Exhibit 10.1
Lease Agreement
This lease is made and entered into by and between Venture III Associates,
a New Jersey General Partnership, 0000 Xxxxxxxx Xxxx, in the Township of Dover,
Ocean County, New Jersey, referred to in this contract as Landlord, and Future
Fuels, Inc., a Nevada Corporation, referred to in this contract as Tenant.
Witnesses:
1. Premises and Terms. Landlord does hereby demise unto Tenant, and Tenant
Does hereby hire from Landlord, six (6) acres more or less as required by
Tenant, of the premises situate in the Township of Dover, Town of Toms River,
county of Ocean, and the State of New Jersey as follows: Xxx 00, Xxxxx 000 on
the Official Tax Map of the Township of Dover, more commonly known as 0000
Xxxxxxxx Xxxx, Xxxx Xxxxx, Xxx Xxxxxx, for the express purpose of erecting and
operating a waste to ethanol production facility ("Demised Premises"). Tenant
and Landlord hereby agree that the exact acreage and area of the premises to be
occupied and improved by Tenant shall be in accordance with the site plans and
specifications that shall be prepared by Tenant's engineer at Tenant's sole
cost and shall be mutually determined by Tenant and Landlord
To have and to hold, the Demised Premises unto Tenant for a term commencing
upon the execution of this Lease Agreement, and extending until midnight on the
day preceding the 15th anniversary of such date, and for any additional periods
of time during which the Demised Premises is leased by the Tenant pursuant to
the option granted in Section 4 hereof ("Term"), at the rent and upon the
terms, covenants and conditions herein contained.
2. Definitions. As used herein, the following terms shall have the meanings
ascribed to them herein: "Landlord's Improvements" shall mean all
structures, improvements, roads and items of property, whether
real or personal, located on the Demised Premises on the date hereof, together
with all additions or alterations thereto and such other property, whether real
or personal, as Landlord may hereafter place on that part of the Demised
Premises.
"Tenant's improvements" shall mean all buildings, structures, improvements,
roads and items of property, whether real or personal, including the proposed
waste to ethanol production facility erected upon the Demised Premises, but not
including any surfacing material used to cover the Demised Premises or a
portion thereof, as Tenant may hereafter construct or otherwise place on the
Demised Premises.
3. Rent. In consideration for the execution of this Lease Agreement, and as
full satisfaction of rents due from the date of execution of this Agreement to
the first date of operation of Tenant's proposed waste to ethanol facility,
Tenant will compensate Landlord with one million shares of Future Fuels, Inc.
common stock issued at par value. Beginning on the first date of operation of
Tenant's proposed waste to ethanol facility, and for the entire Term remaining
thereafter, Tenant shall pay to Landlord rent at the annual rate of $40,000 per
acre (but in no event less than six acres) occupied by Tenant in advance on the
first day of each month during the Term, at the above stated address of
Landlord or such other place as Landlord may designate by notice to Tenant, as
well as 3% of the net operating profits of the proposed waste to ethanol plant
as determined on a quarterly basis. The rent for any fractional month shall be
apportioned on the basis of the actual number of days in such month The annual
rate shall be adjusted on the first date of each calendar year of the Term in
accordance with the Consumer Price Index. The Consumer Price Index as used in
this Section 3 refers to the Consumer Price Index for New York City published
by the U.S. Department of Labor which uses 2005 as an average of 100 and the
price index on the first day of each calendar year of the Term shall be
considered to be the index of the preceding month. If such index no longer
exists or if a substantial change is made in the terms or numbers contained in
such index, a reliable governmental or other nonpartisan publication evaluating
the information theretofore used in determining such index shall be used.
Adjustments shall be calculated by the difference between the index on the date
hereof and the date in question. For example, if the index on the date hereof
is 130 and on the renewal date is 160, then the adjusted rental will be 160/130
times the basic rental set forth in Section 3 hereof.
