Exhibit 10.24
LEASE EXTENSION AGREEMENT
THIS AGREEMENT dated this 10th day of May, 1993, by and between NEW
ROAD ASSOCIATES, having an address of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
(hereinafter called "Landlord",) and ▇.▇. SPECIALTIES, INC. having an address of
▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, (hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a Lease Agreement ("Lease")
dated September 29th, 1987 by which Landlord leased to Tenant 12,950 square feet
located at ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter "Initial
Lease Agreement"); and
WHEREAS, said Initial Lease Agreement shall terminate on April 30,
1993; and;
WHEREAS, the parties hereto wish to extend the term of the
Initial Lease Agreement under the same terms and conditions contained
therein, with the exception of those items enumerated below.
NOW THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto agree as follows:
1.) The Initial Lease Agreement is hereby extended for one additional five
(5) year term commencing May 1, 1993 and terminating on April 30, 1998
(hereinafter "Extension Term").
2.) Effective May 1, 1993, Basic Rent is hereby deleted and the following
paragraph shall be substituted therefore:
Lease Extension Agreement
Between New Road Associates and
▇.▇. Specialties, Inc.
Page 2
That the Tenant shall pay the aggregate basic rent of TWO HUNDRED
NINETY ONE THOUSAND THREE HUNDRED SEVENTY FIVE AND NO/100 ($291,375.00)
DOLLARS, to be paid in monthly installments, in advance without demand,
at such address as Landlord may designate on the first day of each
month in the amount of FOUR THOUSAND EIGHT HUNDRED FIFTY SIX AND 25/100
($4,856.25) DOLLARS.
3.) Except as particularly modified by the terms hereof, the Initial Lease
Agreement shall remain in full force and effect during the term of the
Lease as contained herein, which terms and conditions are hereby
reaffirmed by the parties hereto.
4.) The Tenant acknowledges that it is presently in possession of the
leased premises and agrees except as provided in the Lease as amended
and subject to provision of the Lease to retain possession of the same
without any representations, warranties, or covenants on the part of
the Landlord and in the condition commonly referred to as "As Is".
5.) All of the terms, conditions, and covenants of the original Lease
Agreement dated September 29, 1987 shall remain in full force and
effect except as specifically modified herein.
6.) This Amendment shall be binding upon the parties hereto and their legal
representatives and/or successors and assigns.
IN WITNESS WHEREOF, the parties have hereto executed this Agreement the
date
Lease Extension Agreement
Between New Road Associates and
▇.▇. Specialties, Inc.
Page 3
and year first above written.
WITNESS: NEW ROAD ASSOCIATES, as Landlord
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇ BY:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------ ---------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Partner
WITNESS: ▇.▇. SPECIALTIES, INC., as Tenant
/s/ ▇▇▇▇▇ ▇▇▇▇ BY:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (V.P.)
------------------------------ ---------------------------------
THIS AGREEMENT, between NEW ROAD ASSOCIATES, a partnership organized
and existing pursuant to the laws of the State of New Jersey having an address
at ▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, as Landlord and ▇.▇.
SPECIALTIES, INC., a New Jersey Corporation trading as BATTER BAKE, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ as Tenant.
WITNESSETH: That the said Landlord has let unto this said Tenant and
the said Tenant has hired from the said Landlord, the following premises:
12,950 SQUARE FEET TOTAL AREA IN A MULTI-TENANCY BUILDING, WITH 950
SQUARE FEET OF FINISHED OFFICE AND RESTROOM SPACE ON THE FIRST FLOOR, AND 12,000
SQUARE FEET OF WAREHOUSE SPACE, COMMONLY REFERRED TO AS NEW ROAD, PARSIPPANY,
NEW JERSEY AS DESCRIBED AND DEPICTED IN THE FLOOR PLAN ATTACHED HERETO AND
IDENTIFIED AS EXHIBITED "B" for the term of FIVE (5) YEARS to commence from the
1st day of March 1988, and to end on the 28th day of February 1993, to be used
and occupied only for___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
upon the conditions and covenants following:
1st: That the Tenant shall pay aggregate basic rent of Three Hundred
Fifty Seven Thousand Seven Hundred Fifty and 00/100 ($357,750.00) Dollars to be
paid in monthly installments in advance, without demand, at such address as
Landlord may designate, on the first day of each month in accordance with
Article #47.
2nd: That the Tenant shall take good care of the premises and shall at
the Tenant's own cost and expense make all repairs specified to be Tenant's
obligation in Article 30 and at the end or other expiration of the term, shall
deliver up the demised premises in good order or condition, damages by the
elements excepted.
3rd: That the Tenant shall promptly execute and comply with all
statutes, ordinances, rules, orders, regulations and requirements of the
Federal, State and City Government and of any and all their Departments and
Bureaus applicable to said premises, for the correction, prevention, and
abatement of nuisances, violations or other grievances, to, upon or connected
with said premises during said term; and shall also promptly comply with and
execute all rules, orders, and regulations of the Board of Fire Underwriters, or
any other similar body, for the prevention of fires, at the Tenant's own cost
and expense.
4th: That in case the Tenant shall fail or neglect to comply with the
aforesaid statutes, ordinances, rules, orders, regulations and requirements of
any of them, or in case the Tenant shall fail or neglect to make any necessary
repairs, then the Landlord or the Landlord's Agents may enter said premises and
make said repairs and comply with any and all of the said statutes, ordinances,
rules orders, regulations or requirements, at the cost and expense of the Tenant
and in case of the Tenant's failure to pay therefor, the said cost and expense
shall be added to the next month's rent and be due and payable as such, or the
Landlord may
deduct the same from the balance of any sum remaining in the Landlord's hands.
This provision is in addition to the right of the Landlord to terminate this
lease by reason of any default on the part of the Tenant.
