Exhibit 10.1
SUBLEASE
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SUBLEASE dated as of September 28, 2000 between CH/EQUITY NJ, LLC, a
Delaware limited liability company, with a principal place of business at 0000
XxXxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, as sublandlord (the
"Sublandlord") and USA DETERGENTS, INC., a Delaware corporation, with a
principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxx
00000, as subtenant (the "Subtenant").
Recitals:
WHEREAS, by Lease dated as of October 2, 1961 (the "Original Lease"),
Berkshire Properties, Inc., as predecessor-in-interest to Kinpark Associates and
Highpoint Associates ("Overlandlord"), as lessor, leased to The Goodyear Tire &
Rubber Company, a Delaware corporation with a principal place of business in
Akron, Ohio ("Goodyear"), as tenant, the land with the buildings and
improvements thereon described therein (the "Premises"); and
WHEREAS, the Original Lease was amended by Supplement to Lease dated as
of March 15, 1965 by and between Overlandlord and Goodyear (the "Supplement");
and
WHEREAS, the Original Lease, the Supplement and three notices to extend
the term thereof are hereinafter collectively referred to as the "Lease", and
the premises leased to Goodyear thereunder are referred to herein as the "Leased
Premises"; and
WHEREAS, the Leased Premises are currently improved by a warehouse and
office building (the "Building") containing approximately 524,518 square feet of
space; and
WHEREAS, by Lease Assignment and Assumption Agreement dated September
18, 2000 by and between Goodyear, as assignor, and Sublandlord, as assignee (the
"Assignment"), Goodyear assigned to Sublandlord all of its right, title and
interest as tenant under the Lease and Sublandlord assumed all of Goodyear's
obligations under the Lease; and
WHEREAS, a copy of the Assignment is attached hereto as Exhibit B,
attached to which is a copy of the Lease; and
WHEREAS, Sublandlord desires to sublease to Subtenant, and Subtenant
desires to sublease from Sublandlord, the entire Leased Premises, which is more
particularly described in the Lease, all on the terms and conditions set forth
herein;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the parties hereto, the parties hereto hereby agree as follows:
1. TERM:
(a) INITIAL TERM. Sublandlord hereby subleases the Leased Premises to
Subtenant, and Subtenant hereby takes and subleases the Leased
Premises from Sublandlord, for a term commencing on October 1,
2000 and expiring at 12:00 midnight on September 30, 2010 (the
"Initial Term"). As used herein, the word "Term" shall mean the
Initial Term, as the same may be extended pursuant to Subsection
1(b) below.
(b) EXTENSION TERMS. If at the time of the exercise of the option
described herein and at the commencement of any extension term
(A) no default by Subtenant under this Sublease remains uncured
beyond any applicable grace or cure period, and (B) not more than
twenty-five percent (25%) of the Leased Premises are subject to a
sub-sublease or license, then Subtenant shall have the option,
subject to the provisions hereof, to extend the Initial Term with
respect to the entire Leased Premises for two five-year periods
commencing on October 1, 2010 and October 1, 2015, respectively.
Base Rent per square foot of Rentable Floor Area during any such
extension term shall be "Fair Market Rent", which shall be
defined herein as the annual fair market rent per square foot for
comparable warehouse premises in the greater metropolitan area in
which the Leased Premises are located and in the condition in
which the Leased Premises are required to be maintained for a
similar term commencing on the commencement date for the
extension term in question and with operating expenses paid as
set forth in the Lease and otherwise under the terms of this
Sublease.
The option to extend this Sublease for each extension term shall
be exercised and Fair Market Rent shall be determined as follows:
(i) Subtenant shall, on a date not less than one (1) year and
not more than fifteen (15) months before the Initial Term is
then scheduled to expire, time being of the essence, give
Sublandlord notice of its exercise of the extension option
for the initial five (5) year extension term. If applicable,
Subtenant shall, on a date not less than one (1) year and
not more than fifteen (15) months before the initial five
(5) year extension term is scheduled to expire, time being
of the essence, give Sublandlord notice of its exercise of
the extension option for the second five (5) year extension
term. If Subtenant shall fail to give Sublandlord timely
notice of exercise in accordance with the preceding
sentences, Subtenant's option to extend the Term and any
subsequent extension option shall expire and be of no
further effect. Subtenant shall have no right hereunder to
assign, transfer or otherwise confer upon any sub-subtenant
or licensee of all or any part of the Leased Premises (other
than Church & Xxxxxx Co., Inc.) Subtenant's extension rights
hereunder with respect to any portion of the Leased Premises
greater than twenty-five percent (25%) of the entire Leased
Premises.
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(ii) If Subtenant has given a notice of extension described in
and in accordance with clause (i) above, Sublandlord shall
give both Subtenant and Church & Xxxxxx Co., Inc. notice of
its proposed Fair Market Rent (the "Rent Notice") with
respect to the applicable extension term at any time within,
but no later than, sixty (60) days of the date of such
Subtenant's notice.
(iii) Within thirty (30) days of receipt of Sublandlord's Rent
Notice, Subtenant shall notify Sublandlord of Subtenant's
agreement to or disagreement with the terms of Sublandlord's
Rent Notice. If Subtenant shall fail timely to respond to
any Sublandlord's Rent Notice given under clause (ii) above
within such thirty (30) day period, time being of the
essence, Base Rent for the extension term shall be the Fair
Market Rent set forth in such Rent Notice. At Subtenant's
request, contained in its timely reply to Sublandlord's Rent
Notice, the parties shall negotiate in good faith with
respect to Fair Market Rent. If Subtenant and Sublandlord,
having negotiated in good faith, shall agree on Fair Market
Rent on or before the date sixty (60) days after the date of
Sublandlord's Rent Notice, this Sublease shall be extended
in accordance with such agreement. If the parties shall not
have agreed by such date, Fair Market Rent shall be
determined by appraisal as described in clause (iv) below.
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(iv) If Sublandlord and Subtenant have not reached agreement as
to Fair Market Rent with respect to any such extension term
on or before the date which is sixty (60) days after the
giving of Sublandlord's Rent Notice, Sublandlord shall give
notice to Subtenant of an appraiser whom Sublandlord
designates to ascertain such Fair Market Rent. If within ten
(10) days of such notice Subtenant objects to such person,
then Subtenant shall give notice to Sublandlord and
designate another appraiser (and failure so to notify
Sublandlord shall bind Subtenant to the appraiser designated
by Sublandlord). If within ten (10) days of such notice
Sublandlord objects to such person (and failure so to notify
Subtenant shall bind Sublandlord to the appraiser designated
by Subtenant), then both such appraisers shall meet and
within ten (10) days of such objection designate a third
appraiser, who alone shall within sixty (60) days of his or
her designation ascertain such Fair Market Rent. (If the two
appraisers fail to designate the third appraiser within such
time, then either Sublandlord or Subtenant may request the
appropriate division of the New Jersey trial court to
designate the third appraiser). Any appraiser designated
shall be an independent, third party appraiser not
affiliated with or previously employed by the party
designating such appraiser and shall have had at least ten
(10) years experience in ownership, management, leasing
and/or appraising of major industrial and warehouse
facilities in the greater metropolitan area in which the
Leased Premises are located similar in character to the
Building and shall be a member of M.A.I. or A.S.R.E.C. (or
successor professional organizations) and otherwise qualify
as an expert witness to give opinion testimony addressed to
the issue of Fair Market Rent for facilities such as the
Building in a court of competent jurisdiction; provided,
however, that either party may designate a real estate
professional without such qualification if the designation
of such professional is consented to in advance of such
designation by the other party, in its sole discretion, and
further provided that a failure to reply to a request for
such consent on or before the date the designation is
required to be made (but in no event less than ten (10) days
prior to the date such party is requested to consent) shall
be deemed a refusal of such consent. The written opinion of
Fair Market Rent of the appraiser so chosen shall
conclusively establish Fair Market Rent for the applicable
extension term. Both parties shall have the opportunity to
present evidence in accordance with reasonable procedures
prescribed by the appraiser. The fee of the appraiser shall
be paid equally by the parties, provided that each party
shall pay the fees of its own counsel and witnesses. Fair
Market Rent may or may not, in the discretion of the
appraiser, be determined with reference to applicable
Consumer Price Indices or other increases, all as such
appraiser decides is customary at the time. In the event
that for any reason the procedures set forth above are not
completed prior to the commencement of the applicable
extension term, Subtenant shall pay on account of Base Rent
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at the rate per square foot established for Base Rent for
the year prior to the beginning of the extension term in
question and a retroactive adjustment shall be made
effective as of the beginning of the extension term when the
appraiser's decision is rendered.
