AGREEMENT OF LEASE
FOR AND IN CONSIDERATION of the mutual covenants herein contained, the
parties hereto do hereby agree as follows:
1. INCORPORATED TERMS. The following terms are incorporated by
reference into this Agreement:
(a) DATE OF LEASE:
December 16, 1997
(b) NAME AND ADDRESS OF LANDLORD:
1112 CR NB. L.L.C.,
a New Jersey limited liability company
c/o Sudler Management Company, L.L.C.
Xxxxxx Corporate Center I
000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
(c) NAME AND ADDRESS OF TENANT:
NET GROCER, INC.
a Delaware corporation
000 Xxxxxxx Xxxxxx (11th Floor)
New York, New York 10001
(d) DESCRIPTION OF PROPERTY:
The entire premises known as 0000 Xxxxxxxxx Xxxx, Xxxxx
Xxxxxxxxx, Xxx Xxxxxx, xx which is located a building
containing approximately 124,731 square feet and shown on
the Plot Plan Rider.
(e) TERM OF LEASE:
Commencing on December 16, 1997, and expiring on
March 31, 2003.
(f) PERMITTED USE:
General warehousing and distribution and ancillary offices
incidental thereto and any other lawful purpose.
SIC Code _______________
(g) SECURITY DEPOSIT:
$101,343.93
(h) BROKER:
Bussel Realty Corp. and Samson Realty Corp., commission to
be paid by Landlord pursuant to separate agreement.
(i) RIDERS TO LEASE:
Plot Plan Rider
Rent Rider
Landlord's Work Rider
Extension Option Rider
2. DESCRIPTION OF PROPERTY. Landlord hereby leases to Tenant and
Tenant hereby hires from Landlord, the land (the "Land"), building (the
"Building") and other improvements described in Section 1(d), together with all
equipment, fixtures, furnishings and improvements located on the Land
(collectively the "Property").
3. TERM. The term of the Lease (the "Term") shall commence on the date
set forth in Section 1(e) (the "Commencement Date") and terminate on the date
set forth in Section 1(e) (the "Expiration Date"), except as hereinafter
provided.
4. BASE RENT. From and after February 1, 1998 (the "Base Rent
Commencement Date"), Tenant shall pay to Landlord at the address set forth in
Section 1(b), or to such other person or at such other place as Landlord may
from time to time designate, without previous demand therefor and without
counterclaim, deduction or set-off, the rent ("Base Rent") set forth on the
Rent Rider annexed hereto, such Base Rent to be payable in monthly installments
as set forth on the Rent Rider in advance on the first day of each month during
the term of the Lease. If the Rent Commencement Date shall be other than the
first day of a calendar month, Tenant shall pay Landlord on the Rent
Commencement Date the proportionate amount of Base Rent for the balance of such
month.
5. NET LEASE. It is the intention of Landlord and Tenant that this is
a net lease and that, except as provided herein, the Base Rent shall be
absolutely net to Landlord and that Tenant shall be solely responsible for and
pay all costs for the use, operation, maintenance, care and repair of the
Property. All obligations with respect to the Property payable by Tenant other
than the Base Rent are additional rent under this Lease. The term "rent" means
the Base Rent and additional rent.
6. REAL PROPERTY TAXES. (a) Tenant shall pay all real property
impositions during the Term, such payment to be made to Landlord in accordance
with paragraph 2 of the Rent Rider. As used herein, the term "real property
impositions" means (i) any tax, assessment or other governmental charge of any
kind which at any time during the Term may be assessed, levied, imposed upon or
become due and payable with respect to the Property; (ii) any tax on the
Landlord's right to receive, or the receipt of rent or income from the
Property, or against Landlord's business of leasing the Property; (iii) any tax
or charge for fire protection, refuse collection, streets, sidewalks or road
maintenance or other services' provided to the Property by any governmental
agency; and (iv) any tax replacing or supplementing in whole or in part any tax
previously included within the definition of real property impositions under
this Lease. During the first and last years of the Term, the real property
impositions payable by Tenant shall be prorated for the fraction of the tax
fiscal year included in the Term.
(b) If an assessment for public improvements is levied against
the Property, Landlord shall be deemed to have elected to pay such assessment
in the maximum number of installments then permitted by law (whether or not
Landlord actually so elects), and Tenant shall pay the installments payable
during or attributable to the Term, together with any interest due as a result
of the installment payments. Any installment for a period during which the
Commencement Date or Expiration Date occurs shall be prorated for the fraction
of the period included in the Term.
(c) Real property impositions do not include Landlord's federal
or state income, franchise, inheritance, personal property or transfer taxes,
except if in substitution for real property impositions.
7. INSURANCE. (a) Throughout the Term, Tenant shall pay to Landlord
the cost of the following policies of insurance, such payment to be made in
accordance with paragraph 2 of the Rent Rider: (i) insurance covering all risk
of physical loss or damage to the Building in the full amount of its
replacement value (including agreed amount endorsement), but in no event less
than the amount reasonably required by any mortgagee of the Property
("Landlord's Mortgagee") (such policy shall provide protection against all
perils included within the classification of fire, extended coverage,
vandalism, malicious mischief, special extended perils, including demolition
and increased cost of construction, water damage, sprinkler leakage, and any
other perils
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which Landlord or Landlord's Mortgagee deems necessary); (ii) rental income
insurance in an amount equal to one year's Base Rent, estimated real property
impositions and insurance premiums; (iii) insurance against loss or damage by
boiler or machinery or internal explosion or breakdown of boilers, equipment or
electrical appurtenances, in an amount required by Landlord or any Landlord's
Mortgagee; (iv) insurance against breakage of all plate glass on the Property;
(v) flood hazard insurance in the amount of the full replacement cost of the
Building, or if such amount of insurance is not obtainable, in the maximum
amount which is obtainable; and (vi) such other insurance as Landlord or any
Landlord's Mortgagee may reasonably require. All proceeds payable under any
such policy shall be paid to Landlord or Landlord's Mortgagee, as their
respective interests may appear. Tenant shall pay all costs of insurance,
including any surcharges or additional premiums assessed in connection with
Tenant's use of the premises.
(b) Throughout the Term, Tenant shall procure and maintain, at
its expense, a policy of comprehensive public liability insurance, including
contractual liability coverage insuring Landlord, Xxxxxx Management Company,
L.L.C., Landlord's mortgagee and Tenant against liability arising out of the
ownership, use, occupancy or maintenance of the Property or in any manner
related to the Property or any act or omission of Tenant. The initial amount of
such insurance shall be at least $5,000,000 in combined single limit with
respect to injury or death in any one accident, and at least $1,000,000 for
damage to property. Such amount shall be subject to periodic increase as
reasonably required by Landlord. However, the amount of such insurance shall
not limit Tenant's liability hereunder. Tenant's insurance shall be written on
an occurrence basis and shall be primary with respect to the Property.