5th: That the Tenant shall not assign this agreement, or underlet or
underlease the premises or any part thereof, or occupy, or permit or suffer the
same to be occupied for any business or purpose deemed disreputable or
extra-hazardous on account of fire, under penalty of damages and forfeiture.
6th: That no alterations, additions or improvements shall be made in or
to the premises without the consent of the Landlord in writing, under penalty of
damages and forfeitures, and all additions and improvements made by the Tenant
shall belong to the Landlord.
7th: In case of damage, by fire or other cause, to the building in
which the leased premises are located, without the fault of the Tenant or of
Tenant's agent or employees, if the damage is so extensive as to amount
practically to the total destruction of the leased premises or of the building,
or if the Landlord shall within a reasonable time decide not to rebuild, this
lease shall cease and come to an end, and the rent shall be apportioned to the
time of the damage. In all other cases where the leased premises are damaged
without the fault of the Tenant or of Tenant's agents or employees the Landlord
shall repair the damage with reasonable dispatch after notice of damage, and if
the damage has rendered the premises untenantable, in whole or in part, there
shall be an apportionment of the rent until the damage has been repaired. In
determining what constitutes reasonable dispatch consideration shall be given to
delays caused by strikes, adjustment of insurance and other causes beyond the
Landlord's control.
8th: That said Tenant agrees that the said Landlord and Landlord's
Agents, and other representatives, shall have the right to enter into and upon
said premises, or any part thereof, at all reasonable hours for the purpose of
examining the same, or making such repairs or alterations therein as may be
necessary for the safety and preservation thereof.
9th: The Tenant also agrees to permit the Landlord or Landlord's Agents
to show the premises to persons wishing to hire or purchase the same; and the
Tenant further agrees that during the six months next prior to the expiration of
the term, the Landlord or Landlord's Agents shall have the right to place
notices on the front of said premises, or any part thereof, offering the
premises "To Let" or "For Sale," and the Tenant hereby agrees to permit the same
to remain thereon without hindrance or molestation.
10th: That if the said premises, or any part thereof, shall become
vacant during the said term, or should the Tenant be evicted by summary
proceedings or otherwise, the Landlord or Landlord's representatives may
re-enter the same, either by force or otherwise, without being liable to
prosecution therefor; and re-let the said premises as the Agent of the said
Tenant and receive the rent thereof; applying the same first to the payment of
such expenses as the Landlord may be put to in re-entering and then to the
payment of the rent due by these presents; the balance (if any) to be paid over
to the Tenant who shall remain liable
for any deficiency.
11th: Landlord may replace, at the expense of Tenant, any and all
broken glass in and about the demised premises. Landlord may insure, and keep
insured, all plate glass in the demised premises for and in the name of
Landlord. Bills, for the premiums therefor shall be rendered by Landlord to
Tenant at such times as Landlord may elect, and shall be due from, and payable
by Tenant when rendered, and the amount thereof shall be deemed to be, and be
paid as, additional rental. Damage and injury to the said premises, caused by
the carelessness, negligence or improper conduct on the part of the said Tenant
or the Tenant's agents or employees shall be repaired as speedily as possible by
the Tenant at the Tenant's own cost and expense.
12th: That the Tenant shall neither encumber, nor obstruct the sidewalk
in front of, entrance to or halls and stairs of said building, nor allow the
same to be obstructed or encumbered in any manner.
13th: The Tenant shall neither place, nor cause, nor allow to be
placed, any sign or signs of any kind whatsoever at, in or about the entrance to
said premises nor any other part of same except in or at such place or places as
may be indicated by the said Landlord and consented to by Landlord in writing.
And in case the Landlord or Landlord's representatives shall deem it necessary
to remove any such sign or signs in order to paint or to make any other repairs,
alterations or improvements in or upon said premises or the building wherein
same is situated or any part thereof, the Landlord shall have the right to do
so, providing the same be removed and replaced at the Landlord's expense
whenever the said repairs, alterations or improvements shall have been
completed.
14th: It is expressly agreed and understood by and between the parties
to this agreement, that the Landlord shall not be liable for any damage or
injury to persons or property caused by or resulting from steam, electricity,
gas, water, rain, ice or snow, or any lack of flow from or into any part of said
building, or from any damage or injury resulting or arising from any other cause
or happening whatsoever.
15th: That if default be made in any of the covenants herein contained,
then it shall be lawful for the said Landlord to re-enter the said premises, and
the same to have again, repossess and enjoy.
16th: That this lease shall not be a lien against said premises in
respect to any mortgages that are now on or that hereafter may be placed against
said premises, and that the recording of such mortgage or mortgages shall have
preference and precedence and be superior and prior in lien of this lease
irrespective of the date of recording and the Tenant agrees to execute andy
instrument without cost, which may be deemed necessary or desirable to further
effect the subordination of this lease to any such mortgage or mortgages, and a
refusal to execute such instruments shall entitle the Landlord, or the
Landlord's assigns and legal representatives to the option of cancelling this
lease without incurring any expense or damage, and the term hereby granted is
expressly limited accordingly.
17th: The Tenant has this day deposited with the Landlord the sum of
$17,871.00 as security for the full and faithful performance by the Tenant of
all of the terms and conditions upon the Tenant's part to be performed, which
said sum shall be returned to the Tenant after the time fixed as the expiration
of the term herein, provided the Tenant has fully and faithfully carried out all
of the terms, covenants and conditions on the Tenant's part to be performed. In
the event of a bona fide sale, subject to this lease, the Landlord shall have
the right to transfer the security to the vendee for the benefit of the Tenant
and the Landlord shall be considered released by the Tenant from all liability
for the return of such security; and the Tenant agrees to look to the new
Landlord solely for the return of the said security, and it is agreed that this
shall apply to every transfer or assignment made of the security to a new
Landlord.