(c) Provided that Subtenant is not then (i) in breach or default
of any of its monetary obligations hereunder or under the
Lease (to the extent incorporated into this Sublease and
applicable to Subtenant) beyond any applicable notice, grace
or cure periods, or (ii) in breach or default of any of its
other covenants, obligations or undertakings hereunder or
under the Lease (to the extent incorporated into this
Sublease and applicable to Subtenant) beyond any applicable
notice, grace or cure periods, Sublandord agrees that it
shall timely and properly exercise its right to extend the
term of the Lease, on each occasion that such exercise shall
be necessary under and as provided in the Lease, in order
that Subtenant may exercise its rights to extend the Term of
this Sublease as provided herein. Sublandlord shall,
simultaneously with furnishing any notice to Overlandlord to
extend the term of the Lease, furnish Subtenant with a copy
of such notice.
2. BASE RENT: Except as otherwise set forth below with respect to the months
of October and November, 2000, during the Initial Term, Subtenant shall
pay to Sublandlord, at the following address or such other address as
Sublandlord may provide by written notice to Subtenant (such notice to be
effective upon receipt by Subtenant), on or before the first day of each
month without notice or billing therefore, Base Rent as provided below:
CH/Equity NJ, LLC
X.X. Xxx 000000
Xxxxxx, XX 00000-0000
Subtenant's obligation to pay Base Rent hereunder shall commence on
December 1, 2000. Base Rent shall be payable monthly in advance. Base
Rent shall be paid with respect to the following Lease Years in the
amounts set forth below. As used herein, the term "Lease Year" shall
mean a period commencing on the first day of the Initial Term (and each
anniversary thereof) and ending the day prior to each anniversary
thereof. Sublandlord hereby acknowledges receipt from Subtenant of the
sum of $50,000.00, which amount shall be credited against the first
month's Base Rent due under this Sublease. Monthly Base Rent for any
partial month at the end of the Term of this Sublease shall be prorated
according to the actual number of days of such month included in the
Term of this Sublease.
Lease Year Annual Rent/SF Annual Base Rent Monthly Base Rent
---------- -------------- ---------------- -----------------
1 through 5 $ 4.00 $ 2,098,072.00 $ 174,839.33
6 through 10 4.50 2,360,331.00 196,694.25
3. ADDITIONAL RENT AND OTHER PAYMENTS: This Sublease is intended to be, and
shall for all
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purposes be deemed to be, a net lease, to the effect that all payments of
Base Rent to Sublandlord hereunder shall be absolutely net of all
payments, charges, fees, expense, cost or liabilities of any kind
whatsoever imposed upon or incurred by Subtenant with respect to
Subtenant's use and enjoyment of the Leased Premises hereunder. Without
limiting the generality of the foregoing, during the Term Subtenant shall
be responsible for and shall be obligated to make the following payments,
each of which shall be deemed to be Additional Rent hereunder:
(a) Subtenant agrees to assume and be obligated to perform all
obligations and to pay all charges, costs, expenses, fees and taxes
of whatever nature hereafter imposed by any governmental body
upon either of Overlandlord or Sublandlord and attributed to or
measured by rentals payable by sublessees to sublessors (other
than general income taxes).
(b) Subtenant shall be responsible for payment of, and shall pay
directly to the utility providers, all of its charges for all
gas, electric, water, sewer, heat and other utilities servicing the
Leased Premises.
(c) If any operating expenses or real estate taxes and assessements with
respect to the Leased Premises are charged to Sublandlord or
Overlandlord, Subtenant shall pay to Sublandlord, within thirty
(30) days after receipt by Subtenant of an invoice therefor, the
full amount thereof payable by Sublandlord; provided, however,
that notwithstanding the foregoing, in no event shall real estate
taxes and assessments be payable by Subtenant more than thirty
(30) days prior to the date they are required to be paid to the
applicable taxing authority, and Sublandlord agrees to timely pay
such amount to the applicable taxing authority.
(d) Subtenant hereby assumes all other obligations of Sublandlord
under the Lease to make payments with respect to the Leased
Premises to Overlandlord or any other person or entity (except
that Subtenant shall not be obligated to pay any rent payable
pursuant to Article VI of the Lease). All such payments shall
be made by Sublandlord, and Subtenant agrees to reimburse
Sublandlord for each such payment made by Sublandlord within
thirty (30) days after receipt by Subtenant of an invoice therefor
by Sublandlord or to make each such payment to the person or
entity entitled thereto within thirty (30) days of Sublandlord's
request accompanied by an invoice or other statement to be paid.
(e) Subtenant shall reimburse Sublandlord for the cost of fire,
explosion and casualty insurance on the Building obtained by
Sublandlord pursuant to Subsection 9(b) hereof within thirty
(30) days after receipt by Subtenant of an invoice therefor by
Sublandlord.
4. LEASE TERMS:
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(a) Except as otherwise specifically provided in this Sublease, this
Sublease expressly incorporates by reference, as fully and
effectually as if set forth in full in this Sublease, all of the
terms, covenants and conditions of the Lease, to the effect that
Subtenant shall enjoy each and every right of Sublandlord as
tenant under the Lease and shall be obligated to observe and
perform each and every covenant, condition and agreement on
Sublandlord's part to be observed and performed as tenant under
the Lease. This Sublease is subordinate in all respects to the
Lease.
(b) Subtenant covenants and agrees during the Term:
(i) except as otherwise expressly set forth in this Sublease, to
perform and to observe all the terms, covenants, conditions
and agreements of the Lease on the part of the tenant
thereunder to be performed and observed, including, without
limitation, any and all obligations imposed upon the tenant
under the Lease to maintain and repair the Building or the
Leased Premises and to replace structural elements and
systems in and to the Building or the Leased Premises; and
(ii) that Subtenant will not do or cause to be done or suffer or
permit any act or thing to be done which would or might
cause the Lease or the rights of Sublandord, as tenant
thereunder, to be canceled, terminated or forfeited or which
would make Sublandlord liable for any damages, claim or
penalty; and
(iii) to indemnify, defend, save and hold Sublandlord and the Leased
Premises free, clear and harmless from any and all
liability, loss, costs, charges, penalties, obligations,
expenses, attorneys' fees, litigation, judgments, damages,
claims and demands of any kind whatsoever in connection
with, arising during the Term of this Sublease and arising
out of or by reason of (a) any violation of law, ordinance
or regulation by Subtenant, its agents, employees, servants,
contractors, subtenants, licensees, concessionaires,
customers or invitees, or (b) any violation of the terms of
this Sublease by Subtenant, or (c) any interference by
Subtenant or its agents, employees, servants, contractors,
subtenants, licensees, concessionaires, customers or
invitees with the Lease or the rights of Sublandlord as
tenant thereunder, or (d) any injury or damage, however
occurring, to any person or persons whomsoever (including
Subtenant, its agents, employees, servants, contractors,
subtenants, licensees, concessionaires, customers or
invitees), excluding, in any event, injury or damage to
persons caused by the negligence or wilful misconduct of
Sublandlord or its agents, employees, servants, contractors,
subtenants, licensees, concessionaires, customers or
business invitees, or (e) any repairs or improvements which
may be made by Subtenant or any failure by Subtenant to make
or to cause to be made any
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required or necessary repairs or improvements, to the
Building or the Leased Premises, or to property of any kind
whatsoever and to whomsoever belonging (including Subtenant,
its agents, employees, servants, contractors, subtenants,
licensees, concessionaires, customers or invitees) relating
to the Leased Premises, or (f) the occupancy and use of the
Leased Premises by the Subtenant or any other person
whomsoever (including, without limitation, its respective
agents, employees, servants, contractors, subtenants,
licensees, concessionaires, customers or invitees), or (g)
Overlandlord's termination of the Lease prior to the
expiration of this Sublease due to any act or omission of
Subtenant or any of its subtenants or any of their
respective agents, employees, servants, subtenants,
contractors, licensees, concessionaires, customers or
invitees.