(c) Each insurance policy shall name as insureds Landlord, Xxxxxx
Management Company, L.L.C., Landlord's managing agent and any Landlord's
Mortgagee, as their respective interests may appear. Each policy shall contain
standard mortgagee endorsement clauses. All insurance policies shall be
maintained with insurance companies authorized to transact insurance business
in the state in which the Property is located and holding a "General
Policyholder's Rating" of A or better, as set forth in the most current issue
of "Best's Insurance Guide". The original liability insurance policy (or copy
thereof certified by the insurer) and certificates evidencing other insurance
Tenant is required to maintain hereunder shall be deposited with Landlord at
least ten (10) days prior to the Commencement Date. Evidence of renewals of all
policies shall be deposited with Landlord not less than twenty (20) days prior
to the end of the term of each such policy. Original and renewal policies or
certificates shall be accompanied by proof of payment of the premiums therefor.
Such insurance shall not be subject to cancellation except after at least
twenty (20) days prior written notice to Landlord and Landlord's Mortgagee, and
any loss shall be payable notwithstanding any act or negligence of Tenant or
Landlord.
(d) Tenant shall obtain for each insurance policy procured by it
regarding the Property or any property located thereon, an appropriate clause
therein or endorsement thereto pursuant to which each such insurance company
waives its subrogation rights against Landlord and Xxxxxx Management Company,
L.L.C.
8. UTILITIES. Tenant shall pay, directly to the appropriate supplier
designated from time to time by Landlord, the cost of all light, power, natural
gas, fuel, telephone, refuse disposal and other utilities and services supplied
to the Property. Tenant shall not change or substitute any supplier of light,
power or natural gas without Landlord's prior written consent, which shall not
be unreasonably withheld or delayed. Landlord shall not be liable to Tenant,
and Tenant's obligations under the Lease shall not be abated, in the event of
any interruption or inadequacy of any utility or service supplied to the
Property unless such interruption or inadequacy is caused by the negligence or
willful misconduct of Landlord, and then only to the extent Tenant is not
compensated by any insurance required to be carried by Tenant hereunder or any
other insurance actually carried by Tenant. Tenant shall pay water and sewer
charges as provided in paragraph 2 of the Rent Rider. Landlord warrants that
there is 1,200 Amps of Power into the building. In the event there is not
Landlord will provide such.
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9. USE OF PROPERTY. The Property may only be used for the use set
forth in Section 1(f). Tenant shall not use or permit the Property to be used
for (i) any unlawful purpose; (ii) in violation of any certificate of occupancy
covering the Property; (iii) any use which may constitute a public or private
nuisance or make voidable any insurance in force relating to the Property; or
(iv) any purpose which creates or produces noxious odors, smoke, fumes,
emissions, vibrations, or unreasonable noise. Tenant shall not cause or permit
any overloading of the floors of the Building. Tenant shall not install any
equipment or other items upon or through the roof, or cause openings to be made
in the roof, without Landlord's prior written consent, which consent shall not
be unreasonably withheld. Landlord shall designate the roofer to perform any
permitted work affecting the roof.
(d) No storage of any goods, equipment or materials shall be
permitted outside the Building on the Property other than trash in sealed
containers and construction materials during any permitted Alterations, as
hereinafter defined.
10. EXISTING CONDITIONS. Tenant accepts the Property in its "as is"
condition as of the date hereof, subject only to Landlord's agreement to
perform the work contained on Landlord's Work Rider. Tenant acknowledges that
Landlord has not made any representation as to the condition of the Property or
the suitability of the Property for Tenant's intended use. Notwithstanding the
foregoing, Landlord represents and warrants that on the date hereof, the
Premises complies with all laws, rules, regulations and requirements of all
county, municipal, state, federal and other applicable governmental
authorities.
11. MAINTENANCE AND REPAIRS. (a) Tenant shall keep and maintain the
Property (including roof, all structural and non-structural, exterior,
interior, parking areas and driveways, landscaped and drainage scale areas, and
systems and equipment) in good order, condition and repair during the Term.
Except as provided in section 11(c) hereof, Tenant shall promptly replace any
portion of the Property or any systems or equipment thereof which cannot be
fully repaired (except that Tenant shall not be responsible for replacing the
roof or structure unless the replacement is necessitated by Tenant's negligence
or willful misconduct). All repairs and replacements shall be of substantially
equal quality to the original material or part, and shall be performed in a
good and workmanlike manner. All of Tenant's obligations to maintain and repair
the Property shall be accomplished at Tenant's sole expense.
(b) Tenant shall keep and maintain all portions of the Property
including parking areas, sidewalks and landscaped areas, in an attractive and
clean condition free of dirt and rubbish, and clear the parking areas and
sidewalks of accumulations of snow and ice.
(c) During the Term, Tenant shall procure and maintain the
following service contracts: (i) contract for the inspection, service,
maintenance and repair of all heating, ventilating and air conditioning
equipment installed in the Building (the inspection pursuant to such contract
shall be made at least quarterly); (ii) contract for inspection and maintenance
of the roof of the Building (the inspections pursuant to such contract shall be
made at least semi-annually); (iii) contract for the inspection, maintenance
and repair of sprinkler and fire protection systems, and (iv) contract for
maintenance of the landscaped areas of the Property; (v) inspection, service
and preventative maintenance to control insects, rodents and any and all other
pests. The identity of each contractor and each contract shall be subject to
Landlord's reasonable approval. Copies of reports of inspections made hereunder
shall be promptly supplied to Landlord.
12. ALTERATIONS AND IMPROVEMENTS. (a) Tenant shall not make any
alterations, additions or improvements to the Property (the "Alterations")
without Landlord's prior written consent. The foregoing notwithstanding, Tenant
shall have the right to make minor, non-structural, interior alterations in,
to, or for the Building, including but not limited to the erection and/or
removal of interior wall partitions, work stations, cabinets, interior storage
systems, shelves, racking, painting and interior decorations and other work of
a substantially similar nature. In no event shall Alterations
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permanently reduce the size or cubic content of the Building or reduce the
value of the Property. Tenant shall submit to Landlord detailed plans and
specifications for Alterations requiring Landlord's consent and reimburse
Landlord for all reasonable expenses incurred by Landlord in connection with
its review thereof. Tenant shall also provide to Landlord for its reasonable
approval the identity of the contractor Tenant proposes to employ to construct
the Alterations. All Alterations shall be accomplished in accordance with the
following conditions:
(1) Tenant shall procure all governmental permits and
authorizations for the Alterations, and obtain and provide to Landlord an
official certificate of occupancy and/or compliance upon completion of the
Alterations, if appropriate.
