AMENDMENT TO LEASE
This Amendment to Lease ("Amendment") dated , August 17, 2000 by
and between Northvale 1997 Associates, L.L.C., a New Jersey limited liability
company, with its address at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
("Landlord") and Baltek Corporation, a Delaware corporation, having its offices
at 00 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 ("Tenant").
R E C I T A L S:
A. Landlord's predecessors and Tenant and/or its predecessors
have executed and delivered a certain Lease dated June 11, 1969 ("Original
Lease"), as amended by a Lease Amendment dated February 13, 1974 and an
Amendment to Lease dated May 20, 1992 (together "Amendments") for certain
Demised Premises located at, and commonly known as, 00 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxx Xxxxxx, Xxx Xxxxxx. The Original Lease and Amendments are hereinafter
together referred to as "Lease".
B. Landlord and Tenant desire to amend the Lease to modify
certain provisions.
Now, therefore, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt of which is
hereby acknowledged, it is mutually agreed as follows:
1. The Recitals set forth above are hereby incorporated into this
Amendment with the same force and effect as if they had been set forth herein at
length. The words and phrases as defined in the Lease shall have the same
meaning in this Amendment.
2. Paragraph 2 of the Original Lease, captioned "Term", as
previously amended in the Amendments are hereby deleted in their entirety and
the following is inserted in its place and stead:
"The Lease commenced on January 1, 1970 ("Commencement
Date"), and the term of the Lease is hereby extended until
February 28, 2010 ("Termination Date"), on which date the
Lease shall terminate unless otherwise extended."
3. A new Paragraph 2.3 is hereby added to the Lease as follows:
"2.3 Upon expiration of the term of the Lease as set
forth in Paragraph 2 (February 28, 2010), Tenant shall have
the right and option to extend the term of the Lease for one
period of five (5) years ending on February 28, 2015. The
right and option to extend the term of the Lease shall be
subject to and contingent upon each and every of the
conditions set forth hereinafter. Tenant's right and option
to extend the term of the Lease shall be exercisable by
Tenant giving written notice of the exercise of the right and
option to Landlord before November 30, 2008. In the event
Tenant fails to give written notice of its intention to
exercise its right and option as provided above and its
notice of acceptance of the rent within the stated time
periods, Tenant's right and option to extend the term of the
Lease shall (upon the date by which written notice should
have been received by Landlord) be deemed to have been waived
by Tenant and shall be of no further force or effect. In the
event Tenant exercises its right and option in accordance
with the provisions hereof the term of the Lease shall be
extended accordingly, and all references contained in the
Lease to the Termination Date shall be construed to refer to
February 28, 2015. Unless otherwise expressly provided to the
contrary, the extended term of the Lease shall be upon the
same terms, conditions and covenants as set forth in the
Lease except that there shall be no further right or option
to extend the term of the Lease. It is important to Landlord
that it know whether or not the options are exercised by
Tenant so that it may seek a replacement tenant to avoid loss
of rent, and, therefore, the time within which the option and
acceptance of the rent must be exercised is hereby made of
the essence. The right and option to extend the term of the
Lease shall be subject to and contingent upon each and every
one of the following conditions:
(i) The Lease is in full force and effect;
(ii) Tenant shall not be in material default under any
of the terms, provisions, covenants and conditions of the
Lease; and
(iii) In lieu of the sums set forth in Article 2 of the
Lease, the monthly installments of base rent to be paid by
Tenant monthly during the option period shall be the greater
of fair market rent or $37,380.44, but in no event shall the
monthly rental be less than $37,380.44, notwithstanding that
fair market rent shall be lower. Rent shall be determined as
follows:
Within twenty (20) days after Landlord receives Tenant's
notice, Landlord shall submit to Tenant, in writing, its
determination of fair market rent. Within ten (10) days after
Tenant receives the fair market rental figure, Tenant shall
have the right to dispute the rent by written notice received
by Landlord within the ten (10) day time period. Failure by
Tenant to dispute the rent in this manner shall be deemed,
automatically and conclusively, an acceptance by Tenant of
the rent submitted. Within ten (10) days after Landlord
receives Tenant's notice disputing the rent, Landlord and
Tenant shall each designate an independent, qualified
commercial real estate appraiser or expert, who regularly
conducts business in Bergen County and who is familiar with
Bergen County industrial rentals, for the purpose of having
them agree on the then fair market rent
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for the Demised Premises which shall be the rental then being
collected by owners of other properties for new leases of
space reasonably comparable in type, size, location and usage
to the Demised Premises within Bergen County, New Jersey, for
a term of approximately five years with similar tenant
expense assumptions and contributions. In the event that the
two designees cannot agree upon one figure, then the
designees shall select a third person with comparable
qualifications, and the agreement of two of the three
designees shall prevail, or if two cannot agree, the average
of their three rents shall prevail. Landlord and Tenant shall
each pay the fees and expenses of their own designee, and
they shall share, equally, the fees and expenses of the
third; and the greater of $37,380.44 or the fair market rent
so determined shall be the fixed minimum rental payable
monthly for the entire five-year option term. If Tenant gives
notice of the exercise of its option before November 1, 2008,
then Landlord shall have until November 20, 2008 to submit
its determination of fair market rent.