(c) Subtenant shall be entitled to the benefit of all of the obligations
of Overlandlord pursuant to the Lease, including, without
limitation, any and all of the services, restorations, repairs,
equipment and access which the Overlandlord is obligated to
furnish or make to or in the Leased Premises pursuant to the
terms of the Lease. Sublandlord shall, at all times, exercise its
reasonable efforts to cause Overlandlord to perform
Overlandlord's obligations under the Lease. In the event
Overlandlord shall fail or refuse to comply with any of the terms
of the Lease affecting the Leased Premises or the use or
occupancy thereof by Subtenant, Subtenant may, to the extent
permitted by applicable law, in its own name (and with the prior
written consent of Sublandlord, which consent shall not be
unreasonably withheld or delayed under the circumstances, in the
name of Sublandlord), at its own expense, compel performance by
Overlandlord pursuant to the terms of the Lease.
(d) Notwithstanding anything in this Sublease to the contrary, for
purposes of incorporation by reference into this Sublease, the
following provisions of the Lease, together with any references
to such provisions, are deemed deleted and are expressly not
incorporated into this Sublease (unless otherwise modified
below): (i) Article III, Section 2; (ii) Article V; (iii) Article
VI, Section 1, the second sentence of Section 2 and Subsections
3(b), 3(e) and 3(f); (iv) the phrase "to the public officers
charged with the collection thereof" shall be deleted from
Article VIII, Section 1; (v) the entire first sentence shall be
deleted from Article VIII, Section 2; (vi) Article XIX, Section 1
shall be deemed to be limited to any matters relating to the Term
of this Sublease; (vii) Article XX; (viii) Article XXI; (ix)
Article XXII, Sections 4, 5, 6, 7 and 8; (x) Article XXIII; (xi)
Article XXV shall be deemed modified by deleting the phrase "10
days" and substituting the phrase "30 days" in its place and
stead; and (xii) Schedule B.
5. NO EXCLUSIVE REMEDY. No termination of this Sublease or recovery of the
Leased Premises as hereinafter provided shall deprive Sublandlord of
any other remedy for possession of the
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Leased Premises, for rent or for damages, nor shall any distress, remedy
or suit for rent or for damages prevent Sublandlord from proceeding to
recover possession of the Leased Premises upon any breach of the
conditions hereof.
6. DEFAULT. If Subtenant shall be in default because of nonpayment of any
Base Rent, Additional Rent or any other amount due and payable by
Subtenant hereunder beyond any applicable notice and cure periods set
forth in the Lease for payment defaults by Sublandlord thereunder, or if
Subtenant shall be in default in any other respect hereunder and such
default shall not be fully and completely cured by Subtenant within thirty
(30) days after written notice thereof by Sublandlord (provided, however,
that if such default cannot be cured completely within such thirty (30)
day period and Subtenant, within such thirty (30) day period, has
commenced to cure such default and thereafter diligently proceeds to cure
such default, within a reasonable amount of time under the circumstances,
it being expressly understood that a "reasonable amount of time under the
circumstances" shall not extend beyond any time that Overlandlord shall
have the right to terminate the Lease as a result of such default by
Subtenant), or if Subtenant shall be adjudged a bankrupt, or shall make an
assignment for creditors, or if the interest of Subtenant herein shall be
sold under execution or other legal process, it shall be lawful for
Sublandlord to enter into said Leased Premises and again have, repossess
and enjoy the same as if this Sublease had not been made, and thereupon
this Sublease, and everything herein contained on the part of the
Sublandlord to be done and performed, shall cease and be utterly void,
without prejudice, however, to the right of Sublandlord to recover all
rent and other amounts due or to become due under this Sublease. In the
event of a termination of this Sublease by Sublandlord in accordance with
the foregoing provisions of this Section 6, Subtenant authorizes
Sublandlord to record a Notice of Termination of Sublease.
7. LIENS. Any mechanic's or other lien filed against the Leased Premises
for work claimed to have been done or for materials claimed to have
been furnished to Subtenant or its subtenants shall be discharged by
Subtenant within thirty (30) days after notice to Subtenant by the
lienholder of such filing, by bonding or as provided or required by law
or in any other lawful manner.
8. WAIVER. The waiver by Sublandlord or Subtenant of any default or breach
of any term, covenant or condition contained herein shall not be
construed to be a waiver of any preceding or subsequent breach of the
same or any other term, covenant or condition contained herein. The
subsequent acceptance of rent or other sum hereunder by Sublandlord
shall not be construed to be a waiver of any preceding breach by
Subtenant of any term, covenant or condition of this Sublease other
than the failure of Subtenant to pay the particular rental or other sum
or portion thereof so accepted, regardless of Sublandlord's knowledge
of such preceding breach at the time of acceptance of such rent or
other sum.
9. INSURANCE.
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(a) Subtenant shall obtain and maintain, during the term of this
Sublease, with Sublandlord and Overlandlord included as additional
named insureds thereunder, a policy of comprehensive general liability
insurance coverage up to a combined personal injury and property
damage single limit of at least $3,000,000 as to each occurrence or
the equivalent thereof, and will furnish each of Sublandlord and
Overlandlord with a certificate showing the issuance of such coverage.
The certificate shall contain a provision that the policy may not be
cancelled except after thirty (30) days' prior written notice to
Sublandlord. The parties recognize that the term of this Sublease
extends over many years, and Sublandlord is accordingly granted the
right to require increases in the amount of coverage required
hereunder by giving written notice to that effect to Subtenant no more
frequently than once every five years and in increments of no more
than $1,000,000 per notice.
(b) During the term of this Sublease, Sublandlord shall obtain and
maintain policies of insurance insuring the Building against fire,
explosion and other casualty in the amount of the full replacement
cost thereof (without deduction for depreciation), together with
rental loss coverage, and otherwise on the terms and conditions
specified in or required by the Lease, and Subtenant shall pay, as
Additional Rent hereunder and in accordance with the terms hereof, the
cost of such insurance. Sublandlord's obligation under this Subsection
9(b) shall not extend to casualty, loss or damage to any of
Subtenant's personal property or chattels, including, without
limitation, any of Subtenant's inventory, trade fixtures, machinery or
equipment kept in or on the Leased Premises.
(c) During the term of this Sublease, Subtenant shall obtain and maintain
policies of insurance insuring all of its personal property, chattels,
inventory, trade fixtures, furniture, furnishings, machinery,
equipment, goods, supplies and stock of every kind and description
stored, kept, installed or used in or upon the Leased Premises against
damage, loss or destruction by fire, explosion, water damage or other
casualty. It is expressly understood and agreed that in no event shall
Sublandlord be liable for any damage, loss or destruction of
Subtenant's personal property, chattels, inventory, trade fixtures,
furniture, furnishings, machinery, equipment, goods, supplies and
stock, of any kind or description, as a result of fire, explosion,
water damage or other casualty in or upon the Leased Premises.
(d) The policies of insurance required under this section shall be
obtained from licensed insurance companies qualified to do business in
the State of New Jersey and rated A or better by A.M. Best or
equivalent rating service if A.M. Best ratings cease to be available.
Insurance coverages under this Section 9 shall not contain deductibles
in excess of Ten Thousand Dollars ($10,000.00).
(e) At the request of either party, the other party shall furnish a
certificate of insurance to the requesting party showing that
insurance required by Subsection 9(b), Subsection 9(c) or Subsection
9(d), as the case may be, is in full force and effect.
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Each such certificate shall contain a provision that the policy may
not be cancelled except after thirty (30) days' prior written notice
to Sublandlord or Subtenant, as applicable.
(f) All insurance carried by either party hereunder with respect to the
Building or the Leased Premises, or to any personal property,
chattels, inventory, trade fixtures, furniture, furnishings,
machinery, equipment, goods, supplies and stock of Subtenant stored,
kept, installed or used by Subtenant therein, shall include provisions
which deny to the insurer acquisition by subrogation of rights of
recovery against the other party to the extent such rights have been
waived by the insured party prior to the occurrence of loss or injury,
and each of Sublandlord and Subtenant, on behalf of itself and its
insurers, hereby waives all rights of recovery and subrogation against
the other for loss or injury against which the waiving party is
protected by insurance containing said provisions.
10. CONDITION OF PREMISES.
(a) Except as otherwise set forth herein, Subtenant has had a full and
complete opportunity to inspect the Leased Premises and accepts them
in their AS-IS and WHERE-IS condition with all faults and pre-existing
conditions accepted. Subtenant acknowledges that neither Sublandlord
nor any person purporting to act for Sublandlord has made or now makes
any representation as to the physical condition of the Premises.