(2) Tenant shall arrange for extension of the general
liability insurance provided for in Section 7(b) to apply to the construction
of the Alterations. Further, Tenant shall procure and maintain Builders Risk
Casualty Insurance in the amount of the full replacement cost of the
Alterations and statutory Workers Compensation Insurance covering all persons
employed in connection with the work. All such insurance shall conform to the
requirements of Section 7(c).
(3) Tenant shall construct the Alterations in a good and
workmanlike manner utilizing materials of first class quality and in compliance
with all laws and governmental regulations.
(b) Upon completion of the Alterations, Tenant shall provide
Landlord with "as built" reproducible transparency plans of the Alterations,
except in the case of minor alterations where plans are not available.
(c) Alterations shall be the property of Tenant and shall be
removed by Tenant on or prior to the termination of the Lease and Tenant shall
restore the Property to its condition prior to such Alterations.
13. COVENANT AGAINST LIENS. Tenant shall not have any right to subject
to Landlord's interest in the Property to any mechanic's lien or any other lien
whatsoever. If any mechanic's lien or other lien, charge or order for payment
of money shall be filed as a result of the act or omission of Tenant, Tenant
shall cause such lien, charge or order to be discharged or appropriately bonded
within thirty (30) days after notice from Landlord thereof, and Tenant shall
indemnify and save Landlord harmless from all liabilities and costs resulting
therefrom.
14. SIGNS. Tenant shall not place any signs on the Property without
Landlord's prior written approval of its design, location and manner of
installation such approval not to be unreasonably withheld or delayed. In no
event shall any sign be installed on the roof or above the parapet height of
the Building. Tenant shall remove its signs upon termination of this Lease and
restore the Property to its condition prior to installation of the signs,
normal wear and tear excepted.
15. TENANT'S COMPLIANCE. Tenant shall take all necessary action to
conform to and comply with all laws, orders and regulations of any governmental
authority now or hereafter applicable to the Property or Tenant's use or
occupancy or requested by Landlord's or Tenant's insurers to comply with their
requirements to maintain the Building as a highly protected risk.
Tenant shall, at its sole cost and expense, obtain all permits, including a
certificate of occupancy, necessary for Tenant's occupancy or use of the
Property. Tenant shall not be responsible for correcting violations of law or
regulation with respect to the roof or structure of the building unless related
to Tenant's occupancy or use of the Property.
16. ENVIRONMENTAL LAW COMPLIANCE. (a) Tenant agrees that it shall, at
its sole cost and expense, fulfill, observe and comply with all of the
applicable terms and provisions of the Industrial Site Recovery Act, N.J.S.A
13:1K-6 et seq., ("ISRA") the Spill Compensation and Control Act, N.J.S.A.
58:10-23.11 et seq., (the "Spill Act") and
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all other federal, state and local environmental laws now in effect or
hereinafter enacted, as any of the same may be amended from time to time, and
all rules, regulations, ordinances, opinions, orders and directives issued or
promulgated pursuant thereto or in connection therewith. Tenant shall, at
Tenant's sole cost and expense, make all submissions to, provide all
information to, and comply with all requirements of, the New Jersey Department
of Environmental Protection ("NJDEP"). If any spill or discharge of Hazardous
Substances or Wastes occurs during the Term, and the Bureau or other division
of NJDEP determines that a cleanup plan be prepared and a cleanup be
undertaken, then Tenant shall, at Tenant's sole cost and expense, prepare and
submit the required plans and financial assurances, and carry out the approved
plans. Such cleanup shall be to the strictest standard required by NJDEP for
nonresidential use. Tenant's obligations under this Section shall arise if
there is any closing, terminating or transferring of operations by any person
or entity of an industrial establishment at the Property pursuant to ISRA,
including an assignment or subletting by Tenant. At no expense to Landlord,
Tenant shall promptly prepare and file non-applicability affidavits. In the
event of a sale, transfer or conveyance of the Property by Landlord, Landlord
shall make application to NJDEP for a letter of nonapplicability, if required,
at Landlord's expense. If the inspection or investigation of Landlord's
application reveals the existence of a spill or discharge of Hazardous
Substances or Wastes, or otherwise uncovers non-compliance by Tenant, then
Tenant shall take such action as is required at Tenant's expense and to the
same extent as if Tenant's obligations had arisen at the closing or terminating
of Tenant's operations. Tenant's obligations pursuant to this Section 16(a)
shall apply to conditions relating to Tenant's operations and/or possession or
use of the Property, and to conditions arising during Tenant's possession or
use of the Property and whether caused directly or indirectly by Tenant.
(b) Tenant shall not, without the prior written consent of
Landlord having been obtained, at any time during the term of this Lease,
install any underground or above-ground tanks for the storage of fuel oil,
gasoline and/or other petroleum products or by-products.
(c) Tenant shall indemnify, defend and hold harmless Landlord
from all fines, suits, procedures, claims and actions of any kind arising out
of or in any way connected with any spills or discharges of Hazardous
Substances or Wastes at the Property which occur during the Term (including any
period of early access pursuant to paragraph 3) unless caused by landlord, its
agents, employees, invitees or contractors, and from all fines, suits,
procedures, claims and actions of any kind arising out of Tenant's failure to
provide all information, make all submissions and take all actions required by
the Bureau or any other division of NJDEP or any other governmental agency with
respect to the Property, as required by the terms of this Lease.
(d) Tenant's obligations under this Section 16 shall survive the
expiration or earlier termination of the term of this Lease.
(e) Landlord represents and warrants to the best of Landlord's
knowledge that on the date hereof (i) the Premises complies with all laws,
rules, regulations and requirements of all county, municipal, state, federal
and other applicable governmental authorities, and (ii) the Premises is in
compliance with all federal, state and local laws, rules and regulations,
guidelines, codes and ordinances which relate to Hazardous Substances and
Waste.
(f) Hazardous Substances and Waste means any substance, material,
waste, gas, or particulate matter which is: (i) defined as a "hazardous waste,"
"hazardous material," "hazardous substance," "extremely hazardous waste," or
"restricted hazardous waste" under any provision of the laws of the State of
New Jersey or the laws of the United States; (ii) petroleum; (iii) asbestos;
(iv) polychlorinated biphenyl; (v) radioactive material; (vi) designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C.
Sec. 12.51 et seq.; (vii) defined as a "hazardous waste" pursuant to Section
1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et
seq.; or (viii) defined as a "hazardous substance" pursuant
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to Section (14) of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. Sec. 9601 et seq.
17. LANDLORD'S ACCESS. Landlord and its representatives may enter the
Property at all reasonable times upon prior notice to Tenant in a manner not to
unreasonably interfere with Tenant's intended use of the Property (or at any
time in the event of emergency) for the purpose of inspecting the Property, or
making any necessary repairs, or to show the Property to prospective
purchasers, investors, encumbrances, tenants or other parties, or for any other
reasonable purpose. Landlord may place customary "For Sale" or "For Lease"
signs on the Property.
