EXHIBIT 10.28
REAL ESTATE LEASE
THIS LEASE is made as of the 5th day of February, 1997 between XXXXXX
CORP., a Delaware corporation, having a business at 000 Xxxxx Xxxxxx, Xxxxxxxx,
Xxx Xxxxxx ("Landlord"), and Sel-Leb Marketing, Inc., 0000-00 Xx., Xxxxx Xxxxxx
XX 00000 ("Tenant").
1. PREMISES. Landlord leases to Tenant and Tenant leases from Landlord,
subject to the covenants, terms and conditions of this Lease, 50,570 square
feet of warehouse and office space in the building ( the "building") located at
000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx, and more particularly described and
identified on Exhibit A attached to and made a part of this Lease
(the"Premises") along with a license to use in common with Landlord non-
exclusive parking for employee and customer parking and the use of the common
walkways, drives and roads located on the real property of Landlord on which the
Premises is located. The real property, the building and other improvements
located thereon are hereinafter referred to collectively as the "Property". See
addendum # 1.
2. TERM AND RENTAL. The initial Lease term shall be sixty (60) months
commencing April 1, 1997 and terminating March 31, 2002 unless otherwise
indicated, the "Lease term" refers to the initial term of this Lease, as
extended or renewed. Tenant shall pay to Landlord throughout the initial Lease
term a fixed annual base rental of ( see Rent Schedule ), per year payable in
equal monthly installments per month. The first monthly rental payment is
payable upon execution of this Lease, and each subsequent monthly rental payment
is payable in advance on the first day of each calendar month during the Lease
term without demand and without any abatement, counterclaim, deduction or setoff
whatsoever except as provided herein. Any sums payable hereunder other than
annual base rental shall be deemed entitle landlord to same remedies as default
in base rent. Rental for any partial calendar month at the beginning or end of
the Lease term shall be prorated on a per diem basis. If the rent check is not
received by the 15 day of the month a late payment of $200.00 will be charged.
3. UTILITIES. Tenant will pay for the use of all public utility
services rendered or furnished to the building during the Lease term. Landlord
represents that the Premises is served by all public utility services necessary
to operate the utility system upon the Premises, including electricity, water,
sewer, natural gas and telephone.
4. REPAIRS AND MAINTENANCE. Throughout the Lease term, Tenant will at
its expenses (I) keep the Premises reasonably neat and clean, (ii) repair any
damage to the Premises to the extent causes by the willful or negligent acts of
Tenant, its employees, agents or contractors (except repairs or replacements
resulting from fire or other casualty insurable under a standard form all
risk property perils insurance policy) , and (iii) make such ordinary repairs
and replacements as may be required to keep the Premises in substantially the
same condition as the commencement of the Lease term (except repairs or
replacements resulting from ordinary wear and tear, from fire or other casualty
insurable under a standard form all risk property perils insurance policy, or
from the willful or negligent, acts of Landlord, its employees, agents or
contractors). Except for those repairs and replacements required to be made by
Tenant pursuant to this Xxxxxxxxx 0, Xxxxxxxx will at its expense promptly make
all structural and roof repairs. Landlord warrants roof is sound and free of
leaks. All mechanical systems including plumbing and overhead doors are in good
working order.
5. TAXES AND ASSESSMENTS. Landlord will pay when due all real estate
taxes and assessments, both general and special, which may be levied or assessed
with respect to the Building and the land upon which it stands during the Lease
term and which are not being contested in good faith. Upon receipt or
Landlord's invoice attaching a copy or the paid tax xxxx and other appropriate
supporting documentation, Tenant will reimburse Landlord for Tenant's
Proportionate Share (as hereinafter defined) of any increases in such taxes and
assessments paid by Landlord over the amount of such taxes and assessments
during calendar year 1997. Landlord agrees to absorb any increase in real estate
taxes during first two (2) years of lease.
