Tenant's obligations are reduced, then the Guarantor's obligations shall also
be reduced so that they shall not be greater than the obligations of the
Tenant.
51. The liability of the Guarantor under this Guaranty will not be affected by
(a) the release or discharge of the Tenant from its obligations under the Lease
in any creditors', receivership, bankruptcy, or other proceedings, or the
commencement or pendency of any such proceedings; (b) the impairment,
limitation, or modification of the liability of the Tenant or the estate of the
Tenant in bankruptcy, or of any remedy for the enforcement of the Tenant's
liability under the Lease, resulting from the operation of any present or
future bankruptcy code or other statute, or from the decision in any court; (c)
the rejection or disaffirmance of the Lease in any such proceedings; (d) the
assignment or transfer of the Lease by the Tenant; (e)any disability or other
defense of the Tenant; or (f) the cessation from any cause whatsoever of the
liability of the Tenant under the Lease.
52. Until all of the Tenant's obligations under the Lease are fully performed,
the Guarantor: (a) waives any right of subrogation against the Tenant by reason
of any payments or acts of performance by the Guarantor, in compliance with the
obligations of the Guarantor under this Guaranty; (b) waives any other right
which the Guarantor may have against the Tenant by reason of any one or more
payments or acts in compliance with the obligations of the Guarantor under this
Guaranty; and (c) subordinates any liability or indebtedness of the Tenant held
by the Guarantor to the obligations of the Tenant to the Landlord under the
Lease.
53. The provisions of the Lease may be changed by agreement between landlord
and Tenant at any time, or by course of conduct, without the consent of or
without notice to Guarantor. This Guaranty will apply to the Lease, any
extension or renewal of the Lease, and any holdover term following the term, or
any such extension or renewal and shall guaranty the performance of the Lease
as so changed.
54. This Guaranty may not be changed, modified, discharged, or terminated
orally or in any manner other than by an agreement in writing signed by the
Guarantor and the Landlord.
55. If Guarantor is more than one (1) person, Guarantor's obligations are joint
and several and are independent of Tenant's obligations. A separate action may
be brought or prosecuted against any Guarantor, whether the action is brought
or prosecuted against any other Guarantor or Tenant, or all, or whether any
other Guarantor or Tenant or all are joined in the action.
56. The Guarantor will pay on demand the reasonable attorneys' fees and costs
incurred by the Landlord, or its successors and assigns, in connection with the
enforcement of this Guaranty.
57. The Guarantor's obligations under this Guaranty shall be binding on
Guarantor's successors.
58. This Guaranty shall commence on the Commencement date of the Lease and
shall terminate upon Tenant's compliance with all of its obligations under the
Lease.
59. Guaranty hereby submits itself to the jurisdiction of the courts of the
State of New Jersey and to the jurisdiction of the United States District Court
for the District of New Jersey for the purposes of any suit, action or other
proceeding brought by Landlord arising out of or based upon this Lease.
Guarantor hereby waives and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action or proceeding, any claim that
it is not subject personally to the jurisdiction of the above-named courts,
that the suit, action or proceeding is brought in an inconvenient forum, that
the venue of the suit, action or proceeding is proper or that this Lease may
not be enforced in or by such court.
ATTEST: THE FRESH JUICE COMPANY, INC.
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxx Xxxxx
----------------------- -----------------------
Asst. Secretary Xxxxxx Xxxxx, CEO
DATED: ______________ __, 0000
XXXXX XX XXX XXXXXX )
)ss.:
COUNTY OF )
BE IT REMEMBERED, that on this ____ day of ________, 1997 before me,
the subscriber, personally appeared, _____________, who, I am satisfied, is the
person who signed the within instrument as __________ of THE FRESH JUICE
COMPANY, INC., the corporation named therein and he/she thereupon acknowledged
that the said instrument made by the corporation and sealed with its corporate
seal, was signed, sealed with the corporate seal and delivered by him/her as
such officer and is the voluntary act and deed of the corporation, made by
virtue of authority from its Board of Directors.