18th: That the security deposited under this lease shall not be
mortgaged, assigned or encumbered by the Tenant without the written consent of
the Landlord.
19th: It is expressly understood and agreed that if for any reason it
shall be impossible to obtain fire insurance on the buildings and improvements
on the demised premises in an amount, and in the form, and in fire insurance
companies acceptable to the Landlord the Landlord may, if the Landlord so
elects, at any time thereafter terminate this lease and the term thereof, on
giving to the Tenant three days' notice in writing of Landlord's intentions so
to do and upon the giving of such notice, this lease and the terms thereof shall
terminate and come to an end.
20th: It is expressly understood and agreed that in case the demised
premises hall be deserted or vacated, or if default be made in payments of the
rent or any part thereof as herein specified, or if, without the consent of the
Landlord, the Tenant shall sell, assign, or mortgage this lease or if default be
made in the performance of any of the covenants and agreements in this lease
contained on the part of the Tenant to be kept and performed, or if the Tenant
shall fail to comply with any of the statues, ordinances, rules, orders,
regulations and requirements of the Federal, State and City Government or of any
and all their Departments and Bureaus, applicable to said premise, or if the
Tenant shall rule or there be filed against Tenant a petition in bankruptcy or
arrangement, or Tenant be adjudicated a bankrupt, or make an assignment for the
benefit of creditors or take advantage of any insolvency act, the Landlord may,
if the Landlord so elects, at any time thereafter terminate this lease and the
term hereof, on giving to the Tenant five days' notice in writing of the
Landlord's intentions so to do, and this lease and the term hereof shall expire
and come to an end on the date fixed in such notice as if the said date were the
date originally fixed in this lease for the expiration hereof. Such notice may
be given by mail to the Tenant addressed to the demised premises.
All notices required to be given to the Tenant may be given by mail
addressed to the Tenant at the demised premises.
21st: The Tenant shall pay to the Landlord the rent or charge, which
may, during the demised term, be assessed or imposed for the water used or
consumed in or on the said premises, whether determined by meter or otherwise,
as soon as and when the same may be
assessed or imposed, and will also pay the expense for the setting of a water
meter in the said premises should the latter be required. If such rent or charge
or expenses are not so paid the same shall be added to the next month's rent
thereafter to become due.
22nd: That the Tenant will not nor will the Tenant permit undertenants
or other persons to do anything in said premises, or bring anything into said
premises, or permit anything to be brought into said premises or to be kept
therein, which will in any way increase the rate of fire insurance on said
demised premises, nor use the demised premises or any ▇▇▇ thereof, nor suffer
nor permit their use for any business or purpose which would cause an increase
in the rate of fire insurance on said building, and the Tenant agrees to pay on
demand any such increase.
23rd: If after default in payment of rent or violation of any other
provisions of this lease, or upon the expiration of this lease, the Tenant moves
out or is dispossessed and fails to remove any trade fixtures or other property
prior to such said default, removal, expiration of lease, or vacates the demised
premises prior to the issuance of the final order or execution of the warrant,
then and in that event, the said fixtures and property shall be deemed abandoned
by the said Tenant and shall become the property of the Landlord.
24th: The failure of the Landlord to insist upon strict performance of
any of the covenants or conditions of this lease or to exercise any option
herein conferred in any one or more instances, shall not be construed as a
waiver or relinquishment for the future of any such covenants, conditions or
options, but the same shall be and remain in full force and effect.
25th: In the event that the relation of the Landlord and Tenant may
cease or terminate by reason of the re-entry the Landlord under the terms and
covenants contained in this lease or by the ejectment of the Tenant by summary
proceeding or otherwise, or after the abandonment of the premises by the Tenant,
it is hereby agreed that the Tenant shall remain liable and shall pay in monthly
payments the rent which accrues subsequent to the re-entry by the Landlord, and
the Tenant expressly agrees to pay as damages for the breach of the covenants
herein contained, the difference between the rent reserved and the rent
collected and received, if any, by the Landlord, during the remainder of the
unexpired term, such difference deficiency between the rent herein reserved and
the rent collected, if any, shall become due and payable in monthly payments
during the remainder of the unexpired term, as the amounts of such difference or
deficiency shall from time to time ascertained.
26th: If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for a public or quasi public use or
purpose, then and in the event, the term of this lease shall cease and terminate
from the date title vesting in such proceeding and Tenant shall have no claim
against Landlord for the value of any unexpired term of said lease. No part of
any award shall belong to the tenant.
27th: This lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant to
be performed shall in nowise be affected, impaired or excused because Landlord
is unable to supply or is delayed in
supplying any service expressly or impliedly to be supplied or is unable to
make, is delayed in making any repairs, additions, alterations or decorations or
is unable to supply or is delayed in supplying any equipment or fixtures if
Landlord is prevented or delayed from so doing by reason of governmental
preemptions in connection with a National Emergency declared by the President of
the United States or in connection with any rule, order or regulation of any
department or subdivision thereof of any governmental agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
28th: Landlord shall not be liable for failure to give possession of
the premises upon commencement date by reason of the fact that premises are not
ready for occupancy, or due to a prior Tenant wrongfully holding over or any
other person wrongfully in possession or for any other reason; in such event the
rent shall not commence until possession is given or available, but the term
herein shall not be extended.
29th: This lease is subject and is hereby subordinated to all present
and future mortgages, deeds of trust and other encumbrances affecting the
demised premises or the property of which said premises are a part. The Tenant
agrees to execute at no expense to the Landlord, any instrument which may be
deemed necessary or desirable by the Landlord to further effect the
subordination of this lease to any such mortgage, deed of trust or encumbrance.
And the said Landlord doth covenant that the said Tenant on paying the
said yearly rent, and performing the covenant aforesaid, shall and may
peacefully and quietly have, hold and enjoy the said demised premises for the
term aforesaid, provided however, that this covenant shall be conditioned upon
the retention of title to the premises by the Landlord.
