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EXHIBIT 10.22
TABLE OF CONTENTS
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LEASE OF 0000 XXXXXXXXXX XX., XXXXXXXXX, XX
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ARTICLE I. RENT.........................................................1
ARTICLE II. USE OF THE PREMISES.........................................3
ARTICLE III. TAXES AND UTILITIES........................................3
ARTICLE IV. REPAIRS.....................................................6
ARTICLE V. ALTERATIONS AND IMPROVEMENTS.................................6
ARTICLE VI. COMPLIANCE WITH LAWS, ORDERS, ETC...........................7
ARTICLE VII. ASSIGNMENT.................................................7
ARTICLE VIII. NO SET-OFF................................................8
ARTICLE IX. INSURANCE..................................................8
ARTICLE X. DAMAGE OR DESTRUCTION.......................................10
ARTICLE XI. MECHANICS LIENS............................................10
ARTICLE XII. ADDITIONAL RIGHTS OF PARTIES..............................10
ARTICLE XIII. INDEMNITY................................................11
ARTICLE XIV. INSPECTION OF PREMISES BY LANDLORD........................12
ARTICLE XV. IMPROVEMENTS...............................................12
ARTICLE XVI. SURRENDER.................................................13
ARTICLE XVII. CONDEMNATION.............................................13
ARTICLE XVIII. MORTGAGES...............................................14
ARTICLE XIX. TENANT DEFAULTS...........................................15
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ARTICLE XX. NOTICES....................................................17
ARTICLE XXI. QUIET ENJOYMENT...........................................17
ARTICLE XXII. SUCCESSORS BOUND.........................................18
ARTICLE XXIII. HEADINGS................................................18
ARTICLE XXIV. BROKER...................................................18
ARTICLE XXV. JURY WAIVER...............................................18
ARTICLE XXVI. HAZARDOUS MATERIALS......................................18
ARTICLE XXVII. SECURITY DEPOSIT.......................................21
ARTICLE XXVIII. ESTOPPEL CERTIFICATE...................................21
ARTICLE XXIX. OPTIONS TO RENEW.........................................21
ARTICLE XXX. NOTICE OF LEASE...........................................24
ARTICLE XXXI. LANDLORD RIGHTS..........................................25
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LEASE OF 0000 XXXXXXXXXX XX., XXXXXXXXX, XX
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LEASE made this 5th day of May, 2000, by and between XXXXX
GRANDCHILDRENS' TRUST, u/t/a dated May 5, 2000, acting by Xxxxx X. Xxxxx,
Trustee, a Connecticut Trust organized and existing under the laws of the State
of Connecticut, hereinafter called "Landlord" and CRYSTAL ROCK SPRING WATER
COMPANY a corporation organized and existing under the laws of the State of
Connecticut, hereinafter called "Tenant".
W I T N E S S E T H
In consideration of the rent, terms, covenants and conditions
hereinafter set forth, Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord, the premises known as 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxx, more particularly described in Schedule A attached hereto and made
a part hereof.
TO HAVE AND TO HOLD the Premises unto Tenant for a term (the "Term)
Commencing on the "Commencement Date" (as hereinafter stated), and ending at
11:59 p.m. on the day preceding the tenth anniversary of the Rent Commencement
Date (as hereinafter defined) unless sooner terminated by prior cancellation or
termination pursuant to the provisions of this Lease.
The Commencement Date shall be the date of the merger between CRYSTAL
ROCK SPRING WATER COMPANY and VERMONT PURE HOLDINGS, LTD. pursuant to a merger
agreement dated May 5, 2000 described below.
Notwithstanding the foregoing or any other provision of this Agreement,
this Agreement
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shall not be effective until the Effective Date, and if the Effective Date does
not occur on or before the date set forth in Section 10.1(e) of the Merger
Agreement between VERMONT PURE HOLDINGS, LTD., VP MERGER PARENT, INC., VP
ACQUISITION CORP., and CRYSTAL ROCK SPRING WATER COMPANY, XXXXX X. XXXXX, XXXX
X. XXXXX, XXXXX X. XXXXX, and the other stockholders of CRYSTAL ROCK SPRING
WATER COMPANY, listed on EXHIBIT D, thereto, this Agreement shall be of no force
or effect.
IT IS HEREBY mutually covenanted and agreed between Landlord and Tenant
as follows:
ARTICLE I. RENT
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A. A Lease Year shall mean a twelve-month period running from the Rent
Commencement Date or applicable anniversary thereof through the last day of the
calendar month preceding the next anniversary of the Commencement Date.
B. During the Term of this Lease, Tenant covenants to pay to Landlord
for the Premises Base Rent during each of the first five Lease years (months
1-60) $360,000.00 per annum, payable in equal monthly installments of $30,000.00
on the first day of each and every month, in advance; and during the second five
years (60 months) of said lease $414,000.00 per annum, payable in equal monthly
installments of $34,500.00 on the first day of each and every month, in advance,
during the said second five Lease years (months 61-120).