6. Omitted.
7. ALTERATIONS AND IMPROVEMENTS BY TENANT. Tenant may at its expense
make non-structural alterations and improvements to the Premises, provided that
Tenant first obtains Landlord's written consent (which may not be unreasonably
withheld or delayed). All alterations and improvements made by either party (i)
shall not render the Premises unsafe or damage or diminish the structural value
or strength of the Premises, and (ii) shall be made in a good workmanlike manner
and in accordance with all applicable laws, ordinances, codes and directives of
properly constituted governmental authorities. Tenant may at its option remove
within 10 days before the end of the Lease term any non-structural alteration or
improvement made by Tenant, so long as Tenant repairs any damage caused by the
removal. Any alteration or improvement not Go removed by Tenant will be deemed
abandoned and become the property or Landlord. Tenant shall not make structural
alterations or improvements without Landlord's prior written consent which may
be withheld in Landlord's sole discretion.
8. Omitted.
9. FIRE INSURANCE. Tenant will maintain such fire and other property
perils insurance as Landlord reasonably deems appropriate to protect its
interest in the Property. Landlord
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waives all claims for loss or damage to the Property (and all related additions,
alterations and improvements), to Landlord's property located at, on or about
the Premises and to Landlord's property adjoining the Premises, caused by
Tenant, its employees, agents, successors and assigns, and arising out of any
event or risk insurable under a standard form all risk property perils insurance
policy, regardless of whether Landlord has maintained such a policy or the
limits of that policy. If Tenant's insurance policy so requires, Landlord shall
obtain the proper endorsement to reflect the foregoing waiver of subrogation and
deliver evidence of the waiver to Tenant promptly after commencement of the
Lease term. Tenant waives subrogation so that with respect to any loss which is
covered by a standard form all risk property perils insurance policy. Tenant
waives all claims for loss or damage to the property occurring thereunder.
10. LIABILITY INSURANCE. Tenant will at its expense maintain in effect
during the Lease term commercial general liability Insurance with a combined
single limit of $2,000,000 per occurrence with respect to bodily injury and
property damage resulting from or occurring in connection with Tenant's use and
occupancy of the Premises and such other insurance coverages as Landlord deems
commercially reasonable provided it Is practicable for Tenant to maintain such
other Insurance coverages. A certificate of insurance will be delivered to
Landlord upon execution of this Lease, and will provide for at least twenty (20)
days' prior notification to both Landlord and Tenant of any proposed
cancellation or significant modification of such insurance. Tenant shall name
Landlord as an additional insured on the commercial general liability insurance
required pursuant to this Paragraph 10.
11. INDEMNIFICATION.
(a) BY TENANT. Tenant will defend, indemnify and hold harmless
Landlord, its employees and agents, from and against all losses, claims,
damages, fines, and expenses (including without limitation reasonable legal
fees) resulting from (i) any accident or other occurrence on or about the
Premises caused by the negligence of Tenant, its employees, agents or
contractors,* and resulting in injury or death to any person or damage to any
property (other than damage to Landlord's property of the type insurable under a
standard form all risk property perils insurance policy), except when such
injury, damage or death is also due to the negligence of, or results from a
breach of this Lease by, Landlord, its employees, agents or contractors,* and/or
(ii) any environmental remediation required by applicable laws, regulations
------------------
* Invitees.
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or directives of properly constituted governmental authorities as a sole result
of Tenant's use of the Premises.
12. ASSIGNMENT AND SUBLEASE. Tenant may assign this Lease or sublease all
or part of the Premises to (i) any subsidiary or Sel-Leb Marketing Inc., without
Landlord's consent, and (ii) any third party with Landlord's prior written
consent which shall not be unreasonably withheld or delayed. Sale of the
majority of Tenant's stock in one or more transactions shall be deemed an
assignment for the purposes of this Paragraph 12. Any such assignment or
subletting shall not release Tenant from liability hereunder and Tenant shall
promptly pay the Landlord (i) 100% of any consideration received in connection
with any assignment of this Lease and (ii) 100% of any base rental, additional
rent or other consideration payable under a sublease to Tenant which is in
excess of the base rental and additional rent payable hereunder during the term
of the sublease In respect of the subleased premises (at the rate per square
foot payable by Tenant hereunder) Landlord acknowledges and agrees that
notwithstanding any other provision of this Lease to the contrary, Tenant may at
any time assign its rights hereunder as collateral to any lender of Tenant or
Tenant's parent. In the event that Landlord exercises its option under this
provision, Landlord agrees to release Tenant from its obligations under this
lease.