And it is further understood and agreed, that the covenants and
agreements herein contained are binding on the parties hereto and upon their
respective successors, heirs, executors, administrations and assigns.
It is further expressly agreed that the words used in the singular
shall include words in the plural where the text in this instrument so requires.
IN WITNESS WHEREOF, the parties have inter-changeably set their hands
and seals or caused these presents to be signed by their proper corporate
officers and caused their proper corporate seal to be hereto affixed, this 29th
day of December, 1987.
NEW ROAD ASSOCIATES
Signed, Sealed and Delivered
in the presence of
By:/s/
------------------------------
[Authorized Signatory]
▇.▇. SPECIALTIES, INC. trading as
BATTER BAKE
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
RIDER TO LEASE AGREEMENT BETWEEN
NEW ROAD ASSOCIATES
AND
BATTER BAKE
30. Notwithstanding anything to the contrary contained herein
(including without limitation the provisions of Paragraph 2nd hereof), it is
agreed that the Tenant shall be responsible for the making of necessary interior
non-structural repairs to the demised premises and that the Landlord shall be
responsible for the making of necessary structural repairs, interior and
exterior, exterior repairs and roof repairs; provided however, that Tenant shall
be responsible for any necessary structural, exterior, and roof repairs if
required by reason of the negligence or misconduct of the Tenant, its agents,
employees, contractors, or invitees.
31. Each party shall cause endorsements to be added to their respective
policies of insurance covering any insurable interest it may have with respect
to the demised premises or any property thereon, which will provide that the
insurers waive all rights to subrogation to the rights of the insured party
against the other party to this Lease in connection with any loss or damage
covered by said policies. If any such waiver of subrogation is obtainable only
upon such payment of an addition premium, then the obligation to obtain such
waiver of subrogation shall be conditioned upon the payment of such additional
premium by the party for whose benefit such waiver is sought.
32. Municipal Real Estate Taxes.
(a) Tenant shall pay as additional rent its proportionate
share of all municipal real estate taxes, assessments, water and sewer rents,
and governmental impositions, duties and charges of every mind and nature
whatsoever, extraordinary as well as ordinary, and whether now within the
contemplation of the parties or not, and each and every installment of each of
them, which shall or may during the term of the Lease be charged, laid, levied,
assessed or imposed upon the premises of which the demised premises form a part
or upon any sidewalks or streets in front of or adjoining the said premises, or
which may become due and payable with respect thereto, and any and all taxes,
charges, laid, levied, assessed or imposed in lieu of the foregoing, under or by
virtue of any present or future laws, rules, requirements, orders, directions,
ordinances, or regulations of the United States of America or of the state,
county, municipal, governmental or lawful authority whatsoever; all to the
extent applicable to the term of this Lease.
(b) Nothing herein contained shall require or be construed to
obligate Tenant to pay any franchise, corporation, capital stock, capital
levies, transfer, estate or inheritance, income or excess profits tax imposed
upon Landlord or upon it successors or assigns of any of them. If, however, date
hereof shall be altered so as to cause the whole or any part of the real estate
taxes, assessments, levies, impositions or other charges now or hereafter
levied, assessed or imposed on the premises or any interest therein or portion
thereof to be levied, assessed or
imposed, wholly or partially, as a capital levy, or otherwise on the Landlord it
its assigns, or on any rents or other charge received under this Lease, or out
of sales from or use of the premises, or any portion thereof or interest
therein, or if any such taxes, assessment, levy (including but not limited to
any municipal, county, state or federal levy), imposition or charge, or any part
thereof, shall be measured by or be based in whole or in part upon the premises
or any portion thereof or interest therein, and/or upon any other taxable
interest, the portion of the sums which Tenant is required to pay hereunder in
lieu of the methods of taxation prevailing on the date hereof shall be Tenant's
proportionate share of all such taxes, assessments, levies, impositions or
charges, to the extent that they are so measured or based, and the same shall be
deemed to be included with the term real estate taxes for the purposes hereof to
the extent the same would be payable if the premises were the only property of
Landlord subject thereto, and if the income from the premises were the only
taxable income of Landlord during the year in question.
(c) All real estate taxes, assessments and other charges and
installments thereof which shall become payable for period falling within and
without the term hereof shall be equitably apportioned pro rata between Landlord
and Tenant in accordance with the respective periods during which Tenant shall
be in possession of the demised premises in said respective tax years.
(d) Tenant's proportionate share of all taxes, assessments,
levies, impositions and charges for any tax year shall be determined by
multiplying the same by the following fraction:
Total number in square feet
demised herein = 12,950 = 17.16%
-----------------------------------------------------------
Total number of square feet 75,483
in the building
(e) Landlord may ▇▇▇▇ Tenant each month during the term of
this Lease Agreement for Tenant's estimated proportionate share of municipal
real estate taxes, assessments, added assessments, omitted assessments, water
rents, and other charges or any other governmental impositions, duties and
charges, and Tenant shall pay same within thirty (30) days after receipt of said
▇▇▇▇. The said aggregate monthly payment by Tenant or other payments by Tenant
made during each calendar year of this Lease Agreement shall be adjusted at the
end of each calendar year of this Lease Agreement in accordance with the actual
municipal real estate taxes, assessments, added assessments, omitted
assessments, water rent and charges and other governmental impositions, duties
and charges during said calendar year, and Landlord upon demand shall reimburse
Tenant for any overpayment of same received by Landlord and Tenant shall remit
to Landlord upon demand any underpayment.
(f) If Landlord shall receive any monetary refund, rebate or
credit for any item of tax, assessment, levy, imposition, or charge with respect
to which the Tenant has paid Landlord its proportionate share hereunder, the
proceed or benefit thereof, after deducting all expenses incurred in obtaining
the same, shall be paid by Landlord to Tenant to the extent
necessary to reimburse the Tenant for any sums previously paid by Tenant
pursuant to the paragraph 30 based upon the Tenant's proportionate share
thereof.