C. All amounts payable by Tenant under this Lease shall be paid, until
further notice, at
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the office of Landlord, c/o Xxxxx X. Xxxxx, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000.
D. Tenant covenants and agrees that any other amounts, liabilities and
obligations which Tenant assumes and agrees to pay or discharge pursuant to this
Lease, together with any fine, penalty, interest or cost which may be legally
due for the late payment thereof, shall constitute additional rent hereunder,
and in case of failure of Tenant to pay or discharge any of the foregoing,
Landlord shall have the rights, powers and remedies provided herein, or by law,
as in the case of nonpayment of Base Rent.
E. If any installment of Base Rent or additional rent is paid more than
fifteen (15) days after the same is due, there shall be assessed against Tenant,
in addition to Landlord's other remedies, a late charge of 4% of the monthly
rental payment in each instance. In the event that any two (2) or more checks
made by Tenant for rent or other payment is returned for "insufficient funds",
then Landlord shall have the right to demand that all future checks for the
duration of the Lease be in the form of bank or certified checks.
ARTICLE II. USE OF THE PREMISES.
Tenant shall use and occupy the Premises for purposes permitted by the
zoning regulations in the Town of Watertown for the district in which the
Premises are located.
ARTICLE III. TAXES AND UTILITIES.
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A. During the Term, Tenant shall pay, as additional rent, to the extent
same are allocable to the Term, all real estate taxes, charges and assessments
levied by any governmental authority
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upon the Premises (together with all interest and penalties imposed due to
Tenant's failure to pay) thereon, or upon or against any Base Rent or additional
rent reserved or payable hereunder, or upon or against this Lease or leasehold
estate hereby created, or the gross receipts from the Premises, or the earnings
arising from the use thereof, other than (i) franchise, capital stock transfer,
sales, conveyance, death, inheritance, succession, transfer or similar taxes, if
any, of Landlord, or (ii) income, excess profits or similar taxes upon
Landlord's receipts, if any (unless the taxes referred to in clauses (i) and
(ii) are in lieu of or a substitute for any other real estate tax, charge or
assessment upon or with respect to the premises which, if such other tax, charge
or assessment were in effect, would be payable by Tenant, in which event such
taxes will be computed as though the Premises were the only property of Landlord
and the Base Rent payable hereunder the only income of Landlord). Tenant shall
pay such tax, charge and assessments within fifteen (15) days after the same
becomes due and payable.
B. In the event any governmental authority shall hereafter levy taxes
which shall be for the purpose of providing services now provided by the
municipality and for which municipal real estate taxes are now levied (e.g.,
education); Tenant shall also pay as additional rent that portion of such taxes
which is attributable to such services to the extent the same are in lieu of, or
a substitute for, the aforesaid Tenant's share of municipal real estate taxes.
C. Tenant shall pay all charges to the Premises allocable to the Term
for public or private utility services of gas, electricity and water, and shall
comply with all contracts relating to such services and shall do all other
things required for the maintenance and continuance of all such
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services.
D. The customary adjustments and apportionments of real estate taxes
and assessments (customarily made with respect to the closing of title) shall be
made between Landlord and Tenant as of the Commencement Date and as of the date
of termination of the Lease.
E. Tenant, at its cost and expense, and if legally required in the name
of Landlord, may contest by appropriate legal proceedings conducted in good
faith and with due diligence, the amount, validity, or application, in whole or
in part, of any tax, assessment or charge required to be paid hereunder,
provided that neither the Premises nor any part thereof or interest therein
would be in any danger of being sold, forfeited or lost by reason of such
proceedings, and provided further in the case of a legal requirement, Landlord
would not be in any imminent danger of any civil (unless Tenant posts an
appropriate bond to insure Tenant's indemnification of Landlord therefor) or
criminal liability for failure to comply therewith, and the Premises would not
be subject imminently to the imposition of any lien (unless Tenant substitutes
an appropriate bond to cover such lien) as a result of such failure. Landlord
shall promptly furnish to Tenant all notices received by it regarding increases
in taxes and assessments and shall reasonably cooperate with Tenant so long as
Tenant pays all reasonable out of pocket expenses incurred by reason of such
cooperation. Each such contest shall be promptly prosecuted to a final
conclusion (whether pursuant to final judgment, appeal, withdrawal or
settlement), and Tenant shall pay and save Landlord harmless against all losses,
judgments, decrees and costs, including reasonable attorneys' fees and expenses
in connection therewith, and shall promptly, after the final determination of
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such contest, pay and discharge the amounts which shall be levied, assessed or
imposed and deemed to be payable therein, together with all penalties, fines,
interest, costs and expenses thereon or in connection therewith. Tenant shall be
entitled to all refunds or abatements received as a result of such contests or
otherwise, provided Tenant shall have been liable for the payment of such tax,
charge or assessments.
