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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-KSB/A
AMENDMENT NO.1 TO FORM 10-KSB
Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934.
For the fiscal year ended Commission File
December 31, 1996 Number 1-13984
William Greenberg Jr. Desserts and Cafes, Inc.
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(Name of Small Business Issuer in Its Charter)
New York 13-3832215
- ------------------------------ --------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
222 New Road, Parsippany, NJ 07054
- ------------------------------ -------------------
(Address of Principal Executive Offices) (Zip Code)
Issuer's telephone number: (201) 808-8248
Securities registered under Section 12(b) of the Exchange Act:
Name of Each Exchange on
Title of Each Class Which Registered
- ---------------------------- ---------------------------
Common Stock, $.001 per share Boston Stock Exchange
Securities registered under Section 12 (g) of the Exchange Act: None
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. Yes X No
-- --
Check if there is no disclosure of delinquent filers in response to Item
405 of Regulation S-B is not contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendment to this Form 10-KSB. [X]
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Issuer's revenue for its most recent fiscal year was $4,232,616. As of
May 16, 1997 there were 3,155,500 shares of Company's Common Stock par value
$.001 per share outstanding. The aggregate market value of the voting stock held
by non-affiliates of the issuer on May 16, 1997 was approximately $4,118,250.
Transitional Small Business Disclosure Format (check one):
Yes No X
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FORM 10-KSB/A
WILLIAM GREENBERG JR. DESSERTS AND CAFES, INC.
Amendment No. 1 to Form 10-KSB
for the Year Ended December 31, 1996
The undersigned registrant hereby amends the following items, financial
statements, exhibits or other portions of its Annual Report on Form 10-KSB filed
April 17, 1997 as set forth in the pages attached hereto:
Item 3. Legal Proceedings
Item 9. Directors, Executive Officers, Promoters and Control Persons:
Compliance with Section 16 (a) of the Exchange Act
Item 10. Executive Compensation
Item 11. Security Ownership of Certain Beneficial Owners and
Management
Item 12. Certain Relationships and Related Transactions
Item 13. Exhibits, List and Reports on Form 8-K
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this amendment to be signed on its behalf by the
undersigned thereunto duty authorized.
William Greenberg Jr. Desserts and Cafes, Inc.
Dated: May 28, 1997 By: /s/ Philip Grabow
----------------------------------------
Philip Grabow, President and Chief Executive
Officer
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The Annual Report on Form 10-KSB filed with the Securities and Exchange
Commission on April 17, 1997 by William Greenberg Jr. Desserts and Cafes, Inc.
pursuant to Rule 13a-1 is hereby amended in the following respects:
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PART I
Item 3. Legal Proceedings
The Company is currently subject to the following legal proceedings:
1. A summary non-payment proceeding seeking approximately $23,000 in
damages, commenced by Harran Holding Corp., the Company's landlord at
434 Avenue of the Americas. This proceeding was commenced on February
20th, 1997. As of April 1, 1997 this ligation has been settled, and
construction is proceeding at this store.
2. A summary non-payment proceeding seeking approximately $17,000 in
damages, commenced by Stanley Stahl, the Company's landlord at 2187
Broadway. This proceeding was commenced on March 10th, 1997. As of
April 1, 1997 this litigation has been settled.
3. A summary non-payment proceeding seeking approximately $7,000 in
damages, commenced by Rugby Managed Asset Fund, the Company's landlord
at 166 East 35th Street a/k/a 518 Third Avenue. This proceeding was
commenced on March 4, 1997. As of April 1, 1997 this ligation has been
settled.
4. A civil court action seeking approximately $7,000 for advertising fees,
commenced by Kratz & Company, Inc. This proceeding was commenced on
March 11, 1997. The Company has not answered, moved or otherwise
responded to the complaint (which response was due on March 31, 1997)
and is therefore in default. The Company is engaged in discussions with
Kratz & Company, Inc. in an effort to settle this matter.
5. A mechanics' lien seeking approximately $6,000 in damages, commenced by
KLM Construction Management Inc. This proceeding was commenced on
January 7, 1997. The Company has been attempting to settle this matter
without further litigation, but as of yet there has been no final
settlement.
6. As of April 1, 1997, pursuant to settlement discussions, the employment
of Stephen Fass, a director and President of the WGJ Subsidiary, Maria
Marfuggi, a director and President of the JMS Subsidiary and Seth
Greenberg, president of the WGJ Subsidiary's baking division,
terminated. At the present time, the respective parties have not yet
concluded their settlement discussions. The Company intends to seek an
amicable settlement, including the employment agreements, with the
named parties as a result of such termination. However, on April 11,
1997 an action was commenced by William Greenberg Jr. and Seth
Greenberg against the Company, seeking summary judgement in lieu of a
complaint, based on their Consulting Agreements with the Company for
payment of $14,615.40 to William Greenberg Jr. and $15,769.24 to Seth
Greenberg. The parties believe that an amicable solution can be
reached.
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7. Andersen Rogan Ross Temporary Personnel Inc. v. William Greenberg Jr.
Desserts and Cafes Inc.: On or about March 20, 1997, Andersen Rogan
Ross Temporary Personnel Inc. ("Temp Personnel") commenced an action
against the Company for temporary labor provided to the Company in the
amount of $19,678.46, plus interest from December 9, 1996. On or about
April 15, 1997, Temp Personnel sought a default judgment in the sum of
$20,433.33. The Company is engaged in discussions with Temp Personnel
in an effort to settle this matter.
8. By letter dated February 28, 1997, the Local 3 Welfare Fund (the
"Fund") advised the Company that it was delinquent in its contributions
and submission of remittance reports. According to the Fund, the
Company owes $60,788.20 for the period of October 1996 through February
1997 and is liable for such delinquency under ERISA.
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PART III
Item 9. Directors, Executive Officers, Promoters and Control Persons;
Compliance with Section 16 (a) of the Exchange Act
Information Concerning the Board of Directors and Executive Officers
The following table sets forth certain information concerning the Board
of Directors, persons nominated to be elected as directors and executive
officers of the Company:
<TABLE>
<CAPTION>
Name of Director,
Executive Officer or
Nominee for Director,
Age and Position Principal Occupation Date of Initial
Held with Company for Previous Five Years Election as Director
------------------ ------------------------ --------------------
<S> <C> <C>
Philip Grabow, 57 President of J.M. Specialties, Inc. January 23, 1997
Chief Executive Officer, October 1985 to January 1997
President and Director
Richard Fechtor, 66 Founder of and since 1974 July 11, 1996
Director Executive Vice President of
Fechtor, Detwiler & Co., Inc., the
representative of the underwriters in
the Company's initial public
offering; Director of Vascular
Laboratories since 1989
Raymond J. McKinstry, 49 Investment manager with Astair & August 1995
Director Partners, Limited, a London based
brokerage company, 1987 to
present.
Kenneth Sitomer, 50, Chief Operating Officer of Sam --
Director Nominee and Libby, Inc., a publicly held
company, 1993 to present; private
consultant to footwear industry 1992
to March 1993; President and Chief
Executive Officer of Russ Togs, Inc.,
a publicly held company listed on the
New York Stock Exchange, 1989 to
1992.
</TABLE>
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<TABLE>
<CAPTION>
Name of Director,
Executive Officer or
Nominee for Director,
Age and Position Principal Occupation Date of Initial
Held with Company for Previous Five Years Election as Director
------------------ ------------------------ --------------------
<S> <C> <C>
Karen Brenner, 43, President of Fortuna Advisors, --
Director Nominee Inc., an investment advisory firm
in California 1993 to present;
founder and President of Karen
Brenner, Registered Investment
Advisor, the predecessor to Fortuna
Advisors, Inc., 1984 to 1993;
Managing Partner of F.C. Partners, a
California limited partnership, April
1996 to present; Director on DDL
Electronics, Inc., a publicly held
company, July 1996 to present;
Director of Krug International Corp.,
a publicly held company, July 1996 to
present.
</TABLE>
All directors hold office until the next annual meeting of shareholders
or until their successors are elected and qualified. For a period of five years
from October 12, 1995, Fechtor Detwiler & Co., Inc. (the "Representative") has
the right to nominate one member to the Company's Board of Directors. Mr.
