</TEXT>









EXHIBIT 10.10




 




LEASE AGREEMENT




 




BETWEEN:




 




569

HALLS MILL ROAD, L.L.C.




 




(hereinafter

“Landlord”)




 




AND:




 




IVC

Industries Inc.




 




(hereinafter

“Tenant”)




 




PREMISES:               The Property known as 569 Halls Mill Road, Freehold, New Jersey

and designated as Lot 3 in Block 79 as shown on the Tax Map of the Township of

Freehold, Monmouth County, New Jersey




 




DATED:  July 28, 1998




 





























 




 




TABLE OF CONTENTS




 




	

   


  	

   


  	

  Page


  
	

  1.


  	

  DEFINITIONS AND BASIC

  PROVISIONS


  	

  3


  
	

   


  	

   


  	

   


  
	

  2.


  	

  LEASE GRANT AND TERM


  	

  4


  
	

   


  	

   


  	

   


  
	

  3.


  	

  BASE RENT


  	

  6


  
	

   


  	

   


  	

   


  
	

  4.


  	

  LATE CHARGE


  	

  7


  
	

   


  	

   


  	

   


  
	

  5.


  	

  UTILITIES AND SERVICES


  	

  7


  
	

   


  	

   


  	

   


  
	

  6.


  	

  USE


  	

  8


  
	

   


  	

   


  	

   


  
	

  7.


  	

  ALTERATIONS,

  ADDITIONS OR IMPROVEMENTS


  	

  9


  
	

   


  	

   


  	

   


  
	

  8.


  	

  TENANT’S REPAIR AND

  MANTENANCE


  	

  14


  
	

   


  	

   


  	

   


  
	

  9.


  	

  MECHANICS’ LIENS


  	

  16


  
	

   


  	

   


  	

   


  
	

  10.


  	

  SIGNS


  	

  17


  
	

   


  	

   


  	

   


  
	

  11.


  	

  TENANT’S EQUIPMENT


  	

  17


  
	

   


  	

   


  	

   


  
	

  12.


  	

  INDEMNIFICATION


  	

  18


  
	

   


  	

   


  	

   


  
	

  13.


  	

  SUBORDINATION


  	

  19


  
	

   


  	

   


  	

   


  
	

  14.


  	

  ASSIGNMENT AND SUBLETTING


  	

  20


  
	

   


  	

   


  	

   


  
	

  15.


  	

  RULES AND REGULATIONS


  	

  21


  
	

   


  	

   


  	

   


  
	

  16.


  	

  INSPECTION


  	

  21


  
	

   


  	

   


  	

   


  
	

  17.


  	

  CONDEMNATION


  	

  22


  
	

   


  	

   


  	

   


  
	

  18.


  	

  FIRE OR OTHER CASUALTY


  	

  23


  
	

   


  	

   


  	

   


  
	

  19.


  	

  HOLDING OVER


  	

  23


  





 




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  Page


  
	

  20.


  	

  EVENTS OF DEFAULT


  	

  24


  
	

   


  	

   


  	

   


  
	

  21.


  	

  SURRENDER OF PREMISES


  	

  28


  
	

   


  	

   


  	

   


  
	

  22.


  	

  LANDLORD’S LIENS


  	

  28


  
	

   


  	

   


  	

   


  
	

  23.


  	

  INSURANCE


  	

  28


  
	

   


  	

   


  	

   


  
	

  24.


  	

  BROKERAGE


  	

  29


  
	

   


  	

   


  	

   


  
	

  25.


  	

  ESTOPPEL CERTIFICATES


  	

  29


  
	

   


  	

   


  	

   


  
	

  26.


  	

  NOTICES


  	

  29


  
	

   


  	

   


  	

   


  
	

  27.


  	

  FORCE MAJEURE


  	

  30


  
	

   


  	

   


  	

   


  
	

  28.


  	

  SEPARABILITY


  	

  30


  
	

   


  	

   


  	

   


  
	

  29.


  	

  AMENDMENTS:  BINDING EFFECT


  	

  31


  
	

   


  	

   


  	

   


  
	

  30.


  	

  QUIET ENJOYMENT


  	

  31


  
	

   


  	

   


  	

   


  
	

  31.


  	

  GENDER


  	

  32


  
	

   


  	

   


  	

   


  
	

  32.


  	

  LIABILITY


  	

  32


  
	

   


  	

   


  	

   


  
	

  33.


  	

  NOTICE TO LENDER


  	

  32


  
	

   


  	

   


  	

   


  
	

  34.


  	

  CAPTIONS


  	

  32


  
	

   


  	

   


  	

   


  
	

  35.


  	

  NO PARTNERSHIP


  	

  33


  
	

   


  	

   


  	

   


  
	

  36.


  	

  SALE


  	

  33


  
	

   


  	

   


  	

   


  
	

  37.


  	

  BENEFIT AND BURDEN


  	

  33


  





 




2





























 




 




	

   


  	

   


  	

  Page


  
	

  38.


  	

  ENTIRE AGREEMENT


  	

  33


  
	

   


  	

   


  	

   


  
	

  39.


  	

  APPLICABLE LAW


  	

  33


  
	

   


  	

   


  	

   


  
	

  40.


  	

  MISCELLANEOUS


  	

  34


  
	

   


  	

   


  	

   


  
	

  41.


  	

  ENVIRONMENTAL

  REPRESENTATIONS AND CONVENANTS


  	

  35


  
	

   


  	

   


  	

   


  
	

  42.


  	

  SECURITY DEPOSIT


  	

  38


  
	

   


  	

   


  	

   


  
	

  43.


  	

  EXHIBITS AND ATTACHMENTS


  	

  39


  
	

   


  	

   


  	

   


  
	

  44.


  	

  RENEWAL TERM


  	

  40


  
	

   


  	

   


  	

   


  
	

  45.


  	

  FIRST RIGHT TO

  NEGOTIATE PURCHASE


  	

  41


  
	

   


  	

   


  	

   


  
	

  46.


  	

  RIGHT OF FIRST REFUSAL


  	

  41


  





 




3





























 




LEASE AGREEMENT




 




This

Lease (“Lease”) made as of July 28 1998, between: 569 HALLS MILL ROAD, L.L.C.,

having an address at P.O. Box 622, Rumson, New Jersey 07760 (“Landlord”) and

IVC Industries Inc., a New Jersey corporation having an address at 500 Halls

Mill Road, Freehold, New Jersey 07728 (“Tenant”).




 




FUNDAMENTAL LEASE PROVISIONS




 




Landlord

shall lease the Premises to the Tenant pursuant to the following Fundamental

Lease Provisions:




 




Premises:




 




The

Premises consist of the Building, and loading docks, parking lot area and land

located on the property known as 569 Halls Mill Road, Freehold, New Jersey and

also designated as Lots 2.01, 3 and 3Q in Block 79 as shown on the Tax Map of

the Township of Freehold, Monmouth County, New Jersey and also designated as

Block 164, Lot 18.01 as shown on the Tax Map of the Township of Howell,

Monmouth County as delineated and described in Exhibit “A” attached hereto.




 




Term:




 




A

term commencing on the Commencement Date and terminating ten (10) years from

the Commencement Date unless earlier terminated in accordance with the terms of

this Lease.




 




Commencement

Date:




 




The

Commencement Date shall be July 28, 1998.




 




Annual

Base Rent:




 




Base

Rent shall commence on July 28, 1998 (“Rent Commencement Date”).




 




For

each lease year commencing with the first lease year the Annual Base Rent

(based upon approximately 129,600 square




 




1





























 




feet of

gross rentable area) shall be as follows:




 




The first

lease year (July 28, 1998 through July 27, 1999): $422,500 per annum




 




The

second lease year (July 28, 1999 through July 27, 2000): $455,000 per annum




 




The third

lease year (July 28, 2000 through July 27, 2001): $487,500 per annum




 




The

fourth, fifth and sixth lease years (July 28, 2001 through July 27, 2004):

$520,000 per annum




 




The

seventh, eighth, ninth and tenth lease year (July 28, 2004 through July 27,

2008): $585,000 per annum




 




Base Rent

Per Month:




 




The

monthly Base Rent shall commence on July 28, 1998 (“Rent Commencement Date”).