4. Option To Renew. Tenant shall have the option to renew this Lease
Agreement for 9 successive periods of 10 years each. Tenant shall exercise such
option by giving written notice to Landlord not more than 180 days and not less
than 90 days prior to the expiration of the initial term of this Lease
Agreement or any subsequent renewal term. If Tenant shall not elect to renew
this Lease Agreement more than 90 days prior to the expiration of such initial
or renewal term, then Landlord shall be free to lease the Demised Premises for
any subsequent period. Any such renewal shall be upon the terms and conditions
of this Lease Agreement and shall be subject to the rent increases specified in
Section 3 hereof.
In the event that Tenant fails to renew the Feedstock Agreement entered
into by and between Tenant and Ocean County Recycling Center, Inc. for terms
congruent with the renewal term herein, despite Ocean County Recycling Center,
Inc.'s satisfactory performance under same, Tenant's Option to Renew shall be
considered null and void. In the event that Ocean County Recycling Center, Inc.
fails to perform its obligations under the aforesaid Feedstock Agreement,
Tenant is under no obligation to renew same, and the Option to Renew granted in
this Lease Agreement shall remain in full force and effect.
5. Tenant shall have the right to purchase the demised premises for the
price and at the terms as shall be contained in a written bona fide offer from
a third party which is acceptable to Landlord at any time during the term of
this lease. Landlord shall provide Tenant with a copy of the said written
offer. Thereafter, Tenant shall have 30 days from receipt to elect to purchase
the said premises at the price and subject to the terms of the said written
third party offer by written notice to Landlord and to forthwith execute a
contract of sale prepared by Landlord incorporating said terms. In the event
that Tenant fails to exercise the right to purchase the premises within the
time prescribed or in the event Tenant waives said right in writing or fails to
enter into a written contract to purchase the premises within a reasonable time
after submission by Landlord, Landlord shall have the right to convey title to
the third party for the consideration and at the terms set forth in the third
party offer to purchase. In the event said third party transaction does not
close within 120 days from the date of the receipt by Landlord of the third
party offer to purchase, the right of first refusal granted to Tenant shall
again apply to the above third party offer or to any new offer received by
Landlord. Nothing in this Lease shall be construed as providing Tenant with a
right to purchase if the Landlord transfers or sells the Demised Property to
one or more of its principles, currently Xxxxxx and Xxxxx Xxxxxxx, and/or to
any entity owned substantially by Xxxxxx and/or Xxxxx Xxxxxxx or their Spouses;
however, the terms of this lease Agreement shall survive such transfer or sale.
6. Landlord's and Tenant's Covenants. Landlord and Tenant hereby agree to
comply with the terms of the Feedstock Agreement, entered into by and between
Future Fuels, Inc. and Ocean County Recycling Center, Inc., who currently and
will continue to occupy and operate upon a portion of the premises not demised
to the Tenant.
The Feedstock Agreement is incorporated in this lease and made part of
it, a copy of which is attached hereto. Any breach of the Feedstock Agreement
by Tenant, or contractual interference with same by Landlord, shall constitute
a material breach of the terms of lease.
7. Maintenance and Repairs. Landlord shall maintain the Demised Premises
and Landlord's Improvements in good repair, reasonable wear and tear excepted,
and shall at its own cost and expense promptly make all necessary repairs
thereto not occasioned by the act or omission of Tenant.
Tenant shall maintain the Tenant's Improvements in good repair and in
compliance with applicable codes and other requirements, reasonable wear and
tear excepted and Tenant shall at its own cost and expense promptly make all
necessary repairs, interior, exterior, ordinary as well as extraordinary.
The provisions of this Section shall not apply to repairs or reconstruction
in the event of eminent domain, fire or other casualty or as herein otherwise
specifically provided.
8. Water and Other Utilities Services. Tenant shall pay for all water,
electricity and other utilities consumed by Tenant on the Demised Premises
during the Term. Tenant shall also pay for the cost assessed by any utility
company or municipality for the provision of such services.