Fechtor is the Representative's current nominee to the Board of Directors. There
are no family relationships among any of the directors and executive officers of
the Company.
Officers are appointed by the Board of Directors and serve at the
discretion of the Board. All of the executive officers of the Company have
employment agreements with the Company. See "Employment Agreements / Termination
Settlements."
As of the date of this Amendment to the Annual Report, Ms. Marfuggi is
not employed as (a) Executive Vice President, Secretary and Director of the
Company, (b) President and Director of WGJ Deserts and Cafes, Inc. (the "WGJ
Subsidiary") and (c) Executive Vice President, Secretary and Director of the
J.M. Specialties, Inc. (the "JMS Subsidiary"), and Mr. Fass is not employed as
(a) Executive Vice President and Director of the Company, (b) Executive Vice
President, Secretary and Director of the WGJ Subsidiary and (c) President and
Director of the JMS Subsidiary. The Company is negotiating settlement agreements
with each of Ms. Marfuggi and Mr. Fass relating to their separation from the
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Company. The Board of Directors intends to immediately appoint executive
officers to replace Ms. Marfuggi and Mr. Fass once settlements have been
reached. See "Employment Agreements / Termination Settlements."
Compliance With Section 16(a) of the Securities Exchange Act of 1934
The Securities and Exchange Commission (the "Commission") has
comprehensive rules relating to the reporting of securities transactions by
directors, officers and shareholders who beneficially own more than 10% of the
Company's Common Shares (collectively, the "Reporting Persons"). These rules are
complex and difficult to interpret. Based solely on a review of Section 16
reports received by the Company from Reporting Persons, the Company believes
that no Reporting Person has failed to file a Section 16 report on a timely
basis during the most recent fiscal year.
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Item 10. Executive Compensation
Compensation of Directors
Directors of the Company who are not salaried officers receive a fee of
$500 for attending each meeting of the Board of Directors or a committee
thereof. In addition, all directors are reimbursed for their reasonable
out-of-pocket expenses incurred in connection with attending such meetings.
Executive Compensation in 1996
The following table sets forth compensation paid to the Chief Executive
Officer and to executive officers of the Company, excluding those executive
officers who did not receive an annual salary and bonus in excess of $100,000 in
the fiscal year ended December 31, 1996.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
Annual Compensation
------------------------------------------------------------------
Other Annual
Compensation
Name and Principal Position Year Salary ($) Bonus ($) ($)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Maria Marfuggi, CEO 1996 $67,308 $0.00 $0.00
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
No other executive officer received a salary and bonus in excess of
$100,000 for the year ended December 31, 1996. The Company has not granted any
stock options, stock appreciation rights or long-term incentive awards to any
executive officer of the Company since its inception.
Employment Agreements / Termination Settlements
In July 1995, the Company entered into employment agreements with each
of Maria Maggio Marfuggi and Stephen Fass. Ms. Marfuggi and Mr. Fass are no
longer employed by the Company. The Company is in the process of negotiating
separation agreements with each of Ms. Marfuggi and Mr. Fass.
New Employment Agreements
In January 1997, the Company entered into an employment agreement with
Philip Grabow, the President and Chief Executive Officer of the Company, for a
term lasting until December 31, 1998 with successive automatic renewal periods
of one year, with a base salary of $250,000 for the first year, and $150,000 for
the second year. Either the Company or Mr. Grabow may cancel the agreement for
any reason after two years upon 60 days' written notice prior to a scheduled
expiration date. Upon any termination of the agreement, other than for cause,
Mr. Grabow shall be entitled to a severance payment equal to his then base
salary for a
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period one year.
Significant Employees
Marilyn Miller is the manager of the Company's baking division. Her
responsibilities include kosher baking, European specialties and the development
of new products. Prior to 1992, Ms. Miller was a principal in a kosher bakery.
11
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Item 11. Security Ownership of Certain Beneficial Owners and
Management
The following table sets forth the number and percentage of Common
Shares beneficially owned, as of the date of this Amendment to the Annual
Report, by: (i) all persons known by the Company to be the beneficial owner of
more than 5% of the outstanding Common Shares; (ii) each director and director
nominee of the Company; (iii) each of the "named executive officers" as defined
under the rules and regulations of the Securities Act of 1933, as amended; and
(iv) all directors and executive officers of the Company as a group (5 persons):
<TABLE>
<CAPTION>
Numbers
of Shares Percentage
Beneficially Beneficially
Name Owned(1) Owned(2)
---- ------------ -----------
<S> <C> <C>
Philip Grabow(3)................................................. 850,000 24.2%
Maria Marfuggi(4)................................................ 422,500 10.1%
Willa Rose Abramson(5)........................................... 472,500 15.0%
Stephen Fass(6).................................................. 275,000 8.6%
Richard Fechtor(7)............................................... 137,042 4.32%
Raymond J. McKinstry(8).......................................... 50,000 1.56%
InterEquity Capital Partners, L.P.(9)............................ 281,185 8.2%
Kenneth Sitomer(10).............................................. -- --
Karen Brenner(11)................................................ -- --
All executive officers and directors as a group
(5 persons)(12)................................................ 1,734,542 47.5%
</TABLE>
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(1) Unless otherwise noted, the Company believes that all persons named in
the table have sole voting power with respect to all shares
beneficially owned by them. A person is deemed to be the beneficial
owner of securities that can be acquired by such person within 60 days
from the date hereof upon the exercise of warrants or options.
(2) Assumes 3,155,500 Common Shares outstanding as of the date of this
Amendment to the Annual Report. Each beneficial owner's percentage
ownership is determined by assuming that options or warrants that are
held by such person (but not those held by any other person) and which
are exercisable within 60 days from the date hereof have been
exercised.
(3) Mr. Grabow's business address is 222 New Road, Parsippany, New Jersey
07054. Includes 500,000 Common Shares and currently exercisable
warrants to purchase an additional 350,000 Common Shares. See "Certain
Relationships and Related Transactions."
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(4) Ms. Marfuggi's business address is 116 Village Blvd., Suite 200,
Princeton, New Jersey 08540-5799. Includes 372,500 Common Shares and
currently exercisable warrants to purchase an additional 50,000 Common
Shares. Excludes 75,000 Common Shares pledged by Ms. Marfuggi in
November 1996 as collateral for a loan which the Yardville National
Bank has foreclosed upon. As of the date of this Amendment to the
Annual Report, Ms. Marfuggi is not employed by the Company or any
subsidiary of the Company. The Company is negotiating a settlement with
Ms. Marfuggi relating to her separation from the Company. See
"Employment Agreements / Termination Settlements"
(5) Ms. Abramson's address is 1800 NE 114th Street, Miami, Florida 33181.
Includes 400,000 Common Shares pledged by Ms. Abramson in March 1996 as
collateral for a loan which matures in March 1997. Effective April 15,
1996, Ms. Abramson resigned as a member of the Board of Directors and
from the offices of Chairman of the Board, Chief Financial Officer and
Secretary.
(6) Mr. Fass's business address is 210 West 90th Street - Apt 7L, New York,
New York 10024. Includes 225,000 Common Shares and currently
exercisable warrants to purchase an additional 50,000 Common Shares. As
of the date of this Amendment to the Annual Report, Mr. Fass is not
employed by the Company or any subsidiary of the Company. The Company
is negotiating a settlement with Mr. Fass relating to his separation
from the Company. See "Employment Agreements / Termination
Settlements."
(7) Mr. Fechtor's business address is 155 Federal Street, Boston,
Massachusetts 02110. Upon the conversion of a certain note, InterEquity
Capital Partners, L.P., received a six-year warrant exercisable until
October 2001 to purchase, on one occasion, 6% of the issued and
outstanding capital shares of the Company on a fully diluted basis as
of the date of exercise. Certain persons associated with the
Representative, received an aggregate 17.5% interest in such warrant,
including Mr. Fechtor, who received a 5% interest in such warrant. As
of the date of this Amendment to the Annual Report, there are 5,680,500
Common Shares outstanding on a fully diluted basis, 6% of which equals
340,830 Common Shares. Accordingly, Mr. Fechtor's ownership as shown in
the table includes 17,042 shares issuable upon exercise of such
warrant. See "Certain Relationships and Related Transactions." Also
includes 120,000 shares of Common Stock. Excludes 5,500 shares of
Common Stock owned by Mr. Fechtor's wife, of which he disclaims
beneficial ownership.