ARTICLE IV. REPAIRS.
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During the Term, Tenant, at its own cost and expense, shall maintain
the Premises and make all necessary repairs and replacements to same, whether
interior or exterior, ordinary or extraordinary, structural or nonstructural, as
and when necessary. Nothing herein is intended to permit the Tenant to modify
any structural portion of the building which would adversely affect the
structural integrity and safety of the building or diminish the value thereof,
its square footage (i.e., no demolition) or volume.
ARTICLE V. ALTERATIONS AND IMPROVEMENTS.
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On the consent of Landlord, which consent shall not be unreasonably
withheld, provided plans of any changes have been delivered to Landlord, Tenant
shall have the right at any time and from time to time during the Term of this
Lease to make structural modifications to the Premises such as adding or closing
up doorways, adding loading docks and similar modifications provided:
(a) all such work shall comply with all laws, ordinances,
orders, rules and regulations and requirements of any governmental authority
having jurisdiction over the Premises.
(b) Tenant shall employ for such work responsible contractors
and cause such
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contractors to carry workmen's compensation insurance in accordance with
statutory requirements and comprehensive public liability insurance covering
such contractors on or about the Premises in amounts of not less than $1,000,000
single combined limit, which insurance shall name Landlord as an additional
insured.
ARTICLE VI. COMPLIANCE WITH LAWS, ORDERS, ETC.
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A. Tenant, at is own cost and expense, shall comply with all laws,
ordinances, rules, regulations and requirements of any governmental authority
which may be applicable to Tenant's use of the Premises.
B. Tenant, at its own cost and expense, shall comply with any law,
regulation or rule which requires an alteration, addition or other change or
other improvement to be made to the Premises.
ARTICLE VII. ASSIGNMENT.
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Tenant shall not assign this Lease or any right or interest therein,
nor sublet the Premises or any part thereof, without the prior written consent
of Landlord, which consent Landlord shall not unreasonably withhold or delay.
Any costs incurred in any assignment or subleasing, including, but limited to,
the cost of providing the building fit-up, brokerage, legal or otherwise shall
be the sole responsibility of Tenant. Notwithstanding any permitted assignment
or sublet, Tenant's obligations hereunder shall continue in full force and
effect in accordance with the provisions of this Lease.
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ARTICLE VIII. NO SET-OFF.
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This Lease is an absolute triple net lease. The Base Rent, additional
rent and other sums payable hereunder by Tenant shall be paid, except as
otherwise expressly provided herein, without notice or demand, and, except as
otherwise expressly provided herein, without set-off, counterclaim, abatement or
deduction.
ARTICLE IX. INSURANCE.
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A. Tenant shall at all times after the Commencement Date maintain with
respect to the Premises insurance of the following character:
1. REAL PROPERTY: Against the perils of "all risk of physical
loss or damage" in an amount not less than one hundred (100%) percent of the
insurable replacement cost of the building, and additional coverages and/or
endorsements and/or forms providing for "Agreed Amount", "Contingent Liability
from Operation of Building Laws", "Demolition and Increased Time to Rebuild"
endorsement, and "Increased Cost of Construction" endorsement. Deductibles, are
to be clearly shown on policies and/or certificates, and shall not exceed two
(2%) percent of the insurable replacement cost. If there is no deductible, the
policy shall so state.
2. COMPREHENSIVE GENERAL LIABILITY: On an occurrence basis so as
to provide a combined single limit for bodily injury and property damage of not
less than Three Million ($3,000,000) Dollars.
B. All policies and/or certificates of insurance shall be effective
under valid and enforceable policies issued by insurance companies of recognized
responsibility and authorized to
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conduct an insurance business in the State of Connecticut.
C. All policies of insurance shall provide for at least 30 day written
notice of policy cancellation or material change to Landlord and/or Tenant as
the case may be. Tenant shall name Landlord and Landlord's Mortgagee, if any, as
additional insured on all policies required under this Article IX, and, as
respects policies required in Article IX.A.1. (Real Property) above, Tenant
shall obtain a standard mortgagee endorsement reasonably satisfactory to
Landlord's Mortgagee.
D. Tenant shall deliver to Landlord, ten (10) days prior to the Term of
this Lease and prior to any policy expiration, certificates of insurance in form
and substance reasonably satisfactory to Landlord evidencing all the insurance
which is then required to be maintained by Tenant hereunder. Should Tenant fail
to provide proper evidence of the required insurance in this Article IX or pay
the premium, Landlord, at its option but without obligation so to do, may,
following one (1) business day's written notice to Tenant, procure such
insurance, and any sum expended by Landlord to procure such insurance shall be
repaid by tenant within fifteen (15) days after Tenant's receipt of Landlord's
confirming statement(s) therefor.