18. ASSIGNMENT AND SUBLETTING. (a) Tenant shall not assign or encumber
Tenant's interest in this Lease, or sublet any portion of the Property, or
grant concessions or licenses with respect to the Property, without Landlord's
prior written consent which shall not be unreasonably withheld or delayed.
(b) If Tenant desires to assign this Lease or sublet all or any
portion of the Property, Tenant shall submit to Landlord a written request for
Landlord's approval thereof, setting forth the name, principal business
address, and nature of business of the proposed assignee or sublessee; the
financial, banking and other credit information relating to the proposed
assignee or sublease; and the details of the proposed assignment or subletting,
including a copy of the proposed assignment or sublease instrument and plans
for any Alterations required for the proposed assignee or sublessee. Tenant
shall also furnish any other information reasonably requested by Landlord.
Landlord's acceptance of rent from a proposed assignee or sublessee shall not
be construed to constitute its consent to an attempted assignment or
subletting.
(c) In the event of a permitted assignment or subletting, Tenant
shall remit to Landlord as additional rent each month during the remainder of
the Term any mid all rent or other sums received by Tenant from its assignee or
sublessee in excess of the Base Rent and other charges paid by Tenant allocable
to the Property or portion thereof sublet (including, without limitation,
brokerage fees, free rent, lease takeover costs, costs of alteration and
workletter allowances, to the extent any of the foregoing are reasonable and
customary).
(d) Notwithstanding the provisions of this Paragraph 18, Tenant
may, without Landlord's consent, assign this Lease or sublet to (i) the
surviving entity in the event of a merger, consolidation or acquisition of
Tenant, (ii) Tenant's parent corporation, Tenant's subsidiary corporation or
any "affiliate" of Tenant, or (iii) any entity which purchases all or
substantially all of the stock or assets of Tenant.
(e) No assignment or subletting hereunder, whether or not with
Landlord's consent, shall release Tenant from any obligations under this Lease,
and Tenant shall continue to be primarily liable hereunder. If Tenant's
assignee or sublessee defaults under this Lease, Landlord may proceed directly
against Tenant without pursuing its remedies against the assignee or sublessee.
Consent to one assignment or subletting shall not be deemed a consent to any
subsequent assignment or subletting. Landlord may consent to subsequent
assignments or modifications of this Lease or sublettings without notice to
Tenant and Tenant shall not be relieved of liability under this Lease provided
that Landlord shall not enter into any modification of this Lease which would
materially increase Tenant's obligations hereunder without first notifying
Tenant of its intent to do so.
(f) Tenant shall pay to Landlord upon demand all costs, including
reasonable legal fees, which Landlord shall incur in reviewing any proposed
assignment or subletting.
19. CASUALTY. (a) If the Building is damaged by fire or other
casualty, and the Building can be fully repaired within forty-five (45) days
after such casualty occurred, then, except as provided in Section 19(b) below,
this Lease shall remain in effect and Landlord shall repair the damage as soon
as reasonably possible. If the Building cannot be fully repaired within said
forty-five (45) day period, Landlord or Tenant may elect
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to terminate this Lease by giving written notice to the other within twenty
(20) days after becoming aware of the occurrence of the casualty. If this Lease
is not so terminated, Landlord shall repair the damage as soon as reasonably
possible, in which event this Lease shall remain in full force and effect. In
the event this Lease shall remain in full force and effect following a
casualty, there shall be no abatement of the Base Rent or additional rent
payable hereunder, but the proceeds of the rental income insurance described in
Section 7 shall be applied against Tenant's rental obligations as received by
Landlord. Tenant waives the protection of any law which grants a tenant the
right to terminate a lease in the event of the destruction of a leased
property, and agrees that the provisions of this paragraph shall govern in the
event of any destruction of the Building. Landlord shall not be required to
repair improvements or alterations to the Property made by Tenant.
(b) Notwithstanding anything to the contrary contained herein, if
more than thirty-five percent (35%) of the Building is damaged by fire or other
casualty and (i) the insurance proceeds received by Landlord on account of such
damage are insufficient to pay for the necessary repairs, or (ii) Landlord's
mortgagee does not permit Landlord to utilize the insurance proceeds to repair
such damage, Landlord may elect to terminate this Lease by giving Tenant
written notice within twenty (20) days after Landlord becomes aware of the
occurrence of the casualty.
20. CONDEMNATION. If more than twenty-five percent (25%) of the Land
and/or Building shall be taken under the power of eminent domain or sold under
the threat thereof ("Condemnation") and Tenant's use of the Property is
materially adversely affected in the reasonable opinion of Tenant exercised in
good faith, Landlord or Tenant may terminate this Lease as of the date on which
title to the Property or portion thereof shall vest in the condemning
authority. Notice of such election to terminate shall be given to the other
party within thirty (30) days after the party giving such notice becomes aware
of the Condemnation. If this Lease shall remain in effect as to the portion of
the Property not taken, Landlord shall restore the improvements not taken as
nearly as reasonably practicable to their condition prior to the Condemnation,
and the Base Rent shall be reduced proportionately in accordance with the
reduction in the square foot area of the Building following the Condemnation.
Landlord shall be entitled to receive the entire award in any Condemnation
proceeding relating to the Property, except that Tenant may assert a separate
claim to an award for its moving expenses and for fixtures and personal
property installed by Tenant at its expense. It is understood that Tenant shall
have no claim against Landlord for the value of the unexpired Term of this
Lease or any options granted under this Lease. Landlord shall not be required
to restore improvements or alterations to the Property made by Tenant.
21. SURRENDER OF PROPERTY. Upon termination of the Lease, Tenant shall
surrender the Property to Landlord broom clean, maintained and repaired as
required hereunder, and in good order and condition, except only for ordinary
wear and tear, and damage by casualty which Tenant was not obligated to remedy
under Section 19. Tenant shall remove its machinery and equipment and repair
any damage to the Property caused by such removal. Tenant shall not remove any
power wiring or power panels, lighting or lighting fixtures, wall coverings,
blinds or other window coverings, carpets or other floor coverings, heaters or
air conditioners or fencing or gates unless installed by Tenant and required by
Landlord to be removed. All personal property of Tenant remaining on the
Property after Tenant's removal shall be deemed abandoned and at Landlord's
election may either be retained by Landlord or may be removed from the Property
at Tenant's expense.