(iv) Within seven (7) days after Tenant has received
written notice from Landlord of the fair market rent as
determined pursuant to the preceding paragraph (iii), Tenant
shall notify Landlord, in writing, whether or not Tenant
accepts the determination that the base rent will be the
greater of the fair market rent so determined or $37,380.44.
If Tenant so accepts, then the term shall be extended for
five (5) years at a monthly base rent equal to the greater of
the fair market rent so determined or $37,380.44. If Tenant
declines to accept or gives no notice at all, then the option
to extend will become null and void, automatically, and the
Lease will continue in full force and effect to the
Termination Date of February 28, 2010. If the option to
extend becomes null and void, Tenant will pay to Landlord, as
additional rent, on the first day of the next following
month, an amount equal to Landlord's share of expenses
incurred and/or owing to appraisers and experts and
Landlord's reasonable attorney fee and related expenses.
(v) The Landlord and Tenant shall execute and deliver to
each other a written statement of the rent for the extended
term when determined as herein provided.
4. Paragraph 3.1 of the Original Lease captioned "Rent", as
previously amended by the Amendments is hereby further
amended to add the following:
"Commencing as of March 1, 2002, Tenant covenants and
agrees to pay the Landlord, as and for the base rent for the
Demised Premises, in equal monthly installments, in advance,
as set forth below, on the first day of each and every month
of the term hereof:
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Period of Term Lease Monthly Rent
------------------------------------------------
March 1, 2002 - $35,600.42
February 28, 2006
March 1, 2006 - $37,380.44
February 28, 2010
5. Paragraph 5.1 of the Lease, as previously amended, is further
amended to read as follows:
"5.1 Tenant may use and occupy the Demised Premises for
any use permitted by the ordinances of the Borough of
Northvale, with Landlord's consent which will not be
unreasonably withheld or delayed; provided, however, Landlord
will not be required to give its consent to a use which (i)
involves the production, use and/or storage of substantial
amounts of hazardous substances or hazardous wastes as
defined in federal, state or local laws, rules and
regulations, and/or (ii) the use can be reasonably expected
to cause extraordinary destruction, wear and/or tear to all
or part of the Demised Premises."
6. A new Paragraph 11.3 is hereby added to the Lease as follows:
"11.3 Notwithstanding anything contained in Paragraph
11.1 to the contrary, in the event that it becomes reasonably
necessary to replace the roof and/or its covering, in whole
or in part, Landlord will do so at its own cost and expense,
and, prior to any such replacement and after any such
replacement, Tenant will be responsible for all repairs to
the roof covering (except for the replacement which shall be
Landlord's obligation) as provided in Paragraph 11.1 of this
Lease. If the parties cannot agree upon the need for roof
replacement, then each party will designate a representative,
and the representatives together will select either an
engineer or a recognized roofing contractor to make the final
determination which will be final and binding on the parties.
A replacement roof will be what is commonly known as a
"twelve year roof with a twelve year warranty".
7. Tenant acknowledges that it accepts the Demised Premises in
its "as is" condition and will continue to be responsible for
all repairs as provided in Paragraph 11.1 of the Lease,
except for Landlord's obligation to replace the roof and/or
its covering as provided in Paragraph 6 of this Amendment.
Paragraph 9 of the Amendment dated May 28, 1992 is hereby
amended to add the following:
"(9) If Landlord has reasonable cause to believe that a
spill or discharge has occurred which is Tenant's
responsibility pursuant to Paragraph 9.A. hereof and Landlord
makes written demand to Tenant setting forth the
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basis of its cause, Tenant will obtain, at its own expense,
and furnish to Landlord, without charge, within thirty (30)
days after receipt of Landlord's demand a Phase I
environmental report prepared by a recognized environmental
engineer which will show the status of the Demised Premises
with regard to all environmental conditions. In the event
that the report shows or indicates the presence or
possibility of the presence of any environmental condition
which violates the laws, rules, regulations or ordinances of
the State of New Jersey or the United States of America and
which are Tenant's responsibility under this Lease, then
Tenant will obtain such additional inspections, reports and
tests as may be required to determine the nature and scope of
the environmental condition and what will be required to
remedy the condition and the cost thereof. Tenant, at its
expense, will remediate the environmental condition to the
satisfaction of all governmental agencies, etc. and to the
reasonable satisfaction of Landlord."