13. DAMAGE AND DESTRUCTION. Regardless of any allegation of negligence,
if all or part of the Premises is so damaged or destroyed by the elements or
other cause as to render the Premises unsuitable for Tenant's purposes and If
the Premises cannot be or is not restored to Its former condition within one
hundred fifty (150) days after such damage or destruction occurs, then Tenant
may at its option declare this Lease terminated, in which case Tenant shall
promptly surrender the Premises to Landlord. If the Premises call be restored
to its former condition within one hundred fifty (150) days after such damage or
destruction occurs, or within such longer period as is mutually agreeable to
both parties, then Landlord shall up to the amount of insurance proceeds
received, restore tile Premises to its former condition as soon as possible. In
any event, rent and other charges payable under this Lease shall be
proportionately reduced during any period in which Tenant is unable to use any
part of the Premises as a result of any damage or destruction to the Premises.
Landlord has no obligation to restore if over 40% of the Premises are damaged or
if the damage occurs in the last year of the Lease term.
14. CONDUCT OF BUSINESS AND USE OF PREMISES. Tenant shall use the
Premises only for a warehouse with incidental office space for storage and will
conduct its business on the Premises in accordance with all laws and ordinances
applicable to that business and Tenant will obtain any permits, licenses and
certificates in connection therewith. Tenant shall not paint, maintain or
repair
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motor vehicles at the premises. Tenant may do assembly, packaging and light
manufacturing.
15. QUIET ENJOYMENT. Landlord warrants and covenants that it is the fee
simple owner of the Premises that it has a good right to execute this Lease, and
that 1L Tenant performs in accordance with the terms and conditions of this
Lease, Tenant shall have the peaceable possession and quiet enjoyment of the
Premises throughout the Lease term, without any interference or restriction by
Landlord or any other person. Landlord represents that there is currently
ingress and egress to the Premises from one or more public roads.
16. TENANT'S DEFAULT. Tenant will be in "Default" if (i) Tenant falls to
pay rent when due and the failure is not cured within 10 days; (ii) Tenant
falls to perform any other material covenant or condition contained in this
Lease within 30 days after Tenant receives written notice of the failure from
Landlord (unless the failure cannot reasonably be cured within such period, in
which case Tenant will be in Default if it fails to commence its cure within
such period and/or fails to diligently pursue its cure to completion); and/or
(iii) Tenant is adjudicated a bankrupt in a proceeding against it or a receiver
for Tenant or for all or a substantial part of its property is appointed, or a
court order is entered approving a petition seeking reorganization or an
arrangement under the Bankruptcy Code, and any such adjudication, appointment or
order is not vacated, set aside or otherwise terminated or stayed within 60 days
from the date of its entry. If Tenant is in Default and while that Default is
continuing, Landlord may at its option (1) terminate this Lease by notice to
Tenant, recover possession of the Premises, and recover from Tenant the
difference, if any, between the rent owed by Tenant for the remaining portion of
the Lease term and the fair rental value of the Premises for such period,
discounted to present value at the rate of 7% per annum; or (2) without
terminating this Lease, recover possession of the Premises and relet the
Premises or any part of the Premises, as the agent of Tenant, and Tenant shall
pay Landlord as it becomes due the difference, if any, between the rent owed by
Tenant for the remaining portion of the Lease term and the amount received or to
be received under such reletting for such period. Landlord may also recover all
reasonable and necessary costs and expenses it incurs in connection with
Tenant's Default and the enforcement of its remedies under this Lease, including
without limitation reasonable legal fees, alterations, remodeling or
redecorating for new tenants. Landlord shall use reasonable good faith efforts
to mitigate its damages as a result of Tenant's Default. Any amount required to
be paid by Tenant pursuant to this Lease in addition to base rent shall be
deemed additional rent and nay at Landlord's option be added to any subsequent
installment of the base rent due under this Lease.