Subtenant has undertaken whatever additional environmental review or
inspection that it desires with the assistance of such experts as
Subtenant selected and accepts the Leased Premises in their current
condition.
(b) Subtenant will not commit or permit any waste on the Leased Premises
and will require conformance with all applicable laws and ordinances
respecting use and occupancy of the Leased Premises. Subtenant will
assure that the Leased Premises are maintained in good condition and
repair during the Term and will undertake or cause to be undertaken
all maintenance, repairs and replacements required hereunder and under
the Lease during the Term. Subtenant will assure that all operations
on and use of the Leased Premises are conducted in compliance with all
applicable federal, state and municipal laws, rules, regulations and
ordinances. At the termination of this Sublease, whether at the stated
expiration hereof or earlier for any cause, Subtenant will surrender
the Leased Premises to Sublandlord in good condition and repair,
ordinary wear and tear and damage by fire or other casualty excepted,
and in compliance with the terms hereof and of the Lease.
(c) Subtenant will not make or permit to be made any alterations or
additions in or to the Leased Premises (i) without the prior written
consent of Overlandlord in all cases, if any, where the Lease requires
such consent and (ii) without giving Sublandlord at least thirty (30)
days' prior written notice in all cases (except for minor, immaterial,
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non-structural alterations or internal additions). Subtenant
acknowledges that asbestos may have been used as a construction
material on the Leased Premises, which could become a health hazard if
it is not properly maintained or handled correctly during any
renovations. Subtenant agrees to maintain the Leased Premises and
undertake any renovations with due care to the foregoing or any other
conditions on or within the Leased Premises.
(d) Notwithstanding anything in this Sublease to the contrary, Sublandlord
agrees that Sublandlord shall, during the Term of this Sublease, at
its sole cost and expense, maintain the roof of the Building in good
order and repair, and, when and if necessary, replace all or any
portion of the roof requiring replacement. In connection with any such
maintenance, repairs or replacements of the roof of the Building,
Sublandlord covenants and agrees that such work will be (i) performed
in accordance with all applicable laws and regulations of all
governmental authorities having jurisdiction and in good and
xxxxxxx-like manner using only new and first class materials; and (ii)
performed with minimal interference with the conduct of Subtenant's
business on the Leased Premises. Upon commencement of the Term of this
Sublease, Sublandlord shall promptly commence any action required
under this Subsection 10(d) and use its reasonable and diligent
efforts to complete such actions as soon as reasonably practicable.
(e) Sublandlord acknowledges that Subtenant intends to make certain
improvements to the Premises described below in order to make the
Premises more suitable for its use. In particular, Sublandlord
acknowledges that Subtenant intends to construct a bridge to the
Premises from its facility located adjacent to the Premises, the
conceptual plans for which are attached hereto as Exhibit C (the
"Bridge"). Sublandlord hereby approves the conceptual plans for the
Bridge, and agrees that Subtenant shall have the right to construct
the Bridge, provided that the Bridge and work related thereto will be
(i) performed in accordance with all applicable laws and regulations
of all governmental authorities having jurisdiction and in good and
xxxxxxx-like manner using only new and first class materials; and (ii)
completed with reasonable diligence upon commencement of construction.
In the event the Bridge is constructed, at the termination of this
Sublease, whether at the stated expiration or earlier for any cause,
Subtenant shall, at its sole cost and expense, remove the Bridge and
restore the Premises (including the Building) to substantially the
same condition it was in prior to the construction of the Bridge,
reasonable wear and tear and damage by casualty excepted.
11. ASSIGNMENT/SUB-SUBLETTING. Subtenant shall not assign this Sublease, or
sub-sublet or license the Leased Premises or any portion thereof or
permit the occupancy of all or any portion of the Leased Premises by
any other person or entity except in accordance with the provisions of
this Section 11. For purposes hereof, an assignment shall include, without
limitation, any transfer of Subtenant's interest in this Sublease by
operation of law, merger
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or consolidation of Subtenant into any other firm or corporation, and
transfers to a parent or subsidiary of Subtenant or to an entity in
common ownership with Subtenant and transfers to an entity which
purchases all or substantially all of Subtenant's assets and the
transfer or sale of a controlling interest in Subtenant, whether by
sale of its capital stock or otherwise (collectively, an "Affiliated
Assignment").
(a) Subtenant shall not assign this Sublease or any of its rights and
obligations hereunder without in each case obtaining the prior written
approval of Sublandlord, which approval may be withheld in
Sublandlord's sole discretion; provided, however, that Sublandlord
shall not withhold its approval to an Affiliated Assignment if the
proposed assignee of Subtenant has a net worth and creditworthiness
equal to or greater than Subtenant's net worth and creditworthiness as
of the date hereof or as of the proposed effective date of the
Affiliated Assignment (such approval or, if warranted, disapproval, to
be given by Sublandlord within ten (10) days of Sublandlord's receipt
of all information required under Subsection 11(e) below with respect
to such Affiliated Assignment, time being of the essence, and failure
by Sublandlord to furnish its written response to such Affiliated
Assignment within such ten (10) day period shall be deemed a written
approval by Sublandlord of such Affiliated Assignment for all purposes
hereunder); and further provided, that notwithstanding any other
provision hereof, Subtenant shall have the right at any time to assign
this Sublease to Church & Xxxxxx Co., Inc., a Delaware corporation,
without Sublandlord's prior approval (but in the event of such
assignment, Subtenant shall furnish Sublandlord with notice thereof
and a copy of the instrument effecting such assignment). In the event
of an approved or deemed approved Affiliated Assignment of this
Sublease in accordance with the terms hereof, or in the event of an
assignment of this Sublease to Church & Xxxxxx Co., Inc., from and
after the effective date of such Affiliated Assignment or assignment
to Church & Xxxxxx Co., Inc., Subtenant shall cease to have any
liability to Sublandlord for its obligations hereunder, provided that
Subtenant's assignee shall have assumed in writing all of Subtenant's
obligations under this Sublease occurring after the effective date of
the Affiliated Assignment or assignment to Church & Xxxxxx Co., Inc.
(b) Subtenant shall not sub-sublet or license the Leased Premises or any
portion thereof without in each case obtaining the prior written
approval of Sublandlord, which approval (i) shall not be unreasonably
withheld, delayed or conditioned in the case of a sub-sublet or
license of a portion of the Leased Premises which, when aggregated
with any other portion(s) of the Leased Premises which are then
subject to a sub-sublease or license approved by Sublandlord, do not
constitute greater than twenty-five percent (25%) of the entire Leased
Premises; and (ii) may be withheld in the sole discretion of
Sublandlord in the case of a sub-sublet or license of a portion of the
Leased Premises which, when aggregated with any other portion(s) of
the Leased Premises which are then subject to a sub-sublease or
license, constitute greater than twenty-five percent (25%) of the
entire Leased Premises. In the event
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of an approved sub-sublease or license of all or any portion of the
Premises, and notwithstanding any other terms or provisions hereof,
Subtenant shall at all times after the effective date thereof remain
liable to Sublandlord for its obligations under this Sublease.
(c) Notwithstanding the provisions of Subsection 11(b) above, in the event
of a proposed sub-sublease or license of all or any portion of the
Leased Premises which, when aggregated with any other portion(s) of
the Leased Premises which are then subject to a sub-sublease or
license, constitute greater than twenty-five percent (25%) of the
entire Leased Premises, Sublandlord shall have the option (but not the
obligation) to terminate this Sublease by giving Subtenant written
notice thereof not later than twenty (20) days after Sublandlord's
receipt of Subtenant's request for Sublandlord's consent to such
sub-sublease or license, time being of the essence, which notice shall
specify a termination date as of the commencement date of such
proposed sub-sublease or license. In the event that Sublandlord timely
exercises such option to terminate this Sublease, Subtenant shall have
the right to withdraw the request for Sublandlord's consent to the
proposed sub-sublease or license by giving Sublandlord written notice
of such withdrawal not later than ten (10) days after Subtenant's
receipt of Sublandlord's notice of termination, time being of the
essence. If Subtenant timely withdraws its request for Sublandlord's
consent to the proposed sub-sublease or license in accordance with the
preceding sentence, the original request for consent by Subtenant
shall be deemed never made, Sublandlord's notice of termination shall
be deemed null and void, and this Sublease shall continue in full
force and effect. If Subtenant does not timely withdraw its request
for Sublandlord's consent to the proposed sub-sublease or license,
then this Sublease shall terminate on the date specified in
Sublandlord's notice of termination.