8. Paragraph 15.1 A. of the Lease, as previously amended is
further amended to change "twenty-five (25) business days" to
"ten (10) business days".
9. Paragraph 18, the subject of which is a Renewal Option, is
hereby deleted in its entirety and nothing is substituted in
its place.
10. Paragraph 22 of the Amendment dated May 28, 1992 is hereby
deleted in its entirety as Landlord is now the owner of the
fee interest in the Demised Premises.
11. Paragraph 23 of the Amendment dated May 28, 1992 is hereby
amended to delete Xxxxxx X. Xxxxxx Company of New Jersey,
Inc. as the broker and to substitute Xxxxxxx Xxxxxxxx and
Company and Xxxxx X. Xxxxxx, Inc., (together the "Broker").
Landlord will pay the commissions due to the Broker arising
from this Amendment, the sale of the Premises to Tenant
pursuant to Section 15 of this Amendment and/or the extension
of the term pursuant to Section 3 of this Amendment pursuant
to their separate agreement. Landlord will save, defend,
indemnify and hold harmless Tenant from and against any
liability to any other broker with whom Landlord has dealt
relative to this Lease and this Amendment, except Xxxxxx X.
Xxxxxx Company of New Jersey, Inc. Landlord represents to
Tenant that Landlord has not entered into any agreement with,
nor assumed any agreement with, Xxxxxx X. Xxxxxx Company of
New Jersey, Inc. relative to this Lease and this Amendment,
and the indemnity set forth in the next preceding sentence of
this paragraph will apply to any breach of this
representation by Landlord. Tenant will save, defend,
indemnify and hold harmless Landlord from and against any
liability to any other broker (other than the Broker) with
whom Tenant has dealt relative to this Amendment or to whom
Tenant has any contractual obligation with respect to the
Lease.
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12. A new Paragraph is hereby added to the Lease as follows:
"Anything in this Lease to the contrary notwithstanding,
Tenant agrees that Tenant shall look solely to the estate of
Landlord in the property in which the Demised Premises is
located, and subject to the prior rights of any mortgagee of
the property, 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 any of the terms, covenants and conditions of this
lease to be observed and/or performed by Landlord, and no
other assets of Landlord nor its partners, members, managers,
trustees, officers, directors, stockholders or beneficiaries
shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant's remedies."
13. A new Paragraph is hereby added to the Lease as follows:
"Each party agrees at any time and from time to time
upon not less than ten (10) days' prior notice by the other
party or any mortgagee to execute, acknowledge and deliver to
the requesting party or such mortgagee, as the case may be,
or any other party specified by the requesting party or such
mortgagee, a statement in writing certifying that this lease
is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect
as modified and stating the modifications) and the dates to
which the rent and other charges have been paid in advance,
if any, and stating whether or not to the best knowledge of
the signer of such certificate Tenant or Landlord is in
default in performance of any covenant, agreement or
condition contained in this lease, and, if so, specifying
each such default of which the signer may have knowledge, it
being intended that any such statement delivered pursuant to
this paragraph may be relied upon by any prospective assignee
of this Lease, purchaser of the fee or any mortgagee thereof
or any assignee of any mortgage. However, Landlord will not
be obligated to give such statement to Tenant and/or its
designee more than once in any twelve (12) month period."
14. The following is hereby added to the Lease:
"In the event Tenant requests from Landlord and its
mortgagees consents, waivers and/or subordination of liens
with respect to Tenant's furniture, fixtures, equipment and
personal property installed or located in the Demised
Premises, Landlord's consent and/or agreement will not be
unreasonably withheld or delayed. However, if Tenant requests
Landlord to obtain such consents, waivers and/or
subordinations from its mortgagee, Landlord will cooperate by
submitting such requests to its mortgagee, but Landlord makes
no representation or agreement that its mortgagee will
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grant such request. In the event Landlord's mortgagee does
not grant such request, such event will not be a default by
Landlord pursuant to this Lease nor terminate or modify
Tenant's obligations pursuant to this Lease, and Tenant will
have no further right or recourse against Landlord relating
to such requested consents, waivers and/or subordination.
Tenant will be responsible for the payment of all fees and
expenses to the mortgagee and will reimburse Landlord for its
reasonable attorney's fees incurred."
