ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (the "Agreement") is made as of
the 31st day of August, 2006, by and among TECKER CONSULTANTS, LLC, a New Jersey
limited liability company ("Assignor"); PERFORMANCE HEALTH TECHNOLOGIES, INC., a
Delaware corporation ("Assignee"); and BOI I, L.L.C., a New Jersey limited
liability company ("Landlord").
W I T N E S S E T H :
WHEREAS, The Xxxxx Company ("Xxxxx"), as Rent Receiver for River View
Executive Park, Inc. on behalf of Colony NYRO Partners, L.P. and Tenant entered
into a lease dated as of October 31, 1994 (the "Original Lease"), which Original
Lease was modified by First Amendment to Lease dated as of November 24, 1999,
and Second Amendment to Lease dated as of January 13, 2003 (collectively, the
"Lease"), pursuant to which Assignor leased, and is presently in possession of,
an agreed-upon one thousand nine-hundred nine (1,909) rentable square feet (the
"Premises") in the building now known as Riverview Plaza located in Trenton, New
Jersey; and
WHEREAS, Assignor desires by this Agreement to assign all of its right,
title and interest in and to the Lease to Assignee, subject to the terms of the
Lease and this Agreement, and Assignee desires by this Agreement to assume all
of such right, title and interest in and to the Lease, subject to the terms of
the Lease and this Agreement; and
WHEREAS, Landlord is willing to join in the execution of this Agreement
for the purpose of granting its consent to said assignment, subject to the terms
of the Lease and this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants herein contained, and good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
1. DEFINED TERMS. All capitalized terms used in this Agreement shall have
the same meaning given such terms in the Lease, unless otherwise defined in this
Agreement.
2. ASSIGNMENT AND ASSUMPTION. (a) Effectiveness of Assignment. Assignor
assigns to Assignee all of its right, title and interest in the Lease from and
after September 1, 2006 (the "Effective Date"); provided, however, in no event
shall the Effective Date be deemed to occur, nor shall Landlord's consent to the
assignment of the Lease to Assignee be effective, unless and until duplicate
original counterparts of this Agreement have been fully executed and delivered
by and between Assignor, Assignee and Landlord.
(b) Landlord's Consent to Specific Assignment Only. It is expressly
understood and agreed that Landlord's consent to the specific assignment
transaction set forth herein shall not be construed as a waiver of Landlord's
right to consent with respect to any other or further assignment of the Lease.
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(c) Assignee's Assumption of Obligations. Assignee agrees to be
bound by and perform all covenants, conditions, obligations and duties of
"Tenant" under the Lease. Notwithstanding the preceding sentence, Assignee
agrees that it shall pay to Landlord, upon demand, any and all rent (including
without limitation, Base Rent and Additional Rent) which, as a result of any
adjustment provided in the Lease, may become due against insufficient payment(s)
of any previously paid sum(s). Assignor hereby represents to Assignee and
Landlord that Assignor has heretofore delivered to Assignee a full and complete
copy of the Lease, and Assignee hereby acknowledges receipt of the Lease from
Assignor.
3. ASSIGNOR'S REPRESENTATIONS. Assignor hereby represents, warrants and
covenants to Assignee and Landlord, as of the date of this Agreement, that: (a)
the Lease is in full force and effect; (b) Assignor's interest therein is free
and clear of all encumbrances; (c) Assignor has fully performed all covenants
and obligations on its part to be performed under the Lease; (d) Assignor has
not done or permitted any act or acts in violation of any of the covenants,
provisions or terms contained in the Lease or in this Agreement; (e) Assignor
has not heretofore assigned, mortgaged or otherwise transferred or encumbered,
voluntarily or involuntarily, either the Lease or its interest therein, nor has
Assignor encumbered, voluntarily or involuntarily, any portion of the Premises,
nor has Assignor sublet or licensed, voluntarily or involuntarily, any portion
of the Premises; (f) Landlord has fully performed all the covenants and
obligations on its part to be performed and observed under the Lease; (g)
Landlord has not done or permitted any act or acts in violation of any of the
covenants, provisions or terms contained in the Lease or in this Agreement; and
(h) there is not now in existence any reason or claim to offset, deduct or
decrease any payments due from Assignor under the Lease. The foregoing
representations by Assignor shall be deemed repeated as of the Effective Date.
4. ASSIGNEE'S REPRESENTATIONS. Assignee hereby represents, warrants and
covenants to Assignor and Landlord, as of the date of this Agreement, that: (a)
the financial statements regarding Assignee delivered to Landlord prior to the
date hereof remain accurate, and no event has occurred which would affect the
financial condition of Assignee; and (b) it has inspected the Premises and
hereby agrees to take the Premises in its AS-IS, WHERE-IS condition, without any
obligation on the part of Assignor or Landlord to perform any work to the
Premises. The foregoing representations by Assignee shall be deemed repeated as
of the Effective Date.
5. CESSATION OF OBLIGATIONS AND RESERVATIONS. From and after the Effective
Date, Landlord's obligations to Assignor under the Lease shall terminate and,
subject to the following sentence, Assignor's obligations to Landlord under the
Lease shall terminate. Notwithstanding the anything contained herein, Assignor
agrees to defend, indemnify and hold harmless Landlord and Assignee from and
against any and all claims, costs, losses, expenses, damages, actions and causes
of action for which Assignor is responsible under the Lease which accrue on or
before the Effective Date.
6. SECURITY DEPOSIT. (a) Simultaneously herewith, Assignee shall pay
Assignor the sum of $4,544.30, representing the security deposit previously
delivered to Landlord in connection with the Lease. Assignor hereby (i) assigns
to Assignee all of its right, title and interest in and to the security deposit,
and (ii) releases any claim it may have against Landlord with respect to the
security deposit.