(g) Landlord agrees that it will not repay any assessment and
that it will pay for any such assessment in installments over the longest period
of time permitted by law.
(h) Tenant shall have the right to contest with any
governmental authority the amount of any tax, assessment, levy or imposition,
provided that it shall have paid to Landlord the entire amount of such tax,
assessment, levy, or imposition.
33. Parking, etc.
Tenant shall have the right to utilize fifteen (15) parking
spaces. During the term hereof the Landlord shall, at its cost and expense,
maintain the driveways, entrances, exits, parking areas and common areas in good
order and repair, and shall keep the same clean and free from snow and ice.
34. Exculpation.
Notwithstanding anything to the contrary contained herein, it
is agreed (a) that if Landlord or any successor in interest is a corporation,
there shall be no personal liability on the part of any stockholder, officer or
director of such corporation or any subsidiary, affiliate, joint venturer, or
partner of such corporation with respect to any obligation of the Landlord
hereunder or in connection herewith, and (b) that if Landlord is a firm,
partnership, joint venture or association, there shall be no personal liability
on the part of any partner, general or limited, or member thereof with respect
to any obligations hereunder or in connection herewith. If Landlord shall be in
breach or default with respect to its obligations under this Lease, Tenant
agrees (a) that it shall look solely to the estate, equity and interest of
Landlord in the land and building of which the demised premises form a part 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 hereunder
and (b) that there shall be no personal liability on the part of Landlord or its
stockholders, officers, directors, subsidiaries, affiliates, joint venturers,
partners or members for the collection of any such judgment or other judicial
process beyond their respective interests in the land and building of which the
demised premises form a part. The provisions hereof shall not, however, be
deemed a waiver or modification of Tenant's rights or Landlord's obligations
under this Lease, nor shall it prevent Tenant from obtaining judgment against
the Landlord in case of such breach or default to the extent that the same shall
be a lien against Landlord's equity or interest in said land and building or
form levying against Landlord's equity or interest therein, nor from asserting
any setoff or deduction against the rents payable under this Lease to which
Tenant may be entitled under this Lease, or by judgment in its favor.
35. Fire and Extended Coverage Insurance
Landlord shall be obligated to insure the premises to its full
insurable replacement value including Landlord's loss of rent, against the
perils covered by standard fire and extended coverage policies and Tenant shall
be responsible for payment of premises for same as provided in Paragraph 39
hereof. In the event that it shall be impossible to obtain fire and extended
coverage insurance on the buildings and improvements on the demised premises in
an amount, in the form and with fire insurance companies reasonably acceptable
to Landlord, because of any reason due to or connected with the occupancy of
Tenant, the Landlord may at its option, at any time thereafter, terminate this
Lease and the term thereof by giving the Tenant then (10) days notice in writing
of its intention to do so, provided, however, that this Lease shall not
terminate if Tenant shall procure the insurance required hereunder prior to the
expiration of the 10-day notice period set out above.
For the purpose of determining value, the Landlord may
determine same by setting forth its, determination in a Certification of
Replacement Value which shall then constitute the minimum replacement value
referred to herein.
36. Public Liability.
Tenant shall maintain during the term of this Lease
comprehensive general public liability and property damage with an insurance
company licensed to do business in the State of New Jersey with a single limit
of no less than Three Million Dollars ($3,000,00.00) for personal injury or
death, and said policy shall include property damage limit of One Hundred
Thousand Dollars ($100,000.00) with an insurer of Tenant's selection reasonably
satisfactory to Landlord.
37. Endorsements Non-Cancelable Provisions.
The original of all insurance policies or certificates of
insurance shall be furnished to Landlord and shall carry endorsements thereon
for the benefit of the Landlord and Tenant, and Landlord's mortgagees, agents,
servants, and employees and all persons claiming against the Landlord and/or
Tenant as their respective interest may appear.
Each policy shall contain an endorsement to the effect that
said policy shall not be cancelled or modified without ten (10) days' prior
notice to Landlord.
38. Renewals.
At least fifteen (15) days prior to the expiration or
termination date of any of the insurance policies, Tenant shall deliver to
Landlord a copy of the renewal or replacement policy with proof of payment of
the premium therefor.
39. Premium Payment and Other Insurance.
Tenant shall pay all insurance premiums for insurance
coverages required to be obtained by Landlord and/or Tenant as herein provided.
In addition, Tenant shall obtain at its cost and expense such other insurance
and in such amounts as may from time to time be reasonably required by Landlord
or the fee mortgage.
40. Mutual Release of Liability to Extent of Recovery of Insurance
Proceeds.
Neither the Landlord nor the Tenant shall be liable to the
other for any business interruption or any loss or damage to property or injury
to or death of persons occurring on the demised premises or the adjoining
property, or in any manner growing out of or connected with the Tenant's use and
occupation of the demised premises, or the condition thereof, or of the
adjoining property, whether or not caused by the negligence or other fault of
the Landlord or the Tenant or of their respective agents, employees, subtenants,
licensees, or assigns. This release shall apply only to the extent that such
business interruption, loss or damage to property, or injury to or death of
persons covered by insurance, regardless of whether such insurance is payable to
or protects the Landlord or the Tenant or both. Nothing in this paragraph shall
be construed to impose any other or greater liability upon either the Landlord
or the Tenant then would have existed in the absence of this paragraph. This
release shall be in effect only so long as the applicable insurance policies
contain a clause incorporating the foregoing and to the effect that this release
shall not affect the right of the insured to recover under such policies. Such
clauses shall be obtained by the parties whenever possible. Landlord and/or
tenant shall obtain appropriate clauses pursuant to which their respective
insurance carriers waive rights of subrogation.