15. The following is hereby added to the Lease:
"A. Landlord (hereinafter referred to as "Seller" in
this Section) hereby grants, bargains and extends unto Tenant
(hereinafter referred to as "Purchaser" in this Section),
their successors and assigns but subject to the limitations
on the right of assignment as provided in this Section, the
exclusive right, privilege and option to purchase, for the
consideration and subject to the terms and conditions
hereinafter set forth, all of Landlord's right, title and
interest in and to the Demised Premises together with the
building machinery, equipment and fixtures of the Landlord
located thereon or used in the operation thereof (all of
which is hereinafter collectively referred to as the
"Premises"), and together with all right, title and interest,
if any, of Seller in and to any land lying in the bed of any
street, road or avenue opened or proposed, public or private,
in front of or adjoining the Premises and all right, title
and interest of Seller in and to any awards made or to be
made in lieu thereof, and in and to any unpaid award for
damage to the Premises by reason of change of grade of any
street; and Seller will execute and deliver to Purchaser, on
closing of title, or thereafter, on demand, all proper
instruments for the conveyance of such title and the
assignment and collection of any such award.
B. This option shall begin as of the date of this
Amendment, and shall extend for a period ending at five
o'clock in the evening on August 15, 2007, unless exercised
or extended as hereinafter provided.
C. Purchaser will not have the right to exercise this
option if it is then in default of any material provision of
this Lease.
D. Exercise of the option shall be by written notice
given by Purchaser to Seller in the manner hereinafter
provided and received by Seller not earlier than June 15,
2007 nor later than August 15, 2007. Time shall be of the
essence with regard to the dates during which the option may
be exercised and the acceptance of the Purchase Price.
E. Upon timely and proper exercise of the option as
herein provided, the purchase and sale of the Premises shall
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be consummated not less than ten (10) days nor more than
forty-five (45) days next following the date of receipt by
Seller of the notice of acceptance of the Purchase Price
(defined in Paragraph G.1.a. hereof), upon such date as
Purchaser shall designate in the notice of exercise of
option, at the place and time hereinafter set forth in this
Agreement.
F. During the period of this Agreement, Seller will not
permit any lien or encumbrance on the Premises except (i) the
granting of utility easements for the sole purpose of
servicing the Premises or (ii) the extension, modification or
refinancing of the presently existing first mortgage provided
that the principal amount will not exceed $5,250,000.00.
G. Upon exercise of the option, the sale and purchase of
the Premises shall be made upon the following terms and
conditions:
1. Purchase Price. a. The purchase price (the
"Purchase Price") for the Premises shall be the greater of
$5,250,000.00 or its fair market value at time of exercise,
which Purchase Price Purchaser agrees to pay at the closing
good federal bank funds transferred by wire to Seller's
account.
b. Within fifteen (15) days after Seller
receives Purchaser's notice of exercise, Seller shall submit
to Purchaser, in writing, its determination of fair market
value. Within ten (10) days after Purchaser receives the fair
market value figure, Purchaser shall have the right to
dispute the fair market value figure by written notice
received by Seller within the ten (10) day time period.
Failure by Purchaser to dispute the fair market value figure
in this manner shall be deemed, automatically and
conclusively, an acceptance by Purchaser of the fair market
value figure submitted. Within five (5) days after Seller
receives Purchaser's notice disputing the fair market value
figure, Seller and Purchaser shall each designate an
independent, qualified commercial real estate appraiser or
expert, who regularly conducts business in Bergen County and
who is familiar with Bergen County industrial sales and
values, for the purpose of having them agree on the then fair
market value for the Premises which shall be the value then
being received by sellers of other properties for real
property reasonably comparable in type, size, location and
usage to the Premises within Bergen County, New Jersey. In
the event that the two designees cannot agree upon one
figure, then the designees shall select a third person with
comparable qualifications, and the agreement of two of the
three designees shall prevail, or if two cannot agree, the
average of their three fair market values shall prevail.
Seller and Purchaser shall each pay the fees and expenses of
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their own designee, and they shall share, equally, the fees
and expenses of the third.
c. Within ten (10) days after Purchaser
has received written notice from Seller of the determination
of the Purchase Price in accordance with this paragraph,
Tenant shall notify Landlord, in writing, whether or not
Tenant accepts the Purchase Price. If Tenant accepts, the
sale and purchase of the Premises will proceed to a closing.
If Tenant declines to accept or gives no notice at all, then
the option to purchase will become null and void,
automatically, and the Lease will continue in full force and
effect to the Termination Date, subject to extension as
provided in Paragraph 2.3 of the Lease. If the option to
purchase becomes null and void, the Lease will continue in
full force and effect to the Termination Date of February 28,
2010 or February 28, 2015, as applicable. If the option to
purchase becomes null and void, Tenant will pay to Landlord,
as additional rent, on the first day of the next following
month, an amount equal to Landlord's share of expenses
incurred and/or owing to appraisers and experts and
Landlord's reasonable attorney fee and related expenses.