The monthly Base Rent during each lease year commencing with the first lease

year shall be as follows:




 




The first

lease year (July 28, 1998 through July 27, 1999); $35,208.33 per month




 




The

second lease year (July 28, 1999 through July 27, 2000): $37,916.67 per month




 




The third

lease year (July 28, 2000 through July 27, 2001): $40,625.00 per month




 




The

fourth, fifth and sixth lease years (July 28, 2001 through July 27, 2004):

$43,333.33 per month




 




The

seventh, eighth, ninth and tenth lease years (July 28, 2004 through July 27,

2008): $48,750.00 per month




 




Security

Deposit:




 




$100,000.00

(Non-Interest bearing)




 




Permitted

Use:




 




Warehousing,

packaging, assembly of promotional materials, displays and like items and

distributing of merchandise and supplies. Any existing farmland use may be

continued.




 




Tenant’s

SIC Number:




 




2833




 




Broker:




 




None




 




2





























 




1.  

DEFINITIONS AND BASIC PROVISIONS




 




1.1

Fundamental Lease Provisions.




 




The

Fundamental Lease Provisions shall be read in conjunction with all other

provisions of this Lease applicable thereto. Each reference in this Lease to

any of the Fundamental Lease Provisions on pages 1, 2 and 3 shall be construed

to incorporate all of the terms provided for under such provisions. If there is

any conflict between any of the Fundamental Lease Provisions set forth herein

and any other provisions of this lease, the latter shall control. This listing

on pages 1 and 2 of monetary amounts payable by Tenant shall not be construed

to be an exhaustive list of all monetary amounts payable by Tenant under this

Lease.




 




1.2

Definitions.




 




In

addition to other terms defined herein, the following terms shall have the

meaning set forth herein unless the context otherwise requires:




 




1.2.1

“Building” shall mean the building upon the Premises.




 




1.2.2

“Governmental Authorities” shall mean all federal, state, county, municipal and

governmental entities, and all departments, commissions, boards, bureaus and

offices thereof, having or claiming jurisdiction over the Premises.




 




1.2.3

“Landlord” shall mean the party designated as such on page 1 hereof, and its

successors and assigns.




 




1.2.4

“Premises” means the Building and improvements and land located upon the

Property known as 569 Halls Mill Road, Freehold, New Jersey and also designated

as Lots 2.01, 3, 3Q in Block 79 as shown on the Tax Map of the Township of

Freehold, Monmouth County and also designated as Block 164, Lot 18.01 as shown

on the Tax Map of the Township of Howell, Monmouth County as delineated and

described in




 




3





























 




Exhibit

“A” attached hereto.




 




1.2.5

“Real estate taxes” shall be deemed to mean all taxes and assessments, special

or otherwise, assessed upon or with respect to the ownership of and/or all

other taxable interests in the building and property of which the Premises are

a part, imposed by federal, state or local governmental authority, or any other

taxing authority having jurisdiction over the building and property excluding

income, intangible, franchise, capital stock, or state inheritance taxes.




 




1.2.6

“Rent” shall include Base Rent, Additional Rent and all other compensation

required under this Lease.




 




1.2.7

“Tenant” shall mean the tenant identified on page 1 of this Lease.




 




1.2.8

“Term” shall mean the period of time specified in the Fundamental Lease

Provisions. Whenever the phrase “year(s)” or “year(s) of the term of this

Lease” is used, the same (sometimes referred to as a “Lease Year”) shall be

deemed to be the period beginning on the Commencement Date and every

anniversary thereof (or, if such Commencement Date does not occur on the first

(1st) day of a calendar month, then beginning with the first (1st) day of the

calendar month next following the Commencement Date and every anniversary

thereof) and expiring on the last day of the month twelve (12) consecutive

calendar months later.  The “First Lease

Year” shall include that portion of the month from the Commencement Date (if

the same does not occur on the first (1st) day of a calendar month) to the end

of such month.




 




2. 

LEASE GRANT AND TERM




 




2.1

Grant. Landlord leases to Tenant, and Tenant leases from Landlord the Premises

described in the Fundamental Lease Provisions and delineated on Exhibit A of

this Lease.




 




2.2

Term. The Term of this Lease shall be for the




 




4





























 




period of

time specified in the Fundamental Lease Provisions commencing as hereinafter

set forth.




 




2.3

Commencement Date.




 




2.3.1

The Term shall commence on July 28, 1998.




 




2.4

Acceptance of Premises. Tenant shall accept possession of the Premises on the

Commencement Date of this Lease. This Lease shall continue for the Term

specified in the Fundamental Lease provisions. Tenant accepts the Premises “as

is”. Tenant acknowledges that it presently occupies the Premises and therefore,

is fully knowledgeable as to the condition of the Premises. By occupying the

Premises, Tenant shall be deemed to have accepted the same as suitable for the

purpose herein intended and to have acknowledged that the same comply fully

with Landlord’s obligations.




 




5





























 




3.  

BASE RENT




 




3.1

Base Rent. During the Term of this Lease, the annual Base Rent shall be the sum

set forth in the Fundamental Lease Provisions, which shall be payable by Tenant

in equal monthly installments as set forth in the Fundamental Lease Provisions,

on or before the first day of each month, in advance, payable to Landlord or

Landlord’s agent at the address to which notices to Landlord are to be sent

hereunder, or such other place as the Landlord may designate, without any prior

demand therefor and without any deductions or setoff whatsoever. Tenant’s

failure to make timely payments of rent as provided in Article 20.1 shall

constitute an event of default under this Lease. Tenant may apply the Security

Deposit against the Base Rent due in the last three (3) months of the Term with

any difference between the Security Deposit and Base Rent to be paid by Tenant

to Landlord. Any portion of the Security Deposit not applied against the Base

Rent shall be returned in accordance with the terms of Article 42 of the Lease.




 




3.2

Upon the Commencement Date, Tenant shall maintain fire and extended coverage

insurance and comprehensive liability insurance in accordance with the

provisions of Article 23.




 




Upon

the Commencement Date, Tenant shall pay as additional rent real estate taxes,

as defined in this Lease, for the building and property of which the Premises

are a part.




 




3.3

Tenant shall pay to the taxing authority all real estate taxes for the Premises

when due. Proof of payment shall be furnished to Landlord by Tenant upon

request by Landlord.




 




3.4

Prorating Rent. If the Commencement Date occurs on




 




6





























 




 




a date

other than the first day of a calendar month then the monthly rent for such

fractional month will be prorated on a daily basis based on the actual number

of days in the month.




 




3.5

The obligation to pay the additional rent in Article 3 shall survive the

expiration or termination of the Lease.




 




4. 

LATE CHARGE




 




Tenant

shall pay a late charge (“Late Charge”) of five (5%) percent (or the lawful

rate, if less), of any installment of Base Rent or additional rent (or any

portion thereof) that is not paid within ten (10) business days of the due

date. Notice of nonpayment and the Late Charge shall be provided by Landlord to

Tenant. In addition, Tenant shall pay an additional 3/4th of one percent (or

the lawful rate, if less) per month for every month (or portion of a month) on

any installment of Base Rent or additional rent (or any portion thereof) that

is not paid within thirty (30) days of the due date and after notice of

nonpayment by Landlord to Tenant.




 




5. 

UTILITIES AND SERVICES




 




5.1

Beginning on the Commencement Date of the Lease, the Tenant shall pay all

utilities servicing the Premises. Upon request from Landlord, Tenant shall

furnish to Landlord proof of payment of the utilities. This obligation by

Tenant to pay for utilities and services incurred during the term under this

paragraph 5.1 shall survive the expiration or termination of this Lease.




 




5.2

Should any utility service become unavailable from any public utility company,

public authority or any other person, firm or corporation, including Landlord,

supplying such utility, Landlord shall incur no liability whatsoever and it

shall not constitute a termination of this Lease or an eviction (constructive

or otherwise) hereunder provided that




 




7





























 




the

unavailability is not due to Landlord’s negligence or willful misconduct.




 




6. 