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17. LANDLORD'S DEFAULT. Landlord will be in "Default" if Landlord fails
to observe or perform any material term or covenant in this Lease and does not
cure the failure within 30 days after receipt of notice of the failure from
Tenant (unless the failure cannot reasonably be cured within such period, in
which case Landlord will be in Default if it fails to commence its cure within
such period and/or fails to diligently pursue its cure to completion). If
Landlord is in Default and while that Default is continuing, Tenant may cure the
Default at Landlord's expense, in which case Landlord shall promptly reimburse
Tenant for all reasonable and necessary costs and expenses incurred by Tenant in
effecting its cure. Upon written request of Landlord, Tenant shall provide
Landlord with reasonable documentation of the costs and expenses incurred by
Tenant in effecting its cure. Tenant may also recover all reasonable and
necessary costs and expenses it incurs in connection with Landlord's Default and
the enforcement of its remedies under this Lease, including without limitation
reasonable legal fees. Tenant shall use reasonable good faith efforts to
mitigate its damages as a result of Landlord's Default If Landlord fails to
reimburse Tenant promptly for any amounts due~Tenant under or pursuant to this
Lease, Tenant may at its option in addition to any other right or remedy Tenant
may have, deduct such amounts from subsequent installments of rent and/or other
amounts which from time to time become due to Landlord.
18. CONDEMNATION. If the whole of the Premises is condemned for any
public use or purpose by any legally constituted authority (or is sold to such
authority in lieu of condemnation), this Lease shall cease from the date of such
taking or sale and rental shall be accounted for between Landlord and Tenant as
of the date of the surrender of possession. If any property contiguous to the
Premises or any portion of the Premises is so condemned or sold and the loss of
the property so taken or sold, in Tenant's reasonable opinion, makes the
Premises unsuitable for Tenant's use, Tenant may at its option within fifteen
(15) days after receipt of notice by Tenant of such taking terminate this Lease
effective as of the date of such taking or sale and the rental shall be
similarly accounted for. If a portion of the Premises is so taken or sold and
Tenant does not so elect to terminate this Lease, then from and after the date
of taking or sale, the rental shall be proportionately reduced to reflect the
portion of the Premises so taken or sold, and Landlord shall forthwith restore
the remaining portion of the Premises to a complete architectural unit, provided
that the award or sale proceeds received by Landlord ar sufficient for such
restoration. No condemnation or condemnation award shall prejudice the rights
of either Landlord or Tenant to recover compensation from the condemnation but,
unless the condemnation award specifically allows or clearly implies that a
portion of the award be allocated to Tenant for trade fixtures, alterations,
additions and improvements made at Tenant's expense, moving expense or other
consequential damages, Tenant shall have no right of
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recovery against Landlord for any portion of the condemnation award.
19. HOLDING OVER. If Tenant remains in possession of the Premises after
the expiration of the Lease term, at Landlord's sole discretion its continued
possession shall be as a month-to-month tenant. During such month-to-month
tenancy, rent shall be payable at 150% of the rate as that in effect during the
last month of the immediately preceding term, and the terms and provisions of
this Lease shall apply.
20. Omitted
21. SURRENDER OF PREMISES. At the expiration or earlier termination of
the Lease term, Tenant will peaceably and quietly leave and surrender possession
of the Premises to Landlord in the condition it was required to maintain the
Premises throughout the Lease term.** Tenant shall proceed prior to termination
or expiration of this Lease to remove from the Premises all personal property,
equipment, furnishings and trade fixtures placed by it on, to or in the
Premises, whether nailed, bolted, or otherwise affixed. Any damage caused by
such removal shall be promptly repaired by Tenant at its expense.
22. Omitted
23. A Security Deposit equal to Two (2) Months rent is required payable in
the following manner:
One (1) Month Rent payable at signing of this lease.
The second month is payable in six(6) installments starting with the
second month of the lease term through the seventh month of the lease
term. This amount is to be added to the regular rent due for each of
the above mentioned months.
24. NOTICES. Any notice or other communication required to be given
either party (i) shall be in writing and delivered by courier, transmitted by
telecopier or mailed by registered or certified mail, return receipt requested,
postage prepaid, (ii) shall be effective on the date of actual receipt, and
(iii) shall be sent to the parties at the following addresses or at such other
addresses as either party may from time to time notify the other:
----------------------
** Normal wear and tear accepted.
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AS TO LANDLORD: AS TO TENANT:
XXXXXX CORP. SEL-LEB MARKETING, Inc.