41. Reimbursement of Landlord's Expenses.
Landlord or its agents, at Landlord's expense, subject to the
reimbursement formula hereinafter set forth in this paragraph may incur
expenditures in connection with the building of which the demises premises form
a part. All costs and expenditures reasonably required in connection with the
operation and maintenance of the building and the surrounding premises shall be
reimbursed by the Tenant to the Landlord in accordance with said formula
provided that each other Tenant or occupant of the building within which the
demised premises are located shall be required to reimburse Landlord for such
costs and expenses on a proportionate basis. Without limiting in any manner
whatsoever the generality of the foregoing, such costs and expenditures shall
include the following:
(a) Cost and expenditures relating to the removal of snow,
ice, debris, garbage and waste; and
(b) Cost and expenditures relating to maintenance of
landscaping, plants and shrubbery; and
(c) All cost and expenditures such as insurance premises
required by Landlord in connection with the protection of the Landlord and the
Tenant; and
(d) All costs and expenditures relating to the repair and
replacement of heating facilities, plumbing facilities, sewage facilities,
air-conditioning facilities, electrical facilities, and all other facilities
necessary for the maintenance of the building; and
(e) All cost and expenditures reasonably incurred by Landlord
pertaining to or related with Landlord's maintenance of the building and
adjoining area.
In each rental year, Tenant shall pay Landlord, as additional rent,
Tenant's proportionate share of Landlord's costs and expenditures as specified
above in accordance with a fractional share computed as follows:
Total number of square feet
demised herein = 12,950 = 17.16%
--------------------------- ------
Total number of square feet 75,483
in building
Said fractional share shall then be applied to Landlord's
costs and expenditures to determine Tenant's proportionate share of same.
The charge required hereunder shall be paid by Tenant in such
installments and in such amounts as are reasonably estimated and billed by the
Landlord during the term of this Lease Agreement. Each installment shall be due
and payable on the first day of each month after the installment is billed to
the Tenant.
Within sixty (60) days after the end of Landlord's fiscal year
or calendar year, whichever is applicable, inclusive of the year during which
the term of this Lease is terminated, Landlord shall make available for Tenant's
inspection Landlord's records relating to the operating expenses for such
preceding 12-month period, and the monthly payments to be made by Tenant
thereafter shall be adjusted and revised to compensate for any overpayment or
underpayment made by the Tenant in such preceding 12-month period.
42. Utility Charges.
(a) The Tenant shall pay as and when the same become due and
payable all water rents, rates and charges, and all charges for electricity,
gas, heat and hot water, and other utilities supplied in the demised premises.
(b) All utility charges shall be deemed to be additional rent,
and Landlord shall have the remedies for default in payment for same as are
provided for in Default paragraph of this Lease Agreement.
43. Net Rent.
In addition to the Basic Rent hereinbefore reserved, except as
otherwise provided in this Lease, Tenant shall pay any and all of the charges,
costs and expenses arising out of its use or occupation of the demised preemies
of whatsoever nature, kind or description as additional rent. In the event of
non-payment, Landlord shall have all the rights and remedies herein provided and
as provided by law in the case of non-payment of rent or of breach of condition.
If the Tenant shall default in making any payment required to be made by the
Tenant, or shall be in default in performing any terms, covenants, or conditions
of this Lease on the part of the Tenant to be performed, which shall involve the
expenditure of money by Tenant, Landlord, at its option, may after ten (10) days
written notice to Tenant, but shall not be obligated to make such payment, or on
behalf of Tenant, expend such sums as may be necessary to perform and fulfill
such terms, covenants or conditions, and any and all sums so expended by
Landlord, with interest thereon at the rate of 15% per annum from the date of
such expenditure shall be and be deemed to be additional rent, and shall be
repaid by Tenant to Landlord on demand, and in the case of non-payment of any
other additional rent. However, no such payment or expenditure by Landlord shall
be deemed a waiver of Tenant's default nor shall it affect any of the remedies
of Landlord's reason of such default.
It is the intention of the parties that the rent specified herein shall
be net to the Landlord and the Landlord shall be indemnified by the Tenant
against all costs, expenses and charges arising out of Tenant's use or
occupation of the demised premises or any part thereof during the term of this
Lease Agreement except as otherwise provided in Lease Agreement.
44. Arbitration.
Arbitration, where specifically provided for under this Lease
Agreement, shall be conducted as follows:
On ten (10) days' written notice by either party to the other,
each of them shall designate an arbitrator, and a third arbitrator shall be
appointed pursuant to the laws of the State of New Jersey with respect to
arbitration, as set forth in N.J.S.A. 2A:24-1 et. seq., or any amendment
thereto, or substitution thereof, or subsequent and legally opposite
legislation.
45. Brokers.
Tenant represents that there are no brokers involved with or
entitled to any commission or other compensation in connection with the
execution of this Lease Agreement other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Co. which
obligation shall be assumed by Landlord in accordance with a written agreement
between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Co. and Landlord. Tenant agrees to indemnify the
Landlord and hold it harmless from damage or claims by any third party other
than claiming a commission allegedly arising from acts of the indemnifying
party. Such indemnification party shall include, but shall not be limited to,
all commission claims, as well as all costs, expenditures, legal fees,
reasonably incurred by the Landlord in defending any claims
by any third party other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Co. As a result of a commission
claim, it is the sole intention of the parties hereto, that Tenant shall be
solely responsible therefor, Landlord warrants and represents to Tenant that it
has not dealt with any broker except ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Co.