USE




 




6.1

The Premises shall be used solely for the Permitted Use set forth in the

Fundamental Lease Provisions and for no other purposes except upon Landlord’s

written consent.




 




6.2

Tenant shall not do or permit anything to be done in or about the Premises nor

bring or keep anything therein which will in any way increase the existing rate

of or affect any fire insurance or other insurance upon the Building or any of

its contents, or cause a cancellation of any insurance policy covering the

Building or any part thereof or its contents. Tenant shall comply with all

requirements of the insurance companies insuring the Premises.




 




6.3

Tenant at its own cost and expense shall keep the premises clean and free of

pests and vermin to the reasonable satisfaction of Landlord.




 




6.4

Tenant shall not remove, attempt to remove or manifest an intention to remove

all or substantially all of Tenant’s goods or property from or out of the

Premises, other than in the ordinary and usual course of business, without

having first paid and satisfied Landlord for all Rent which may be due or may

become due during the entire term of this Lease.




 




6.5

Compliance With Laws. Tenant shall comply with all applicable covenants,

conditions and restrictions now or hereafter affecting the Premises; with all

laws, ordinances, regulations, directives and requirements of all governmental

authorities having jurisdiction over the Premises; and with any certificate of

occupancy for the Building and shall not permit anything to be done on the

Premises in violation thereof. Upon demand, Tenant shall discontinue any use of

the




 




8





























 




Premises

in violation of any covenants, conditions and restrictions, or of any law,

ordinance, regulation or governmental directive or of the certificate of

occupancy.




 




6.6

Tenant shall immediately give notice to Landlord in the event that Tenant

receives notice of any violation of law, ordinance, regulation, directive or

requirement of any governmental authority or any violation of the Certificate

of Occupancy.




 




7. 

ALTERATIONS, ADDITIONS OR

IMPROVEMENTS




 




7.1

Tenant shall not make any material changes, improvements or additions to the

Premises without the Landlord’s prior written consent which shall not be

unreasonably withheld. Tenant shall reimburse Landlord (which reimbursement

shall be deemed additional rent) for any and all reasonable costs, including

without limitation, legal, engineering or architectural costs incurred by

Landlord in reviewing the plans and specifications relating to any changes,

improvements or additions.




 




7.2

At Landlord’s request and provided Landlord gives notice at the time of its

consent pursuant to Article 7.1 that it would require removal at the end of the

term, Tenant shall remove any changes, improvements, or additions made during

the term at the end of the Term and restore the Premises to its original

condition reasonable wear and tear excepted. Tenant may remove from the Premises

movable fixtures, personal property and those items set forth on Exhibit B

which shall remain Tenant’s property at all times.




 




7.3

Tenant may elect to add to the existing Building or construct another building

(“New Building”) upon the Premises at Landlord’s cost and expense. Tenant shall

submit a plan to Landlord of the addition or New Building for Landlord’s

consent which shall not be unreasonably withheld. The




 




9





























 




criteria

for Landlord’s approval shall be whether the addition or New Building is for a

structure consistent with the uses permitted under the Lease with no special

features making it unusable for future tenants and whether Landlord can obtain

financing as specified herein. The Base Rent for the proposed addition or New

Building shall be calculated on the following basis: The Landlord is to secure

a loan in the amount of 100% of the cost of the addition or New Building.  The Landlord shall secure a loan at

competitive rates for a ten (10) year term on a twenty-five (25) year

amortization schedule. The annual debt service created for this loan multiplied

by 1.20 shall determine the annual Base Rent for the addition or New Building.

The annual Base Rent for the addition or New Building shall be fixed for the

new ten (10) year term which shall be applicable in the event of the

construction of the addition or New Building.




 




The

addition or New Building shall be constructed with due diligence by Landlord in

accordance with the Tenant’s Plan.




 




Any

addition or New Building must comply with all governmental requirements prior

to the start of construction. Landlord shall at its cost and expense diligently

proceed to procure necessary governmental approvals for the addition or New

Building.




 




The

Base Rent for the addition or New Building shall be added to the current Base

Rent on the existing facility to create the new Base Rent for the entire

facility.




 




In

the event that the addition or New Building is constructed, the Tenant agrees

to enter into a new ten (10) year lease for the additions or New Building from

the date of the completion of the addition or New Building and its delivery to

Tenant. In such event the term of the existing




 




10





























 




lease

shall be extended to be coterminous with the term of the lease for the addition

or New Building. During the extended term, the Annual Base Rent set forth in

the Fundamental Lease Provisions of this Lease shall remain in effect for the

balance of the existing ten (10) year term in respect to the existing

improvements. (Tenant shall pay rent for the addition or New Building as set

forth in this Article 7.3.). If the term is so extended, after the expiration

of the tenth (10th) lease year of the existing initial term the Annual Base

Rent per annum set forth in Article 44 of the Lease for the renewal term or

terms shall be utilized as the Annual Base Rent for the remainder of the

extended ten (10) year term in respect to the existing improvements. By way of

example, if the addition or New Building is constructed and the extended term

commences on the first day of the seventh lease year of the existing term the

Annual Base Rent shall be $585,00 per annum for the first six (6) lease years

of the remaining term (based initially upon the Annual Base Rent in the

Fundamental Lease Provisions and then upon the Annual Base Rent in Article 44)

and the Annual Base Rent for remaining four (4) lease years of the extended

term shall be $617,500 in years seven, eight, and nine and $650,000 in year

ten.




 




In

the event of an extension of the Lease pursuant to this Paragraph 7.3, the

Renewal Term period shall be reduced by the period of the extension under this

Paragraph 7.3. By way of example, if the Lease is extended for an additional

six (6) years under Paragraph 7.3, the Renewal Term period under Article 44

which equals a total of ten (10) years shall be reduced by six (6) years for a

remaining renewal term period of four (4) years subsequent to the termination

of the term extended pursuant to Paragraph 7.3 (at the applicable lease year

rent set forth in Article 44).




 




11





























 




Any

New Building or addition to the Premises shall not be in excess of 70,000 sq.

ft. and any addition or New Building shall be of similar construction to the

existing building with a minimum of 24’ clear height with appropriate docks for

this type of Building.




 




During

the first three years after the Commencement Date Tenant shall have the

exclusive right to request Landlord to construct additional space upon the

Premises as set forth in Article 7.3 and in the event that Tenant shall

exercise such right the option of Landlord to recapture a portion of the

Premises shall be null and void. After the expiration of the third lease year,

provided Tenant has not requested Landlord to construct an addition or New

Building as set forth in Article 7.3 then the Landlord upon thirty (30) days

notice to Tenant may elect to recapture the portion of the Premises as

delineated and described in Exhibit A-1 as attached hereto (“Recaptured

Premises”).




 




In

the event that the Landlord provides notice of its intention to recapture said

portion of the Premises the Tenant shall have the right within said thirty (30)

day period to request the Landlord to construct the addition or New Building

upon said portion of the Premises in which event Landlord’s exercise of the

option to recapture the said portion of the Premises shall be null and void and

Tenant shall continue to Lease said portion of the Premises.




 




If

the Landlord recaptures the portion of the Premises as set forth herein then

the Landlord shall be permitted to construct improvements upon said Recaptured

Premises subject to the limitations contained in this Lease and the rights

afforded to Tenant pursuant to Articles 45 and 46. No use of the Recaptured

Premises by Landlord or its tenants or successors shall interfere with the

right of Tenant to use the




 




12





























 




Premises

except Landlord shall have the right to use the Recaptured Premises as provided

herein. In the event Landlord recaptures the Recaptured Premises as provided

herein, Landlord and Tenant shall thereafter share use of the roadway shown on

the survey attached hereto as Exhibit A-1 for purposes of ingress and egress or

such roadway as otherwise agreed by the parties. Landlord shall pay for any

costs associated with sharing the roadway and changes to the roadway, e.g.

widening, relocation costs, maintenance and repairs. Landlord shall be responsible

at its sole cost and expense to obtain any required governmental approvals

arising from the sharing of the roadway. Landlord’s use shall not materially

interfere with Tenant’s use of the roadway for the Tenant’s Permitted Use as

set forth in the Fundamental Lease Provisions. In the event of a dispute

relating to the roadway if the parties cannot agree the dispute shall be

submitted by the parties to the American Arbitration Association (or its

successor) for resolution. The fees and charges of the American Arbitration

Association and arbitrator shall be shared equally by the parties. The decision

of the arbitrator shall be final and binding upon the parties.