(d) The foregoing provisions of Subsections 11(b) and 11(c) shall not
apply from and after the date, if any, that (i) Subtenant shall have
achieved a rating of A- or better from Standard & Poors or any
successor thereto; (ii) Subtenant shall have assigned all of its
right, title and interest as subtenant hereunder to Church & Xxxxxx
Co., Inc. and Church & Xxxxxx Co., Inc. shall have assumed in writing
all of Subtenant's obligations hereunder; or (iii) Church & Xxxxxx
Co., Inc. shall have executed and delivered to Sublandlord a guaranty
in the form attached hereto as Exhibit D, and from and after the date
that any of the foregoing described events shall occur, Subtenant
shall not sub-sublet or license the Leased Premises or any portion
thereof without in each case obtaining the prior written approval of
Sublandlord, which approval shall not be unreasonably withheld,
delayed or conditioned; provided, however, that in the event of such
approval by Sublandlord, and notwithstanding any other terms or
provisions hereof, Subtenant (and each of its successors and assigns)
shall remain liable to Sublandlord for its obligations under this
Sublease at all times after the effective date of such sub-sublease or
license.
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(e) Any request by Subtenant for Sublandlord's approval of an assignment
of this Sublease or a sub-sublet or license of the Leased Premises or
any part thereof shall include a copy of the proposed instrument of
assignment, sub-sublet or license or a statement thereof in detail
reasonably satisfactory to Sublandlord, together with financial,
business and other reasonable information about the proposed assignee,
sub-sublessee or licensee in detail reasonably satisfactory to
Sublandlord. Subtenant shall reimburse Sublandlord, within thirty (30)
days of Subtenant's receipt of an invoice therefor from Sublandlord,
for Sublandlord's reasonable legal fees and other actual third party
expenses incurred in connection with any proposed assignment,
sub-sublet or license, including fees for review of documents and
investigations of any proposed assignees.
(f) Notwithstanding any other provision hereof to the contrary, if
Subtenant sub-subleases or licenses all or any of the Leased Premises
hereunder after having obtained the consent of Sublandlord if required
by and in accordance with the applicable provisions of this Section
11, and if the aggregate rent and other charges payable to Subtenant
under and in connection therewith exceed the rent and other charges
paid by Subtenant to Sublandlord hereunder for the space in question,
Subtenant shall pay to Sublandlord, as additional rent hereunder,
one-half (50%) of such excess when paid to Subtenant after deduction
of Subtenant's reasonable out-of-pocket costs of obtaining such
sub-sublease or license, including, without limitation, brokerage
fees, legal costs, any work allowance, rent concessions, marketing
costs and the unamortized costs of any work performed by Subtenant in
connection with such sub-sublease or license.
12. ACCESS. Subtenant will permit Sublandlord, or its agents and
representatives, to enter upon the Leased Premises at all reasonable
times, in reasonable durations and with Subtenant's representative(s)
present, to examine the condition thereof or otherwise determine
compliance by Subtenant with the terms and conditions hereof; provided,
however, such access is conducted during Subtenant's regular business
hours and on reasonable prior notice to Subtenant; and further provided
that during any such access Sublandlord and its agents and representatives
shall use their diligent efforts to avoid interference with Subtenant's
business operations at the Leased Premises.
13. USE OF LEASED PREMISES. Subtenant shall use the Leased Premises as a
warehouse and/or manufacturing facility and for offices and for uses
normally accessory or incidental to the foregoing or for any other use
permitted under the Lease and under applicable law, and for no other
purpose or purposes whatsoever.
14. ENVIRONMENTAL COMPLIANCE. Notwithstanding, but not in limitation of,
any other provision contained in this Sublease, Subtenant covenants and
agrees as follows:
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(a) Subtenant acknowledges the existence of environmental laws, rules and
regulations which may apply to Subtenant's use of and operations on
the Leased Premises, including the provisions of the New Jersey
Industrial Site Recovery Act, as amended, N.J.S.A. 13:1K_6 et seq.
("ISRA"). Subtenant, at its sole cost and expense, shall comply with
any and all such laws, rules and regulations. In the event ISRA
compliance is required because of a change in ownership of Subtenant,
a change in the nature of Subtenant's business, cessation of
operations or any other event caused by Subtenant's use and operation
of the Leased Premises, then at Subtenant's request, Sublandlord shall
reasonably cooperate with Subtenant in connection with any such
compliance, provided that Subtenant shall bear all costs and expenses
incurred by Sublandlord of any kind or nature associated with any such
compliance, including without limitation state agency fees,
engineering fees, attorneys' fees, clean_up costs, filing fees and
suretyship expenses. Subtenant shall reimburse Sublandlord for any and
all such expenses within ten (10) days of Sublandlord's invoice
therefor. In the event ISRA is triggered by Sublandlord, then
Sublandlord shall bear all obligation to prepare any applications for
Applicability Determinations or General Information Notices and
associated filing fees, but Subtenant shall still bear all costs for
investigation and remediation, including the preparation of the
preliminary assessment and site investigation (if necessary). In every
ISRA compliance, the costs of investigation and remediation shall be
borne by Subtenant without regard to when or by whom the applicable
contamination was created. Subtenant expressly reserves for itself the
right to pursue recovery of its cost of investigation and remediation
of the Leased Premises from any party other than Sublandlord.
(b) Subtenant agrees to execute such documents as Sublandlord reasonably
deems necessary and to make such applications as Sublandlord
reasonably requires to assure compliance with applicable environmental
laws, rules and regulations, including, without limitation, ISRA. As
used in this Sublease, ISRA compliance shall include applications for
determinations of nonapplicability by the appropriate governmental
authority. The foregoing undertaking shall survive the termination or
sooner expiration of this Sublease and surrender of the Leased
Premises and shall also survive sale, or lease, sublease or assignment
of the Leased Premises by Sublandlord. Subtenant agrees to indemnify
and hold Sublandlord harmless from any violation of any applicable
environmental law, rule or regulation, including without limitation
the provisions of ISRA, occasioned by Subtenant's use of or operations
on the Leased Premises. Subtenant shall immediately provide
Sublandlord with copies of all correspondence, reports, notices,
orders, findings, declarations and other materials pertinent to
Subtenant's compliance and the requirements of the United States
Environmental Protection Agency under applicable federal law or the
New Jersey Department of Environmental Protection under ISRA as they
are issued or received by Subtenant.
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(c) Subtenant agrees not to generate, store, manufacture, refine,
transport, treat, dispose of, or otherwise permit to be present on or
about the Premises, any Hazardous Substances, except in compliance
with applicable laws, rules, regulations or ordinances. As used
herein, "Hazardous Substances" shall be defined as any "hazardous
chemical," "hazardous substance" or similar term as defined in the
Comprehensive Environmental Responsibility Compensation and Liability
Act, as amended (42 U.S.C. 9601, et seq.), ISRA, the New Jersey Spill
Compensation and Control Act, as amended, N.J.S.A. 58:10_23.11b, et
seq., any rules or regulations promulgated thereunder, or in any other
applicable federal, state or local law, rule or regulation dealing
with environmental protection. The provisions contained in this
Section 14 shall be applicable notwithstanding the fact that any
substance shall not be deemed to be a Hazardous Substance at the time
of its use by Subtenant but shall thereafter be deemed to be a
Hazardous Substance.
(d) If Subtenant fails to comply with any applicable environmental law,
rule or regulation, including ISRA, as provided in this Section, as of
the expiration or sooner termination of this Sublease and as a
consequence thereof Sublandlord is unable to rent the Leased Premises,
then Sublandlord shall treat Subtenant as having held over hereunder
at the end of the Term, and thereupon be entitled to all remedies
against Subtenant provided by Section 17 hereof, payable in advance on
the first day of each month, until such time as Subtenant provides
Sublandlord with a negative declaration or confirmation that any
required clean-up plan has been successfully completed.