E. Notwithstanding anything to the contrary contained in this Lease,
Landlord and Tenant hereby waive all rights to recover against each other for
any loss or damage covered by property or casualty insurance carried by each of
them. Landlord and Tenant will cause their respective casualty and/or property
insurers to issue appropriate waiver of subrogation right endorsements to all
casualty and/or property policies carried in connection with the Premises or its
contents. Landlord and Tenant hereby agree to look first to the proceeds of
their respective insurance
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policies before proceeding against each other in connection with any property
damage claim relating to any matter covered by this Lease.
ARTICLE X. DAMAGE OR DESTRUCTION.
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If the building shall be damaged by fire or other casualty or any cause
covered by the insurance required to be carried by Tenant hereunder the damages
shall be repaired and the building restored by and at the sole expense of
Tenant. Base Rent and additional rent shall not be abated, and Tenant shall
continue to pay same.
ARTICLE XI. MECHANICS LIENS.
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If any mechanics lien shall have been filed against the Premises based
upon any act of Tenant or anyone claiming through Tenant (other than Landlord or
Landlord's agents, employees or contractors in connection with Landlord's
obligations under this Lease), Tenant, after 30 days' notice thereof, shall
forthwith take such action by bonding, deposit, payment or otherwise as will
remove or satisfy such lien.
ARTICLE XII. ADDITIONAL RIGHTS OF PARTIES.
-----------------------------------------
A. No right or remedy herein conferred upon or reserved to Landlord or
Tenant is intended to be exclusive of any other right or remedy, and every right
or remedy shall be cumulative and in addition to any other right or remedy given
hereunder or now or hereafter existing at law. The failure of Landlord or Tenant
to insist at any time upon the strict performance or observance of any covenant
or condition, or to exercise any right, power of remedy under this Lease shall
not be construed as a waiver or relinquishment thereof for the
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future. The receipt by Landlord of any Base Rent, additional rent or other sum
payable hereunder with knowledge of the breach of any covenant or agreement in
this Lease shall not be deemed a waiver of such breach, and no waiver by
Landlord or Tenant of any provision of this Lease shall be deemed to have been
made unless expressed in writing by Landlord or Tenant, as the case may be.
Landlord or Tenant shall be entitled to the extent permitted by applicable law,
to injunctive relief in case of the violation or attempted or threatened
violation of any covenant, agreement, condition or provision of this Lease or to
a decree compelling performance of any covenant, agreement, condition or
provision of this Lease, or to any other remedy allowed by law.
B. If either party shall be in default in the performance of any of its
obligations under this Lease, the defaulting party shall pay to the other party
the reasonable expenses incurred in connection therewith, including reasonable
attorneys' fees and expenses. If a party shall, without fault on its part, be
made a party to any litigation commenced against the other, and if the other
party shall not provide the party without fault with counsel reasonably
satisfactory to it, said other party shall pay all costs and reasonable
attorneys' fees and expenses incurred or paid by the other in connection with
such litigation. Notwithstanding the above, counsel provided by an insurance
carrier shall be considered reasonably satisfactory unless such counsel shall
refuse to act for the party.
ARTICLE XIII. INDEMNITY.
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Tenant shall protect, save and keep Landlord harmless and indemnified
against and from any loss, costs, damage or expense arising out of or from any
accident or other occurrence on the
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Premises causing injury or damage to any person or property, due or claimed to
be due to: a) any act or neglect of Tenant, its agents or employees, or b)
failure to comply with and perform any of the requirements and provisions of
this Lease on its part to be performed, or c) any use made by Tenant on the
Premises; and Tenant shall, at its own cost and expense, defend and indemnify
Landlord against all claims based upon death, damage or injury to persons or
damage to property while in, on or about the Premises, during the entire Term of
this Lease which are due or claimed to be due to clauses a, b, or c.
ARTICLE XIV. INSPECTION OF PREMISES BY LANDLORD.
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Tenant covenants and agrees that the Premises shall be open to Landlord
and its agents at all reasonable times, except in emergency, upon reasonable
notice, for the purpose of inspection and for exhibition of the same for sale or
mortgage, and, within the last nine (9) months of the Term, for rent. Landlord
will give Tenant at least three (3) business days prior notice before Landlord's
entry upon the Premises. During any such entry into the Premises Landlord shall
perform its inspection with due diligence and as expeditiously as possible and
shall cause a minimum of interference with Tenant's business.
ARTICLE XV. IMPROVEMENTS.
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All property improvements installed on the Premises by Tenant,
including, but not limited to, floor covering, hardware, HVAC, loading dock
equipment, plumbing fixtures electric fixtures, partitions and doors, and
whether or not permanently attached to the realty, shall become the property of
Landlord upon the termination of this Lease.