9. New Construction and Alterations. During the Term, Tenant shall
undertake construction of Tenant's Improvements, specifically, the proposed 52
million gallon waste to ethanol production facility, make alterations thereto
and take any other actions with respect thereto and may, with Landlord's
consent, not to be unreasonably withheld, by use of blacktop or other surfacing
material, cover the Demised Premises or a portion thereof. Tenant shall make
Tenant's Improvements and surface the Demised Premises or a portion thereof in
accordance with the local ordinances. Tenant shall construct Tenants
Improvements in accordance with the highest standards in the industry and in
conformance with the Permit, as defined in the Feedstock Agreement, and
applicable municipal, state, and federal law, rules, and regulations. Tenant
shall be solely responsible for the costs of obtaining and maintaining all land
use approvals, permits, and land use compliance necessary for the operation of
the Tenant's Improvements.
10. Uses. Landlord hereby agrees, represents and warrants that Tenant may
use and occupy the Demised Premises only for the express purpose of erecting a
52 million gallon waste to ethanol production facility.
11. Mechanics' Liens. Tenant shall, within 60 days after the date of
filing, discharge by bond or otherwise any mechanic's lien filed against the
Demised Premises because of any work done or material furnished at the request
of the Tenant.
12. Taxes. Tenant covenants and agrees to pay to Landlord, before any
penalties or interest shall accrue thereon, only such increases in real
property taxes that may be taxed, charged, levied, assessed or imposed on the
Demised Premises or any part thereof in respect of any part of the Term solely
by reason of the existence of the Tenant's Improvements using the year of
execution of this Lease Agreement as the Base Year. The tax increase in respect
of the fiscal period in which the Term shall commence or terminate shall be
apportioned. Landlord shall on demand furnish to Tenant evidence of any tax
payment required hereunder.
If by law any real property tax is payable, or may at the option of the
taxpayer be paid, in installments, Tenant may, whether or not interest shall
accrue on the unpaid balance thereof, pay the same, and any accrued interest on
any unpaid balance thereof, in installments as each installment becomes due and
payable, but in any event before any fine, penalty, or cost may be added
thereto for nonpayment of any installments or interest. If such installment
payments require the written election of the taxpayer, Landlord shall make such
election. Tenant shall not be required to pay any installment other than those
relating to a fiscal period within the Term, except that any installment
relating to the fiscal period in which this Lease shall end shall not be
apportioned between Landlord and Tenant. Tenant shall make payment to Landlord
of any amount due hereunder, no less than forty-five (45) days prior to such
real property tax being due.
Landlord agrees that it will not settle, compromise, or otherwise act with
respect to any proposed tax assessment of the Demised Premises without first
giving Tenant timely notice thereof. Both Landlord and Tenant may protest any
such assessment or proposed assessment and both shall, upon written request of
the other, join in any such protest to the extent necessary. The costs of any
such protests shall be borne equally.
13. Landlord Not Liable for Damage to Tenant's Improvements. Landlord shall
not be responsible to Tenant for any loss or damage to the Tenant's
Improvements including environmental clean up to Tenant's Improvements for any
cause whatever, except the willful or negligent act of Landlord and the default
by Landlord in any material obligation of Landlord herein which directly
results in damages to Tenant's Improvements.
14. Tenant Not Liable for Damage to Landlord's Improvements. Tenant shall
not be responsible to Landlord for any loss or damage to the Landlord's
Improvements, except the willful or negligent act of Tenant and the default by
Tenant in any obligation of Tenant herein.