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000 Xxxxxxxx, Xxx Xxxxxx 00000
Attn:
Telecopy No.: 000-000-0000
COPY TO: MARKOWITZ, ROSHCO, AND
XXXXXXX
000 XXXXX XXX. 00xx XX
XXX XXXX, XX 00000
ATTN: XXXX XXXXXXXXX
25. MODIFICATIONS. This Lease constitutes the complete agreement between
the parties with respect to the Premises, superseding any prior oral or written
representations, agreements or understandings related to this Lease or the
Premises.
26. RIGHTS AND REMEDIES. The failure or either party to enforce any or
its rights under this Lease on a particular occasion shall not be construed as a
waiver or the right of either party to exercise those rights on any subsequent
occasion. The specific remedies to which Landlord or Tenant may resort under
this Lease are cumulative and are in addition to all other available legal and
equitable rights and remedies. All rights, remedies and obligations under this
Lease will survive the expiration or termination of this Lease and Tenant's
surrender of the Premises to Landlord, except for Article 43.
27. SUCCESSION. All of the terms, covenants and conditions of this Lease
and any extension, amendment or modification, to this Lease shall inure to the
benefit of and be binding upon the respective heirs, administrators, successors
and permitted assigns of the parties to this Lease.
28. WAIVER OF TRIAL BY JURY. The parties hereto waive trail by jury in
any action or proceeding brought in connection with this Lease of the Premises.
29. LIMITATION OF LIABILITY. See Xxxxxxxx # 0
30. GOVERNING LAWS. This Lease shall be construed in accordance with laws
of the State of New Jersey. Each party hereto agrees to submit to the
jurisdiction of the courts of the State of New Jersey with respect to any
controversy arising out of this Lease.
31. CORPORATE AUTHORITY. If Tenant is a corporation, Tenant represents
and warrants that this Lease and the undersigned's execution of this Lease have
been duly authorized and approved by the corporation's board or directors.
Tenant
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represents that it is qualified to do business in the State of New Jersey.
32. RULES OF CONSTRUCTION. Any table of contents, captions, headings and
titles in this Lease are solely for convenience or reference and shall not
affect its interpretation. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted. If any words or phrases in this Lease shall have been
stricken out or otherwise eliminated, whether or not any other words or phrases
have been added, this Lease shall be construed as if the words or phrases so
stricken out or otherwise eliminated were never included in this Lease and no
implication or reference shall be drawn from the fact that said words or phrases
were so stricken out or otherwise eliminated. Each covenant, agreement,
obligation or other provision of this Lease on Tenant's part to be performed,
shall be deemed and construed as a separate and independent covenant of Tenant,
not dependent on any other provision of this Lease. All terms and words used in
this Lease, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. If any of the provisions of this Lease, or the application thereof to
any person or circumstances, shall to any extent be invalid or unenforceable,
the remainder or this Lease, or the application of such provision or provisions
to person or circumstances other than those as to whom or which it is held
invalid or unenforceable, shall not be affected thereby, and every provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
33. INDEPENDENT COUNSEL. Each party to this Lease had the benefit of its
own independent legal counsel and neither party relied on the advice or counsel
of the other party's legal counsel.
34. PERFORMANCE OF TENANT'S OBLIGATION. If Tenant shall be in default
hereunder, in any respect, beyond the expiration of any notice or cure periods,
if any, Landlord may at Landlord's option and without waiving its rights
hereunder, cure such default on behalf of Tenant, in such event Tenant shall,
promptly upon demand by Landlord, reimburse Landlord for all reasonable and
necessary expenses incurred by Landlord in curing such default provided that
Landlord has provided Tenant with reasonable documentation of the expenses
incurred by Landlord in curing any such default. In order to collect such
reimbursement, Landlord shall have all the remedies available under this Lease
and/or by law or equity for a default in the payment of rent.
35. ESTOPPEL CERTIFICATE. Landlord and Tenant agree at any time and from
time to time, upon not less than fifteen (15) days' prior request, they shall
execute, acknowledge and deliver to each other a statement in writing certifying
that this Lease is unmodified (or, in the alternative, that there have been
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modifications) and in full force and effect if such is in fact the case, and the
dates to which the fixed annual rent and other charges have been paid in
advance, and if there are any defaults hereunder known by Landlord or Tenant, it
being intended that any such statement delivered pursuant to this Section may be
relied upon by any prospective purchaser of the fee or mortgagee (fee or
leasehold) or any assignee of any mortgagee.