2. Permitted Exceptions. The Premises are sold
subject only to the following (the "Permitted Exceptions"):
a. Such state of facts that may be shown
by an accurate survey or personal inspection made prior to
the closing hereunder may disclose, provided the latter facts
do not render title unmarketable;
b. This Lease between Seller, as
landlord, and Purchaser, as tenant, for the entire Premises;
and
c. The easements, agreements, covenants
and restrictions as set forth on Schedule "A" which is
attached hereto and made a part hereof and such utility
easements as may hereinafter be granted by Landlord solely
for the purpose of servicing the Premises.
3. The Closing. The closing (the "Closing")
shall take place at the offices of Purchaser's attorney or
title insurance company in Bergen County, New Jersey at the
time and on the date set forth in Purchaser's notice (the
"Closing Date"). Time shall be of the essence with regard to
the Closing Date.
4. Apportionment. The following are to be
apportioned as the Closing as of 11:59 P.M. on the day
immediately preceding the date on which Seller receives the
proceeds of the Purchase Price before 2:00 P.M.
a. Rental payments pursuant to this
Lease; and
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b. Taxes (as hereinafter defined), to
the extent not included in Rents pursuant to paragraph a. of
this paragraph 4, if any, on the basis of the fiscal year for
which assessed, except if the Closing shall occur before the
tax rate is fixed, the apportionment of Taxes shall be upon
the basis of one hundred ten percent of the tax rate for the
immediately preceding fiscal year applied to the latest
assessed valuation and there shall be a readjustment after
Closing when the final tax xxxx for the current year has been
received. The term "Taxes" shall mean all taxes, assessments
(except as otherwise provided in this paragraph b.), use and
occupancy taxes, water and sewer charges, rates and rents,
charges for public utilities, excises, levies, license and
permit fees assessed, levied, charged, confirmed or imposed
upon or payable out of or which have become a lien on the
Premises or any part thereof, the appurtenances thereto or
the sidewalks, streets, or vaults adjacent thereto; but the
term "Taxes" shall not include any municipal, state or
federal income taxes, assessed against Seller, or any
municipal, state or federal capital levy, estate, succession,
inheritance or transfer taxes of Seller, or any franchise
taxes imposed upon any corporate owner of the Premises, or
any part thereof, or any income, profits or revenues tax,
assessment or charge imposed upon the rent received as such
by Seller with respect to the Premises. Notwithstanding the
foregoing, if at the time of the Closing, any ordinance, rule
or law is in existence which provides for improvements to be
constructed, the cost of which will be assessed in whole or
in part against the Premises, or the Premises shall be or
shall have been affected by any assessment which is or may
become payable in installments then, for the purposes of this
Agreement, all unpaid installments of any such assessments,
including those which are to become due and payable after the
Closing, shall not be deemed to be due and payable and not to
be liens upon the Premises affected thereby and shall not be
paid and discharged by Seller upon delivery of the
Instruments of Conveyance (as hereinafter defined), but will
be assumed by Purchaser without adjustment;
c. Seller will be responsible for the
payment of any realty transfer fee or other tax on the deed;
and
d. Other costs, expenses and charges
usually involved and adjusted with regard to similar type
property.
To the extent that the adjustments in this
paragraph are not based on final figures at Closing, the
applicable provisions of this paragraph shall survive Closing
of title.
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5. Additional Conditions. Seller and Purchaser
agree to perform and comply with the following additional
conditions:
a. Title. At the Closing, Seller will
deliver to Purchaser such good and sufficient Bargain and
Sale Deed with covenants against grantor's acts and such
other instruments (collectively called "Instruments of
Conveyance") as shall be reasonably required to convey to
Purchaser good and marketable fee simple title to the
Premises (together with any easements or other rights
appurtenant to the Premises) free and clear of all mortgages,
liens, or right to liens, charges, encumbrances,
encroachments, easements, conditions and right of reentry or
forfeiture and other defects of title, except such as appear
as Permitted Exceptions under paragraph 2 hereof.
b. The Lease. At the Closing, Seller
will deliver to Purchaser an assignment (the "Assignment") of
all right, title and interest of Seller under the Lease
together with any advance rental deposits paid or deposited
by the tenant thereunder and Seller's original copy of the
Lease. Purchaser shall assume the landlord's obligations
under said Lease. The Assignment shall contain a release of
Seller, as landlord, by the then tenant and all previous
tenants under the Lease for any and all liability, claims or
causes of action existing or thereafter arising pursuant to
the Lease.