(e) To the fullest extent permitted by law, and in addition to any other
covenants, agreements and indemnities made or furnished by Subtenant
hereunder, Subtenant agrees to indemnify and hold Sublandlord (and any
mortgagee of Sublandlord) and the Leased Premises harmless from and
against any and all liabilities, damages, claims, liens, losses,
judgments, causes of action, costs and expenses (including the
reasonable fees and expenses of counsel) which may be incurred by or
threatened against Sublandlord (or Sublandlord's mortgagee) or imposed
upon the Leased Premises relating to or arising out of any breach by
Subtenant of the undertakings set forth in this Section 14, said
indemnity to survive this sublease expiration or sooner termination.
15. LATE PAYMENT FEE. Subtenant hereby acknowledges that late payment by
Subtenant to Sublandlord of rent and other charges due under this Sublease
will cause Sublandlord to incur costs not contemplated by this Sublease,
the exact amount of which will be extremely difficult to ascertain.
Accordingly, if any installment of Base Rent or any other charge due
hereunder from Subtenant is not received by Sublandlord postmarked on or
before the date such amount is due and payable, Subtenant shall pay to
Sublandlord, in addition to all other sums due hereunder, a late charge
equal to five percent (5%) of such overdue amount, and in such event the
parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Sublandlord will incur by reason of the
late payment by Subtenant.
-17-
Acceptance of such late charge by Sublandlord shall in no event constitute
a waiver of Subtenant's default with respect to such overdue amount, nor
prevent Sublandlord from exercising any other rights and remedies granted
to it hereunder or by law or equity.
16. CONSENTS. With respect to any action or matter which requires
Overlandlord's consent under the provisions of the Lease, Sublandlord's
prior written consent shall also be required under this Sublease;
provided, however, that if Subtenant is not then in default of its
material covenants and obligations under this Sublease beyond applicable
notice and/or cure periods, Sublandlord's consent shall not be
unreasonably withheld, delayed or conditioned. In connection with any such
action or matter which requires Overlandlord's consent, Subtenant shall
not commence or undertake such action or matter until such time as
Subtenant has secured the required consent of Sublandlord and Overlandlord
with respect thereto. At Subtenant's request, Sublandlord agrees to
reasonably cooperate with Subtenant to obtain the consent of Overlandlord
in connection with any action or matter which requires Overlandlord's
consent under the Lease.
17. HOLDING OVER. Subtenant shall have no right to occupy the Leased Premises
or any portion thereof after the expiration of this Sublease or earlier
termination of this Sublease pursuant to the provisions hereof as a
consequence of Subtenant's default hereunder or after termination of
Subtenant's right to possession of the Leased Premises pursuant to the
provisions hereof as a consequence of Subtenant's default hereunder. In
the event Subtenant or any party claiming by, through or under
Subtenant holds over, Sublandlord may exercise any and all remedies
available to it at law or in equity to recover possession of the
Leased Premises, and to recover damages, including, without
limitation, damages payable by Sublandlord to Overlandlord as a result
of such holdover. For each and every partial month that Subtenant or
any party claiming by, through or under Subtenant remains in occupancy
of all or any portion of the Leased Premises after the expiration of
this Sublease or earlier termination of this Sublease pursuant to the
provisions hereof as a consequence of Subtenant's default hereunder or
after termination of Subtenant's right to possession of the Leased
Premises pursuant to the provisions hereof as a consequence of
Subtenant's default hereunder, Subtenant shall pay, as minimum damages
and not as a penalty, in addition to any other damages suffered by
Sublandlord, monthly rent at a rate equal to two hundred percent
(200%) of the Base Rent and Additional Rent payable by Subtenant
hereunder for the month immediately preceding the expiration of this
Sublease or the earlier termination of this Sublease pursuant to the
provisions hereof as a consequence of Subtenant's default hereunder or
the termination of Subtenant's right to possession of the Leased
Premises pursuant to the provisions hereof as a consequence of
Subtenant's default hereunder.
18. NOTICES. Any notice, request, approval, consent or other communication
required or permitted to be given under this Sublease must be in
writing and shall be deemed to be given by a party when delivered by
registered or certified mail, return receipt requested, postage
prepaid, or by nationally recognized overnight courier regularly
maintaining a record of
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receipt, addressed to the other party as follows:
If to Sublandlord: CH/Equity NJ, LLC
------------------ 0000 XxXxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxx
with a copy in
the same manner to: Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxx, Esq.
If to Subtenant: USA Detergents, Inc.
---------------- 0000 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: President
with a copy in
the same manner to: Fulbright & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
If to Church &
Xxxxxx Co., Inc.: Church & Xxxxxx Co., Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: President
with a copy in
the same manner to: Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
19. NO RECORDATION. This Sublease shall not be recorded at any place of public
record. The parties agree to execute and record a Notice of this
Sublease or Memorandum thereof at the request of either Sublandlord or
Subtenant.
-19-
20. SIGNAGE. Subtenant shall have and enjoy all rights to erect and install,
at its sole cost and expense, signage on the Building or within the
Leased Premises; provided, however, that Subtenant shall comply in all
respects with any and all applicable laws, rules, regulations or
ordinances imposed by any federal, state or municipal government,
agency or authority in connection with the erection or installation of
any such signs or signage.
21. BROKERAGE. Sublandlord and Subtenant mutually warrant and represent to
each other that they have not dealt with any broker or party which may
be entitled to a commission or fee in connection with the execution
and delivery of this Sublease, other than Xxxxxxxx & Grew,
Incorporated (on behalf of Sublandlord) and Resource Realty (on behalf
of Subtenant). Sublandlord agrees that it will pay all brokerage
commissions due to the aforesaid firms under separate agreement, and
shall indemnify and hold Subtenant harmless from any costs, expenses,
liabilities and damages, including reasonable attorneys' fees,
incurred by Subtenant as a result of any failure by Sublandlord to pay
such brokerage commissions. Sublandlord and Subtenant shall each
defend, indemnify and hold the other harmless from and against all
claims for brokerage commissions or other fees on account of this
Sublease arising out of the dealings by such party with any broker
other than the aforesaid named brokers. Without limiting the
generality of the foregoing, Subtenant shall defend, indemnify and
hold Sublandlord harmless from and against any claims for brokerage
commissions or other fees on account of this Sublease that may be
asserted by Xxxxx Realty.
22. SECURITY DEPOSIT. Subtenant agrees that a security deposit in
conformance with this Section 22 will be paid or delivered to
Sublandlord prior to the commencement of the Term of this Sublease and
that a security deposit in conformance with this Section 22 shall be
maintained during the Term of this Sublease.
(a) A security deposit in the amount of Two Million Ninety-Eight Thousand
Seventy-Two Dollars ($2,098,072.00) shall be delivered to Sublandlord
contemporaneously with the execution of this Sublease. Subtenant shall
have the option to pay all or any portion (or no portion) of said
security deposit in cash, and the balance by delivery of an
Irrevocable Standby Letter of Credit, payable to Sublandlord. Any
Letter of Credit furnished by Subtenant hereunder shall be issued by a
United States bank reasonably approved by Sublandlord, be payable by
sight draft and otherwise in form reasonably acceptable to
Sublandlord, and shall have a term at least equal in length to the
term of this Sublease (or, if the Letter of Credit is for a term
shorter than the term of this Sublease and such Letter of Credit is
not extended or renewed, or if a replacement Letter of Credit is not
furnished, at least thirty (30) days prior to its then expiration
date, Sublandlord shall have the unconditional right to draw upon the
Letter of Credit in full, in which event the security deposit
hereunder shall become an all cash deposit). Sublandlord shall hold
any cash portion of said security deposit hereunder and any Letter of
Credit delivered hereunder throughout the Term of this Sublease as
security for the
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performance by Subtenant of all obligations to be performed by
Subtenant hereunder. Sublandlord shall have the right from time to
time without prejudice to any other remedy Sublandlord shall have (i)
to apply such cash portion of said security deposit, or any part
thereof, to Sublandlord's damages arising from any default on the part
of Subtenant which remains uncured after the expiration of any
applicable notice and cure period, and (ii) if the cash portion, if
any, of said security deposit shall not be sufficient to pay
Sublandlord's damages arising from any default on the part of
Subtenant after the expiration of any applicable notice and cure
period, to draw on said Letter of Credit by sight draft and apply the
cash proceeds thereof to Sublandlord's damages arising from such
default on the part of Subtenant. If Sublandlord applies all or any
portion of any cash portion of said security deposit in accordance
herewith, Subtenant shall within fifteen (15) days after notice from
Sublandlord deliver cash to Sublandlord in an amount sufficient to
restore such cash portion of the security deposit to the amount of
such cash portion of the security deposit prior to such application,
and if Sublandlord draws on the Letter of Credit and applies the cash
proceeds thereof in accordance herewith, Subtenant shall within
fifteen (15) days after notice from Sublandlord either restore the
Letter of Credit to the amount of such Letter of Credit prior to such
draw or provide an equivalent cash deposit . While Sublandlord holds
any cash security deposit hereunder, Sublandlord shall deposit such
cash in an interest-bearing account and, provided Subtenant is not
then in default under this Sublease after the expiration of any
notice, grace or cure period, Sublandlord shall pay such interest to
Subtenant annually.