36. NO OTHER REPRESENTATIONS. No representations or promises shall be
binding on the parties hereto except those representations and promises
contained herein or in some future writing signed by the party making such
representation(s) or promise(s).
37. RECORDATION. Tenant shall not record this Lease or a short form
memorandum hereof without the prior written consent of Lessor. If Tenant does
record this Lease or a short form memorandum without the prior written consent
of Landlord as provided for in this Lease, it shall be considered a default
under the Lease entitling the Landlord to terminate the Tenant's occupancy.
38. RIGHT TO INSPECT AND REPAIR. Landlord may enter the Premises but
shall not be obligated to do so (except as required by any specific provision of
this Lease) at any reasonable time on reasonable notice to Tenant (except that
no notice need be given in case of emergency) for the purpose of inspection or
the making of such repairs, replacement or additions, in, to, on and about the
Premises or the Building, as Landlord deems necessary or desirable. Tenant
shall have no claims or cause of action against Landlord by reason thereof*,
Landlord shall take whatever steps are reasonably necessary so as to not
interfere with Tenant's use of the Premises, Property and/or Building. *except
for the negligence, neglect or willful act of the Landlord or agent contractors
or invitees.
39. RIGHT TO SHOW PREMISES. The Tenant agrees to permit the Landlord's
agents, employees or other representatives to show the Premises* to persons
wishing to rent or purchase the same, and Tenant agrees that on and after six
months next preceding the expiration of the term hereof, the Landlord or the
Landlord's agents, employees or other representatives shall have the right to
place notices on the front of said Premises or any part thereof, offering the
Premises for rent or for sale; and the Tenant hereby agrees to permit the same
to remain thereon without hindrance or molestation provided that the same does
not unreasonably interfere with Tenant's use of the Premises. *Upon reasonable
notice at reasonable times.
40. SIGNS. The Tenant shall not place nor allow to be placed any signs of
any kind whatsoever, upon, in or about the said Premises or any part thereof,
except of a design and structure and in or at such places as may be indicated
and consented to by the
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Landlord in writing, such consent not to be unreasonably withheld or delayed.
In case the Landlord or the Landlord's agents, employees or representatives
shall deem it necessary to remove any such signs in order to paint or make any
repairs, alterations or improvements in or upon said Premises or any part
thereof, they may be 50 removed, but shall be replaced at the Landlord's expense
when the said repairs, alterations or improvements shall have been completed.
Any signs permitted by the Landlord shall at all times conform with all
municipal ordinances or other laws and regulations applicable thereto.
41. COMPLIANCE WITH LAWS. Except as otherwise provided herein, the Tenant
shall promptly comply with all laws, ordinances, rules, regulations,
requirements and directives of the Federal, State and Municipal Governments or
Public Authorities and of all their departments, bureaus and subdivisions
(collectively "Laws") applicable to and affecting the said Premises, but only if
Tenant has altered the design or construction of the Building or if such
compliance arises solely out of Tenant's use and occupancy of the Premises other
than as permitted hereunder; Tenant shall promptly comply with all orders,
regulations, requirements and directives of the Board of Fire Underwriters or
similar authority and of any insurance companies which have issued or are about
to issue policies of insurance covering the said Premises and its contents, for
the prevention of fire or other casualty, damage or injury.
42. INDUSTRIAL SITE RECOVERY ACT. *** Tenant acknowledges the existence
of environmental laws, rules and regulations, including but not limited to the
provisions of ISRA, as hereinafter defined. Tenant shall comply with any and
all such laws, rules and regulations. Tenant represents to Landlord that
Tenant's Standard Industrial Classification ("SIC") Number as designated in the
Standard Industrial Classifications Manual prepared by the Office of Management
and Budget in the Executive Office of the President of the United States will
not subject the Premises to ISRA applicability. Any change by Tenant to an
operation with a SIC Number subject to ISRA shall require Landlord's written
consent. Any such proposed change shall be sent in writing to Landlord sixty
(60) days prior to the proposed change. Landlord, at its sole option, may deny
consent.