(8) Mr. McKinstry's business address is 40 Queen Street, London EC4R 1DD,
England. Includes currently exercisable warrants to purchase 50,000
Common Shares.
(9) InterEquity's business address is 220 Fifth Avenue, New York, New York
10001. Includes an 82.5% interest in a six-year warrant exercisable to
purchase, on one occasion, 6% of the issued and outstanding capital
shares of the Company on a fully diluted basis as of the date of
exercise. As of the date of this Amendment to the Annual Report, there
are 5,680,500 Common Shares outstanding on a fully diluted basis, 6% of
which equals 340,830 Common Shares. Accordingly, InterEquity's
ownership as shown in the table
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includes 281,185 shares issuable upon exercise of such warrant. The
warrant is currently exercisable and expires in October 2001.
(10) Mr. Sitomer's address is 303 East 57th Street, New York, New York
10022. Mr. Sitomer has consented to be nominated for election to the
Company's board of directors.
(11) Ms. Brenner's address is P.O. Box 9109, Newport Beach, California
92660. Ms. Brenner has consented to be nominated for election to the
Company's board of directors.
(12) Includes the Common Shares beneficially owned by Mr. Grabow, Mr.
Fechtor, Mr. McKinstry, Mr. Fass and Ms. Marfuggi.
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Item 12. Certain Relationships and Related Transactions
The Acquisition
In June 1995, the Company entered into a purchase and sale agreement with
Greenberg's--L.P., a New York limited partnership doing business as William
Greenberg Jr. Desserts, Inc., its general partner and all of its limited
partners pursuant to which the Company agreed to acquire, subject to the terms
and conditions contained therein, the operating assets and certain liabilities
of Greenberg's--L.P. for $2,000,000 (the "Acquisition"). On July 10, 1995, the
Company consummated the Acquisition. At the closing, the Company entered into an
employment and consulting agreement with Seth Greenberg, a consulting agreement
with William Greenberg, Jr. and Carol S. Greenberg and a consulting agreement
with Marilyn Miller. See "Significant Employees." In connection with the
Acquisition, the general partner and Greenberg's--L.P. agreed that they would
not, for a period of five years from closing, compete with the Company.
Acquisition Indebtedness
In July 1995, in order to finance the Acquisition, the Company obtained a
senior, secured term loan represented by two promissory notes issued to
InterEquity Capital Partners, L.P. ("InterEquity"). One promissory note was in
the original principal amount of $1,999,000 (the "Amortizing Note") and the
other was in the original principal amount of $1,000 (the "Convertible Note").
The term loan was secured by substantially all of the Company's assets. The
Convertible Note was convertible into Common Shares or a warrant to purchase
capital stock of the Company. Upon consummation of the Company's initial public
offering of 1,000,000 Common Shares (the "Offering"), which occurred in October
1995, the Company used a portion of the net proceeds of the Offering to pay the
term loan in full, together with accrued interest, and a prepayment penalty
($530,000). As a result, the liens against the Company's assets and the
collateral assignments were terminated. In addition, upon consummation of the
Offering, InterEquity paid the Company $1,000 and converted the Convertible Note
into a six-year warrant exercisable to purchase, on one occasion, 6% of the
Company's issued and outstanding capital stock on a fully diluted basis at the
time of exercise. In addition, the Company has granted InterEquity an option to
put those shares acquired by InterEquity upon the conversion of the warrant to
the Company commencing on July 10, 2000 through July 31, 2005 if the Common
Shares have not been listed or admitted to trading on a national securities
exchange and/or are not quoted on an automated quotations system at the time the
put is exercised, at a price equal to a multiple of earnings as defined in the
loan agreement between the parties or a price established by independent
appraisal. In addition, pursuant to the terms of the loan agreement, the Company
has granted InterEquity certain "piggyback" registration rights with respect to
the Common Shares issuable upon exercise of the warrant.
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The JMS Acquisition
On January 17, 1997, the Company entered into a stock purchase agreement
(the "Stock Purchase Agreement") with Philip Grabow ("Grabow"), pursuant to
which, on January 23, 1997, the Company consummated the purchase from Grabow of
all the outstanding shares of J.M. Specialties, Inc., a New Jersey corporation
(the "JMS Subsidiary"), in exchange for (i) $900,000 in cash, (ii) 500,000
shares (the "JMS Shares") of the Common Stock of the Company and (iii) 350,000
warrants (the "JMS Warrants") exercisable for shares of Common Stock of the
Company (the "JMS Transaction"). Each JMS Warrant entitles Grabow to purchase
one Common Share of the Company at the exercise price of $2.50 per share until
December 31, 2000.
In connection with the Stock Purchase Agreement, Grabow and the Company also
entered (i) a registration rights agreement, dated as of January 23, 1997,
regarding the terms of the registration of the Common Shares of issuable upon
exercise of the JMS Warrants, and (ii) an employment agreement dated as of
January 23, 1997. Pursuant to the employment agreement, Grabow will serve as
President and Chief Executive Officer of the Company at an annual salary level
of $250,000 for the first year, and a minimum of $150,000 thereafter. Also in
connection with the JMS Transaction, effective January 23, 1997, Grabow was
elected to serve as a director of the Company.
JMS Acquisition Indebtedness
The payment of the cash portion of the purchase price for the JMS Subsidiary
and such working capital, was funded through the net proceeds received from the
sale by the Company of 1,500,000 common stock purchase warrants (the "Private
Placement Warrants") at a price of $1.10 per Private Placement Warrant to a
limited number of purchasers that qualified as "accredited investors" under the
Securities Act of 1933. The terms of the Private Placement Warrants are
substantially similar to the JMS Warrants.
Transactions with Executive Officers and Directors
In April 1994, Stephen Fass purchased 225,000 Common Shares from the Company
for an aggregate purchase price of $22,500.
At December 31, 1994, the Company was indebted to Mr. Fass in the aggregate
amount of $50,432. Of this amount, $35,000 pertained to a verbal consulting
agreement with the Company whereby Mr. Fass agreed to perform consulting
services for the Company at a rate of $5,000 per month effective June 1, 1994
and the balance of $15,432 represented expenses incurred by the Company which
Mr. Fass personally paid on its behalf. Through June 30, 1995, Mr. Fass earned
additional consulting fees of $30,000 and paid additional costs and expenses
incurred on behalf of the Company of $24,933, which increased the amount owed to
Mr. Fass to $105,365. In October 1996, all amounts owed to Mr. Fass by the
Company were repaid in full.
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For a description of the employment agreements with Mr. Fass and Ms.
Marfuggi and their separation from the Company, see "Employment Agreements/
Termination Settlements."
On February 8, 1996, the Company made an unsecured loan in the amount of
$212,000 to the spouse of the Company's former Chairman of the Board. The loan
bore interest at the rate of 6.75% per annum. On April 5, 1996, the loan was
repaid in full with all accrued interest.
In October 1995, persons associated with the Representative purchased a
$350,000 participation interest in a $2,000,000 term loan obtained from
InterEquity in connection with the Acquisition and, as a result, received
through the conversion of the Convertible Note, a 17.5% participation interest
in a six-year warrant issued to InterEquity to purchase 6% of the issued and
outstanding shares of capital stock of the Company on a fully diluted basis at
the time of exercise. Richard Fechtor, a Director of the Company, is a principal
of the Representative and received a 5% interest in such warrant. See "--
Acquisition Indebtedness" and "Security Ownership of Certain Beneficial Owners
and Management."
J.P. Veggi's, Inc. ("J.P.'s") is engaged in a co-packing arrangement with
the JMS Subsidiary pursuant to which J.P.'s paid the JMS Subsidiary
approximately $65,000 during the year ended December 31, 1996. Philip Grabow,
the President and Chief Executive Officer and a Director of the Company is a
co-founder and President of J.P.'s and owns 10% of the outstanding shares of
J.P.'s.