c. Title Insurance. Purchaser may
obtain, at Purchaser's cost and expense, a current survey of
the Premises and an interim title insurance report and
commitment to issue an ALTA Form owners title insurance
policy ("title policy") issued by the title insurance company
which insured Seller's title when it acquired title to the
Premises and reasonably satisfactory in substance and form to
Purchaser's attorney insuring Purchaser's interest as the
holder of good and marketable indefeasible title in and fee
simple, insurable by a title insurance company licensed to do
business in the State of New Jersey at regular rates, subject
only to the Permitted Exceptions under Section 2 hereof. The
survey and interim title insurance commitment shall be
obtained by Purchaser's attorney not later than twenty (20)
days prior to the Closing. If the Purchaser finds the title
and survey do not conform to the provisions of this Lease,
the Purchaser or its attorney shall notify the Seller in
writing within said twenty-day period, specifying the defects
and the Seller shall have thirty days from the receipt of
such notice to cure the defects so specified. However, Seller
shall pay in full and discharge at or before Closing all
judgments which it is not appealing and all mortgages and/or
mechanics' liens created by Seller which are shown on the
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interim title insurance commitment and on the continuation at
Closing, except those which are Permitted Exceptions, and
Seller shall be permitted to use a portion of the cash
proceeds to be received at Closing to pay the same. The cost
of the interim title insurance commitment and the owners
title insurance policy and the survey shall be paid by the
Purchaser.
d. Violations. At the Closing, Seller
shall not be required to comply with and discharge any
notices of violations of law or municipal ordinances, orders
or requirements received by it and issued by the Departments
of Buildings, Fire, Labor, Health or other federal, state or
municipal departments having jurisdiction against or
affecting the Premises at the date of closing, and the
Premises shall be conveyed subject to the same without
adjustment between the parties.
e. Certificates. Prior to the Closing,
Purchaser will obtain and deliver (i) a Certificate of
Occupancy or Continued Use, (ii) a smoke detector
certificate, and (iii) other permits and approvals if any one
or more are required by the Borough because of the transfer
of title. Purchaser will be responsible for any repairs,
replacements or installations required to obtain such
certificates, permits and approvals.
f. Condition of the Premises. At the
Closing, the Premises shall be in the condition as then
exists.
g. Affidavit of Title. At the Closing,
Seller shall execute and deliver to Purchaser and its title
insurance company an affidavit of title in customary form but
with representations and warranties limited to Seller's
actions during the period of its ownership and with recourse
for any matters contained in the affidavit limited to Seller
and not the affiant personally.
h. Other Documents. At the Closing,
Seller shall deliver to Purchaser and to the title insurance
company satisfactory evidence that all necessary company or
other action on the part of Seller has been taken with
respect to the execution and delivery of this Agreement and
the consummation of the transaction contemplated hereby so
that all of said documents are or will be validly executed
and delivered and will be binding upon the Seller.
i. Foreign Investment in Real Property
Tax Act ("FIRPTA") Compliance.
(a) At the Closing, Seller shall
deliver to Purchaser a Certification of Non-foreign Status,
duly executed and containing such other information as may be
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required by Internal Revenue Code Section 1445 and the
regulations issued thereunder.
(b) Anything herein contained to the
contrary notwithstanding, in the event that Seller is a
"foreign person" (as defined in Internal Revenue Code Section
1445) or in the event that Seller fails or refuses to deliver
the Certification of Non-foreign Status as aforesaid, or in
the event that Purchaser receives notice from any
Seller-transferor's agent or Purchaser-transferee's agent
(each as defined in Internal Revenue Code Section 1445 and
the regulations issued thereunder) that, or Purchaser has
actual knowledge that, said Certification is false, Purchaser
shall deduct and withhold from the purchase price under this
Contract a tax equal to ten percent (10%) thereof or such
other amount, as required by Internal Revenue Code Section
1445. In the event of any such withholding, Seller's
obligation to deliver title hereunder shall not be excused or
otherwise affected, Purchaser shall pay over such withheld
amount to the Internal Revenue Service together with filing
such form as may be required thereby, and Seller in the event
of any claimed over-withholding shall be limited solely to an
action against the Internal Revenue Service for a refund, and
hereby waives any right of action against Purchaser on
account of such withholding. The provisions of this paragraph
shall survive the Closing.
6. Representations and Warranties of Seller. For
the purpose of inducing Purchaser to accept this option, and
to consummate the transactions contemplated hereby pursuant
to the terms and conditions hereof, Seller represents and
warrants to Purchaser as follows:
(a) Except for the Lease, there are no
agreements of any nature with any tenant, whether oral or
written, affecting the Premises;
(b) Seller has not entered into any
management, service, supply and maintenance contracts with
respect to the Premises which will not be terminated by
Seller at the Closing.
(c) Seller has the full right, power and
authority to sell and convey the Premises to Purchaser as
provided herein and to carry out its obligations hereunder.
The representations and warranties as
set forth in this Agreement shall be continuing and shall be
true and correct on and as of the closing date with the same
force and effect as if made at that time and shall survive
Closing for a period of six (6) months.