(b) The security deposit described in Subsection 22(a) above shall be
reduced to a cash security deposit in an amount equal to one (1)
month's installment of Base Rent hereunder, as the same shall be in
effect from time to time, and thereafter Subtenant shall maintain a
cash security deposit in such amount from time to time with
Sublandlord, from and after the date that any of the following shall
occur: (i) Subtenant shall have achieved a rating of A- or better from
Standard & Poors or any successor thereto; (ii) Subtenant shall have
assigned all of its right, title and interest as subtenant hereunder
to Church & Xxxxxx Co., Inc. and Church & Xxxxxx Co., Inc. shall have
assumed in writing all of Subtenant's obligations hereunder; or (iii)
Church & Xxxxxx Co., Inc. shall have executed and delivered to
Sublandlord a guaranty in the form attached hereto as Exhibit D. In
the event that the security deposit hereunder shall be reduced in
accordance with the preceding sentence, Sublandlord shall promptly
return to Subtenant any cash security deposit then held by Sublandlord
under Subsection 22(a) above in excess of the cash security deposit
required under this Subsection 22(b), and if Sublandlord shall not
then be holding a cash security deposit in an amount required under
this Subsection 22(b), Subtenant shall deposit with Sublandlord cash
in the amount of the security deposit required under this Subsection
22(b). Contemporaneously with the delivery (or retention by
Sublandlord, as the case may be) of a cash security deposit in
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conformance with this Subsection 22(b), Sublandlord shall return to
Subtenant any Letter of Credit delivered by Subtenant and then held by
Sublandlord pursuant to Subsection 22(a) hereof. While Sublandlord
holds the cash security deposit under this Subsection 22(b),
Sublandlord shall deposit such cash in an interest-bearing account
and, provided Subtenant is not then in default under this Sublease
after the expiration of any notice, grace or cure period, Sublandlord
shall pay such interest to Subtenant annually.
23. DAMAGE AND DESTRUCTION.
(a) In the event during the Term hereof the Leased Premises or any part
thereof shall be damaged or destroyed by fire, explosion, casualty or
any other occurrence covered by insurance or required to be covered by
insurance as provided herein, Sublandlord shall use its reasonable and
diligent efforts to repair such damage and restore the Leased Premises
to substantially its condition at the time of such fire, explosion,
casualty or occurrence; provided, however, that Sublandlord shall not
be obligated to expend any amount in connection with such repair and
restoration in excess the insurance proceeds actually recovered by or
paid to Sublandlord as a result of such damage or destruction.
Notwithstanding the foregoing, Sublandlord shall not be obligated to
commence such repair and restoration (i) if Subtenant is then in
breach or default of any of its monetary obligations under this
Sublease beyond any applicable notice, grace or cure period or in
breach or default of any of its other obligations under this Sublease
beyond any applicable notice, grace or cure period; (ii) if such
damage or destruction occurs during the last eighteen (18) months of
the Term of this Sublease; or (iii) if applicable law, rules,
regulations or ordinances forbid the repair or restoration of the
damaged portion of the Leased Premises. During any period that all or
any portion of the Leased Premises shall be rendered fully or
partially untenantable for the conduct of Subtenant's business in the
ordinary course as a result of any such damage or destruction, this
Sublease shall remain in full force and effect (unless otherwise
terminated in accordance with the provisions hereof), but Base Rent
and Additional Rent shall be abated proportionately and such abatement
shall continue for the period commencing with such damage or
destruction and ending with the completion by Sublandlord of such
repair and restoration of the Leased Premises that Sublandlord is
obligated to perform in accordance with the terms hereof.
(b) Notwithstanding the foregoing or any other provision of this Sublease
to the contrary, in the event that the Leased Premises or any
substantial portion thereof shall be damaged or destroyed by any
casualty or other occurrence (i) not covered by insurance or required
to be covered by insurance as provided herein; (ii) during the last
eighteen (18) months of the Term of this Sublease; (iii) the repair or
restoration of which is prohibited by applicable law, rules,
regulations or ordinances; or (iv) the repair or restoration of which
requires expenditures in
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excess of the insurance proceeds recovered or recoverable, then in
each such event Sublandlord may, at its option, terminate this
Sublease with respect to that portion of the Leased Premises rendered
untenantable by such damage or destruction by written notice to
Subtenant within ninety (90) days after the occurrence of such
casualty. If Sublandlord exercises its option as provided in the
foregoing sentence, this Sublease shall remain in full force and
effect, subject to the terms hereof, with respect to that portion of
the Leased Premises, if any, which was not affected by such damage or
destruction, provided that Sublandlord shall, at its cost and expense,
make all necessary repairs and alterations to the Building as promptly
as reasonably practicable so as to constitute the remaining Leased
Premises a complete architectural unit.
(c) Notwithstanding the foregoing provisions of this Section 23, in the
event (i) the Leased Premises or any part thereof shall be damaged or
destroyed by fire, explosion, casualty or any other occurrence covered
by insurance as provided herein; (ii) Sublandlord is obligated
pursuant to the terms hereof to repair or restore the Leased Premises
as provided herein; and (iii) Sublandlord has not completed such
repairs and restoration of the Leased Premises within fifteen (15)
months of the date of the occurrence of such casualty in accordance
with the terms hereof (the "Completion Date"), then Subtenant shall
have the option to terminate this Sublease with respect to that
portion of the Leased Premises rendered untenantable by such casualty
by written notice to Sublandlord within thirty (30) days, time being
of the essence, of the Completion Date; provided, however, that if
more than fifty (50%) of the Leased Premises shall be damaged or
destroyed by such fire, explosion or other casualty and Sublandlord
has not completed repairs and restoration of the Leased Premises as
required hereunder on or before the Completion Date, then Subtenant
shall have the option to terminate this Sublease with respect to the
entire Leased Premises by written notice to Sublandlord within thirty
(30) days, time being of the essence, of the Completion Date; and
further provided, that if more than fifty (50%) of the Leased Premises
shall be damaged or destroyed by such fire, explosion or other
casualty during the last eighteen (18) months of the Term, then
Subtenant shall have the option to terminate this Sublease with
respect to the entire Leased Premises by written notice to Sublandlord
within thirty (30) days, time being of the essence, of the occurrence
of such casualty. Notwithstanding any of the foregoing, the Completion
Date shall be extended for that number of days during the repair and
restoration period as Sublandlord is prevented from prosecuting such
repair and restoration by Acts of God, war, civil commotion, fire,
flood or other casualty, labor difficulties, shortages of labor,
materials or equipment, unusually severe weather, or other similar
causes beyond Sublandlord's reasonable control.
(d) The foregoing provisions of this Section 23 shall govern the rights
and obligations of the parties hereto in the event of damage or
destruction to the Leased Premises,
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and the provisions of the Lease relating thereto, including the
provisions of Article XX thereof, are expressly not incorporated by
reference into this Sublease.
24. EMINENT DOMAIN
(a) If during the Term of this Sublease the entire Leased Premises or
access thereto shall be taken by eminent domain or destroyed by the
action of any public or quasi-public authority, or in the event of
conveyance in lieu thereof, this Sublease and all rights and
obligations of the parties hereto shall terminate as of the day title
shall be taken by such authority, and Subtenant shall pay Base Rent
and Additional Rent up to that date with a pro-rata refund by
Sublandlord of such Base Rent and Additional Rent as shall have been
paid in advance to Sublandlord for a period subsequent to the date of
such taking of title.
(b) If more than fifty percent (50%) of the Leased Premises shall be so
taken or conveyed, or more than fifty percent (50%) of the Leased
Premises shall be rendered untenantable for the conduct of Subtenant's
business in the ordinary course as a result of such taking or
conveyance, either party shall have the right to terminate this
Sublease as of the day title shall be taken by notice in writing to
the other party given either prior to the day title shall be taken and
not later than thirty (30) days after the day title shall be taken.