46. Tenant's Option to Extend.
Provided Tenant is in occupancy of premises and is not in
default of the Lease, Tenant shall have an option of extending the term of this
Lease for one additional renewal term of FIVE (5) years on the same terms and
conditions as set forth herein, provided, however, that the Tenant shall pay to
the Landlord as basic rent for the said FIVE (5) year renewal term the sum of
SEVENTY-ONE THOUSAND FIVE HUNDRED FIFTY AND 00/100 ($71,550.00) per annum in
equal monthly installments plus any increase as determined in accordance with
the provisions of paragraph 47. Written notice of Tenant's intention to extend
the Lease for the said FIVE (5) year renewal term shall be given to the Landlord
not later than nine (9) months prior to the expiration of the initial term of
the Lease. In the event notice is not received by Landlord at least nine (9)
months prior to the expiration of the initial term, said option shall be deemed
waived by Tenant.
47. Basic Rent Adjustment During Year Extended Term.
Upon receipt of notice as set forth in paragraph 46 hereof,
Landlord and Tenant shall immediately proceed to determine the prevailing market
rental for industrial buildings of similar type in similar areas, and agree upon
an equivalent basic rent for the five (5) year extension term provided, however,
that in no event shall the basic rent be below the basic rent being paid by the
Tenant during the last year of the initial term of this Lease Agreement. In the
event the Landlord and Tenant are unable to agree upon the prevailing market
rental as above described, then in that event, Landlord and Tenant shall each
retain a real estate broker familiar with prevailing rentals in the area, and
the said brokers shall select a third industrial real estate broker whose
decision concerning basic rent shall be binding upon the parties hereto. In the
event the two said industrial real estate brokers cannot agree upon a third real
estate broker, the same shall be designated by the Assignment Judge of the
Superior Court, ▇▇▇▇▇▇ County, and his determination shall be final. The basic
rent by the said appraiser, or SEVENTY-ONE THOUSAND FIVE HUNDRED FIFTY AND
00/100 per annum, whichever, is higher, shall be the basic rent for the FIVE (5)
year renewal term.
48. E.C.R.A.
Tenant shall, at Tenant's own expense, comply with the
Environments Cleanup Responsibility Act, N.J.S.A. 13:1K-6 at seq. and the
regulations promulgated thereunder, ("ECRA"). Tenant shall, at Tenant's own
expense, make all submissions to, provide all information to, and comply with
all requirements of the Bureau of Industrial Site Evaluation (the "Bureau") of
the New Jersey Department of Environmental Protection ("NJDEP"). Tenant shall
commence compliance no later than nine (9) months prior to the termination of
this Lease
Agreement or any extension thereto or nine (9) months prior to the cessation of
Tenant's operations at the demised premises.
Should the Bureau or any other division of NJDEP determine
that a cleanup plan be prepared and that a cleanup be undertaken because of any
spills or discharges of hazardous substances or waste at the premises which
occur during the term of this Lease, then Tenant shall, at Tenant's own expense,
prepare and submit the required plans and financial assurances, and carry out
the approved plans. Tenant's obligations under this paragraph shall arise if
there is any closing, terminating or transferring of operations of an industrial
establishment at the premises pursuant to ECRA.
At no expense to Landlord, Tenant shall promptly provide all
information requested by Landlord for preparation of non-applicability
affidavits and shall promptly sign such affidavits when requested by Landlord.
Tenant shall indemnify, defend and save harmless Landlord from all fines, suits,
procedures, claims and actions of any kind arising out of or in any way
connected with any spills or discharges of hazardous substances or wastes at the
premises which occur during the term of this Lease; and from all fines, suits,
procedures, claims and actions of any kind arising out of Tenant's failure to
provide all information, make all submissions and take all actions required by
the ECRA Bureau or any other division of NJDEP.
Tenant's obligation and liabilities under this paragraph shall
continue so long as Landlord remains responsible for any spills or discharges of
hazardous substances or wastes at the premises which occur during the term of
this Lease or any extensions hereto. Tenant's failure to abide by the terms of
this paragraph shall be restrainable by injunction.
49. The rental rate for the first year of the lease term shall be
SIXTY-FIVE THOUSAND FIVE HUNDRED FIFTY AND 00/100 DOLLARS ($65,550.00) per year,
or FIVE THOUSAND FOUR HUNDRED SIXTY TWO AND 50/100 DOLLARS ($5,462.50) per
month. The rental rate for the second year of the lease term shall be SIXTY
EIGHT THOUSAND FIVE HUNDRED FIFTY AND 00/100 DOLLARS ($68,550.00) per year, or
FIVE THOUSAND SEVEN HUNDRED TWELVE AND 50/100 DOLLARS ($5,712.50) per month. The
rental rate for the third year of the lease term shall be SEVENTY ONE THOUSAND
FIVE HUNDRED FIFTY AND 00/100 ($71,550.00) per year, or FIVE THOUSAND NINE
HUNDRED SIXTY TWO AND 50/100 DOLLARS ($5,962.50) per month. The rental rate for
the fourth year of the lease term shall be SEVENTY FOUR THOUSAND FIVE HUNDRED
FIFTY AND 00/100 DOLLARS $74,550.00) per year, or SIX THOUSAND TWO HUNDRED
TWELVE AND 50/100 DOLLARS ($6,212.50) per month. The rental rate for the fifth
year of the lease term shall be SEVENTY SEVEN THOUSAND FIVE HUNDRED FIFTY AND
00/100 DOLLARS ($77,550.00) per year, or SIX THOUSAND FOUR HUNDRED SIXTY TWO AND
50/100 ($6,462.50) per month.
Landlord represents and warrants to Tenant that the premises
is in full compliance with all New Jersey and federal environmental law,
including, but not limited to ECRA and all
rules and regulations of NJDEP and its divisions. Landlord shall indemnify and
defend Tenant from and against any and all liabilities, losses and costs,
including Tenant's reasonable counsel fees, which Tenant may incur by reason of
Landlord's breach of the provisions of this paragraph.
RIDER TO LEASE DATED THE DAY OF December ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ASSOCIATES, A Partnership, AS LANDLORD AND ▇.▇.