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PART IV
Item 13. Exhibits, List and Reports on Form 8-K
(c) Listing of Exhibits
**2.1 Purchase and Sale Agreement, dated June 2, 1995, by and among
the Company, Greenberg Dessert Associates Limited Partnership,
SMG Baking Enterprises, Inc. and its limited partners.
***2.2 Stock Purchase Agreement, dated as of January 17, 1997, by and
between the Company and Philip Grabow, without exhibits.
**3.1 Restated Certificate of Incorporation.
**3.2 Amended and Restated By-laws.
**4.1 Form of certificate for shares of Common Stock.
**4.2 Form of Representatives Warrant.
**4.3 Loan Agreement, dated July 10, 1995, by and between
InterEquity Capital Partners, L.P. and the Company.
**10.1 Employment Agreement, dated July 10, 1995, by and between the
Company and Stephen Fass.
**10.2 Employment Agreement, dated as of July 10, 1995, by and
between the Company and Willa Rose Abramson.
**10.3 Employment Agreement, dated as of July 10, 1995, by and
between the Company and Maria Maggio Marfuggi.
**10.4 Employment Agreement and Consulting Agreement, dated July 10,
1995, by and between the Company and Seth Greenberg.
**10.5 Consulting Agreement, dated July 10, 1995, by and between the
Company and William Greenberg Jr.. and Carol Greenberg.
**10.6 Departmental License Agreement effective February 1995 by and
between the Company and Macy's East, Inc.
**10.8 Form of Warrant for InterEquity Capital Partners, L.P.
**10.9 1995 William Greenberg Jr. Desserts and Cafes, Inc. Stock
Option Plan
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**10.10 Lease Agreement dated July 1995 between the Company and Murray
Greenstein.
**10.11 Lease Agreement dated January 1994 between Schnecken Baking
Realty Corp. and Gerel Corporation.
**10.12 Assignment and Assumption of Lease dated July 1995 between the
company and Schnecken Baking Realty Corp.
**10.13 Lease dated April 1991 between Greenberg's 35th Street Baking
Co., Inc. and Rugby Managed Asset Fund.
**10.14 Assignment and Assumption of Lease dated July 1995 between the
Company and Greenberg's 35th Street Baking Co.
**10.15 Lease dated May 1989 as modified in January 1991 between
Greenberg's Triple S. Baking Co., Inc. and Stahl Real Estate
Co.
**10.16 Assignment and Assumption of Lease dated July 1995 between the
Company and Greenberg's Triple S. Baking Co., Inc.
**10.17 Consulting Agreement, dated July 10, 1995, by and between the
Company and Marilyn Miller.
**10.18 Form of Indemnity Agreement.
**10.19 Sublease dated December 1995 between Timothy's Coffees of the
World, Inc., and the Company.
****10.20 Lease dated March 8, 1995 between Harran Holding Corp., c/o
A. J. Clarke Management and the Company.
****10.21 Agreement dated January 13, 1996 by and between the Company
and Barry Kaplan Associates.
*****10.2 Employment Agreement, dated January 23, 1997, by and between
the Company and Philip Grabow.
*****10.2 Form of Warrant for the Private Placement made in conjunction
with the JMS Subsidiary acquisition.
*10.24 Lease dated December 29, 1987 between New Road Associates and
the Company.
*10.25 Sublease dated December 4, 1995 between GAB Robins North
America,
19
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<PAGE>
Inc. and the Company.
*****21.1 List of Subsidiaries of the Company, the state of
incorporation of each, and the names under which such
subsidiaries do business.
- ----------------------
* Filed Herewith.
** Incorporated by reference to the Company's Registration
Statement on Form SB-2 Registration Number 33-96094.
*** Incorporated by reference to Schedule 13-D filed by
Philip Grabow on SEC File Number 005-48185.
**** Incorporated by reference to the Company's Annual Report for the fiscal
year ended 1995 on Form 10-KSB Commission File Number 1-13984.
***** Incorporated by reference to the Company's Annual Report for the fiscal
year ended 1996 on Form 10-KSB Commission File Number 1-13984.
20
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<PAGE>
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 53 Dwight Place, Fairfield, New Jersey
(hereinafter called "Landlord",) and J.M. SPECIALTIES, INC. having an address of
222 New Road, Parsippany, New Jersey 07054, (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 222 New Road, Parsippany, New Jersey 07054 (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:
<PAGE>
<PAGE>
Lease Extension Agreement
Between New Road Associates and
J.M. 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
<PAGE>
<PAGE>
Lease Extension Agreement
Between New Road Associates and
J.M. Specialties, Inc.
Page 3
and year first above written.
WITNESS: NEW ROAD ASSOCIATES, as Landlord
/s/ John J. Hogan BY:/s/ Salvatore V. Frassetto
- ------------------------------ ---------------------------------
Salvatore V. Frassetto, Partner
WITNESS: J.M. SPECIALTIES, INC., as Tenant
/s/ Limor Beck BY:/s/ Philip Grabow (V.P.)
- ------------------------------ ---------------------------------
<PAGE>
<PAGE>
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 2001 Route 46, Parsippany, New Jersey 07054, as Landlord and J.M.
SPECIALTIES, INC., a New Jersey Corporation trading as BATTER BAKE, 130 Ryerson
Road, Wayne, New Jersey 07470 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
<PAGE>
<PAGE>
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
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<PAGE>
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.
<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
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 pat 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
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<PAGE>
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.
<PAGE>
<PAGE>
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]
J.M. SPECIALTIES, INC. trading as
BATTER BAKE
By:/s/ John McDonough
------------------------------
John McDonough, President
<PAGE>
<PAGE>
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
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<PAGE>
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 bill 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
bill. 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
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<PAGE>
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.
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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.
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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
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(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.
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<PAGE>
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 David T. Houston Co. which
obligation shall be assumed by Landlord in accordance with a written agreement
between David T. Houston 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
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<PAGE>
by any third party other than David T. Houston 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 David T. Houston 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, Morris 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
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<PAGE>
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
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<PAGE>
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.
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<PAGE>
RIDER TO LEASE DATED THE DAY OF December 1987, BETWEEN
NEW ROAD ASSOCIATES, A Partnership, AS LANDLORD AND J.M.
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.
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<PAGE>
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]
J.H. SPECIALTIES, INC.
A New Jersey Corporation trading as
BATTER BAKE
BY:/s/ John McDonough
---------------------------------
JOHN MCDONOUGH, President
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<PAGE>
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 masonry block, front
and street 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.
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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.
<PAGE>
<PAGE>
EXHIBIT "B"
[Diagram of Proposed Office-Warehouse Building]
<PAGE>
<PAGE>
New Road, Parsippany, New Jersey
EXHIBIT "B"
[Diagram of Industrial Space]
<PAGE>
<PAGE>
Exhibit 10.25
SUB-LEASE AGREEMENT
Agreement of sublease made as of this 4th day of December 1995, between GAB
Robins North America, Inc., a Corporation having its principal office at 9
Campus Drive, Suite 7, P.O. Box 316 Parsippany, N.J., party of the first part,
hereafter referred to as the Tenant, and Batter Bake, Inc. party of the second
part, hereafter referred to as Subtenant.
Witnesseth, Tenant hereby subleases to Subtenant and Subtenant hereby hires from
Tenant, approximately 19,037 square feet of Warehouse space located at 222 New
Road "The Premises", in the City of Parsippany, State of New Jersey, for the
term of one (1) year eight (8) months to commence on the 1st day of January,
1996, and to end on the 30th day of August, 1997, both dates inclusive, at an
annual rental rate of $85,666.50 or $7,138.88 per month which subtenant agrees
to pay in lawful money of the United States in equal monthly installments in
advance on the first day of each month commencing March 1, 1996 during said
term, at the office of the Tenant or such other place as Tenant may designate
upon the following covenants and understandings:
1. Total rent payments over the term (1/1/96 to 8/30/97) will be
$128,499.84 (excluding water and electric). Occupancy will be
from January 1, 1996 contingent upon approval of Emery
Worldwide and New Road Associates.
2. In addition to the rent noted above, the Subtenant will be
responsible for all electric and water costs attributable to
the premises.