15. Liability Insurance or Surety Bond. Tenant shall not be obligated to
obtain Liability Insurance or Surety Bond until such a time that Tenant
occupies the Demised Premises for purposes of constructing the Production
Faciltiy. At such time, Tenant shall carry at its own expense public liability
insurance or surety bond of not less than $ 3, 000,000 for injury to or death
of one person, and not less than $ 5,000,000 for injury to or the death of two
or more persons arising out of a single accident or occurrence on the Demised
Premises which shall also insure the contingent liability, if any, of Landlord
naming the Landlord as an additional insured in such policies. Tenant shall
furnish Landlord with a certificate of such insurance policies, which shall
also provide that such insurance policies shall not be reduced or changed
without first giving Landlord 10 days' written notice of such change. Tenant
shall not be obligated to obtain Liability Insurance or Surety Bond for
property damage until such a time that Tenant occupies the Demised Premises for
purposes of constructing the Production Faciltiy. At such time, Tenant shall
carry its own expense property damage insurance or surety bond in an amount
that is mutually agreed upon by Tenant and Landlord to be sufficient which also
shall insure the contingent liability, if any, of Landlord naming the Landlord
as an additional insured in such policies. Tenant shall furnish Landlord with a
certificate of such insurance policies, which shall also provide that such
insurance policies shall not be reduced or changed without first giving
Landlord 10 days' written notice of such change.
In the event that Tenant is unable to obtain liability insurance or a
surety bond in the above said amounts, Tenant shall issue Landlord a guarantee
of indemnification acceptable to Landlord in place of public liability
insurance and property damage insurance policies.
16. Fire and Other Casualty Insurance. Tenant shall not be obligated to
obtain Fire and Other Casualty Insurance until such a time that Tenant occupies
the Demised Premises for purposes of constructing the Production Faciltiy. At
such time, Tenant shall, at Tenant's own cost and expense, keep the Tenant's
Improvements, exclusive of foundations, insured against loss or damage by fire
and those perils covered by "extended coverage" insurance in reasonable
amounts. The policies of such insurance shall name as the insured Landlord and
Tenant, as their interest may appear. All such insurance shall be written by
responsible companies duly authorized to transact business in the state in
which the Demised Premises are located.
17. Subrogation. Landlord and tenant hereby agree to cause any insurance
policy covering the tenant's improvements against loss by fire and the hazards
covered by an extended coverage endorsement to contain a waiver of subrogation
clause or endorsement under which the insurer waives its rights of subrogation
against either party hereto in connection with any loss or damage covered by
any such policy. Subject to the provisions of the immediately succeeding
sentence and only to the extent of the loss or damage covered by such policy,
landlord and tenant each hereby waives such causes of action either may have or
acquire against the other which are occasioned by the negligence of either of
them, or their employees or agents, resulting in personal injury or the
destruction of or damage to property belonging to the other and located on the
premises or the building of which they are a part which are caused by fire or
the hazards covered by such policy. Notwithstanding the foregoing, if such a
waiver of subrogation clause or endorsement cannot be obtained or is obtainable
only by the payment of an additional premium charge above that charged by
companies issuing such insurance without such waiver of subrogation, the party
ordering such insurance shall notify the other party of such fact and such
other party shall have a period of ten days after the giving of such notice
within which to agree to pay such additional premium if such policy is
obtainable at an additional cost, and the provisions of this paragraph shall be
of no force or effect for so long as either such insurance cannot be obtained
or the party in whose favor a waiver of subrogation is desired shall have
failed to agree to pay the additional premium charge.
18. Removal of Tenant's Improvements. Tenant may, but shall not be
obligated to, remove, free of any right or claim of Landlord, any Tenant's
Improvements located on the Demised Premises providing that Tenant's financial
obligations to Landlord are current as of the date of removal. And further
provided that Tenant returns the Demised Premises to Landlord in the condition
in which it existed prior to Tenant's Improvements.
19. Inspection by Landlord. Tenant agrees to permit Landlord and the
authorized representatives of Landlord to enter the Demised Premises at all
reasonable times, upon reasonable notice and at reasonable intervals, during
usual business hours for the purposes of: (a) inspecting the same; and (b)
making such repairs or reconstruction as is required or permitted to Landlord
hereunder; and (c) performing any work therein that may be necessary by reason
of Tenant's default under the terms of this Lease. Nothing herein shall imply
any duty upon the part of Landlord to do any such work which, under the
provisions of this lease, Tenant may be required to perform. In so doing,
Landlord shall cause Tenant the least inconvenience practicable and shall
perform all repairs or reconstruction as soon as reasonably possible.