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(b) Section 25 of the Original Lease is amended to provide that
Landlord shall not be required to maintain the security deposit in a separate
account and, except for any minimum amount of interest that may be required by
applicable laws pertaining to commercial leases, Assignee (as tenant under the
Lease) shall not be entitled to interest on the security deposit.
7. LEASE TERM. Section 5(g) of the Second Amendment to Lease (modifying
Section 26 of the Original Lease and Section 9 of the First Amendment to Lease)
is hereby deleted in its entirety. Accordingly, Assignee expressly acknowledges
and agrees that (a) the Term ends on December 31, 2007, and (b) it does not have
any right or option to extend or renew the Term.
8. NOTICES. (a) Assignee's Notice Address. From and after the date hereof,
"Tenant's" notice address shall be as follows, unless Assignee otherwise
notifies Landlord of a change in address in accordance with the procedure for
the giving of notices to Landlord as set forth in the Lease:
Performance Health Technologies, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: ___________________
(b) Assignor's Notice Address. From and after the date hereof,
Assignor's notice address shall be as follows, unless Assignor otherwise
notifies Landlord of a change in address in accordance with the procedure for
the giving of notices to Landlord as set forth in the Lease:
Tecker Consultants, LLC
000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0000-X
Xxxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
(c) Landlord's Notice Address. From and after the date hereof,
Landlord's notice address shall be as follows, unless Landlord otherwise
notifies Tenant of a change in address in accordance with the procedure for the
giving of notices to Tenant as set forth in the Lease:
BOI, L.L.C. with a duplicate copy to:
c/o Advance Realty Group Xxxxx Cummis Xxxxxxx & Xxxxx P.C.
0000 Xxxxx 000, Xxxxx 000 Xxx Xxxxxxxxxx Xxxxx
Xxx Xxxxxx 00000 Xxxxxx, Xxx Xxxxxx 00000
Attention: Senior Vice President - Attn: Xxx Xxxxxxx, Esq.
Asset Management
9. BROKER. Assignor and Assignee each hereby indemnifies and holds
Landlord and Landlord's agents, employees, officers, directors and shareholders
harmless from and against any and all costs, claims, losses, liabilities and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) arising out of a claim for a commission asserted against Landlord
by any broker, agent or finder that dealt or claimed to have dealt with either
Assignor or Assignee, or both, in connection with any aspect of the assignment
transaction set forth in this Agreement.
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10. BINDING EFFECT; GOVERNING LAW. Except as modified hereby, the Lease
shall remain unchanged and in full force and effect. This Agreement shall be
governed by the laws of the State of New Jersey.
11. NO REPRESENTATIONS. Assignee acknowledges that neither Landlord nor
Assignor nor any broker, agent or employee of Landlord or Assignor has made any
representation or promise with respect to the Premises, except as otherwise
expressly set forth in this Agreement, and Assignee represents and warrants that
it has made its own investigation and examination of all relevant data and is
relying solely on its own judgment in connection therewith and in executing this
Agreement. This Agreement contains and embodies the entire agreement of the
parties hereto and supersedes all prior agreements, negotiations, letters of
intent, proposals, representations, warranties, understandings, suggestions and
discussions, whether written or oral, between the parties hereto. Any
representation, inducement, warranty, understanding or agreement that is not
expressly set forth in this Agreement shall be of no force or effect.
12. CAPTIONS. The captions and section numbers appearing in this Agreement
are for convenience only and are not a part of this Agreement and do not in any
way limit, amplify, define, construe or describe the scope or intent of the
terms or provisions of this Agreement.
13. CONFLICTS. If any inconsistency exists or arises between the terms of
this Agreement and the terms of the Lease, the terms of this Agreement shall
prevail.
14. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
15. SUCCESSORS. The provisions of this Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs, representatives,
successors and assigns (in the case of "Tenant" under the Lease, subject to the
provisions of the Lease pertaining to assignments or other transfers of Tenant's
interest in the Lease).
16. AUTHORITY TO EXECUTE/VALIDITY OF EXECUTION. Assignor and Assignee
hereby represent and warrant to Landlord and to each other that the individual
executing this Agreement on its behalf has full power and authority to bind it
to the terms hereof. Assignor and Assignee covenant that it will not raise or
assert as a defense to any obligation under the Lease or this Agreement or make
any claim that the Lease or this Agreement is invalid or unenforceable due to
any failure of this Agreement to comply with ministerial requirements including,
but not limited to, requirements for corporate seals, attestations, witnesses,
notarizations, or other similar requirements, and Assignor and Assignee each
hereby waives the right to assert any such defense or make any claim of
invalidity or unenforceability due to any of the foregoing.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, this Agreement has been entered into by the parties as
of the day and year first above written.
WITNESS: ASSIGNOR:
TECKER CONSULTANTS, LLC,
a New Jersey limited liability company
By:
---------------------- -----------------------------
Name: Name: Xxxxx X. Xxxxxx
Title: Manager
ASSIGNEE:
PERFORMANCE HEALTH TECHNOLOGIES, INC.,
a Delaware corporation
By:
---------------------- -----------------------------
Name: Name:
Title:
LANDLORD:
BOI I, L.L.C.,
a New Jersey limited liability company
By: Advance Plaza, Inc.,
a New Jersey corporation, its Managing Member
By:
---------------------- -----------------------------
Name: Name: Xxxxxxx Xxxxxxxxxx
Title: Chief Operating Officer
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