22. HOLDOVER. In the event Tenant remains in possession of the
Premises after the expiration of the term of this Lease (the "Holdover
Period"), in addition to any damages to which Landlord may be entitled or other
remedies Landlord may have by Law, Tenant shall pay to Landlord during the
first two months of any Holdover Period a monthly rental which is equal to 150%
of the sum of the Base Rent, additional rent and other charges with respect to
the Premises payable by Tenant during the last month of the Term. During any
Holdover Period in excess of two months, Tenant shall pay to Landlord a monthly
rental which is equal to the greater of (i) twice the sum of
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the Base Rent, additional rent and other charges with respect to the Premises
payable by Tenant during the last month of the Term; or (ii) the maximum
holdover charges allowable by law. Nothing herein contained shall be deemed to
give Tenant any right to remain in possession of the Premises after the
expiration of the Tenn of this Lease. The sum due to Landlord hereunder shall
be payable by Tenant upon demand.
23. EVENTS OF DEFAULT; REMEDIES. (a) Tenant shall be in default upon
the occurrence of one or more of the following events (an "Event of Default"):
(i) Tenant fails to pay rent or any other sum of money required to be paid by
Tenant hereunder within ten (10) days of written notice thereof by Landlord;
(ii) Tenant fails to perform any of Tenant's non-monetary obligations under
this Lease within thirty (30) days after written notice thereof from Landlord
(provided that if more than thirty (30) days are required to complete such
performance, Tenant shall not be in default if Tenant promptly commences such
performance and thereafter diligently pursues its completion); or (iii) Tenant
makes an assignment for the benefit of creditors, or if a petition for
adjudication of bankruptcy or for reorganization is filed by or against Tenant
and is not dismissed within thirty (30) days, or if a receiver or trustee is
appointed for a substantial part of Tenant's property and such appointment is
not vacated within thirty (30) days.
(b) On the occurrence of an Event of Default, without limiting
any other right or remedy Landlord may have, without notice or demand, Landlord
may:
(i) Terminate this Lease and Tenant's right to possession of
the Property by any lawful means, in which event Tenant shall immediately
surrender possession of the Property to Landlord. At its option, Landlord may
occupy the Property or cause the Property to be redecorated, altered, divided,
consolidated with other adjoining property, or otherwise prepared for
reletting, and may relet the Property or any part thereof for a term or terms
to expire prior to, at the same time or subsequent to the original Expiration
Date, and receive the rent therefor, applying the sums received first to the
payment of such expenses as Landlord may have incurred in connection with the
recovery of possession, preparing for reletting and the reletting itself,
including brokerage and attorneys' fees, and then to the payment of damages in
amounts equal to the rent hereunder and to the cost and expense of performance
of the other covenants of Tenant under this Lease. Tenant agrees to pay to
Landlord damages equal to the rent and other sums payable by Tenant under this
Lease, reduced by the net proceeds of the reletting, if any, as ascertained
from time to time. In reletting the Property, Landlord may grant rent
concessions, and Tenant shall not be entitled to any credit therefor. Tenant
shall not be entitled to any surplus resulting from any reletting. Landlord
shall use commercially reasonable efforts to re-rent the Property and to take
such other actions to mitigate its damages in the event Tenant is in default
under this Lease.
(ii) Permit Tenant to remain in possession of the Property,
in which event this Lease shall continue in effect. Landlord shall be entitled
to enforce all of Landlord's rights and remedies under this Lease, including
the right to receive the rent as it becomes due under this Lease.
(iii) Pursue any other remedy now or hereafter available
under the laws of the jurisdiction in which the Property is located.
(c) The remedies available to Landlord herein specified are not
intended to be exclusive and prevent Landlord from exercising any other remedy
or means of redress to which Landlord may be lawfully entitled. In addition to
other remedies provided in this Lease, Landlord shall be entitled to restraint
by injunction of any violation or threatened violation by Tenant of any of the
provisions of this Lease. Landlord's exercise of any right or remedy shall not
prevent Landlord from exercising any other right or remedy.
(d) To the extent permitted by law, Tenant, for itself and any
person claiming through or under Tenant, waives any equity or right of
redemption provided by any law.
-9-
(e) Tenant agrees to pay as additional rent all reasonable
attorneys' fees and other expenses incurred by Landlord in the enforcement of
any of the agreements or obligations of Tenant under this Lease.
24. SERVICE FEE; INTEREST. (a) Tenant's failure to pay rent promptly
or make other payments required under this Lease may cause Landlord to incur
unanticipated costs, which are impractical to ascertain. Therefore, if Landlord
does not receive any payment of Base Rent, additional rent or other sums due
from Tenant to Landlord within ten (10) days after it becomes due, Tenant shall
pay Landlord as additional rent a service fee equal to five percent (5%) of the
overdue amount. This service fee shall be in addition to, and not in lieu of,
any other remedy which Landlord may have herein, or by law.
(b) Any amount owed by Tenant to Landlord which is not paid when
due shall bear interest at the rate of fourteen percent (14%) per annum
("Default Interest") from ten days after the due date of such amount. The
payment of Default Interest on such amounts shall not extend the due date of
any amount owed. If the interest rate specified in this Lease shall exceed the
rate permitted by law, the Default Interest shall be deemed to be the maximum
legal interest rate permitted by law.
25. INDEMNIFICATION. (a) Tenant shall indemnify and hold harmless
Landlord, Xxxxxx Management Company, L.L.C. and Landlord's managing agent from
and against all liability, claims or costs, including reasonable legal fees,
arising from (i) Tenant's use of the Property; (ii) any breach of this Lease by
Tenant; (iii) any other act or omission of Tenant; or (iv) any injury to person
or damage to property occurring on or about the Property.
(b) Landlord shall indemnify and hold harmless Tenant from and
against all liability, claims or costs, including reasonable legal fees,
arising from (i) any breach of this Lease by Landlord, and/or (ii) occurring on
the Property resulting from any negligence or misconduct of Landlord or any of
its employees or agents.
26. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. If Tenant fails to make
any payment or perform any act on its part to be made or performed pursuant to
this Lease, then Landlord, without waiving or releasing Tenant from such
obligation, may make such payment or perform such act on Tenant's part, and the
costs incurred by Landlord in connection with such payment or performance,
together with Default Interest thereon, shall be paid on demand by Tenant to
Landlord as additional rent.
27. WAIVER OF LIABILITY. Landlord shall not be liable for any injury
or damage to the business, equipment, merchandise or other property of Tenant
or any of Tenant's employees or invitees or any other person on or about the
Property, unless caused by Landlord's or its officers', employees' or agents'
negligence or willful misconduct. Tenant and Landlord waive all rights to
recover against Landlord, its officers, directors, shareholders, partners,
members, joint ventures, employees or agents, for any loss or damage arising
from any cause covered by, and to the extent of, any required to be carried by
Tenant or Landlord pursuant to this Lease or any other insurance actually
carried by them. Each policy of such insurance carried by Tenant and Landlord
shall contain a provision that the foregoing release shall not affect the
coverage provided by such insurance.