20. Compliance with Ordinances, etc. During the Term, Tenant shall promptly
execute and comply with all statutes, ordinances, rules, orders, regulations,
and requirements of the federal, state and municipal governments and of any and
all their departments and bureaus applicable to Tenant's Improvements and
Tenant's use of the premises, for the correction, prevention, and abatement of
nuisances, violations or other grievances, in, upon or connected with the use
of the premises but only, however, to the extent that such results from the
particular use of the Tenant.
21. Casualty Damage. If the Tenant's Improvements are damaged or destroyed
by any insured against peril, then:
If substantial damage or destruction to Tenant's Improvements occurs, then
Tenant shall have 30 days following such damage or destruction wherein to elect
to terminate or rebuild. If Tenant elects not to rebuild, then Tenant may
terminate this lease as of the date Tenant returns the Demised Premises to
Landlord in the condition in which it existed prior to Tenant's Improvements.
In the event this Lease is terminated under any option or election set
forth in this Article, then such termination shall be effective as of 60 days
after the date of the casualty.
Tenant shall immediately notify Landlord in case of fire or other damage to
the Tenant's improvements. Upon any rebuilding or repairing in accordance with
this Lease, Tenant shall not be entitled to any damages from Landlord for any
inconvenience caused thereby. If Tenant shall determine to remain on the
Demised Premises, however, the Tenant shall rebuild as quickly as possible the
Tenant's Improvements and Landlord shall rebuild as quickly as possible
Landlords Improvements.
22. Condemnation. If the whole of the Demised Premises or the sole means of
access to such part is taken by eminent domain during the Term, then this Lease
shall terminate as of the date of the taking.
If a portion only of the Tenant's Improvements or the Demised Premises is
so taken, Landlord may offer Tenant an additional, equal portion of land on the
premises to occupy. In the event that such additional land is not available, or
practically occupied by Tenant, then this Lease shall terminate as to the part
so taken, and, if in Tenant's reasonable judgment the taking materially impairs
Tenant's operating on the Demised Premises, Tenant may, by written notice to
the Landlord given within 30 days after Tenant has received notice of the
taking, terminate this lease as of the date of the taking.
If this Lease terminates or is terminated pursuant to any provision of this
Section, then the Landlord shall be entitled to any award paid: (a) for the
taking of Landlord's fee interest in the Demised Premises; (b) for any
severance damage; and (c) for the taking of Landlord's interest in this Lease.
Tenant shall have the right, on a par with Landlord, to claim in condemnation
for the value of Tenant's Improvements and shall be entitled to a portion of
any such award in an amount equal to the value of Tenant's Improvements so
taken and moving expenses.
If, after a partial taking, Tenant does not terminate this Lease, then:
(1) the annual rental payable by the tenant hereunder shall, from and after
the date on which the tenant is deprived of possession of such part, be reduced
in that proportion which the remaining portion of the demised premises bears to
the total value of the demised premises before such taking;
(2) any work necessary to restore the remaining portion of the Demised
Premises to a tenantable condition shall be undertaken at the expense of
Landlord and Tenant in proportion to the amount of the award received by each
of them;
(3) while such work is in progress, if any part of the remaining portion of
the Demised Premises is rendered unusable by Tenant, there shall be a
reasonable abatement of rent according to the loss of use to Tenant; and
(4) the amounts payable to Landlord and Tenant by reason of such taking, as
above stated, shall be applied first to the cost of such restoration.
Anything herein contained to the contrary notwithstanding, Tenant shall be
entitled to any award for the taking of any property or trade fixtures of
Tenant or for any moving expenses of Tenant.
23. Assignment and Subletting. Tenant may assign this lease, or sublet the
whole or any part or parts of the Demised Premises, with the prior written
consent of Landlord which consent shall not be unreasonably withheld or
delayed; but no assignment or subletting shall relieve Tenant from continuing
liability from entire performance of this lease and full payment of the rent
herein provided for.