Tenant hereby agrees to execute such documents as Landlord reasonably deems
necessary and to make such applications as Landlord reasonably requires to
assure compliance with ISRA. As used in this Lease, ISRA compliance shall
include applications for determinations of nonapplicability by the appropriate
governmental
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*** Landlord agrees that the Tenant shall have no responsibility for any
pre-existing conditions nor any environmental conditions caused by any
Landlord, Tenant, or other previous occupants of the building.
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authority. The foregoing undertaking shall survive the termination or sooner
expiration of the Lease and surrender of the Demised Premises and shall also
survive sale, or lease or assignment of the Demised Premises by Landlord.
Tenant agrees to indemnify and hold Landlord harmless from any violation of ISRA
occasioned solely by Tenant's use of the Demised Premises. The Tenant shall
immediately provide the Landlord with copies of all correspondence, reports,
notices, orders, findings, declarations and other materials pertinent to the
Tenant's compliance and the requirements of the New Jersey Department of
Environmental Protection ("NJDEP") under ISRA as they are issued or received by
the Tenant.
Except as otherwise provided in this Lease, Tenant 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. 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.), the New Jersey Environmental Cleanup Responsibility Act, as amended
(N.J.S.A. 13:lK-6, et seq.) (~ISRA"), the New Jersey Spill Compensation and
Control Act, as amended (N.J.S.A. 58:l0-23.llb, 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. It is
understood and agreed that the provisions contained in this Section 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 the Tenant but shall thereafter
be deemed to be a Hazardous Substance.
Tenant agrees to indemnify and hold harmless the Landlord and each
mortgagee of the Premises from and against any and all liabilities, damages,
claims, losses, judgments, causes of action, costs and expenses (including the
reasonable fees and expenses of counsel) which shall be incurred by the Landlord
or any such mortgagee or threatened against the Landlord or such mortgagee,
relating to or arising out of any breach by Tenant of the undertakings set forth
in this Section, said indemnity to survive the Lease expiration or sooner
termination.
43. EDA APPROVAL OF TENANT. Tenant acknowledges that Landlord has
advised Tenant that there presently exists on the Building a mortgage granted by
the New Jersey Economic Development Authority (the "EDA"), and pursuant to the
terms of said mortgage, all new tenants must be approved by the EDA ("EDA
Approval") prior to tile effective date of any lease. Tenant agrees upon
execution of this Lease to complete and deliver to Landlord the EDA Project
Occupant Application (the "Application"). Upon delivery of same to Landlord,
Landlord agrees to submit same, together with a copy of the Lease, to the EDA
for approval. This Lease and the obligations of Landlord and Tenant hereunder
shall be subject to
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Tenant being approved by the EDA within ninety (90) days of the date Tenant
delivers the Application to Landlord. In the event Tenant is not approved
within the ninety (90) day period, Landlord or Tenant shall have the right to
terminate this Lease upon five (5) days' prior written notice. If this Lease is
terminated pursuant to the immediately preceding sentence, Tenant shall have two
hundred seventy (270) days to vacate the Building. If this Lease is not
terminated within the ninety (90) day period provided for in this Section 43,
Landlord will be deemed to have waived its right to terminate pursuant to this
Section 43. See addendum # 2.
IN WITNESS WHEREOF, each party has caused this Lease to be executed as of
the date set forth above.
Witnesses:
By: /s/ Xxxx Xxxxxxxxx
------------------------ ----------------------
________________________ Title
As to Landlord
("Tenant")
By: /s/ Xxx X. Xxxxxx
------------------------- -----------------------
_________________________ Executive Vice President
As to Tenant
13
XXXXXXXX # 0
TO LEASE AGREEMENT BETWEEN XXXXXX CORPORATION
AND SEL-LEB MARKETING, INC.
The second floor Office Space is leased totally to the Tenant except the Office
in the South West corner, the reception area for that office and access to the
stairwell in the South West corner. The door from this office to the general
area will be removed and replaced with a wall finished on both sides. A
permanent partition will be erected at the end of the hallway by the Ladies Room
approximately 6 feet from outside wall of the building. It will contain a solid
door and be part of the leased space. Tenant will allow access to toilet space
only between 9:00 AM and 5:00 PM weekdays to Landlord. This door will also
operate as a Fire Exit for Tenant. There are 34 exclusive parking spaces
directly in front of the building for Tenant. This parking lot is exclusively
for and maintained by Tenant except for the 4 parking spaces which are presently
marked Reserved which are used by the Landlord.