Unless and until this Sublease is terminated by either party in
accordance with the preceding sentence, this Sublease shall terminate
only with respect to those portions of the Leased Premises so taken or
conveyed, or rendered untenantable for the conduct of Subtenant's
business in the ordinary course as a result of such taking or
conveyance, as of the day possession shall be taken, and Subtenant
shall pay Base Rent and Additional Rent up to that day, with an
appropriate refund by Sublandlord of such Base Rent and Additional
Rent as may have been paid in advance to Sublandlord for a period
subsequent to the date of the taking of title, and thereafter Base
Rent shall be ratably adjusted based on the square footage of the
remaining Leased Premises. Sublandlord, at its expense, shall make all
necessary repairs or alterations as promptly as reasonably practicable
so as to constitute the remaining Leased Premises a complete
architectural unit.
(c) If less than fifty percent (50%) of the Leased Premises shall be so
taken or conveyed, or rendered untenantable as a result of such taking
or conveyance, then this Sublease shall terminate only with respect to
the portion of the Leased Premises so taken or conveyed, or rendered
untenantable for the conduct of Subtenant's business in the ordinary
course as a result of such taking or conveyance, as of the day title
shall be taken, but shall remain in full force and effect, subject to
the terms hereof, with respect to the remaining Leased Premises, and
Subenant shall pay Base Rent and Additional Rent on the entire Leased
Premises up to that day, with an appropriate refund by Sublandlord of
such Base
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Rent and Additional Rent as may have been paid in advance to
Sublandlord for a period subsequent to the date of the taking of
possession with respect to that portion of the Leased Premises so
taken or conveyed, or rendered untenantable for the conduct of
Subtenant's business in the ordinary course by such taking or
conveyance, and thereafter Base Rent shall be ratably adjusted based
on the square footage of the remaining Leased Premises. Sublandlord,
at its expense, shall make all necessary repairs or alterations as
promptly as reasonably practicable so as to constitute the remaining
Leased Premises a complete architectural unit.
(d) All compensation awarded for any such taking or conveyance, whether
for the whole or a part of the Leased Premises, shall be the property
of Sublandlord, whether such damages shall be awarded as compensation
for diminution in the value of the leasehold or of the underlying
leasehold interest in the Leased Premises, and Subtenant hereby
assigns to Sublandlord all of Subtenant's right, title and interest in
and to any and all such compensation; provided, however, that
Subtenant shall be entitled to seek a separate award for Subtenant's
personal property, stock, trade fixtures, equipment and any relocation
expenses.
(e) In the event of any taking of the Leased Premises or any portion
thereof for temporary use, this Sublease shall be and remain
unaffected thereby, except that Base Rent shall be abated ratably with
respect to that portion of the Leased Premises so temporarily taken
for such period as Subtenant is denied the use and occupancy thereof.
(f) The foregoing provisions of this Section 24 shall govern the rights
and obligations of the parties hereto in the event of a taking of all
or any portion of the Leased Premises by eminent domain, or conveyance
of all or any portion of the Leased Premises in lieu thereof, and the
provisions of the Lease relating thereto, including the provisions of
Article XXI thereof, are expressly not incorporated by reference into
this Sublease.
25. SUBLANDLORD'S WARRANTIES, REPRESENTATIONS AND COVENANTS. Sublandlord
hereby warrants and represents to, and covenants and agrees with,
Subtenant as follows:
(a) Sublandlord warrants and represents to Subtenant that attached hereto
as Exhibit B is a true, correct and complete copy of the Lease and
that there are no other documents pertaining to the Leased Premises
affecting Sublandlord's tenancy thereof. Sublandlord covenants and
agrees that while this Sublease is in full force and effect,
Sublandlord will not surrender, terminate, amend or modify the Lease
without the prior written consent of Subtenant. Sublandlord further
covenants and agrees that, in the event of the timely and proper
exercise by Subtenant of any right of Subtenant to extend the Term of
this Sublease pursuant to Subsection 1(b) hereof, Sublandlord shall
extend the term of the Lease so as to permit such extension.
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(b) Sublandlord warrants and represents to Subtenant (i) that Sublandlord
has good leasehold title to the Leased Premises; (ii) that Sublandlord
has the full right to sublease the Leased Premises to Subtenant
pursuant to the terms of this Sublease; (iii) that Sublandlord's
leasehold title has not been previously assigned or sublet; (iv) that
Sublandlord has received no notice of and otherwise has no actual
knowledge that there exists any default under the Lease or any
circumstance which, with notice or the passage of time, could result
in a default under the Lease; and (v) that Sublandlord has received no
notice of and otherwise has no actual knowledge of any violations of
law with respect to the Premises as of the date hereof.
(c) Sublandlord covenants and agrees that upon Subtenant's payment of all
Base Rent and Additional Rent hereunder, and upon Subtenant's
performance of all of the other material terms and conditions set
forth in this Sublease, Subtenant shall be entitled to quiet enjoyment
of the Leased Premises during the Term of this Sublease.
(d) Sublandord covenants and agrees to send to Subtenant within five (5)
days of Sublandlord's receipt of same any notices received by
Sublandlord from Overlandlord or any mortgagee of Overlandlord.
(e) Sublandlord covenants and agrees that it shall not default in the
payment of its obligations to Overlandlord under the Lease, provided
that Subtenant is not then in breach or default of its obligations to
pay Base Rent and Additional Rent to Sublandlord hereunder.
(f) In the event that Sublandlord shall default under the Lease, and
provided that Subtenant is not then in default under this Sublease and
no event has occurred which, but for the passage of time, would
constitute a default by Subtenant under this Sublease, Subtenant shall
have the right, but not the obligation, to cure any default of
Sublandlord under the Lease. Sublandlord agrees to promptly furnish
Subtenant with a copy of any notice from Overlandlord of default by
Sublandlord under the Lease. In the event that Subtenant, having the
right to do so in accordance with the preceding sentence, shall cure
any default of Sublandlord under the Lease, Sublandlord shall
reimburse Subtenant within seven (7) days of notice thereof for any
cost or expense incurred by Subtenant in connection with such cure by
Subtenant.
26. LIMITATION OF LIABILITY OF SUBLANDLORD'S MEMBERS AND OTHERS. Subtenant
agrees that any obligation or liability whatsoever of Sublandlord which
may arise at any time under this Sublease, or any obligation or
liability which may be incurred by Sublandlord pursuant to any other
instrument, transaction or undertaking contemplated hereby, shall not
be personally binding upon, nor shall resort for the enforcement
thereof be had to the property of, the constituent members or partners
of Sublandlord or any of their respective partners, directors,
officers, representatives, employees or agents, regardless of whether
such obligation or liability is in the nature of contract, tort or
otherwise.
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27. COMPLETE AGREEMENT. This Sublease and the Exhibits attached hereto
contains the entire agreement of the parties with respect to the
Premises. This Sublease may not be amended except by a writing signed
by both parties.
28. NO SET-OFFS, COUNTERCLAIMS. Except to the extent expressly authorized
in writing by Sublandlord, all payments due to Sublandlord or any other
person hereunder or under the Lease or the Sublease from Subtenant
shall be made without set-off or counterclaim.
29. LAW GOVERNING. This Sublease shall be governed by, and construed and
enforced in accordance with, the laws of the State of New Jersey.
30. HEADINGS. Headings used in this Sublease are for convenience only and
shall not be construed as imparting or altering the meaning of this
Sublease or any of its parts or provisions.
31. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and inure
to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that the foregoing shall not be deemed
to permit an assignment by Subtenant of its rights or a delegation by
Subtenant of its obligations hereunder except in accordance with the
terms and provisions of this Sublease relating to same.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this
Sublease as of the day and year first above written.
SUBLANDLORD:
CH/EQUITY NJ, LLC,
a Delaware limited liability company
By: CH/Equity GT, LLC,
a Delaware limited liability company
By: Crow Family Holdings Industrial
Limited Partnership,
a Delaware limited partnership,
its Manager
By: CFH Industrial Trust, Inc.,
a Maryland corporation,
its General Partner
By: /s/ Xxx X. Xxxxxxxx
--------------------------
Xxx X. Xxxxxxxx, Vice
President
SUBTENANT:
USA DETERGENTS, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: General Manager, Executive
Vice President
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