24. Events of Default. If any one or more of the following events
("default" or "event of default") shall happen:
(A) Tenant shall default in the due and punctual payment of rent or any
other payments required by Tenant hereunder and such default shall continue for
30 days after receipt of written notice from Landlord; or
(B) Tenant shall neglect or fail to perform or observe any of the covenants
herein contained on Tenant's part to be performed or observed and Tenant shall
fail to remedy the same within 30 days after Landlord shall have given to
Tenant written notice specifying such neglect or failure or within such
additional period, if any, as may be reasonably required to cure such default
if it is of such a nature that it cannot be cured within such 30 day period; or
(C) Tenant fails to renew the Feedstock Agreement entered into by and
between Tenant and Ocean County Recycling Center, Inc. for terms congruent with
the renewal term herein, despite Ocean County Recycling Center, Inc.'s
satisfactory performance under same.
(D) The suspension of operation of Tenant's Improvement's for any such
period of time in which it becomes reasonably clear that operations will not
resume.
(E) Tenant shall: (a) admit in writing its inability to pay its debts
generally as they become due; or (b) file a petition in bankruptcy or for
reorganization or for the adoption of an arrangement under the Bankruptcy Act
(as now or in the future amended) or an answer or other pleading be filed by or
on behalf of Tenant admitting the material allegations of such a petition or
seeking, consenting to or acquiescing in the relief provided for under such
Act; or (c) make an assignment of all or of a substantial part of its property
for the benefit of its creditors; or (d) seek or consent to or acquiesce in the
appointment of a receiver or trustee for all or a substantial part of its
property or of the Demised Premises, or of its interest in this Lease; or (e)
be adjudicated a bankrupt or insolvent, or approve a petition filed against it
for the effecting of an arrangement in bankruptcy or for a reorganization
pursuant to the Bankruptcy Act; provided, however, that none of the events
described in this subparagraph (E) shall constitute an "event of default" if
Tenant shall continue to pay the rent and such other charges as are reserved
hereunder; then Landlord shall have the right, at its election, then or at any
time thereafter, and while such event of default shall continue, to either:
(A) give Tenant written notice of Landlord's intention to terminate this
Lease on the date of such notice or on any later date specified therein, and on
the date specified in such notice Tenant's right to the use, occupancy and
possession of the Demised Premises shall cease and this Lease shall thereupon
be terminated; or
(B) re-enter and take possession of the Demised Premises or any part
thereof and repossess the same as of Landlord's former estate and expel Tenant
and those claiming through or under Tenant and remove the effects of both or
either therefrom without being deemed guilty of any manner of trespass. Any
such property which is removed may be stored by Landlord in a public warehouse
or elsewhere at the cost of and for the account of Tenant. Should Landlord
elect to reenter as provided in this subparagraph (B) or should Landlord take
possession pursuant to legal proceedings or pursuant to any notice provided for
by law then this Lease shall be deemed to have been terminated as of the date
of such repossession or reentry.
In the event that Landlord does not elect to terminate this Lease as permitted
in subparagraph (A) above, but on the contrary elects to take possession as
provided in subparagraph (B) above, then such repossession shall relieve Tenant
of its liability and obligation under this Lease. In the event of such
repossession, Tenant shall pay the rent and all additional rent and other sums
as herein provided up to the time of termination of this Lease (which Landlord
can declare at any time while Tenant remains in default).
25. Tenants Rights When Conditioned on Absence of Default. Whenever in this
Lease a right or obligation of Tenant or Landlord is conditioned upon the
presence or absence of any default, noncompliance, nonperformance, violation or
breach by the Tenant of any of the Tenant's obligations under this lease, the
Tenant shall not be deemed to be in default, noncompliance, nonperformance,
violation or breach of any such obligation unless and until the Tenant's time
to rule the same, as herein elsewhere provided, has expired.