3. That Tenant holds possession of leased premises under a
sublease with Purolator Courier dated the 22nd day of July,
1991 (plus Amendments dated 2/28/92), for a term to expire on
the 31st day of August, 1997. A copy of the provisions of said
sublease and Amendments and Master Lease dated June 17, 1987
between New Road Associates and Purolator Courier Corp. are
attached am Exhibit A. Subtenant agrees that it is subject to
all provisions of said lease as they apply to the premises
covered by this Sublease as if such provisions were
incorporated in this Sublease.
4. That Subtenant shall pay the rent as above provided.
5. That Subtenant shall use and occupy demised premises for
Warehouse, Storage, and General Offices for the conduct of
Subtenant's business.
6. That Subtenant assumes all liability of the Tenant as provided
in its lease with sublessor (Purolator Courier Corp.) as it
applies to the premises covered by this sub-lease except for
such items concerning term, rent or additional rent, and any
items inconsistent with the terms and conditions of this
sublease.
7. That Tenant grants to Subtenant all benefits granted to Tenant
under its lease with sublessor as it applies to the premises
covered by this Sublease.
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8. That Subtenant shall indemnify, defend and hold harmless GAB
Robins North America, Inc., its agents, servants and employees
with respect to all such claims, demands, actions, damages,
costs and expenses which are the result of or in any way arise
out of this Sublease agreement or the Subtenant's occupying,
utilizing, or possessing space under this sublease agreement.
9. Security Deposit - Upon execution of this Sublease, Subtenant
has deposited $7,138.88 with Tenant to secure the performance
by Subtenant of its obligations hereunder. Upon any default by
Subtenant hereunder, Tenant may without prejudice to any other
remedy use such security deposit to pay any due but unpaid
rent and additional rent and any other cost, damage, or
liability incurred by Subtenant in connection with such
default. Any remaining balance of such security deposit shall
be returned by Tenant to Subtenant upon expiration of this
sublease. Such security deposit shall not be considered an
advance payment of rent or a measure of Tenant's damages in
the event of default hereunder.
10. Consent - (a) If the OverLandlord's consent to this Sublease
is required under the Master Lease, and Tenant does not
receive such consent within sixty (60) days from the date
hereof, either Tenant or Subtenant may cancel this sublease by
written notice to the other. In the event of such
cancellation, Tenant shall return all payments made by
Subtenant hereunder, and Tenant and Subtenant shall have no
further obligations hereunder.
(b) It is understood and agreed that whenever in the
Master Lease it is provided that the Landlord's
consent is required for any action on the part of the
Subtenant, for purposes of this Sublease the consent
of both the Landlord, Sublessor, and Tenant shall be
required.
11. Condition of Premises; Alterations. Subtenant agrees that it
is entering into this Sublease without any representations or
warranties by Tenant, its agents, representatives, employees,
brokers or any other person, as to the present or future
condition of the Premises or the appurtenances thereof or any
improvements therein or thereon. Subtenant agrees to take the
Premises in their present condition "as is". Tenant shall have
no obligation to make any alterations or repairs, perform any
work or furnish any materials in the Premises. Subtenant shall
make no alteration in the Premises without Tenant's prior
written consent (which shall not be unreasonably withheld or
delayed) and without first furnishing Tenant with a copy of
OverLandlord's consent thereto. Upon expiration or termination
of this Sublease, Subtenant shall remove all its property from
the Premises and shall quit and surrender the Premises in the
same condition required by the Master Lease.
12. Brokers. Subtenant represents to Tenant that the only agent or
broker with whom Subtenant has dealt in connection with this
Sublease is Cushman & Wakefield, Inc.
13. Notices. Any notice hereunder to either party shall be in
writing and shall be deemed to be given when delivered
personally or by overnight courier services or
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mailed by first-class, registered or certified mail, postage
prepaid, return receipt requested, or delivered by electronic
transfer device confirmed by registered or certified mail,
postage prepaid, return receipt requested, in each case to
such party at its address set forth below:
TO TENANT: GAB ROBINS NORTH AMERICA, INC.
9 CAMPUS DRIVE, SUITE 7, P.O. BOX 316
PARSIPPANY, N.J. 07054-0316
TO SUBTENANT:_____________________________________
_______________________________________________
_______________________________________________
_______________________________________________
14. Miscellaneous. This Sublease signed by both parties
constitutes the entire agreement and understanding between the
parties hereto, and there are no other terms, covenants,
obligations, or representations, oral or written, of any kind
whatsoever. This Sublease may not be amended, and no rights
hereunder or provision hereof may be waived, except by written
instrument signed by both parties. The failure of Tenant to
insist upon strict performance of any provision of this
Sublease, or to exercise any right hereunder, in any one or
more instances, shall not be construed as a waiver or
relinquishment of any such provision or right, but the same
shall remain in full force and effect. This Sublease shall be
binding upon, and inure to the benefit of, the respective
successors, assignees, heirs and legal representatives of the
parties. This Sublease shall be governed by the laws of the
State of New Jersey.
In witness whereof, Tenant and Subtenant have respectively signed and sealed
this lease as of the day and year first above written.
(Subtenant)
By/s/ Philip Grabow
------------------------------
BATTER BAKE, INC.
GAB Robins North America, Inc.
Approved: By/s/
------------------------------
NATIONAL REAL ESTATE/
By/s/ By FACILITIES MANAGER
- ------------------------------- ------------------------------
EMERY WORLDWIDE [Authorized Signatory]
(SUCCESSOR TO PUROLATOR COURIER
CORP. - SUBLESSOR)
[Authorized Signatory]
<PAGE>
<PAGE>
Approved:
By:
-----------------------------
NEW ROAD ASSOCIATES
EXHIBIT A
---------
ATTACHMENTS
Sublease dated 7/22/91 between Purolator Courier/Consolidated Freight,
Sublandlord's predecessor in interest and GAB Business Services, Inc. (Tenant's
predecessor in interest).
Sublease Amendment dated 2/28/92 between Emery Worldwide (as successor to
Purolator Courier Corp.) and GAB Business Services, Inc.
Overlease (Master Lease) dated June 17, 1987 between Purolator Courier Corp. and
New Road Associates.
<PAGE>
<PAGE>
LANDLORD'S CONSENT TO SUBLEASE
(1.) Tenant is and shall continue to remain fully and primarily liable to
Landlord under the terms and conditions of the Lease Agreement between Landlord
and Tenant for the full term of the Lease Agreement. Landlord specifically
prohibits an Assignment of the Lease Agreement by Tenant. Tenant and Subtenant
hereby acknowledge and agree that the Sublease Agreement between them is a
Sublease and not an Assignment. This Agreement is a Consent to Sublease and is
not a Consent to an Assignment. Landlord, Tenant and Subtenant acknowledge and
agree that no future interaction or course of dealing developed between Landlord
and Subtenant shall be deemed to transform the Sublease into an Assignment, or
be deemed to indicate an intent on the part of Landlord to accept an Assignment
of the Lease Agreement to Subtenant. Landlord's intent is clearly to accept and
maintain a Sublease throughout the term of the Lease. Tenant.and Subtenant waive
the right to assert the existence of an Assignment in any litigation between or
among Landlord, Tenant and Subtenant.
(2.) Except as herein set forth, Landlord is bound only to the terms of the
Lease Agreement with Tenant. Any Agreement between Tenant and Subtenant, which
contains terms different from or other than those contained within the Lease
Agreement, is not binding upon nor accepted by Landlord.
(3.) Tenant and Subtenant agree to indemnify Landlord and hold it harmless from
damage or claim by any real estate broker in connection with the Sublease
between Tenant and Subtenant, which indemnification shall include all commission
claims, as well as all legal, expert and attorney fees incurred in defending any
claim.
(4.) This Consent to Sublease cannot be changed or amended except by a writing
signed by Landlord, Tenant and Subtenant.
DATE: December 13, 1995
-----------------------------------
LANDLORD: New Road Associates
-------------------------------
BY: /s/ Salvatore V. Frassetto
--------------------------------------
TITLE: Partner
-----------------------------------
<PAGE>
<PAGE>
SUBLEASE AMENDMENT
This Sublease Amendment is entered into on February 28, 1992, by and
between Emery Worldwide, as successor in interest to Purolator Courier Corp.