 




In

the event that the Landlord elects to recapture said portion of the Premises

then Landlord shall pay real estate taxes and other charges and costs

attributable to the Recaptured Premises, shall insure the Recaptured Premises

with the same coverage required of Tenant under this Lease and shall defend,

indemnity and save harmless Tenant from and against all fines, suits, claims,

demands, losses and actions (including attorneys’ fees) for any injury to

persons or damage to or to loss of property on or about the Recaptured




 




13





























 




Premises.

Tenant shall have no responsibility for the Recaptured Premises and shall be

relieved of any and all further responsibility in respect to said Recaptured

Premises. If the Landlord recaptures the Recaptured Premises pursuant to the

terms of the Lease the reference in the Lease to the “Premises” shall

thereafter not include the “Recaptured Premises”.




 




8. 

TENANT’S REPAIRS AND MAINTENANCE




 




8.1.

Tenant will not in any manner deface or injure the Building, and will pay the

cost of repairing any damage or injury done to the Building or any part thereof

by Tenant or Tenant’s agents, employees or invitees. Except for the roof,

Tenant shall maintain, repair and take good care of the Premises whether

interior or exterior, structural or non-structural or whether capital or

non-capital and keep the Premises free from debris, waste and nuisance of any

kind, at its cost and expense in accordance with the Repair and Maintenance

schedule attached hereto as Exhibit C. Tenant shall keep the Premises,

including but not limited to, all mechanical systems, the heating and air

conditioning system, plumbing, electrical systems, overhead doors, loading

docks and related mechanisms, equipment and fixtures in good condition and

working order, reasonable wear and tear excepted.




 




Tenant

shall be responsible for the removal of all garbage from the Premises in

accordance with law. Tenant shall store its garbage pending removal in a neat

and orderly manner.




 




The

performance by Tenant of its obligations to maintain and to make repairs or

replacements shall only be performed by




 




14





























 




contractors

and subcontractors of Tenant reasonably approved in writing in advance by

Landlord, it being understood that Tenant shall procure and maintain, and shall

cause contractors and subcontractors engaged by or on behalf of Tenant to

procure and maintain, insurance coverage against such risks, in compliance with

Article 23 hereto.




 




If

Tenant fails to perform such maintenance and/or to make such repairs or

replacements or to take steps to have defective or damaged condition(s)

corrected within fifteen (15) days after the occurrence of damage or injury, or

detection of such condition(s), Landlord may at its option make such

maintenance and/or repair or replacement, and Tenant, shall upon demand

therefor, pay Landlord for the cost thereof as additional rent. At the end or

other termination of this Lease, Tenant shall deliver up the Premises with all

improvements located thereon (except as otherwise herein provided) in good

repair and condition, reasonable wear and tear excepted, and shall deliver to

Landlord all keys to the Premises.




 




8.2

Within in twelve (12) months of the Commencement Date Tenant shall pave at its

sole cost and expense the parking lot in accordance with a paving plan attached

hereto as Exhibit C.




 




15





























 




9. 

MECHANICS’ LIENS




 




As

a condition precedent to Landlord giving advance written consent to Tenant’s

use of outside contractors and subcontractors for repairs and/or maintenance of

the Premises or replacements (“Repairs”), Tenant shall obtain and deliver to

Landlord, on Landlord’s written demand therefor, a list of all contractors,

subcontractors, materialmen and laborers involved or to become involved in such

work. If any mechanic’s or materialmen’s lien is filed against the Premises,

for work claimed to have been done for, or materials claimed to have been

furnished to Tenant, such lien shall be discharged by Tenant within thirty (30)

days thereafter, at Tenant’s sole cost and expense, by the payment thereof or

by filing any bond required by law or by making a deposit of funds as necessary

to cause discharge of the lien under the Construction Lien Law (N.J.S.A.

2A:44A-1 et seq. also known as P.L. 1993 c.318) or other applicable lien law.

If Tenant shall fail to discharge any such mechanic’s or materialmen’s lien,

Landlord may, at its option, after five (5) days written notice to the Tenant,

discharge the same and treat the cost thereof as Additional Rent payable with

the monthly installment of Base Rent next becoming due. Such discharge by

Landlord shall not be deemed to waive, or release or excuse the default of

Tenant in not discharging the same. Any such Repairs shall be conducted on

behalf of Tenant. In the event Landlord shall give its written consent to the

making of any such Repairs by Tenant, such written consent shall not be deemed

to be an agreement or consent by Landlord to subject the Landlord’s interest in

the Premises, the Building or the land to any mechanic’s or materialmen’s liens

which may be filed in respect of any such Repairs made by or on behalf of




 




16





























 




Tenant.




 




10. 

SIGNS




 




Tenant

may erect, install or display any sign or advertising material without the prior

written consent of Landlord subject to applicable laws and ordinances.




 




11. 

TENANT’S EQUIPMENT




 




11.1

Tenant shall not install any equipment of any kind or nature whatsoever which

will or may necessitate any material changes, replacements or additions to, or

in the use of, the water system, heating system, plumbing system, air

conditioning system, or electrical system of the Premises, without first

obtaining the prior written consent of Landlord. 




 




17





























 




12. 

INDEMNIFICATION




 




Landlord

shall not be liable for, and Tenant will indemnify and save harmless Landlord

of and from, all fines, suits, claims, demands, losses and actions (including

attorneys’ fees) for any injury to persons or damage to or loss of property on

or about the Premises unless proximately caused by the negligence of Landlord

or third parties over whom Tenant has no control. Without limiting the

generality of the foregoing, Landlord shall not be liable or responsible for

any loss or damage to any property or death or injury to any person occasioned

by theft, fire, act of God, public enemy, criminal conduct of third parties,

injunction, riot, strike, insurrection, war, court order, requisition or other

Governmental or by other tenants of the Building or any other matter beyond the

reasonable control of Landlord, or for any injury or damage or inconvenience

which may arise through repair or alteration of any part of the Building and

the Premises or failure to make repairs (it being recognized that Landlord has

no obligation to make repairs, or from any cause whatsoever except Landlord’s

negligence, willful misconduct or as may be imposed by law.




 




18





























 




13. 

SUBORDINATION




 




13.1

Provided Landlord shall furnish a subordination and nondisturbance agreement as

provided herein, this Lease shall not be a lien against the Premises in respect

to any mortgages that may have heretofore been placed or which may hereafter be

placed upon the Premises or any part thereof. Provided Landlord shall furnish a

subordination and nondisturbance agreement as provided herein, the recording of

such mortgage or mortgages shall have preference and precedence and be superior

and prior in lien to this Lease by virtue of this Article 13, irrespective of

the dates of recording. Tenant shall execute any instruments, without cost to

Landlord, which further effect the subordination of this Lease to any such

mortgage or mortgages. A refusal by Tenant to execute such instruments within fifteen

(15) days from receipt of such request shall entitle Landlord to the option of

canceling this Lease, or for such other relief as Landlord may elect.




 




Landlord

shall obtain a subordination and nondisturbance agreement from any current or

future mortgagee providing that for so long as Tenant complies in full with all

terms and conditions of this Lease, Tenant’s possession, occupation and use of

the premises shall not be disturbed or interfered with due to any

non-compliance of Landlord under any mortgage.




 




19





























 




14. 