ADDENDUM #2
It is agreed that this lease is subject to approval of a Business Employee
Incentive Program grant by the New Jersey Economic Development Authority Board.
ADDENDUM #3
OPTION TO RENEW: Tenant shall have the option to renew this lease for one (1)
successive term of Twenty-Four (24) months, the renewal Lease term commencing
upon expiration of the initial Lease term and ending on April 1, 2005. All the
terms and conditions applicable to the initial Lease term shall also prevail
during the renewal Lease term(s) except that the fixed monthly base rental for
the renewal Lease term shall be at $6.00 per Sq. Ft. including taxes. The
renewal option shall be exercisable by notice to Landlord received at least one
hundred eighty (180) days prior to the end of the then-current term, so long as
Tenant is not then or at commencement of the renewal term in default hereunder.
ADDENDUM #4
Landlord and the individual partners or stockholders of the entity constituting
Landlord or any successor thereto shall be under no personal liability with
respect to any of the provisions of the Lease, and if Landlord is in breach or
default with respect to its obligations or otherwise under this Lease, Tenant
shall look solely
to the equity of Landlord in the Demised Premises for the satisfaction of
Tenant's remedies. It is expressly understood and agreed that Landlord's
obligations of this lease shall in no event exceed the loss of its equity in the
Property.
Tenant and the individual partners or stockholders of the entity constituting
Tenant or any successor thereto shall be under no personal liability with
respect to any of the provisions of the Lease, and if Tenant is in breach or
default with respect to its obligations or otherwise under the Lease, Landlord
shall look solely to the equity of Tenant in the Demised Premises for the
satisfaction of Landlord's remedies. It is expressly understood and agreed that
Tenant's obligations of this Lease shall in no event exceed the loss of its
equity in the Property.
EXHIBIT A
[Floor Plan Graphic Omitted]
XXXXXX
CORPORATION
LETTER OF AGREEMENT
TENANT AGREES TO PURCHASE DRIVE IN PALLET RACK SYSTEM FOR $100,000.00 TO BE PAID
FOR IN THE FOLLOWING MANNER:
$33,333.00 ON APRIL 1, 1997
$33,333.00 ON OCTOBER 1, 1997
$33,333.00 ON APRIL 1, 1998
TENANT FURTHER AGREES TO PURCHASE MISCELLANEOUS OFFICE EQUIPMENT (SCHEDULE TO BE
CREATED), FOR THE SUM OF $10,000.00.
TITLE FOR THE EQUIPMENT WILL PASS UPON PRESENTATION OF UEZ CERTIFICATE FROM
TENANT.
XXXXXX
CORPORATION
CONTRACTUAL AGREEMENT BETWEEN SEL-LEB MARKETING, INC. AND XXXXXX CORPORATION.
THIS AGREEMENT SUPERSEDES LEASE DATED FEBRUARY 5, 1997.
The intent and agreement by both the Landlord and Tenant to enter into this
Contractual Agreement which supersedes Paragraph 43 of the attached written
Lease and Xxxxxxxx # 0 both parties recognize that there is language in the
Lease stating the Lease is the complete agreement. This letter supersedes that
language.
The Tenant will be bound by this lease even if he does not receive approval or
obtain a New Jersey Business Employer Incentive Program grant. Landlord agrees
to be bound by this lease even if he does not receive approval from the Economic
Development Authority to lease the space to the Tenant.
XXXXXX
CORPORATION
RENTAL SCHEDULE - 50,570 SQ. FT.
Cost per
MONTHLY RENT Sq. Ft. TAXES YEARLY NET YEARLY GROSS
YEAR 1 $ 8,310.00 $ 1.97 $4,910.00 $ 99,744.00 $ 150,000.00
YEAR 2 $ 8,310.00 $ 1.97 $4,910.00 $ 99,744.00 $ 150,000.00
YEAR 3 $ 16,476.00 $ 3.91 $4,190.00 $197,430.00 $ 248,000.00
YEAR 4 $ 20,643.00 $ 4.90 $4,190.00 $247,716.00 $ 298,000.00
YEAR 5 $ 20,643.00 $ 4.90 $4,190.00 $247,716.00 $ 298,000.00