7. Condition of Premises. Seller makes no
representations or warranties with regard to the condition of
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the Premises or its components, including environmental
conditions and matters. Purchaser has occupied the Premises
as a tenant and has been given the opportunity to examine the
Premises. Purchaser will conduct such inspections, tests and
investigations, including those related to environmental
matters and conditions, as Purchaser may want prior to its
exercise of the option to purchase, and there will be no
conditions to the closing of title as a result thereof.
Purchaser's sole remedy if it is not satisfied with the
results of its inspections, test and investigations will be
to refuse to exercise its option to purchase. It shall be
conclusive evidence, as against Purchaser, that Purchaser has
accepted the Premises in "as is" condition on the Closing
Date, and that the Premises and its components are in
satisfactory condition. In the event Purchaser causes any
inspections to be made, Purchaser will furnish Seller with
copies of all reports, without charge.
8. Eminent Domain or Casualty. If, after the
exercise of the option and prior to the Closing, all or any
portion of the Premises is taken by eminent domain (or is the
subject of a pending or contemplated taking which has not
been consummated) or damaged or destroyed by fire or other
casualty and Purchaser has the right to terminate this Lease
as a result thereof, Purchaser shall have the right to either
(i) terminate this Lease and its obligation to purchase the
Premises, or (ii) take title in such condition as then exists
without any obligation on the part of Seller to repair,
restore or rebuild the Premises. In the event that the damage
or taking is not sufficient to permit Tenant to terminate
this Lease, Purchaser will complete the closing of title
without adjustment in the Purchase Price. In the event
Purchaser elects to complete the purchase, there shall be no
adjustment in the Purchase Price and Purchaser shall be
entitled to receive all of the proceeds of the taking by
eminent domain or the insurance proceeds.
9. Compliance with ISRA Purchaser, at
Purchaser's expense, will comply with the New Jersey
Industrial Site Recovery Act or such other law then existing
which relates to environmental approvals upon the sale of
real property and/or the cessation of business operations
(together "ISRA") as it applies to this sale. Purchaser will
apply for and diligently pursue the issuance of either (i) a
Letter of Non-Applicability, (ii) a Negative Declaration,
(iii) a No Further Action Letter or (iv) such other final
approvals as may then be required. Seller will cooperate with
Purchaser by furnishing information reasonably required and
will sign the application, if required. In the event of the
failure to obtain a Letter of Non-Applicability, a Negative
Declaration, a No Further Action Letter or other required
final approval prior to the Closing Date, (time is hereby
made of the essence with regard to such time period), then
the right to purchase
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will be deemed null and void absolutely and forever,
automatically, and the remainder of this Lease will continue
in full and effect.
10. Notices. All notices and other
communications hereunder shall be in writing and shall be
delivered or mailed by registered or certified mail, return
receipt requested, postage prepaid or by public courier,
delivery charges prepaid, addressed (a) if to Seller, at the
address hereinabove set forth and (b) if to Purchaser, at the
address hereinabove set forth. Notices shall be effective
only upon receipt or refusal of delivery by addressee. Either
party may by notice as aforesaid designate a different
address for notices or other communications intended for it.
Any notice given under this Agreement shall also, for
information purposes only, be sent to Purchaser's attorneys,
Xxxxxxxxxx Xxxxxxx PC, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000-0000, Attention: R. Xxxxx Xxxxxx, Esq., and to
Seller's attorneys, Xxxxx & Rich, Esqs., 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: M. Xxxxxx Xxxxx,
Esq.
11. Brokerage. Except for the Broker, Purchaser
and Seller represent that they have not dealt with any real
estate broker or other party who may claim or be entitled to
a commission in connection with the sale contemplated hereby.
Seller will be responsible for payment of commissions to the
Broker pursuant to their separate agreement. Each party
agrees to indemnify and hold harmless the other from any and
all claims for any such brokerage commissions, finder's fees
or the like made by any other broker or entity with whom such
party dealt. It is agreed that if any claims for brokerage
commissions or fees are ever made against Seller or Purchaser
in connection with this transaction, all such claims shall be
handled and paid by the party whose alleged actions were
alleged commitments for the basis of such claim, and the
party whose alleged actions or alleged commitments form the
basis of such claim shall indemnify and hold harmless the
other from and against any and all such claims and demands,
including reasonable attorney's fees incurred in defending
the same, with respect to any brokerage fees or agent's
commissions or other compensation asserted by any person,
firm or corporation in connection with this option to
purchase or the transactions contemplated hereby. The
provisions of this paragraph shall survive closing of title.
12. Specific Performance. In the event either
party hereto fails to comply with any of the provisions of
this Agreement, then, in addition to all other legal remedies
to which the other party hereto is entitled, such other party
shall have the right to specific performance.