ASSIGNMENT AND SUBLETTING




 




14.1

Tenant may with the Landlord’s prior written consent, assign this Lease or

sublet the Premises which consent shall not be unreasonably withheld. Landlord

shall only be entitled to refuse consent if the proposed subtenant or assignee

will use the Premises in such manner as to cause environmental contamination

thereof. Tenant may at any time sublease up to 36,000 square feet of rentable

space to a subtenant including but not limited to Stern’s Rental Corp. without

Landlord’s consent. Tenant may also assign this Lease or sublease the Premises

without Landlord’s consent (a) to a corporation or other entity, a majority of

whose voting stock is owned by Tenant; or (b) to a corporation or entity in

which or with which Tenant, its corporate successors or assigns, is merged or

consolidated so long as the liabilities of the corporation or entity

participating in such merger or consolidation are assumed by the corporation or

entity surviving such merger or created by such consolidation; or (c) any

corporation or entity acquiring a substantial portion of Tenant’s assets so

long as the successor has a net worth no less than Tenant’s net worth

immediately prior to such merger, consolidation, acquisition or assumption as

evidenced by the most recent year end audited financial statements. If Tenant

becomes a subsidiary of a corporation, Tenant shall remain as the Tenant under

this Lease and if Tenant shall be merged into another entity, then such entity

shall become the Tenant under this Lease.




 




14.2

Tenant shall reimburse and pay Landlord for all out-of-pocket reasonable

expenses, including but not limited to, architectural fees, engineering fees,

and attorney’s fees




 




20





























 




incurred

by Landlord in connection with any permitted or attempted subletting or

assignment of the Premises.




 




15. 

RULES AND REGULATIONS




 




Tenant

and Tenant’s agents, employees, and invitees will comply fully with all reasonable

rules and regulations of the Landlord relating to the Premises. Landlord shall

at all times have the right to change such rules and regulations or to

promulgate other reasonable rules and regulations in such manner as may be

deemed advisable for the safety, care, or cleanliness of the Premises and for

preservation of good order therein, all of which rules and regulations will be

forwarded to Tenant in writing and shall be complied with and observed by

Tenant. Tenant shall further be responsible for the compliance with such rules

and regulations by the employees, servants, agents, visitors and invitees of

Tenant.




 




16. 

INSPECTION




 




Landlord

(and its officers, employees and representatives) shall have the right to enter

into and upon any and all parts of the Premises upon reasonable notice at all

reasonable hours to:




 




16.1

Inspect (including but not limited to inspection of fire and sprinkler systems

in the Premises which shall be at Landlord’s option at least weekly) or conduct

tests in same for any purpose that the Landlord may deem necessary (but without

any obligation to do so, except as expressly provided for herein); and




 




16.2

Show the Premises to prospective tenants within nine months prior to the

expiration of the Lease Term and to show at any time during the Term the

Premises to contractors, purchasers or lenders.




 




21





























 




16.3

Landlord will give advance notice of at least 24 hours of entry and with

opportunity for Tenant’s representative to be present, and will minimize

interference with Tenant’s operations during such entry.




 




17. 

CONDEMNATION




 




17.1

If Tenant’s use of the Premises is materially adversely affected due to the

taking by eminent domain of the Premises (or any part thereof or any estate therein)

then, in either event, this Lease shall terminate on the date when title vests

pursuant to such taking or when a declaration of taking is filed pursuant to

such taking, whichever shall first occur. In the event that Landlord shall

elect to convey the premises in lieu of a taking by eminent domain, this Lease

shall terminate on the date of the delivery of such deed. Rent shall be

apportioned as of such termination date and any Rent paid for any period beyond

said date shall be repaid to Tenant.




 




17.2

Tenant shall not be entitled to any part of the award for such taking or any

payment in lieu thereof, but Tenant may file a separate claim for any taking of

fixtures owned by Tenant which have not become Landlord’s property, and for

moving expenses, provided the same shall in no way affect or diminish

Landlord’s award.




 




17.3

In the event of a partial taking which does not effect a termination of this

Lease but does deprive Tenant of the use of a portion of the Premises, there

shall either be an abatement or an equitable reduction of the Rent for the

period for which and the extent to which the Premises so taken are not

reasonably usable for the purpose for which they are leased hereunder.

Notwithstanding the foregoing, if only land




 




22





























 




is taken,

access to the Premises is not affected, and Tenant’s ability to add to the

existing Building or construct another building pursuant to Article 7.3 is not

affected, then there shall not be an abatement of or an equitable reduction of

the Rent.




 




18. 

FIRE OR OTHER CASUALTY




 




18.1

Tenant is liable for its actions, omissions to act and/or negligence and the

actions, omissions to act and/or negligence of Tenant’s employees, agents or

invitees with respect to the Premises and the property of which the Premises

are a part.




 




18.2

Tenant shall notify the Landlord at once of any fire or other casualty in the

Building or on the Premises. Tenant is not required to pay Rent when the

Premises are destroyed in part or in whole by a casualty not due to Tenant’s

actions or negligence. If part of the Premises can be used by Tenant for the

purposes set forth in this Lease, Tenant must pay Rent pro rata for the usable

part.




 




18.3

If the Building or the Premises are partially damaged by fire or other

casualty, Tenant shall repair it as soon as reasonably possible following the

actual receipt of and to the extent of the insurance proceeds received by

Tenant.




 




19. 

HOLDING OVER




 




If

Tenant does not vacate the Premises at the end of the Term, Tenant shall become

a tenant-at-will and the Base Rent shall automatically become 150% of the Base

Rent set forth in the Fundamental Lease Provisions plus additional rent and

charges due by Tenant under the Lease.




 




23





























 




 




20. 

EVENTS OF DEFAULT




 




20.1

The Tenant shall be in default under this Lease whenever any of the following

shall have occurred or shall be continuing:




 




(a)

Non-payment of Rent:




 




If

any payment of Rent or any other lawful and proper charge upon the Lease is not

paid within ten (10) business days after it shall become due and payable

provided in no event shall Tenant be in default until written notice from

Landlord of the failure to pay Rent and failure to pay Rent within two (2)

business days after receipt of such notice from Landlord or ten (10) business

days after the date such Rent was due, whichever is later.




 




(b)

Misrepresentation or Breach of Warranty:




 




(i)

Breach of Warranty: If any warranty or representation made by the Tenant to the

Landlord in connection with any transaction contemplated by this Lease shall be

knowingly breached and such breach shall continue for thirty (30) Business Days

after notice thereof shall have been given by the Landlord to the Tenant.




 




(c)

Breach of Other Covenants:




 




If

the Tenant shall knowingly breach or fail to perform any material term,

covenant or condition of this Lease other than as referred to in Article

20.1(a) and such breach or failure to perform shall continue for thirty (30)

days after notice thereof shall have been given by the Landlord to the Tenant;

provided, however, that if the nature of such breach or failure of performance

is such that it cannot reasonably be cured within said period of thirty (30)

days, the Tenant shall not be in default under this Section 20.1 if the Tenant

shall




 




24





























 




promptly

(but in any event within said period of thirty (30) days) commence efforts to

cure said breach or failure of performance and shall thereafter (in the

reasonable opinion of the Landlord) diligently prosecute such efforts to a

successful conclusion.




 




(d)

Any statements made by Tenant shall be deemed to be to the best of Tenant’s

knowledge.




 




20.2

Upon any termination of this Lease, Tenant shall quit and peacefully surrender

the Demised Premises to Landlord, and Landlord, upon or at any time after such

termination, may without further notice, enter upon and re-enter the Demised

Premises and possess and repossess himself thereof, by force, summary

proceedings, ejectment or otherwise, and may dispossess Tenant and remove

Tenant and all other persons and property from the Demised Premises including

but not limited to any subtenant or assignee of Tenant and the property of such

subtenant or assignee, and may have, hold and enjoy the Demised Premises and

the right to receive all rental income of and from the same.




 




20.3

At all times, from time to time after any such termination, Landlord may relet

the Demised Premises or any part thereof for such term or terms (which may be

greater or less than the period which would otherwise have constitutedthe

balance of the term of this Lease) and on such conditions (which may include

concessions or free rent or alterations of the Demised Premises) as Landlord in

his reasonable discretion may determine and may collect and receive the rents

therefor. Landlord shall in no way be responsible or liable for any failure to

relet the Demised Premises or any part thereof, or for any failure to collect

any rent due upon any such re-




 




25





























 




letting

but Landlord shall make good faith efforts to mitigate damages.