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Notwithstanding the foregoing, Tenant's trade fixtures, as defined in
this Lease, shall remain the property of Tenant and shall be removed by Tenant
at the termination of this Lease. Tenant, at its own expense, shall repair any
damage to the Premises caused by such removal. The words "Tenant's trade
fixtures" shall be construed to mean all machinery, signs, furniture and office
equipment (including, without limitation, computers, data processing and trading
related equipment) owned or used by Tenant.
ARTICLE XVI. SURRENDER.
----------------------
Upon the termination of this Lease, Tenant shall peaceably and quietly
surrender the Premises to Landlord in good order and condition, reasonable wear
and tear, damage by fire, the elements, unavoidable casualty, or circumstances
beyond the control of Tenant excepted. Tenant shall have no obligation to remove
or pay for the removal of any changes or alterations which Landlord has approved
during the Term.
ARTICLE XVII. CONDEMNATION.
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If the Premises or a substantial portion thereof shall be taken by
governmental authority as a result of the exercise of the power of eminent
domain so as to materially impact Tenant's use of the Premises, this Lease shall
terminate as of the date of vesting of title and neither Landlord nor Tenant
shall have any further liability or obligation hereunder. As used herein,
"substantial portion" must include a portion of the building or a permanent
disruption of Tenant's access thereto. Any reward or payment by reason of any
taking shall belong to Landlord. Tenant may make a separate claim for its
removable trade fixtures and relocation and loss of business if the
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taking action so provides. Upon such termination, the Base Rent, additional rent
and other sums payable by Tenant under this Lease shall be apportioned to the
date of termination; and any security deposit shall be returned to Tenant.
Notwithstanding anything to the contrary contained in this Lease, in the event
of any condemnation or taking in which the Lease in not terminated, all Base
Rent and additional rent shall be proportionately abated to reflect the rentable
area of the Premises remaining tenantable after such taking, and Landlord, at
its sole cost and expense, shall promptly repair and restore the areas affected
by such taking.
ARTICLE XVIII. MORTGAGES.
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A. Subject to Tenant's receipt of the non-disturbance agreement
provided in sub-paragraph B below, the Lease shall be subject and subordinate to
the lien of any bona fide mortgage or mortgages which may now or hereafter
affect or become a lien upon the Premises, provided that the mortgagee shall be
an insurance company, a bank, a savings and loan association, a pension fund,
corporation or trust.
B. Tenant shall execute any instruments which may be required to
effectuate such subordination, consistent with the provisions of this Article,
subject to Tenant's receiving a written agreement from the holder of any present
or future mortgage in form reasonably acceptable to Tenant, that if, by
dispossess, foreclosure or otherwise, such mortgagee, or any successor in
interest, shall become the owner of the Premises or take over the rights of
Landlord therein, it will not disturb the possession or enjoyment of the
Premises by Tenant, nor disaffirm the Lease, so long as Tenant is not in default
of its obligations under the terms of this Lease.
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ARTICLE XIX. TENANT DEFAULTS.
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A. If, at any time during the Term of this Lease, (i) Tenant shall file
in any court a petition in bankruptcy or insolvency or for reorganization (other
than a reorganization not involving the insolvency of Tenant), or arrangement,
or for the appointment of a receiver or trustee of all or a portion of Tenant's
property, or for the appointment of a receiver or trustee of all or a portion of
Tenant's property, or (ii) an involuntary petition of the kind referred to in
subdivision (i) of this Paragraph shall be filed against Tenant, and such
petition shall not be vacated or withdrawn within sixty (60) days after the date
of filing thereof, or (iii) if Tenant shall make an assignment for the benefit
of creditors, or (iv) if Tenant shall be adjudicated a bankrupt by any court;
then in any such event this Lease shall terminate ipso facto upon the happening
of such contingency, and Tenant shall then quit and surrender the Premises to
Landlord. The word "Tenant", as used in this section, shall be deemed to mean
the Tenant herein named, or in the event that this Lease shall have been
assigned, such word shall be deemed to mean only the assignee in possession of
the Premises. In any event, the liability of Tenant shall continue as provided
in the Lease.
B. If Tenant shall be in default in the payment of rent, taxes,
charges, assessments or insurance premiums after the same shall become due and
payable, for more than ten (10) days after written notice by Landlord, then
Landlord may, at its election, subject to statutory requirements, terminate this
Lease.
If Tenant shall be in default in the performance of any of the other
covenants, terms and conditions of this Lease, Landlord shall give Tenant thirty
(30) days' notice in writing, specifying
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the default and requiring it to be remedied. If, at the expiration of said
thirty (30) days, the default which is the basis of such notice shall not have
been remedied (or if such default cannot reasonably be remedied within such
period of thirty (30) days, if Tenant shall not have commenced the remedying
thereof within such period of time and shall not be proceeding with due
diligence to remedy it) Landlord, at its election, may terminate this Lease on
statutory notice to such effect.