(hereinafter "Sublessor") and G.A.B. Business Services, Inc. (hereinafter
"Sublessee") as an amendment to the sublease dated July 22, 1991 by and between
the Sublessor and Sublessee regarding the premises located at 222 New Road,
Parsippany, New Jersey.
Sublessor hereby agrees to sublease to Sublessee, and Sublessee agrees
to sublease from Sublessor, the remainder of the approximately 19,037 square
foot leased space at 222 New Road, Parsippany, New Jersey that was not
previously subleased to Sublessee in the Sublease dated July 22, 1991, effective
March 1, 1992 on the following terms and conditions. The additional area
referred to herein as the "Additional Area" consists of approximately 5,057
square feet.
The monthly minimum rental for the entire premises (including both the
previously subleased area and the additional area) shall be $8,886.37 per month
for the period from March 1, 1992 through June 30, 1992. The monthly minimum
rental for the entire demised premises (including both the previously subleased
area and the additional area) from July 1, 1992 through the end of the sublease
on August 31, 1997 shall be $9,917.55. The minimum monthly rental includes
building common maintenance charges and real estate taxes for base year 1991.
Sublessor agrees to use its best efforts to insure the parking area
behind the referenced space remains free from interference from other tenant's
vehicles.
All other terms and conditions of the above referenced sublease dated
July 22, 1991 remain in full force and effect, except as expressly modified
herein.
The undersigned agree to the foregoing on the date first referenced
above.
G.A.B. Business Services, Inc. Emery Worldwide, as successor in interest to
Purolator Courier Corp.
By: /s/ By:/s/
------------------------------ ---------------------------------
[Authorized Signatory]
Title: Sr. Vice President Title: Vice President
----------------------- --------------------------
By: /s/
-----------------------------
[Authorized Signatory]
Title: Asst. Vice President
----------------------
<PAGE>
<PAGE>
Addendum to Sublease dated July 22nd, 1991 by and between Purolator Courier
Corporation and GAB Business Services, Inc.
1. Purolator Courier Corporation acknowledges that it remains
principally responsible for the full and faithful performance
of all terms and conditions of the Lease Agreement through the
expiration of the term of the Lease and any extensions
thereto. The parties hereto acknowledge that Purolator's
continued liability is a material inducement in Landlord's
consent to the sublease of a portion of the demised premises
to Sublessee.
2. Sublessor and Sublessee represent to Landlord that there are
no real estate brokers or salespersons involved with or
entitled to any commission or other compensation in connection
with the execution of the Sublease Agreement other than CB
COMMERCIAL REAL ESTATE GROUP, INC. and Joseph Hilton and
Associates, Inc. which obligations shall be paid by Sublessor
in accordance with a written agreement between Sublessor and
CB COMMERCIAL REAL ESTATE GROUP, INC., and Joseph Hilton and
Associates, Inc. Sublessor and Sublessee agrees to indemnify
the Landlord and holds it harmless from damage or claims by
any real estate broker, including CB COMMERCIAL REAL ESTATE
GROUP, INC., and Joseph Hilton and Associates, Inc., claiming
a commission allegedly arising from acts of Sublessor and
Sublessee. Such indemnification shall include, but shall not
be limited to, all commission claims, as well as all costs,
expenditures, legal fees and expert fees, reasonably incurred
by the Landlord in defending any claim by any real estate
broker. It is the sole intention of the parties hereto, that
Sublessor and Sublessee shall be solely responsible for all
commissions and claims for commission.
Sublessor: Purolator Courier Corporation.
By: /s/
----------------------------------
[Authorized Signatory]
Title:
----------------------------------
Sublessee: GAB Business Service, Inc.
By: /s/
----------------------------------
[Authorized Signatory]
Title: Leasing Manager
----------------------------------
<PAGE>
<PAGE>
SUBLEASE
CB Commercial Real Estate Group, Inc.
Brokerage and Management
Licensed Real Estate Brokers
1. PARTIES.
This Sublease dated July 22nd, 1991, is made between Purolator Courier
Corporation/Consolidated Freight ("Sublessor"), and GAB Business
Services, Inc. ("Sublessee").
2. MASTER LEASE.
Sublessor is the lessee under a written lease dated August 1, 1987,
wherein New Road Associates ("Lessor") leased to Sublessor the real
property located in the City of Parsippany, County of Morris, State of
New Jersey, described as approximately 19,037 square feet of
warehouse/distribution space located at 222 New Road ("Master
Premises"). Said lease has been amended by the following amendments:
None; said lease and amendment are herein collectively referred to as
the "Master Lease" and are attached hereto as Exhibit "A".
3. PREMISES.
Sublessor hereby subleased to Sublessee on the terms and conditions set
forth in this Sublease the following portion of the Master Premises
("Premises"): Approximately 13,980 Square Feet.
4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease
has not been amended or modified except as expressly set forth herein,
that Sublessor is not now, and as of the commencement of the Term
hereof will not be, in default or breach of any of the provisions of
the Master Lease, and that Sublessor has no knowledge of any claim by
Lessor that Sublessor is in default of any of the provisions of the
Master Lease.
5. TERM.
The Term of this Sublease shall commence on July 25, 1991
("Commencement Date"), or when Lessor consents to this Sublease (if
such consent is required under the Master Lease), whichever shall last
occur, and end on August 31, 1997 ("Termination Date"), unless
otherwise sooner terminated in accordance with the provisions of this
Sublease. In the event the Term commences on a date other than the
Commencement Date, Sublessor and Sublessee shall execute a memorandum
setting forth the actual date of commencement of the Term. Possession
of the Premises ("Possession") shall be delivered to Sublessee on the
commencement of the Term. If for any reason Sublessor does not deliver
Possession to Sublessee on the commencement of the Term, Sublessor
shall not be subject
<PAGE>
<PAGE>
to any liability for such failure, the Termination Date shall not be
extended by the delay, and the validity of the Sublease shall not be
impaired, but rent shall abate until delivery of Possession.
Notwithstanding the foregoing, if Sublessor has not delivered
Possession to Sublessee within thirty (30) days after the Commencement
Date, then at any time thereafter and before delivery of Possession,
Sublessee may give written notice to Sublessor of Sublessee's intention
to cancel this Sublease. Said notice shall set forth an effective date
for such cancellation which shall be at least in ten (10) days after
delivery of said notice to Sublessor. If Sublessor delivers Possession
to Sublessee on or before such effective date, this Sublease shall
remain in full force and effect. If Sublessor fails to deliver
Possession to Sublessee on or before such effective date, this Sublease
shall be cancelled, in which case all consideration previously paid by
Sublessee to Sublessor on account of this Sublease shall be returned to
Sublessee, this Sublease shall thereafter be of no further force or
effect, and Sublessor shall have no further liability to Sublessee on
account of such delay or cancellation. If Sublessor permits Sublessee
to take Possession prior to the commencement of the Term, such early
Possession shall not advance the Termination Date and shall be subject
to the provisions of this Sublease, including without limitation, the
payment of rent.
6. RENT.
6.1 Minimum Rent. Sublessee shall pay to Sublessor as minimum
rent, without deduction, setoff, notice of demand, at $6.00
Per Square Foot Per Year or at such other place as Sublessor
shall designate from time to time by notice to Sublessee, the
sum of Six Thousand Nine Hundred Ninety Dollars ($6,990.00)
per month, in advance on the first day of each month of the
Term. Sublessee shall pay to Sublessor upon execution of this
Sublease the sum of __________ ____________________ Dollars
($__________) as rent for ______________________________
__________________________________________________. If the
Term begins or ends on a day other than the first or last day
of a month, the rent for the partial months shall be prorated
on a per diem basis. Additional provisions: Rent includes all
provisions in Paragraphs 39 & 41 of Master Leases.
6.2 Operating Costs. If the Master Lease requires Sublessor to pay
to Lessor all or a portion of the expenses of operating the
building and/or project of which the Premises are a part
("Operating Costs"), including but not limited to taxes,
utilities, or insurance, then Sublessee shall pay to Sublessor
as additional rent all operating utilities percent (___%) of
the amounts payable by Sublessor for Operating Costs incurred
during the Term. Such
time to time designate in a notice to the Sublessor. All notices and
demands by Sublessee to Sublessor shall be sent by United States Mail,
postage prepaid, addressed to the Sublessor at the address set forth
herein, and to such other person or place as the Sublessor may from
time to time designate in a notice to Sublessee.