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13. Breach by Purchaser. In the event Purchaser
shall fail to consummate the purchase of the Premises and
Purchaser being in default and Seller not being in default
herein, and Seller having complied or being prepared to
comply at Closing with all conditions herein, Seller shall be
entitled to payment of an amount equal to its reasonable
attorneys fees and other actual costs relating to the sale of
the Premises by Purchaser and any penalties, late charges
and/or extension fees paid to its mortgagee, such sum being
agreed upon as liquidated damages for the failure of
Purchaser to perform the duties, liabilities, and obligations
imposed upon it by the terms and provisions of this
Agreement, and Seller agrees to accept and take said amount
as total damages and as Seller's sole remedy in such event.
14. Deed Tax. Seller will pay all deed transfer
taxes and documentary stamps and similar taxes, without
reimbursement from Purchaser.
15. Like-Kind Exchange. Purchaser acknowledges
that Seller may desire to exchange the Premises as part of a
like-kind exchange transaction that would qualify under
Sections 1031 and/or 1033 of the Internal Revenue Code for
non-recognition treatment. At Seller's election, Purchaser
agrees, at Seller's expense and provided such exchange does
not cause the acquisition of the Premises by Purchaser to be
delayed in any way, to cooperate with Seller in effecting a
qualifying like-kind exchange through a trust or other means
determined by Seller, and Purchaser shall execute such
documents as may be reasonably requested by Seller, provided:
(i) Purchaser shall have no liability under such documents,
and (ii) such documents contain no language or provisions
which would cause Purchaser to become part of the chain of
title with respect to any other property which is part of the
exchange. Purchaser makes no representations to Seller
regarding qualification of the exchange under Sections 1031
and/or 1033 of the Internal Revenue Code, and Purchaser shall
not be liable to Seller in any manner whatsoever if the
exchange completed in accordance with this paragraph should
not qualify for any reasons under Sections 1031 and/or 1033
of the Internal Revenue Code. Seller reserves the right to
assign its rights but not its obligations, hereunder to a
Qualified Intermediary as provided in IRC Reg. 1.1031
(k)-l(G)(4) on or before the Closing.
16. Miscellaneous. This Agreement shall be
binding upon and inure to the benefit of and be enforceable
by the respective parties hereto and their successors,
executors, administrators, personal representatives, and
assigns. Purchaser shall not have the right to assign this
Agreement or any interest herein without the prior written
consent of Seller; however, Seller will not unreasonably
16
withhold its consent to an assignment (i) to a permitted
assignee of the Lease or (ii) an assignment of only the right
to purchase the Premises to an entity which is affiliated
with Purchaser made after the option has been exercised and
prior to the Closing Date. This Agreement shall be construed
in accordance with and governed by the laws of the State of
New Jersey. No waiver by any party of any breach under this
option section shall be deemed a waiver of any other or
subsequent breach."
16. Tenant hereby affirms the validity of the Lease and confirms
that the Lease remains enforceable and in full force and effect as of the date
of execution of this Amendment.
17. The obligations of Landlord and Tenant pursuant to this
Amendment are conditioned upon the Landlord obtaining the consent of its
mortgagee and the execution of a Subordination, Non-Disturbance and Attornment
Agreement with regard to this Amendment in the form required by the mortgagee on
or before thirty (30) days after Landlord has received a fully executed original
of this Amendment. Landlord will each pay to the mortgagee all fees and expenses
charged by the mortgagee, its attorneys and a rating agency related to such
consent, without reimbursement by Tenant. In the event this condition has not
been satisfied, this Amendment will terminate automatically, and the Lease, as
previously amended, will continue in full force and effect as originally stated.
18. Except as otherwise provided herein, all of the terms and
provisions of the Lease shall continue in full force and effect. In the event of
any conflict between the provisions of this Amendment and the Lease, the
provisions of this Amendment shall govern and prevail.
19. This Amendment shall be binding upon and shall be for the
benefit of the parties hereto and their respective successors and assigns.
The parties have executed this Amendment on the date first above
written.
Witness: Landlord:
Northvale 1997 Associates, L.L.C.
By: NV Northvale Management
Corp., a New Jersey
corporation, its Manager
/s/ Xxxx Xxxx Xxxxxx By: /s/ Xxx X. Xxxxxx, Pres.
-------------------------------- ---------------------------
Xxxx Xxxx Xxxxxx Xxx X. Xxxxxx, Pres.
Witness: Tenant:
Baltek Corporation
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxxx
--------------------------------- -----------------------------
Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Vice President of Manufacturing Chief Financial Officer
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Exhibit "A"
1. Facts shown on survey of the property dated July 28, 1997 by Xxxxxxx
X. Job, Licensed Professional Land Surveyor.
2. Right-of-way grant in Deed Book 5236 at page 265.
3. Right-of-way grant in Deed Book 5830 at page 313.
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