After such termination, Landlord may pursuant to lawful process,
re-enter the Premises and possess same as its former estate, and without such
re-entry may recover possession thereof in the manner prescribed by the statute
relating to summary process. Except as required by applicable law or as
otherwise provided in this Lease, no demand for rent or notice of violation of
any covenant or agreement herein contained and no re-entry for condition broken,
as at common law, shall be necessary to enable Landlord to recover such
possession pursuant to the statute relating to summary process.
C. In the event this Lease shall terminate pursuant to Section A or
Section B of this Article, Landlord shall be entitled to recover forthwith from
Tenant, as liquidated damages or otherwise, an amount equal to the difference
between the rent reserved in this Lease for the unexpired portion of the Term,
over and above the rental value of the Premises for the same period as of the
date of termination discounted if the amount is a lump sum award, to present
value at the "Prime Rate" of interest charged by the majority of ten money
center banks located in the New York Metropolitan area.
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In determining the fair market rental value of the leased Premises, the
rental realized by any bona fide reletting shall be deemed prima facie evidence
of such rental value.
ARTICLE XX. NOTICES.
--------------------
All notices, demands, consents, approvals, requests or other
communications required or permitted to be given pursuant to this Lease or
pursuant to law ("Notices") shall be in writing and shall be sent by one of the
following means: (i) hand delivery with written receipt (unless the recipient
refuses to give a receipt), (ii) Unites States certified mail, postage prepaid,
return receipt requested, or (iii) Federal Express or another nationally
recognized overnight express delivery service. Notices to Landlord shall be
directed to Landlord c/o Rapaport & Ellenthal, 000 Xxxxxx Xx., Xxxxxxxx, XX,
00000. Notices to Tenant shall be directed to Tenant at the Premises.
Landlord and Tenant shall each have the right, from time to time, to
specify as its address for purposes of this Article, any other address in the
United States upon giving notice thereof to the other party. Notices given by
hand delivery shall be deemed given at the time of delivery. Notes given by
Federal Express or such other overnight express service shall be deemed given
one business day after deposit with the express company prior to its deadline
for overnight delivery. Notices given by U.S. certified mail shall be deemed
given three business days after deposit with the U.S. Postal Service.
ARTICLE XXI. QUIET ENJOYMENT.
-----------------------------
Tenant, upon paying the rental herein reserved and performing the
terms, covenants and conditions of this Lease, shall and may peaceably and
quietly have, hold, occupy, possess and
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enjoy the Premises during the Term of this Lease.
ARTICLE XXII. SUCCESSORS BOUND.
-------------------------------
This Lease shall enure to the benefit of and be binding upon Landlord
and Tenant and their respective successors and assigns.
ARTICLE XXIII. HEADINGS.
------------------------
Headings used herein are merely for the convenience of the parties and
are not intended to affect in any wise the validity or construction of any
provisions hereof.
ARTICLE XXIV. BROKER.
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Tenant represents that no broker showed the Premises to it or
interested it therein. Landlord represents that there is no listing broker.
ARTICLE XXV. JURY WAIVER.
-------------------------
Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim involving any matter whatsoever arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises or the right to any statutory relief
or remedy, or any claim of injury or damage.
ARTICLE XXVI. HAZARDOUS MATERIALS.
----------------------------------
Tenant, on behalf of Tenant or Tenant's agents, employees or
contractors, shall not (either with or without negligence) cause or permit (i)
the spill, discharge, escape, disposal or release of any hazardous or toxic
substances, wastes or materials at or about the Premises, or (ii) the treatment,
storage or use of such substances or materials in any manner not sanctioned by
law or
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by the highest standards prevailing in the industry for the storage and use of
such substances or materials, or (iii) to be brought onto the Premises any such
materials or substances except in limited quantities to use in the ordinary and
lawful course of Tenant's business, and then only after written notice is given
to Landlord of the identity, quantity and location of such substances or
materials or wastes derives therefrom (collectively, in clauses (i), (ii) and
(iii) called "Environmental Violations". Without limitation, hazardous
substances and materials shall include those described in or meeting the
criteria of the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., and
any applicable state or local environmental laws and the regulations adopted
under these acts ("Environmental Laws"). If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been any
Environmental Violations caused by Tenant or Tenant's agents, employees or
contractors, then the reasonable costs thereof shall be reimbursed by Tenant to
Landlord within ten (10) days following Landlord's supporting statements
therefor, as additional rent if such requirement applies to the Premises or to
Tenant. In addition, Tenant shall execute reasonable affidavits, representations
and the like from time to time within ten (10) days after Landlord's written
request concerning Tenant's best knowledge and belief regarding the presence of
Environmental Violations on the Premises. In the event Tenant causes any
Environmental Violations under this Lease, in addition to all other rights and
remedies of Landlord under this Lease, regardless of when the existence of the
violation is determined,
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whether during the Term or after the Lease has expired or been terminated,
Tenant shall immediately upon notice from Landlord, at Landlord's option, either
(A) at Tenant's sole cost and expense, diligently and expeditiously undertake,
with respect to any violation of this Article, (1) elimination of any Tenant's
violation of Environmental Law, (2) complete remedial investigations,
feasibility studies, remedial actions (which actions may, at the Landlord's
option, include removal and disposal of any Environmental Violations) and
restoration of the Land to the condition existing prior to such investigative or
remedial activities, all in accordance with Environmental Laws, or (B) reimburse
Landlord for all reasonable costs, fees and expenses, including reasonable
attorneys' fees, incurred by Landlord in undertaking any actions to cure
Environmental Violations caused by Tenant referred to in the foregoing clauses
A.1 and A.2. In all events, Tenant shall indemnify and hold harmless Landlord in
the manner elsewhere provided in this Lease from any Environmental Violations
about the Land occurring while Tenant is in possession, if caused by Tenant or
by employees, agents, contractors or licensees of Tenant. The within covenants
shall survive the expiration or earlier termination of the Lease Term.