To Sublessor: Property Manager, Emery Worldwide, P.O. Box 3477,
Portland, Oregon 97208-3477
<PAGE>
<PAGE>
To Sublessee: National Leasing Mgr., GAB Business Services Inc.,
9 Campus Drive, Parsippany, New Jersey 07054.
15. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY
LESSOR WITHIN 10 DAYS AFTER EXECUTION HEREOF, IF SUCH CONSENT IS
REQUIRED UNDER THE TERMS OF THE MASTER LEASE.
Date: Date: 7/9/91
---------------------------- ------------------------------
Sublessor: Purolator Courier Corporation/Sublessee: GAB Business Services, Inc.
Consolidated Freight
----------------------
By: /s/ By: /s/
---------------------------- ------------------------------
[Authorized Signatory] [Authorized Signatory]
Title: Title: Sr. Vice President
-------------------------- ----------------------------
By: By: /s/
---------------------------- ------------------------------
[Authorized Signatory]
Title: Title: Leasing Manager
---------------------------- ----------------------------
<PAGE>
<PAGE>
LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Master Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master Lease
concerning further assignment or subletting. Lessor certifies that, as of the
date of Lessor's execution hereof, Sublessor is not in default or breach of any
of the provisions of the Master Lease, and that the Master Lease has not been
amended or modified except as expressly set forth in the foregoing Sublease.
Date: 7/30/91
--------------------------------
Lessor: New Road Associates
-------------------------------
By: /s/ Salvatore V. Frassetto
----------------------------------
Salvatore V. Frassetto
Title: Partner
--------------------------------
By:
-----------------------------------
Title:
--------------------------------
- -------------------------------------------------------------------------------
CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker as to the legal
sufficiency or tax consequences of this document or the transaction to which it
relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
- -------------------------------------------------------------------------------
10A Insert - Additionally, Sublessee shall not be required to name Lessor and
Lessor's mortgagees, agents, servants, employees and all persons claiming
against the Lessor as additionally insured; this has already been provided for
by the Sublessor. Sublessee shall furnish certificates of insurance upon receipt
of written request.
7. SUBLESSOR'S WORK.
Sublessor shall deliver the warehouse space broom cleaned. The office
area shall be painted and the carpet cleaned. All lights shall be in
good working order at the commencement of this Sublease.
Sublessee agrees to defend, indemnify and hold Sublessor harmless from
and against any loss, damage or liability for property damage or bodily
injury arising out of or resulting from the Sublessee's occupancy and
use of the premises or any negligent or tortious act of Sublessee, its
agents, employees or servants.
<PAGE>
<PAGE>
Sublessee further agrees to waive their rights of subrogation against
the Sublessor for claims or damages arising out of property or bodily
injury occurring out of or resulting from the Sublessee's occupancy and
use of the Premises unless such claim or action is the result of
Sublessor's negligence.
<PAGE>
<PAGE>
This Agreement, BETWEEN NEW ROAD ASSOCIATES, A PARTNERSHIP ORGANIZED AND
EXISTING PURSUANT TO THE LAWS OF THE STATE OF NEW JERSEY HAVING AND ADDRESS AT
2001 ROUTE 46, PARSIPPANY, NEW JERSEY 07054
as Landlord and
PUROLATOR COURIER CORP., a Corporation of the State of New York, having an
office at 131 Morristown Road, Basking Ridge, New Jersey 07920
As Tenant
WITNESSETH: That the said Landlord has let unto the said Tenant and the said
Tenant has hired from the said Landlord, the following premises:
19.037 square feet total area in a multi-tenancy building, with 1,000 square
feet of finished office and restroom space on the first floor, and 18,037 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 Exhibit "B".
for the term of TEN (10) YEARS.
* day of 19 , and to end on the
day of 19 to be used and occupied only for a 24 hour overnight
mail distribution business subject to compliance with all Municipal Ordinances
regarding said
*The term and rent obligation shall commence upon the date that a
Certificate of Occupancy is provided for the demised premises or
September 1, 1987, whichever occurs later
upon the conditions and covenants following:
1st: That the Tenant shall pay aggregate basic rent of ONE MILLION TWO
HUNDRED FORTY ONE THOUSAND TWO HUNDRED TWELVE AND 20/100 Dollars ($1,241,212.20)
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 following
amounts:
The rental rate for the first five (5) years of the lease term shall be 5.79 per
sq. ft. which equated to $110,224.20 per year or $9,185.35 per month. The rental
rate for the second five (5) years of the lease term shall be 7.25 per sq. ft. *
* which equates to $138,018.24 per year or $11,501.52 per month.
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.
<PAGE>
<PAGE>
and at the end of other expirations 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
Bureau applicable said premises, for the correction, prevention and abatement of
issuances, violations or other grievances, in, 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 or
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 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.**
* & ** Continued on attached Rider
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 purposes deemed disreputable or
extra-hazardous on account of fire, under penalty of damages and forfeitures
without Landlord's prior written consent, which shall not be unreasonably
withheld. (See Para. 29A)
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. Continued on attached Rider.
7th: In case of damages, by fire or other cause, to the building in
which the leased premises are located, without the faults of the Tenant or of
Tenant's agent or employers, 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 * 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 the 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, adjustments of insurance and other causes beyond the
Landlord's control.
8th: That said Tenant agrees that the said Landlord and Landlord's
Agent and other
<PAGE>
<PAGE>
representatives, shall have the right to enter into and upon said premises, or
any part thereof, at all reasonable hours subject to reasonable prior notice for
the purposes 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 Agent
to show the premises to persons wishing to hire or purchase the same: and the
Tenant further agrees that during the six months most prior to the expiration of
all terms, the Landlord or Landlord's Agent shall have the right to place
notices on the front of said premises, or any part thereof ordering the premises
"To Let" or "For Sale," and the Tenant hereby agrees to permit the same to
remain thereon without hindrances or molestation.
10th: That if the said premises, or say 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 representative may re-enter
the same 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; Continued on attached Rider.
11th: Tenant shall, replace, at the expense of Tenant, any and all
broken glass in and about the demised premises. 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, entrances to or halls and stairs said building, not allow the same
to be obstructed or encumbered in any manner.
13th: The Tenant shall neither place, not 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,
which consent shall not be unreasonably withheld or delayed. 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 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 person or property caused by or resulting from steam, electricity,
gas, water, rain, ice or snow, or any leak or 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, except Landlord's willful misconduct.
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, re-possess
<PAGE>
<PAGE>
and enjoy. Continued on attached Rider.
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 any
reasonable instrument without cost, which may be deemed necessary or desirable
to further affect the subordination of this lease to any such mortgage or
mortgages. Continued on attached rider.
17th: The Tenant has this day deposited with the Landlord the sum of
$31,027.73 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 agreed to look to the new
Landlord solely for the return of said security, and it is agreed that this
shall apply to every transfer or assignment made for 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 issuance 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 intention so to
do and upon the giving of such notice, this lease and the term thereof shall
terminate and come to an end.
20th: It is expressly understood and agreed that in case the demised
premises shall be deserted or vacated, or if default be made in the payment 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, except as
provided herein, or if default be made in the performance of any of the
covenants and agreements this lease contained on the part of the Tenant to be
kept and performed, except as provided herein, or if the Tenant shall fail to
comply with any of the statutes, 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 premises as provided in Paragraph 3
or 4 herein, or if the Tenant shall file or there be filed against Tenant
petitions 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 the lease and the term hereof, on giving to the Tenant five
days' notice in writing of the Landlord's intention so to do, and the 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
Legal Dept.-Purolator Courier Corp., 151
<PAGE>
<PAGE>
Morristown Road, Basking Ridge, New Jersey 07920-1652. *See below.
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
expenses 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 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 part thereof, or suffer or
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
provision 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 said default, removal, expiration of lease, or vacates the demised
premises prior to the issuance of the final order or exercise of the warrant,
then and in that event, the said fixtures and property shall be deemed abandoned
by the said Tenant the 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 by the Landlord under the terms and
covenants contained in this lease or by the ejectment of the Tenant by summary
proceedings 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 reserve and the
rent collected and received, if any, by the Landlord, during the remainder of
the unexpired term, such difference or 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 be ascertained.