SPECIALTIES, INC., A New Jersey Corporation, trading as BATTER BAKE, AS
TENANT
1. With respect to Paragraph 5th, Tenant shall have the right to
sublease or assign the within Lease, subject to the written consent of the
Landlord which shall not be unreasonably withhold.
2. With respect to Paragraph 6th, Tenant shall be permitted to make
such alterations, subject to the Landlord's prior written consent, which shall
not be unreasonably withheld.
3. With respect to Paragraph 8th, Landlord shall give prior notice to
Tenant, where the same is practicable.
4. With respect to Paragraph 9th, Landlord shall give prior reasonable
notice where the same is practicable.
5. With respect to Paragraph 13th, Tenant shall be permitted to place
signs, and the Landlord's consent shall not be unreasonably withheld.
6. With respect to Paragraph 17th, in the event of the sale of the
premises by the Landlord, Tenant shall be given notice reasonably in advance of
such closing, by writing, so that the Tenant may take appropriate steps in order
to protect its interest with respect to the security and the transfer.
7. With respect to Paragraph 20th, such notice shall be by registered
or certified mail.
8. With respect to Paragraph 32nd, it is presently estimated that the
taxes shall cost Tenant approximately 75(cent) to 80(cent) per square foot on an
annualized basis.
9. With respect to Paragraph 41st, notwithstanding anything contained
in the Lease to the contrary, it shall be Landlords exclusive and sole
responsibility relative to any and all structural repairs as described in
Paragraph 30th above, whether such structural repairs pertain to Tenant's
portion of the premises or that of any other Tenant. By way of further
clarification, the Landlord's structural repairs shall not be included in the
Landlord's expenses described in Paragraph 41 for the purpose of calculating any
additional rent payable by the Tenant.
10. With respect to Paragraph 46th, Landlord shall receive notice at
least nine (9) months prior to the expiration of the initial term relative to
the Tenant's exercising of the option.
NEW ROAD ASSOCIATES,
A Partnership
BY:/s/
---------------------------------
[Authorized Signatory]
▇.▇. SPECIALTIES, INC.
A New Jersey Corporation trading as
BATTER BAKE
BY:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
EXHIBIT B
OUTLINE SPECIFICATIONS FOR 75,483 SQ. FT.
INDUSTRIAL BUILDING - NEW ROAD
PARSIPPANY, NEW JERSEY
Size: 19,037 sq. ft. total area in a multi-tenancy building
with approximately 1,000 sq. ft. finished office and
restroom space on the first floor, and the remaining
area for use as warehouse. Building is located in light
industrial zone.
Structure: Steel-supported, steel deck with smooth-finish roof;
back and side walls and concrete ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ walls with beige, ribbed, split-face
concrete block to provide an attractive elevation.
Tenant division walls to be full height, 8" concrete
block.
Floor: 5" thick concrete slab with 6x6x8/8 welded wire fabric
on grade. Floor shall be coated with two coats of cure
and hard seal.
Height: 22'0" clear in warehouse, 8' or 9' clear in offices.
Roof: 4 ply built-up, smooth finish roof, celotex series
spec. GA-4 C.S. with insulation to give R factor of not
less than 10.00. Roof shall carry five (5) years
roofer's guarantee.
Sprinkler: Entire area to be covered with I.S.O. approved wet
sprinkler system to provide a density of .30 over 2000.
Interior Security: All interior security systems, including fire alarm
tie-in, to be provided by Tenant at his cost.
Electrical Service: 200 AMPS - 3 phase - 4 wire - 277/460 volts.
H.V.A.C.: Roof-top combination units for electric and gas-forced
air heating for offices and rest areas. Ceiling hung,
gas fired unit heaters in warehouse area. Each unit to
be separately controlled. Temperatures, air changes,
and fresh air supply as per code requirements. Roof-top
exhaust fans in warehouse as required. Exhaust fans in
bathrooms.
Plumbing: One men's room and one women's room. Roughing for one
drinking fountain. One slop sink in janitor's closet.
Loading Dock: One (1) tailboard loading dock with 8'x8'
manually-operated overhead door. One drive-in ramp with
One (1) 12'x 12' manually operated overhead door.
Tenant agrees to reimburse Landlord for the
installation of this drive-in ramp. The cost of same
will be Thirty Thousand (30,000.00) Dollars, payable
over the First five years of the lease term in monthly
installments in the amount of $500.00 per month
together with the rent or $17,000 payable in one lump
sum upon occupancy.
Glass Doors & Windows: All main entrances and lobby entrances in
Durandic-finish aluminum with bronze plate glass. All
windows with bronze frame and single fixed 1" bronze
glass.
Lighting: Two x 96" industrial strip lights in warehouse to give
not less then 20 F.C. lighting. One or two twin-head
emergency units as required. Outside lights on timers.
Offices to have 80 F.C. with 2' x 4' lay-in lights.
Adequate number of switches and receptacles for
offices. Exit lights as required. If additional lights
are required, or if the lights have to be dropped, it
will be charged extra.
Finishes: Walls: Unpainted block in warehouse. Half-inch sheet
rock over steel studs in offices and restrooms. Office
walls shall be painted.
Floors: Exposed concrete in warehouse with two coats of
cure and hard seal. Flooring in offices shall be
carpeted. Ceramic tiles in toilets on floor and 4'-0"
high on walls.
Ceiling: Exposed prime coated steel construction in
warehouse. Acoustic group ceiling. 2' x 4' grid in
offices and restrooms.
Partitions: Metal studs covered with 1/2" sheet rock
and Batt insulation.
Doors: 1 3/8" thick hollow core wood doors with hard
board painted or vinyl-clad on prefinished metal.
EXHIBIT "B"
[Diagram of Proposed ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇]
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
EXHIBIT "B"
[Diagram of Industrial Space]