 




20.4

No such termination of this Lease shall relieve Tenant of its liability and

obligations under this Lease, and such liability and obligation shall survive

such termination. In the event of any such termination, whether or not the

Demised Premises or any part thereof shall have been relet, Tenant shall pay to

Landlord the net rent and all other charges required to be paid by Tenant up to

the time of such termination of this Lease, and thereafter Tenant, until the

end of what would have been the term of this Lease in the absence of such

termination, shall be liable to Landlord for, and shall pay to Landlord, the

equivalent of the amount of net rent and the other rent and charges which would

be payable under this Lease by Tenant if this Lease were still in effect, less

the net proceeds of any reletting effective pursuant hereto, after deducting

all Landlord’s reasonable expenses in connection with such reletting including,

without limitation, all repossession costs, brokerage and management

commissions, operating expenses, legal expenses, reasonable attorney’s fees,

alteration costs, and the expenses of preparation for such reletting. Tenant

shall pay such current damages to Landlord monthly on the date on which the net

rent would have been payable under this Lease as if the Lease were still in

effect and Landlord shall be entitled to recover from Tenant each monthly

deficiency as same shall arise.




 




20.5

No failure by Landlord or Tenant to insist upon the strict performance of any

agreement, term, covenant or condition hereof or to exercise any right or

remedy consequent upon a breach thereof and no acceptance of full or partial




 




26





























 




rent

during the continuance of any such breach, shall constitute a waiver of any

such breach or such agreement, term, covenant or condition. No agreement, term,

covenant or condition hereof to be performed or complied with by Tenant or

Landlord, and no breach thereof, shall be waived, altered or modified except by

written instrument executed by Landlord and Tenant. No waiver of any breach

shall affect or alter this Lease, but each and every agreement, term, covenant

and condition hereof shall continue in full force and effect with respect to

any other then existing or subsequent breach thereof. 




 




20.6

In the event of any breach or threatened breach by Tenant of any of the

agreements, terms, covenants or conditions contained in this Lease, Landlord

shall be entitled to enjoin such breach or threatened breach and shall have the

right to invoke any right and remedy allowed at law or in equity or by statute

or otherwise as though re-entry, summary proceedings and other remedies were

not provided for in this Lease. 




 




20.7

Each right and remedy provided for in this Lease shall be cumulative and shall

be in addition to every other right or remedy provided for in this Lease or now

or hereafter existing at law or in equity or by statute or otherwise, and the

exercise or beginning of the exercise by Landlord or Tenant of any one or more

of the rights or remedies provided for in this Lease or now or hereafter

existing at law or in equity or by statute or otherwise shall not preclude the simultaneous

or later exercise by the party in question of any or all other rights or

remedies provided for in this Lease or now or hereafter existing at law or in

equity or by statute or 




 




27





























 




otherwise.




 




21. 

SURRENDER OF PREMISES




 




No

act or thing done by Landlord or its agents during the Term shall be deemed an

acceptance of a surrender of the Premises, and no agreement to accept a

surrender of the Premises shall be valid unless the same is made in writing and

signed by Landlord.




 




22. 

LANDLORD’S LIENS




 




Landlord

shall have, at all times, and Tenant hereby grants to Landlord, a valid

security interest to secure payment of all rentals and other sums of money

becoming due hereunder from Tenant, and to secure payment of any damages or

loss which Landlord may suffer by reason of the breach of Tenant of any

covenant, agreement or condition herein, upon all goods, wares, equipment,

fixtures, furniture, improvements and other personal property owed by Tenant

presently or which may hereafter be situated on the Premises, and such property

shall not be removed therefrom without the consent of Landlord until all

arrearages in Rent as well as any and all other sums of money then due to

Landlord hereunder shall first have been paid and discharged and all the

covenants, agreements, and conditions hereof have been fully complied with and

performed by Tenant.




 




23. 

INSURANCE




 




23.1

Tenant shall maintain insurance in the form of its certificate of insurance

attached hereto as Exhibit D. Tenant shall name Landlord’s mortgagee as an

additional insured.




 




23.2

Tenant shall cause its contractors and subcontractors to comply with the

insurance requirements reasonably required by Landlord.




 




28





























 




23.3

Tenant shall furnish a certificate of insurance and such other evidence

reasonably satisfactory to Landlord of the maintenance of all insurance

coverages required hereunder upon the earlier of its entry upon the Premises or

the Commencement Date of this Lease.




 




24. 

BROKERAGE




 




Each

party warrants that it has had no dealings with any broker or agent in

connection with the negotiations or execution of this Lease and a party who

falsely so warrants shall indemnify the other party against all costs, claims,

expenses, attorney’s fees or other liability for commissions or other

compensation or charges claimed by any broker or agent claiming the same by,

through or under said party.




 




25. 

ESTOPPEL CERTIFICATES




 




Tenant

agrees to furnish from time to time when requested by Landlord or the holder of

any mortgage on the Building, an estoppel certificate signed by Tenant

confirming and containing such factual certifications and representations

deemed appropriate by Landlord or the holder of any mortgage on the Building.

Tenant shall, within fifteen (15) days following receipt of said certificate

from Landlord, return a fully executed copy of said certificate to Landlord

within the foregoing fifteen (15) day period, failing which Tenant shall be

deemed to have approved and confirmed all of the terms, certifications and

representations contained in such certificate.




 




26. 

NOTICES




 




Each

provision of this Lease, or of any applicable governmental laws, ordinances,

regulations, and other requirements with reference to the sending, mailing or

delivery of




 




29





























 




any

notice, or with reference to the making of any payment by Tenant to Landlord,

shall be deemed to be complied with when and if the following steps are taken.




 




26.1.

All Rent and other payments required to be made by Tenant to Landlord hereunder

shall be payable to Landlord at the address set forth in the Fundamental Lease

Provisions or at such other address as Landlord may specify from time to time

by written notice delivered in accordance herewith. 




 




26.2

Any notice or document required to be delivered hereunder shall be deemed to be

delivered as and when actually received. Notice by the United States Mail shall

be postage prepaid, certified or registered mail, (with return receipt

requested) addressed to the party at the address set forth at the head of this

Lease and to such other addresses as either of said parties shall have

specified by written notice delivered in accordance herewith.




 




27. 

FORCE MAJEURE




 




Whenever

a period of time is herein prescribed for action to be taken by Landlord,

Landlord shall not be liable or responsible for, and there shall be excluded

from the computation for any such period of time, any delays due to strikes,

riots, acts of God, war, governmental laws, regulations or restrictions or any

other causes of any kind whatsoever which are beyond the reasonable control of

Landlord.




 




28. 

SEPARABILITY




 




If

any clause or provision of this Lease is held by any court of competent

jurisdiction to be illegal, invalid, or unenforceable under present or future

laws in effect during the Term hereof, then and in that event, the remainder of

this




 




30





























 




Lease

shall not be affected thereby. In lieu of each clause or provision of this

Lease that is illegal, invalid or unenforceable, there shall be added as a part

of this Lease a clause or provision as similar in terms to such illegal,

invalid or unenforceable clause or provision as may be possible which is legal,

valid and enforceable.




 




29. 

AMENDMENTS: BINDING EFFECT




 




This

Lease may not be altered, changed or amended, except by instrument in writing

signed by both parties hereto. No provision of this Lease shall be deemed to

have been waived unless such waiver be in writing signed by the waiving party

and addressed to the other party, nor shall any custom or practice which may

evolve between the parties in the administration of the terms hereof be

construed to waive or lessen the right of either party to insist upon the

performance in strict accordance with the terms hereof. The terms and

conditions contained in this Lease shall apply to, inure to the benefit of, and

be binding upon the parties hereto, and upon their respective successors in

interest and legal representatives, except as otherwise herein expressly

provided.




 




30. 

QUIET ENJOYMENT




 




Provided

Tenant has performed all of the terms and conditions of this Lease, including

the payment of Rent, to be performed by Tenant, Tenant shall peaceably and

quietly hold and enjoy the Premises for the Lease Term, without hinderance from

Landlord, subject to the terms and conditions of this Lease.




 




31





























 




31. 

GENDER




 




Words

of any gender used in this Lease shall be held and construed to include any

other gender, and words in the singular number shall be held to include the

plural, unless the context otherwise requires.




 




32. 