26. Landlord's Covenants in Respect to Superior. Landlord shall pay when
due all principal and interest on any mortgage or superior lease to which this
Lease is subordinate or subordinated, and shall pay all mechanic's liens filed
against the Demised Premises by reason of any construction required by Landlord
hereunder.
27. Surrender of Premises. Upon termination of this lease, whether by lapse
of time, cancellation pursuant to an election provided for herein, forfeiture
or otherwise, Tenant shall immediately surrender possession of the Demised
Premises to Landlord, in the condition that it existed prior to Tenant's
Improvements, reasonable wear and tear and damage from fire or other casualty
or peril excepted.
At any time during the term of this Lease and upon the termination of this
Lease, Tenant shall have the right to remove from the Demised Premises all
Tenant's Improvements. If this Lease terminates at any time other than the time
fixed as the expiration of the Term, Tenant shall have a reasonable time not
exceeding 60 days thereafter to effect such removal. If any of such property
shall remain on the Demised Premises after the end of the Term, or after the
60-day period above specified in the event termination occurs prior to the time
fixed as expiration of the Term, such property shall be and become the property
of Landlord without any claim therein of Tenant should Landlord so elect.
28. Quiet Enjoyment. Landlord covenants that Tenant, so long as Tenant is
not in default hereunder, shall and may peaceably and quietly have, hold and
enjoy the premises for and during the Term.
29. Remedies Cumulative. The specific remedies to which Landlord or Tenant
may resort under the terms of this lease are cumulative and are not intended to
be exclusive of any other remedies or means of redress to which they may be
lawfully entitled in case of any breach or threatened breach by either of them
or of any provisions of this Lease.
30. Right To Cure Other Party's Defaults. In the event of any default
hereunder by Tenant, Landlord may, if such default continues after reasonable
notice thereof to Tenant, cure such default for the account and at the expense
of Tenant. If Landlord at any time, by reason of such breach, is compelled to
pay, or elects to pay, any sum of money or do any act which will require the
payment of any sum of money or is compelled to incur any expense, including
reasonable attorneys' fees, in instituting, prosecuting, and/or defending any
action or proceeding to enforce Landlord's rights hereunder or otherwise, the
sum or sums so paid by Landlord, with all interest, costs and damages, shall on
demand be deemed to be additional rent hereunder and shall be due from Tenant
to Landlord on the first day of the month following the incurring of such
respective expenses. This provision is in addition to the rights of Landlord to
terminate this Lease by reason of any default on the part of Tenant.
In the event of any default hereunder by Landlord, including, by way of
illustration and not limitation, a default by Landlord in the performance of
its obligations under Section 4 hereof, Tenant may, if such default continues
after reasonable notice thereof to Landlord, cure such default for the account
and at the expense of Landlord. If Tenant at any time, by reason of such
breach, is compelled to pay, or elects to pay, any sum of money or do any act
which will require the payment of any sum of money, or is compelled to incur
any expense, including reasonable attorneys' fees, in instituting, prosecuting
and/or defending any action or proceeding to enforce Tenant's rights hereunder
or otherwise, the sum or sums so paid by Tenant, with all interest, costs and
damages, shall on demand be paid by Landlord to Tenant or may be deducted by
Tenant from any monies then due or thereafter becoming due from Tenant to
Landlord. In no event, including the default by Landlord, shall the common
stock of the Tenant described in Paragraph 3 above be required to be returned
to Tenant.
31. Arbitration. Except as otherwise specifically provided herein, all
disputes arising under this Lease Agreement shall be submitted to arbitration
under the rules then obtaining of the American Arbitration Association with
arbitrators to be selected from that chapter's panel and submission to
arbitration shall be a condition precedent to the maintenance of any litigation
respecting any rights or obligations arising under this Lease. Arbitration
shall take place in Ocean County New Jersey. The award in arbitration shall be
binding upon the parties hereto and shall be entered as a judgment in the
applicable court. The arbitrators may in their discretion award costs against
the losing party or may divide costs in any manner they deem appropriate.