B. Notwithstanding the foregoing, Tenant shall have no responsibility
whatsoever for, and Landlord shall indemnify, defend and hold Tenant harmless
from and against any and all claims, loss, damage, cost or expense (including,
but not limited to, cleanup costs and losses relating to interruption or
cessation of operations) arising out of or relating to (i) any preexisting
contamination of the Premises by hazardous substances and materials; (ii) any
contamination by hazardous substances or materials emanating from outside the
Premises; or (iii) any contamination
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by hazardous substances and materials not caused by the act or omission of
Tenant, its employees, agents or contractors, or by Tenant's breach of this
Lease.
ARTICLE XXVII. SECURITY DEPOSIT.
---------------------------------
There shall be no security deposit.
ARTICLE XXVIII. ESTOPPEL CERTIFICATE.
-------------------------------------
Tenant agrees, at any time and from time to time, upon not less than
fifteen (15) business days prior notice from Landlord, to execute, acknowledge
and deliver to Landlord a statement in writing (a) certifying to the extent same
is true, that this Lease is unmodified and in full force and effect (or if there
have been modifications that this Lease is in full force and effect as modified
and stating the modifications); (b) stating the dates to which the rent and
other charges hereunder have been paid by Tenant; (c) stating whether or not
Tenant has knowledge that Landlord is in default in the performance of any
covenant, agreement or condition contained in this Lease, and, if Tenant has
knowledge of such default, specifying each such default; and (d) stating the
address to which notices to Tenant shall be sent. Landlord shall, from time to
time, if requested by Tenant, likewise so timely deliver to Tenant an estoppel
certificate, in the substance and form described above, relative to the status
of this Lease.
ARTICLE XXIX. OPTIONS TO RENEW.
-------------------------------
A. Provided Tenant is not then in default beyond any applicable grace
period, Tenant shall have an option of renewing this Lease for an additional
term of five (5) years (the "First Renewal Term") from the tenth anniversary of
the Rent Commencement Date by sending to Landlord
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written notice postmarked on or before the first day of the seventh month of the
tenth Lease Year that it is extending the Term of this Lease. Upon Landlord's
receipt of such written notice the parties shall attempt to agree upon a fair
annual Base Rent for the First Renewal Term. In the event the parties cannot
agree upon such an annual Base Rent, the determination of same shall be made by
arbitration as hereinafter provided. If the annual Base Rent is determined by
arbitration, it shall be the fair market rental ("FMR") of the Premises.
Landlord and Tenant shall each appoint a member of the American Institute of
Appraisers who shall have at least ten (10) years' experience in appraising
commercial property in Fairfield County, Connecticut. Such appointment shall be
made in writing by each party to the other and to the appraiser so appointed.
Said appointment shall be made at least ninety (90) days before the end of the
tenth Lease Year. In the event said appraisers do not agree upon a FMR prior to
sixty (60) days before the end of the tenth Lease Year, they shall promptly
appoint a third appraiser with similar qualifications and said three appraisers
shall determine the FMR of the Premises prior to thirty (30) days before the end
of the tenth Lease Year. If said three appraisers are unable jointly to agree
prior to thirty days before the end of the tenth Lease Year of the FMR of the
Premises, then in that event an average of the three values for FMR shall be
utilized to determine same, provided the variation between the high value and
the low value does not exceed 5%. In the event of the failure of the appraisers
to agree upon a third appraiser as aforesaid or in the event the variation
between the high rental and low rental exceeds 5% or in the event that either
Landlord or Tenant shall fail to appoint an appraiser as aforesaid within the
time above set forth therefor, then either Landlord or
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Tenant shall make an application to the American Arbitration Association for the
appointment of another appraiser and such appraiser, together with advice from
the other appraisers, shall determine the FMR as soon as possible after his
appointment. During the First Renewal Term the annual Base Rent shall be 100% of
the FMR of the Premises. Except for said annual Base Rent change, all of the
other covenants and agreements contained herein shall remain in force and effect
during such First Renewal Term.