26th: If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for public or quasi public use or
purpose, then and in that 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.
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27th: This lease and the obligations 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, or 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 preemption in connection with a
National Emergency declared by the President of the United States or in
connection with any rule, order, 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. Continued on attached rider.
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.
29A: Tenant shall have the right to assign this lease or sublet the
demised premises, in whole or in part, to any corporation into or with which
Tenant may be merged or consolidated or to any corporation which shall be
affiliate, subsidiary, parent or successor of Tenant, or of a corporation into
or with which Tenant may be merged or consolidated, or to a partnership the
majority interest in which shall be owned by stockholders of Tenant or any such
corporation.
And the said Landlord doth covenant that the said Tenant on paying the
said yearly rent, and performing the covenants aforesaid, shall and may
peacefully and quietly have, hold and enjoy the said demised premises for the
term aforesaid, provided, however, that his 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, administrators and assigns.
It is further expressly agreed that the words used in the singular
shall include words in the plural where the text of this instrument so requires.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties have inter-changeably set their hands
and seals or caused these present to be signed by their proper corporate
officers and caused their proper corporate seal to be hereto affixed this 17th
day of June, 1987.
Signed, Sealed and Delivered
in the presence of: NEW ROAD ASSOCIATES
By: /s/
-----------------------------
Name: [Authorized Signatory]
Title:
PUROLATOR COURIER CORP.
By: /s/
-----------------------------
Name: [Authorized Signatory]
Title:
<PAGE>
<PAGE>
RIDER TO LEASE AGREEMENT BETWEEN
NEW ROAD ASSOCIATES, LANDLORD AND
PUROLATOR COURIER CORP., TENANT
1. Clause 4 cont'd
*after written notice of the necessity therefore
**Tenant shall not be responsible for making structural alterations not
related to Tenant's particular use of the premises, nor shall Tenant be
obligated to make repairs pertaining to conditions existing prior to the
commencement of the Lease, including without limitation those of the National
Board of Fire Underwriters or any other body ever hereafter exercising similar
functions.
2. Clause 6 cont'd
Tenant shall have the right to make alterations without Landlord's
prior written consent provided said alterations are at a cost not to exceed
$10,000.00. Tenant shall obtain Landlord's prior written consent for all
proposed alterations of a cost in excess of $10,000.00, which consent shall not
be unreasonably withheld.
Tenant shall remove all alterations at the termination or
sooner expiration of the Lease term and shall restart the premises to the
condition existing at the commencement of the Lease.
3. Clause 7 cont'd
*Sixty (60) days from the date of damage
Tenant shall have the right to terminate the within Lease in the event
that Landlord fails to repair the premises within 6 months of its decision to
rebuild, in the event of total destruction, &/or within 6 months of receipt of
notice of damage, in the event of partial destruction.
4. Clause 10 cont'd
*either by force or otherwise without being liable to prosecution
therefor
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<PAGE>
5. Clause 15 cont'd
Tenant shall have a five (5) day grace period after written notice
within which to cure defaults of monetary provisions of this Lease Agreement,
and a thirty (30) day grace period after written notice within which to cure
defaults of nonmonetary provisions of this Lease Agreement, or if same cannot
with due diligence be cured within thirty days, to begin to cure and faithfully
carry said cure to completion.
6. Clause 16 cont'd
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.
7. Clause 28 cont'd
In the event that occupancy Is not delivered to Tenant within 120 days
of Landlord's receipt of both the executed copy of this agreement and written
approval by Tenant of plans for the demised premises, Tenant shall have the
right to terminate this Agreement.
8. Clause 32 cont'd
It is understood that the building of which the demised premises forms
a part is not fully assessed for real estate tax purposes, and further that the
date of said full assessment is unknown. It is understood and agreed that Tenant
shall not be liable for any increase in the real estate taxes which is
occasioned by an increase in the tax assessment, after the building is fully
assessed, due to an expansion, renovation, or redesign of the building or
premises or any part thereof by Landlord which does not benefit Tenant.
<PAGE>
<PAGE>
RIDER TO LEASE AGREEMENT BETWEEN
NEW ROAD ASSOCIATES AND
PUROLATOR COURIER CORP. U.S. COURIER DIVISION
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 additional 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 kind 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. (continued on attached Rider)
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 its 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
<PAGE>
<PAGE>
on the Landlord or 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 tax, 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, in 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 shall become payable for 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 of square feet
demised herein = 19,037 = 25.22%
--------------------------- ------
Total number of square feet 75,483
in building
e. Landlord may bill 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 bill. 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 the 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
<PAGE>
<PAGE>
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 depicted on Exhibit 3 attached to this Lease Agreement. During the term
hereof the Landlord shall, at its cost and expense, maintain the driveways,
entrances, exists, parking area and common areas shown on Exhibit 3 hereof 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 or 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 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.
<PAGE>
<PAGE>
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 premiums 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 ten (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.
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.
<PAGE>
<PAGE>
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 Certificate of Insurance.
39. Premium Payment and Other Insurance.
Tenant shall pay its proportionate share of all reasonable
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 mortgagee.
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
reasonable and bonafide operating 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:
<PAGE>
<PAGE>
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, planting and shrubbery; and
c. All cost and expenditures such as insurance premiums
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 = 19,037 = 25.22%
---------------------------- ------
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.
<PAGE>
<PAGE>
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 by reason of such default.
It is the intention of the parties that the rent specified herein shall
be net to the Landlord.*
*with the exception of the cost of those items, which shall be borne by
Landlord pursuant to the terms of the within Lease Agreement.
45. Brokers.
Each party represents to the other 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 Sitar Realty Company which
obligation shall assumed by Landlord in accordance with a written agreement
between Sitar Realty Company and Landlord. Each party agrees to indemnify the
other and holds it harmless from damage or claims by any third party other than
Sitar Realty Company claiming a commission allegedly arising from acts of the
indemnifying party. Such indemnification shall include but shall not be limited
to, all commission claims, as well as all costs, expenditures, legal fees and
expert
<PAGE>
<PAGE>
fees, reasonably incurred by the Landlord in defending any claim by any third
party other than Sitar Realty Company. Landlord warrants and represents to
Tenant that it has not dealt with any broker except Sitar Realty Company.
46. E.C.R.A.
Tenant shall, at Tenant's own expense, comply with the
Environmental Cleanup Responsibility Act, N.J.S.A. 13:K-6 et seq. and the
regulations promulgated thereunder, ("ECRA") to line with the closing,
termination or transfer of Tenant's operation at the premises. Tenant shall also
provide all information within Tenant's control requested by Landlord or the
Bureau of Industrial Site Evaluation ("the Bureau") of the New Jersey Department
of Environmental Protection ("NJDEP") for preparation of nonapplicability
affidavits should Landlord or NJDEP so request, and Tenant shall promptly
execute and submit such affidavits should the information contained therein be
found by Tenant to be complete and accurate. Tenant shall obtain a Letter of
Non-Applicability from the Bureau of Industrial Site Evaluation of the
Department of Environmental Protection where there is closing, termination or
transfer Tenant's operations off the premises. Nothing in this paragraph 46 of
the Lease shall be construed as requiring Tenant to clean up any spill or
discharge of hazardous substances or wastes not caused by Tenant, its invitees
or agents nor shall it be construed as prohibiting Tenant from bringing gasoline
or heating oil on the Premises. In the event Tenant cannot obtain a Letter of
Non-Applicability and/or 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 as wastes at the
premises which occur during the term this Lease, the Demised Premises and common
area of which were caused by Tenant, its agents, employees, invitees, then
Tenant shall, at Tenant's own expenses prepare and submit the required plans and
financial assurances, and carry out the approved plan. In the event that ECRA
compliance becomes necessary at the Premises due to any action or Landlord's
execution of a sale agreement for the Premises, any change in ownership of the
Premises, initiation of bankruptcy proceedings, Landlord's financial
reorganization or sale of the controlling share of Landlord's assets, then
Landlord shall comply with ECRA and all requirements of the Department of
Environmental Protection at Landlord's own expense
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.