LIABILITY




 




The

liability of Landlord to Tenant for any default by Landlord under the terms of

this Lease shall be limited to the interest of Landlord in the Building and the

Land. Landlord shall not be liable for any deficiency.




 




33.  NOTICE TO LENDER




 




If

the Premises or the Building or any part thereof are at any time subject to any

first mortgage or other similar instrument and this Lease or the Rent hereof is

assigned to such mortgagee, and Tenant is given written notice thereof,

including the post office address of such assignee, then Tenant shall not

terminate this Lease or abate any Rent for any default on the part of Landlord

without first giving written notice by certified or registered mail, return

receipt requested, to such assignee, specifying the default in reasonable

detail, and affording such assignee a reasonable opportunity to make performance,

at its election, for and on behalf of the Landlord.




 




34. 

CAPTIONS




 




The

captions contained in this Lease are for the convenience of reference only, and

in no way limit or enlarge the terms and conditions of this Lease.




 




32





























 




35. 

NO PARTNERSHIP




 




Nothing

contained in this Lease shall be deemed or construed to create a partnership or

joint venture of or between Landlord and Tenant, nor to create any other

relationship between the parties hereto other than that of Landlord and Tenant.




 




36. 

SALE




 




In

the event Landlord shall sell or convey the Building, all liabilities and

obligations on the part of Landlord under this Lease accruing thereafter shall

terminate provided the new landlord acknowledges and agrees in writing to

assume the duties and obligations under the Lease, and thereupon all such

liabilities and obligations shall be binding upon the new landlord. Tenant

agrees to attorn to such new landlord.




 




37. 

BENEFIT AND BURDEN




 




The  provisions 

of this  Lease  shall be 

binding  upon,  and shall inure to the benefit of, the  parties 

hereto and to the extent 

permitted under this Lease to each of their respective  representatives,  successors and assigns.




 




38. 

ENTIRE AGREEMENT




 




This

Lease, together with the Exhibits attached hereto and Riders (if any), contain

and embodies the entire agreement of the parties hereto, and no

representations, inducements or agreements, oral or otherwise, between the

parties not contained in this Lease, the Exhibits and the Rider (if any), shall

be of any force or effect.




 




39. 

APPLICABLE LAW




 




This

Lease and the rights and obligations of both parties hereto hereunder shall be

governed by the laws of the State of New Jersey.




 




33





























 




40. 

MISCELLANEOUS




 




40.1

There shall be no merger of this Lease or of the leasehold estate hereby

created with the fee estate in the Premises or any part thereof by reason of

the fact that the same person may acquire or hold, directly or indirectly, this

Lease or the leasehold estate hereby created or any interest in this Lease or

in such leasehold estate as well as the fee estate in the leasehold premises or

any interest in such fee estate.




 




40.2

Neither Landlord or Landlord’s agents or brokers have made any representations

or promises with respect to the Premises or the Building except as herein

expressly set forth and no rights, easements or licenses are acquired by Tenant

by implication or otherwise except as expressly set forth in the provisions of

this Lease.




 




40.3

The submission of this Lease to Tenant shall not be construed as an offer, nor

shall Tenant have any rights with respect thereto unless and until Landlord

shall execute a copy of this Lease and deliver the same to Tenant.




 




40.4

If Tenant signs as a corporation, each of the persons executing this Lease on

behalf of Tenant does hereby covenant and warrant that Tenant is a duly

authorized and existing corporation, qualified to do business in New Jersey,

that the corporation has full right and authority to enter into this Lease, and

that each and both of the persons signing on behalf of the corporation were

authorized to do so.




 




40.5

Tenant shall furnish to Landlord copies of its 10K and 10Q Reports as they are

filed with the Securities and Exchange Commission. Tenant shall furnish copies

of its press releases to Landlord when they are disseminated to the public.




 




34





























 




41. 

ENVIRONMENTAL

REPRESENTATIONS AND COVENANTS:




 




In

addition to and not in limitation of all other warranties and representations

contained in this Lease, the Tenant represents and warrants to Landlord, after

due inquiry and investigation, and hereby covenants with the Landlord as

follows:




 




(a)  Compliance with Laws:




 




Tenant’s

use of the Premises (including any and all use of the Premises by any tenant,

subtenant or licensee of the Tenant) does not and will not knowingly violate

federal, state and local environmental laws, including (but not limited to) the

New Jersey Spill Compensation and Control Act, (being N.J.S.. 58:10-23.11, et

seq. and commonly called the “Spill Act”) and the Industrial Site Recovery Act

(being N.J.S.. 131K-6 et seq. and commonly called “ISRA”).




 




(1)

Storage of Hazardous Substances:




 




To

the best of the Tenant’s knowledge, information and belief, and except as set

forth in the “Final Report, ECRA/ISRA Compliance, Capscan Cable Company,

Freehold, Monmouth County, ISRA Case No. 89100” dated March 1994 and prepared

by ENVIRON Corporation, the Premises have not been used by Tenant, any tenant,

subtenant or licensee of the Tenant or any prior owner, tenant, subtenant or

licensee of the Premises to refine, produce, store, handle, transfer, process

or transport “Hazardous Substances”, as such term is defined in N.J.S.

58:10-23.11b(k), except in accordance any and all applicable state and federal

law. Tenant will not knowingly in the future use nor suffer or permit the

Premises to be used for the foregoing purposes unless done (a) in full

compliance with any and all applicable state and federal law.




 




35





























 




(2)

Notice of Alleged Violation:




 




The

Tenant shall promptly notify the Landlord and furnish the Landlord with a copy

of any and all summonses, citations, directives, letters or other communications

concerning any violation or alleged violation of any environmental law, rule or

regulation on, about or respecting the Premises, including (but not limited to)

any violation or alleged violation of the Spill Act.




 




(3)

Notification of Spill:




 




The

Tenant shall immediately notify the Landlord of any spill, leak, or discharge

of hazardous substances on the Premises not authorized by a permit issued by a

governmental agency having jurisdiction to issue such permits.




 




(4)

Payment of Lien:




 




In

the event a Lien shall be filed against the Premises pursuant to the Spill Act,

the Tenant shall within thirty (30) days from the date that it is given notice

that such a Lien has been placed against the Premises or, in the event that the

State of New Jersey has commenced steps to cause the Premises to be sold

pursuant to the Lien, within such shorter period of time as may be necessary to

prevent such sale, either (a) pay such sum as shall be necessary to remove the

Lien from the Premises, (b) provide a bond, cash deposit, or other security in

an amount sufficient to discharge the claim out of which the Lien arises, or

(c) take such other steps or make such other arrangements with the lienor which

result in a stay of execution, or forbearance in executing, upon the lien.




 




(5)

Notification with Respect to ISRA:




 




The

Tenant shall promptly notify the Landlord of




 




36





























 




any

termination of any lease or the closing or cessation of any operation at the

Premises or any other event which would require or trigger any action pursuant

to ISRA (including, but not limited to the events described in N.J.A.C.

7:26B-3.2, but Tenant shall not be required to take any action pursuant to ISRA

upon any of the events or operations described in N.J.A.C. 7:26B-2.1. If

required pursuant to the foregoing sentence, the Tenant shall provide evidence

to the Landlord of compliance by tenants and users with the provisions of ISRA

upon receipt by the Tenant of such evidence, including (but not limited to) any

“negative declaration” from the New Jersey Department of Environmental

Protection.




 




(6)

Indemnification:




 




The

Tenant shall indemnify and save harmless the Landlord from any and all damages,

remedial orders, judgments or decrees, and all costs and expenses related

thereto or arising therefrom, including but not limited to, attorneys fees,

cleanup, removal, repair and restoration costs, and lost rentals (if any)

arising out of the violation of any federal, state or local environmental laws

committed by Tenant, its subtenants or licensees. The foregoing indemnification

and hold harmless obligation shall remain in effect and shall survive the

expiration or other termination of this Lease, and shall apply to all claims or

proceedings arising out of the Landlord’s interest in the Premises as owner of

the Premises.




 




(7)

Additional Event of Default:




 




Failure

to comply with the provision of this Article shall constitute an Event of

Default. A default under this Article shall be in addition to and not in limitation

of any other Events of Default specified in this Lease.