28. FORCE MAJEURE. If either party is unable to perform any of its
obligations due to events beyond such party's control, the time provided to
that party for performing such obligations shall be extended by a period of
time equal to the duration of such events, and the other party shall not be
entitled to any claim by reason thereof, and the obligation of such other party
to perform all its other obligations under this Lease shall not be affected,
impaired or excused thereby. Events beyond a party's control include, but are
not limited to, acts of God, war, civil commotion, labor disputes, strikes,
casualty, labor or material shortages, government regulation or restriction and
weather conditions.
-10-
29. NOTICE OF LANDLORD'S DEFAULT. Tenant shall give written notice of
any failure by Landlord to perform any of its obligations under this Lease to
Landlord and any ground lessor or Landlord's Mortgagee whose name and address
have been furnished to Tenant. Landlord shall not be in default under this
Lease unless Landlord (or such ground lessor or Landlord's Mortgagee) fails to
cure such non-performance within thirty (30) days after receipt of Tenant's
notice. If more than thirty (30) days are required to cure such
non-performance, Landlord shall not be in default if such cure is commenced
within such thirty (30) day period and thereafter diligently pursued to
completion.
30. LANDLORD'S LIABILITY LIMITED. There shall be no personal liability
of the Landlord or any member, partner, stockholder, officer, director or other
principal of Landlord in connection with this Lease. Tenant agrees to look
solely to the interest of Landlord in the Property (or the proceeds therefrom)
for the collection of any judgment or other judicial process requiring the
payment of money by Landlord in the event of any default or breach by Landlord
with respect to this Lease or in any way relating to the Property. No other
assets of Landlord or any principal of Landlord shall be subject to levy,
execution or other procedures for the satisfaction of Tenant's remedies.
31. ESTOPPEL STATEMENT; FINANCIAL STATEMENT. (a) Landlord and Tenant
mutually agree, upon the other's request, to execute, acknowledge and deliver
to the other a written statement certifying: (i) the Commencement Date; (ii)
the Expiration Date; (iii) that this Lease is in full force and effect and
unmodified (or if modified, stating the modifications); (iv) the last date of
payment of the Base Rent and other charges and the time period covered by each
payment; (v) that the other party is not in default under this Lease (or, if a
party is claimed to be in default, stating the nature of the default); and (vi)
such other matters as may be reasonably required by either party or any
Landlord's Mortgage. Such statement shall be delivered to the requesting party
within tell (10) days after request therefor. Any such statement may be given
to and relied upon by any prospective purchaser or encumbrancer of the
Property.
(b) Within ten (10) days after Landlord's written request, Tenant
shall deliver to Landlord such financial statements as are reasonably required
by any Landlord's Mortgagee or prospective encumbrancer of the Property, but
otherwise shall be kept confidential by Landlord. Tenant represents to Landlord
that each such financial statement is a true and accurate statement as of the
date of such statement.
32. QUIET ENJOYMENT. (a) Landlord covenants that as long as Tenant
pays the Base Rent and additional rent and performs its other obligations under
this Lease, Tenant shall peaceably and quietly have, hold and enjoy the
Property for the term provided by this Lease, subject to the provisions of this
Lease.
(b) Landlord reserves to itself such access and utility easements
over, under and across the Property as may be required by Landlord from time to
time in connection with the ownership, use or operation of any other property
of Landlord or any affiliated party of Landlord. No such easement shall
materially interfere with Tenant's use of the Property.
33. SUBORDINATION, NONDISTURBANCE AND ATTORNMENT. (a) This Lease is
subject and subordinate to any ground lease or mortgage which may now or
hereafter encumber the Property, and any renewals, modifications,
consolidations, replacements or extensions thereof.
(b) If Landlord's interest in the Property is acquired by
Landlord's Mortgagee, or purchaser at a foreclosure sale, Tenant shall attorn
to the transferee of or successor to Landlord's interest in the Property and
recognize such transferee or successor as landlord under this Lease. Such
transferee or successor shall not be liable for any act or omission of any
prior landlord, or be subject to any offsets or defenses which Tenant might
have against any prior landlord, or be bound by any Base Rent which Tenant
might have paid for more than the current month to any prior landlord, or be
liable for any security deposit under this Lease unless actually transferred to
such transferee or successor.
-11-
(c) The subordination of this Lease to any future ground lease or
future mortgage shall be subject to Landlord's obtaining from the lessor under
any such future ground lease, or the holder of any such future mortgage said
lessor's or mortgage holder's standard form of non-disturbance, subordination
and attornment agreement.
(d) Tenant agrees that this Lease shall be modified in accordance
with the reasonable request of any institutional Landlord's Mortgagee, so long
as any modification provides a non-disturbance agreement which allows the
Tenant to stay in possession so long as Tenant is not in default of the Lease.
(d) The foregoing provisions shall be self-operative and no
further instrument or act on the part of Tenant shall be necessary to effect
the same. Tenant shall nevertheless sign and deliver any document necessary or
appropriate to evidence the subordination, attornment or agreement above
provided.
34. BROKERAGE. Each party represents to the other that it did not deal
with any real estate broker in connection with this Lease, other than the real
estate broker whose identity is set forth in Section 1(h). The commission of
such broker shall be paid by Landlord pursuant to separate agreement. Tenant
shall indemnify and hold Landlord harmless from any claim for a commission or
other fee made by any broker with whom Tenant has dealt, other than the brokers
identified in Section 1(h).
35. NOTICES. All notices in connection with this Lease or the Property
shall be in writing and shall be personally delivered, or sent by certified
mail, return receipt requested, postage prepaid, or sent by commercial
overnight courier (e.g., Federal Express, Airborne). Notices to Landlord shall
be delivered to the address specified in Section 1(b). Notices to Tenant shall
be delivered to the address specified in Section 1(c). Notices personally
delivered shall be effective upon delivery or attempted delivery in accordance
with this provision; notices by commercial overnight courier shall be effective
one business day after delivery to the courier service; and notices by
certified mail shall be effective three calendar days after mailing. Either
party may change its notice address upon written notice to the other party
given in accordance with this provision.
36. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall
deposit with Landlord the sum set forth in Section 1(g) as security for the
performance by Tenant of its obligations under this Lease (the "Security
Deposit"). Landlord shall have the right to use the Security Deposit to cure
any default of Tenant hereunder, including, but not limited to, payment of
Fixed Rent, additional rent, service fees or other debts of Tenant due
Landlord, or repair or restoration of the Property. Landlord shall hold the
Security Deposit in a separate interest bearing account. If Landlord uses any
part of the Security Deposit, Tenant shall restore the Security Deposit to its
full amount within ten (10) days after Landlord's demand therefor. Provided
Tenant has fully complied with all of the terms of this lease, Landlord shall
remit accrued interest on the Security Deposit to Tenant annually and shall
return the Security Deposit to Tenant with any remaining accrued interest on
the date thirty (30) days after the surrender of the Property by Tenant.