B. Provided Tenant is not then in default beyond any applicable grace
period, Tenant shall have an option of renewing this Lease for an additional
term of five (5) years (the "Second Renewal Term") from the fifteenth
anniversary of the Rent Commencement Date by sending to Landlord written notice
postmarked on or before the first day of the seventh month of the fifteenth
Lease Year that it is extending the Term of this Lease. Upon Landlord's receipt
of such written notice the parties shall attempt to agree upon a fair annual
Base Rent for the Second Renewal Term. In the event the parties cannot agree
upon such an annual Base Rent, the determination of same shall be made by
arbitration. If the annual Base Rent is determined by arbitration, it shall be
FMR of the Premises. Landlord and Tenant shall each appoint a member of the
American Institute of Appraisers who shall have at least ten (10) years'
experience in appraising commercial property in Litchfield County, Connecticut.
Such appointment shall be made in writing by each party to the other and to the
appraiser so appointed. Said appointment shall be made at least ninety (90) days
before the end of the fifteenth Lease Year. In the event
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said appraisers do not agree upon a FMR prior to sixty (60) days before the end
of the fifteenth Lease Year, they shall promptly appoint a third appraiser with
similar qualifications and said three appraisers shall determine the FMR of the
premises prior to thirty (30) days before the end of the fifteenth Lease Year.
If said three appraisers are unable jointly to agree prior to thirty days before
the end of the fifteenth Lease Year of the FMR of the Premises, then in that
event an average or the three values for FMR shall be utilized to determine
same, provided the variation between the high value and the low value does not
exceed 5%. In the event of the failure of the appraisers to agree upon a third
appraiser as aforesaid or in the event the variation between the high rental and
the low rental exceeds 5% or in the event that either Landlord or Tenant shall
fail to appoint an appraiser as aforesaid within the time above set forth
therefor, then either Landlord or Tenant shall make an application to the
American Arbitration Association for the appointment of another appraiser and
such appraiser, together with advice from the other appraisers, shall determine
the annual Base Rent as soon as possible after his appointment. During the
Second Renewal Term the annual Base Rent shall be 100% of the FMR of the
Premises. Except for said annual Base Rate change, all of the other covenants
and agreements contained herein shall remain in force and effect during such
Second Renewal Term.
ARTICLE XXX. NOTICE OF LEASE.
-----------------------------
Upon the request of either party the party shall promptly execute and
deliver a statutory notice of lease or short form memorandum of lease for
recording in the Watertown, Connecticut land records.
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ARTICLE XXXI. LANDLORD RIGHTS.
------------------------------
Landlord hereby represents that it has the full right, power and
authority to lease the Premises to Tenant as provided in the Lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
Signed, Sealed and Delivered XXXXX GRANDCHILDRENS' TRUST
in the presence of u/t/a dated May 5, 2000
LANDLORD
/s/ (Illegible) by /s/ Xxxxx X. Xxxxx
-------------------------- ------------------------------
XXXXX X. XXXXX, Trustee
/s/ (Illegible)
--------------------------
CRYSTAL ROCK SPRING WATER
COMPANY
TENANT
by /s/ Xxxx X. Xxxxx
-------------------------------
XXXX X. XXXXX, its Co-President
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STATE OF CONNECTICUT )
) ss.: LITCHFIELD May 5, 2000
COUNTY OF LITCHFIELD )
Personally appeared XXXXX GRANDCHILDRENS' TRUST u/t/a dated May 5,
2000, acting by XXXXX X. XXXXX, Trustee, hereunto duly authorized, signer and
sealer of the foregoing instrument, and acknowledged the same to be his/her free
act and deed and the free act and deed of said Trust, before me.
/s/ (Illegible)
------------------------------------------------
Notary Public/Commissioner of the Superior Court
STATE OF CONNECTICUT )
) ss.: LITCHFIELD May 5, 2000
COUNTY OF LITCHFIELD )
Personally appeared CRYSTAL ROCK SPRING WATER COMPANY by XXXX X. XXXXX,
its Co-President, hereunto duly authorized, signer and sealer of the foregoing
instrument, and acknowledged the same to be his/her free act and deed and the
free act and deed of said Corporation, before me.
/s/ (Illegible)
------------------------------------------------
Notary Public/Commissioner of the Superior Court
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