 




37





























 




(8)

Environmental Testing:




 




The

Landlord shall have the right on prior notice to Tenant of at least forty-eight

(48) hours to engage in any environmental testing and sampling of the Premises

that the Landlord may reasonably deem necessary to protect its interests

whenever either (1) an Event of Default shall have occurred or shall be

continuing or (2) the Landlord shall deem such environmental testing and

sampling necessary to protect the Landlord, the Premises or any other

collateral which is security for the Loan from the effects of ISRA or the Spill

Act. The Tenant shall be liable for the costs of such environmental testing and

sampling, which shall be payable on demand, if the results of such testing and

sampling reveals a violation of ISRA or the Spill Act by Tenant, its subtenants

or licensees.




 




42. 

SECURITY DEPOSIT




 




The

Landlord hereby acknowledges the receipt of $100,000.00 as a Security Deposit

which it is to retain as security for the faithful performance of all of the

covenants, conditions and agreements to this lease. The security deposit shall

not bear interest. Tenant may apply same to the last three (3) months rent. Any

portion of the Security Deposit not utilized to cure Tenant’s default under

this Lease and not applied to rent shall be returned to Tenant within ten (10)

days following lease expiration or termination.




 




In

the event of a bona fide sale of the Premises, the Landlord shall on notice to

Tenant have the right to transfer the Security Deposit to the vendee for the

benefit of Tenant but Landlord shall provide to Tenant the name and address of

any vendee to whom the Security Deposit is transferred.




 




38





























 




Landlord

shall remain responsible for the return of the Security Deposit notwithstanding

any transfer to a vendee.




 




43. 

EXHIBITS AND ATTACHMENTS




 




All

Exhibits listed hereinbelow are incorporated into this Lease and made a part

hereof for all intents and purposes:




 




Exhibit

A.  Description of the Premises




 




Exhibit

A-1 Portion of Premises subject to Recapture by Landlord




 




Exhibit

B.  List of Items Remaining Tenant’s

Property




 




Exhibit

C.  Remedial and Maintenance Schedule




 




Exhibit

D.  Insurance Policy of Landlord




 




39





























 




44. 

RENEWAL TERM




 




Provided

Tenant shall not be in default hereunder either at the time of the exercise of

the options herein accorded or at any time thereafter prior to commencement of

the Renewal Term’s as herein described, Tenant shall have the right to renew

the term for two successive five (5) year periods which Renewal Terms shall

commence on the first day following expiration of the term (“Renewal Term”) and

on the first day following the First Renewal Term. All of the terms and

conditions for the demise of the Premises for the Renewal Terms shall be

identical to those herein contained, except with respect to the Base Rent. The

Base Rent in the First Renewal Term shall be as follows: the Base Rent in the

first and second lease year shall be $585,000 per annum ($48,750 per month) and

in the third, fourth and fifth lease years, the Base Rent shall be $617,500 per

annum ($51,458.33 per month). The Base Rent in the first and second lease years

of the Second Renewal Term shall be $650,000.00 per annum ($54,166.67 per

month) and in the third, fourth and fifth lease years, the Base Rent shall be

$715,000 per annum ($59,583.33 per month).




 




The

time for Tenant’s exercise of each option is of the essence. Tenant’s right to

renew this Lease as set forth above shall be voidable by Landlord if:




 




(1)

the written notice exercising the option of renewal to Landlord is not received

by Landlord on or before the date which is six (6) months prior to the

expiration date of the Term or six (6) months prior to the expiration date of

the First Renewal Term, as the case may be; or




 




(2)

prior to the first day of any Renewal Term there




 




 




40





























 




 




occurs

a default under this Lease; or




 




(3)

Tenant is not in possession of the Premises pursuant to the terms hereof at the

time of the exercise of the option and at all times thereafter during the term

or First Renewal Term, as the case may be.




 




45.  FIRST

RIGHT TO NEGOTIATE PURCHASE




 




If

Landlord desires to sell the Recaptured Premises as described in Article 7.3 or

the Premises or any portion thereof, before entering into an agreement to sell

to anyone else, Landlord will notify Tenant of its desire to sell the

Recaptured Premises and/or the Premises or portion thereof and the price and

basic terms Landlord is asking. If, within ten (10) business days after receipt

of the notice, Tenant gives Landlord written notice of its interest in

purchasing the Recaptured Premises and/or the Premises or portion thereof at

the price and upon the terms contained in Landlord’s notice to Tenant, Landlord

and Tenant agree to negotiate a legally binding agreement to carry out their

previously expressed intent promptly and in good faith. If Tenant fails to give

such notice to Landlord within said ten (10) business days period, Landlord

will be free to sell the Premises and/or Recaptured Premises or portion thereof

subject to this Lease to anyone else upon the same terms offered to Tenant and

without any further obligation hereunder to Tenant.




 




46. 

RIGHT OF FIRST REFUSAL




 




46.1.

If at any time during the term, Landlord desires to sell the Premises or if

Landlord recaptures a portion of the Premises pursuant to Article 7.3 and

thereafter desires to lease or sell the Recaptured Premises or any portion

thereof and receives an acceptable bona fide offer of lease or




 




41





























 




purchase

therefor, Landlord shall give Tenant written notice (the “Landlord’s Notice”)

of its intention to lease or sell in accordance with that offer, which

Landlord’s Notice shall contain the terms and conditions of the offer to lease

or purchase as well as the name and address of the prospective tenant or

purchaser.




 




Upon

the receipt of the Landlord’s Notice, Tenant shall have the right to lease the

Recaptured Premises or purchase the Premises and/or the Recaptured Premises or

any designated portion thereof upon the same terms and conditions contained in

the bona fide offer to lease or purchase. Said right shall be deemed exercised

if Landlord receives written notice from Tenant, within ten (10) business days

of the receipt by Tenant of the Landlord’s Notice, stating that Tenant is

willing and able to purchase the Premises and/or lease or purchase the

Recaptured Premises or such designated portion thereof upon the same terms and

conditions as were contained in the bona fide offer. If Tenant does not

exercise its right to lease the Recaptured Premises or purchase the Premises and/or

the Recaptured Premises or such designated portion thereof within said ten (10)

business day period, Landlord may convey the Premises and/or lease or convey

the Recaptured Premises or such designated portion thereof within six (6)

months after the end of said ten (10) business day period, provided such lease

of the Recaptured Premises or conveyance of the Premises or Recaptured Premises

is to the tenant or designated purchaser at the same rent or price and upon

substantially the same terms set forth in the Landlord’s Notice, and further

provided that any lease or conveyance shall be subject to this Lease. The right

of first refusal




 




42





























 




provided

herein shall be a continuing option and shall apply to any and all future sales

of the Premises or any portion thereof and/or to lease or sale of the

Recaptured Premises during the term of the Lease. No sale of the Premises or

sale or use of the Recaptured Premises by Landlord or its tenants and

successors shall interfere with the right of Tenant to use the Premises or the

Recaptured Premises pursuant to the terms of this Lease.




 




IN

WITNESS WHEREOF, the parties hereto have executed this Lease under seal the day

and year first above written,




 




	

  WITNESS:


  	

  LANDLORD:


  	

   


  
	

   


  	

   


  
	

   


  	

  569 HALLS MILL ROAD, L.L.C.


  
	

   


  	

   


  
	

  /s/ Edward McCrossin


  	

   


  	

  BY: /s/ Donald J. Levine


  	

   


  
	

   


  	

   


  
	

  ATTEST:


  	

  TENANT:


  
	

   


  	

   


  
	

   


  	

  IVC INDUSTRIES INC.


  
	

   


  	

   


  
	

  /s/ Martin A. Pickus


  	

   


  	

  BY: /s/ I. Alan Hirschfeld


  	

   


  
								





 




43





























 




EXHIBIT B




 




1.     Pallet

Racking




 




2.     Sprinkler

System (In rack sprinkler system)




 




3.     Telephone

System




 




4.     Building

Signage




 




5.     Alarm

System




 





























 




EXHIBIT D




 




Insurance

Policy of Tenant (Rent Insurance and Environmental Insurance to be supplied)