Landlord shall deliver the Security Deposit to the purchaser or other
transferee of Landlord's interest in the Property in the event the Property is
sold or otherwise transferred, and Landlord shall be discharged from any
further liability with respect to the Security Deposit.
37. MEMORANDUM OF LEASE. Tenant shall not record this Lease. However,
either Landlord or Tenant may require that a memorandum of this Lease executed
by both parties be recorded. Such memorandum shall include such portions of
this Lease as either party may reasonably require, but shall not specify the
amount of Base Rent payable hereunder.
38. MISCELLANEOUS. (a) The failure of either party to insist on strict
performance of any provision of this Lease, or to exercise any right contained
herein, shall not be construed as a waiver of such provision or right in any
other instance. All amendments to this Lease shall be in writing and signed by
both parties.
-12-
(b) The captions in this Lease are intended to assist the parties
in reading this Lease and are not a part of the provisions of this Lease.
Whenever required by the context of this Lease, the singular shall include the
plural and the plural shall include the singular. The masculine, feminine and
neuter genders shall each include the other.
(c) Landlord and Tenant hereby waive trial by jury in any legal
proceeding brought by either of them against the other with respect to any
matters arising out of or in any way connected with this Lease or the Property.
(d) The laws of The State of New Jersey shall govern this Lease.
(e) If Tenant is a corporation or partnership, each person
signing this Lease on behalf of Tenant represents that he has full authority to
do so and that this Lease binds the corporation or partnership, as the case may
be.
(f) Tenant shall not use, nor shall Tenant interfere with or
obstruct, any railroad line or spur on the Property;
(g) Landlord shall not be liable for consequential damages
arising from any negligence, tortious act, breach of any term, covenant or
obligation under this Lease, or any other act or omission affecting this Lease.
(h) This Lease is binding upon any party who legally acquires any
rights or interest in this Lease from Landlord or Tenant; provided, however,
Landlord shall have no obligation to Tenant's successor unless the interest of
Tenant's successor in this Lease is acquired in accordance with Section 18.
(i) The submission of this Lease to Tenant shall not be deemed to
be an offer and shall not bind either party until duly executed by Landlord and
Tenant.
(j) This Lease may be executed in counterparts, and, when all
counterpart documents are executed, the counterparts shall constitute a single
binding instrument.
(k) A determination by a court of competent jurisdiction that any
provision of this Lease or any part thereof is illegal or unenforceable shall
not invalidate the remainder of this Lease or such provision, which shall
continue to be in effect.
-13-
The riders enumerated in Section 1(i) are attached hereto and made a
part of this lease as fully as if set forth herein at length. The terms used in
the rider have the same meanings as set forth in the Lease. The provisions of a
rider shall prevail over any provisions of the lease which are inconsistent or
conflict with the provisions of the rider.
IN WITNESS WHEREOF, the parties hereby have duly executed this Lease
as of the date set forth in Section 1(a).
LANDLORD:
WITNESS: 0000 XX XX, X.X.X.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------- -----------------------------
Xxxxx X. Xxxxxx
Its: Manager
TENANT:
ATTEST: NET GROCER, INC.
By:/s/ Xxxxxx Nissan By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------- -----------------------------
Xxxxxx Nissan Its: Executive V.P.
----------------------------
-14-
RENT RIDER
Date of Lease: December 16, 1997
Landlord: 1112 CR NB, L.L.C.
Tenant: NET GROCER, INC.
Property: 0000 Xxxxxxxxx Xxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxx
1. The Base Rent payable by Tenant to Landlord during the Term shall
be at the annual amounts and for the periods and be payable in the monthly
installments as follows:
Monthly Annual
Period PSF Installment Amount
------ --- ----------- ------
February 1, 1998 - $3.25 $33,781.31 $405,375.72
December 31, 1999
January 1, 2000 - $3.50 $36,379.88 $436,558.56
March 31, 2003
2. Escrow Payments. Tenant shall pay real property impositions,
insurance, water and sewer charges to Landlord in monthly installments in
advance on an estimated basis as determined from time to time by Landlord
sufficient to pay such real property impositions, insurance, water and sewer
charges before the same become due. Within thirty (30) days of the expiration
of this lease, in the event Tenant has paid more than the amount due from
Tenant hereunder upon expiration of the term, the excess amount shall be
refunded to Tenant.
Initials:
/s/ PDS
-----------------------------
Landlord
/s/ RDF
-----------------------------
Tenant
-15-
LANDLORD'S WORK RIDER
Date of Lease: December 16, 1997
Landlord: 1112 CR NB, L.L.C.
Tenant: NET GROCER, INC.
Property: 0000 Xxxxxxxxx Xxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxx
Landlord shall perform the following work:
1. Construct four (4) 140 square foot offices (totaling 560 sf)
2. Construct two (2) 800 square foot rooms (totaling 1,600 sf)
3. Construct one (1) conference room 12' x 18' (totaling 216 sf)
4. Construct additional lavatory facilities as required by applicable code to
accommodate a total of 100 people.
Work not included: Any and all work not specifically included in this
Landlord's Work Rider.
Miscellaneous:
1. Landlord reserves the right (subject to approval by Tenant, which
approval shall not be unreasonably withheld) to make changes,
additions and/or deletions in Landlord's Work which are deemed
necessary or advisable based upon special job conditions, and
availability of material and any changes to meet requirements of any
governmental authority or agency having jurisdiction of the Property.
2. Tenant may request change, addition or alteration in Landlord's Work,
subject to the reasonable approval of Landlord ("Tenant Extras").
Substitutions of materials requested by Tenant in place of materials
set forth in the Plans and additions of quantities of materials
requested by Tenant in excess of quantities of materials set forth on
the Plans shall be deemed Tenant Extras. Landlord agrees that Tenant
may require Landlord to construct up to an additional 1,500 square
feet of office area within the Premises. The cost of constructing such
additional office area shall be calculated at Forty Dollars ($40.00)
per square foot and shall be added to the Base Rent due to Landlord,
amortized over the period of February 1, 1998 - March 31, 2003.
3. Tenant shall be responsible for, and pay any and all expenses incurred
by Landlord in connection with delay in the completion of Landlord's
Work or Tenant Extras, and any increase in the cost of Landlord's Work
or Tenant Extras, caused by (i) Tenant's requirement of Tenant Extras;
(ii) the postponement of any Landlord's Work required to perform
Tenant Extras; and (iii) any other delay requested or caused by
Tenant.
4. Nothing contained in this Rider shall be deemed to amend or modify the
Commencement Date as set forth in Paragraph 1(e) of the Lease.