Notwithstanding the foregoing, nothing in this lease shall prevent a party from
seeking court intervention for matters that cannot be resolved by arbitration
such as injunctions and other relief.
32. Memoranda of Lease. At the request of either party, Landlord and Tenant
will execute and deliver, in duplicate original counterparts, a recordable
memorandum of this Lease Agreement identifying the Demised Premises and,
stating the Term and providing such other information as may reasonably be
required.
At or after any modification of this Lease, at the request of either party,
Landlord and Tenant will execute and deliver, in duplicate original
counterparts, a recordable memorandum of such modification.
The costs of recording any such memorandum shall be borne by the party
requesting the same. 33. Notices. Any notice, demand or request which under
the terms of this Lease or under any statute must or
may be given or made by either of the parties hereto to the other party shall
be in writing, and shall be given by mailing the same by registered mail
addressed to the address first written above. Either party, however, may
designate in writing any new or other address to which such notice, demand or
request shall thereafter be so mailed. Any such notice, demand or request shall
be deemed given when deposited in a United States general or branch post
office, maintained by the United States Government, enclosed in a registered,
prepaid wrapper address as provided above.
34. No Oral Modification. This instrument contains all the agreements and
conditions made between the parties hereto with respect to the leasing of the
Demised Premises, and may not be modified, waived or terminated in any manner
other than by an agreement in writing signed by all the parties hereto or their
respective successors in interest.
35. Rights of Successors and Assigns. The covenants and agreements
contained in this Lease shall apply, inure to the benefit of and be binding
upon the parties hereto and their respective successors in interest and legal
representatives, except as otherwise herein expressly provided. The terms
"Landlord" and "Tenant", as used in this Lease, shall be deemed to refer to the
parties executing this Lease as Landlord and Tenant as well as their respective
successors, assigns, and legal representatives.
36. Applicable Law. The law of the state in which the Demised Premises are
located shall govern the rights and duties of the parties to this Lease and the
interpretation of its provisions.
37. Waiver of Trial by Jury. It is mutually agreed by and between Landlord
and Tenant that the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of
the parties hereto against the other (except for personal injury or property
damage) on any matters whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant, Tenant's use of or
occupancy of the premises, and any emergency statutory or any other statutory
remedy.
38. Fees and Expenses. If at any time during the term hereof after notice
Tenant or Landlord fails, refuses or neglects to do any of the things herein
provided to be done by it, Landlord or Tenant, as the case may be, shall have
the right but not the obligation to do the same, but at the cost and for the
account of the other party, and any amount so expended shall be repaid to
Landlord or Tenant forthwith upon payment by the other party.
In the event of any litigation or arbitration between Tenant and Landlord
to enforce any provision of this Lease or any right of either party hereto, the
unsuccessful party to such litigation or arbitration shall pay to the
successful party all costs and expenses, including reasonable attorneys' fees,
incurred therein. Moreover, if either party hereto without fault is made a
party to any litigation instituted by or against any other party to this Lease,
such other party shall indemnify Landlord or Tenant, as the case may be,
against and save it harmless from all costs and expenses, including reasonable
attorneys' fees incurred by it in connection therewith.
39. Captions. The captions as to contents of particular articles herein are
inserted only for convenience, and are in no way to be construed as parts of
this Lease or as limitations or qualifications or enlargements of the
particular articles to which they refer.
IN WITNESS WHEREOF, the duly authorized officers of each of the
undersigned have set their hand in seal the day and year first above written.
VENTURE III ASSOCIATES,
a New Jersey General Partnership
By: /s/ Xxxxx Xxxxxxx 11/03/05
--------------------------
Xxxxx Xxxxxxx, General Partner
By: /s/ Xxxxxx Xxxxxxx 11/03/05
--------------------------
Xxxxxx Xxxxxxx, General Partner
FUTURE FUELS, INC.,
a Nevada Corporation
By: /s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx President FFI