5. Landlord shall perform Landlord's Work in a good and workmanlike
manner utilizing materials of first class quality and in compliance
with all laws and governmental regulations.
Initials: /s/ PDS /s/ RDF
---------------------------- ----------------------------
Landlord Tenant
-16-
PLOT PLAN RIDER
Date of Lease: December 16, 1997
Landlord: 1112 CR NB, L.L.C.
Tenant: NET GROCER, INC.
Property: 0000 Xxxxxxxxx Xxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxx
CHART
-17-
EXTENSION OPTION RIDER
Date of Lease: December 16, 1997
Landlord: 1112 CR NB, L.L.C.
Tenant: NET GROCER, INC.
Property: 0000 Xxxxxxxxx Xxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxx
1. Grant of Option. Subject to the provisions of Section 3 of this
Rider, Landlord hereby grants to Tenant one (1) option (the "Option") to extend
the Term following the expiration of the original term hereof (the "Initial
Term") for an additional term of five (5) years (hereinafter referred to as the
"Extension Term").
2. Exercise of Option. The Option shall be exercised only by written
notice (the "Extension Notice") delivered to Landlord in accordance with Par.
35 of the Lease at least nine (9) months before the expiration of the Initial
Term. Time shall be of the essence with respect to delivery of the Extension
Notice and if Tenant fails to deliver the Extension Notice within the specified
time period, the Option related thereto shall lapse, and Tenant shall have no
further right to extend the Term.
3. Conditions Precedent to Option. The Option shall be exercisable by
Tenant and the Lease shall continue for the Extension Term provided that the
time Landlord receives the Extension Notice and at the commencement of the
Extension Term, Tenant shall not be in default of any monetary obligations
under any of the provisions of the Lease beyond any applicable grace period.
4. Extension Term Provisions. The Extension Term shall be on all of
the same terms and conditions set forth in the Lease and applicable to the
Initial Term, except that the Base Rent payable by Tenant to Landlord during
the Extension Term shall be at the annual amount and for the periods and be
payable in the monthly installments as follows:
Monthly Annual
Period PSF Installment Amount
------ --- ----------- ------
April 1, 2003 -
March 31, 2008 $4.00 $41,577.00 $498,924.00
Initials:
/s/ PDS
------------------------------
Landlord
/s/ RDF
------------------------------
Tenant
-18-
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE, made as of the 31 day of March, 1998,
by and between 1112 CR NB, L.L.C., a New Jersey limited liability company
having an address c/o Sudler Management Company, L.L.C., Xxxxxx Corporate
Center I, 000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000 ("Landlord")
and NET GROCER, INC., a Delaware corporation having an office at 000 Xxxxxxx
Xxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
WHEREAS, Landlord and Tenant entered into a certain lease dated
December 16, 1997 (the "Lease") covering premises known as 0000 Xxxxxxxxx Xxxx,
Xxxxx Xxxxxxxxx, Xxx Xxxxxx (the "Premises"); and
WHEREAS, the parties are desirous of amending the Lease;
NOW THEREFORE, in consideration of the above premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. Pursuant to Miscellaneous Paragraph 2 of Landlord's Work Rider to
the Lease, Tenant has notified Landlord that Tenant requires Landlord to
construct 1,500 square feet of office area on the terms and conditions set
forth in Landlord's Work Rider. In consideration therefor, Tenant shall pay to
Landlord, in addition to the Base Rent set forth on the Rent Rider to the Lease
and any other additional rent provided for in the Lease, the sum of Sixty
Thousand Dollars ($60,000.00), payable in 60 equal monthly installments of
$1,000.00 per month commencing on February 1, 1998 and continuing through March
31, 2003.
2. Landlord shall perform, at Tenant's cost and expense, the following
work (the "Additional Work") in addition to the work specified on Landlord's
Work Rider and in the preceding Paragraph 1 of this First Amendment to Lease:
(a) Additional 956 s.f. of new office space within the Premises;
(b) Close two existing openings
(c) Additional toilet fixtures for warehouse personnel
(d) Paint existing offices
(e) Upgrade existing hardware
(f) Carpet existing offices
(g) VCT and base in existing offices
(h) New vision panel in Office #106
(i) Additional paper towel dispensers (2)
(j) New closet in existing office
(k) New vision light in existing door
(l) New ceiling tiles in existing offices
(m) New electric distribution panel
(n) Sanitary napkin dispensers (2)
2. Tenant shall pay for the Additional Work as follows:
(a) Tenant shall pay one-half of the cost of the Additional Work
(determined in accordance with paragraph 2(c) hereof) to Landlord in cash in
advance of Commencement of the Additional Work.
(b) Tenant shall pay the balance of the cost of the Additional
Work (determined in accordance with paragraph 2(c) hereof) to Landlord as
additional rent, amortized on a direct reduction basis in equal monthly
installments beginning with the month following the commencement of the
Additional Work and continuing over the remaining months of the initial term
with interest at 10% per annum on the unpaid balance.
-19-
(c) Landlord has made a good faith estimate of the cost of the
Additional Work in the amount of $95,599.00. The actual cost of the Additional
Work shall be determined the cost of the construction contracts awarded by
Landlord for the Additional Work, plus architectural and engineering fees,
costs of permits, overhead in an amount equal to ten (10%) percent of the costs
of labor, materials, equipment and subcontracts, and ten (10%) percent thereof
for profit.
(d) As soon as practicable, Landlord shall give Tenant written
notice of: (a) the actual costs for the Additional Work, (b) the amount to be
paid by Tenant in advance; (c) the balance to be amortized; (d) the date the
first amortized payment is due; (e) the number of months over which the balance
is to be amortized; and (e) the amount of the monthly amortization payment.
3. Any unamortized portion of the Sixty Thousand Dollars owed to
Landlord pursuant to Paragraph 1 hereof, and any unamortized portion of the
principal plus accumulated interest for Additional Work pursuant to Paragraph 2
hereof, shall be immediately due and payable upon Tenant's default under the
Lease or upon the expiration or sooner termination of the Lease.
4. Tenant shall pay to the full amount of any increase in real
property taxes and impositions resulting from alterations and improvements to
the Premises.
5. In all other respects, the Lease shall remain in full force and
effect without further modification.
IN WITNESS WHEREOF, the parties hereto have executed this first
Amendment to Lease on the day and year first above written.
LANDLORD:
WITNESS: 0000 XX XX, X.X.X.
/s/ By: /s/ Xxxxx X. Xxxxxx
----------------------------- -----------------------------
Xxxxx X. Xxxxxx
Its: Manager
TENANT:
ATTEST: NET GROCER, INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------- -----------------------------
Asst. Sec. Its: EVP
----------------------------
-20-
