EXHIBIT 10.12
LEASE MODIFICATION AND EXTENSION AGREEMENT
THIS LEASE MODIFICATION AND EXTENSION AGREEMENT, made this 12th day of November
1996, between CHERRY HILL INDUSTRIAL SITES, INC., a New Jersey Corporation
having its principal office at 1998 Springdale Road, Cherry Hill, New Jersey
08003, (hereinafter referred to as LANDLORD), and Marsam Pharmaceuticals,
having an office at Building #31, Olney Avenue, Cherry Hill Industrial Center,
Cherry Hill, New Jersey 08003 (hereinafter referred to as TENANT)
Landlord and Tenant hereby covenant as follows:
1. LEASED PREMISES. Landlord hereby agrees to lease to Tenant, and Tenant hereby
agrees to rent from Landlord Building #15 and adjacent land therto, situated in
Cherry Hill Township, Block 490.01, Lot 1 as follows:
Commencing March 1, 1997 through September 30, 1999 (both dates
inclusive, 31 months), the basic net-net-net monthly rental for shall be THIRTY
EIGHT THOUSAND THREE HUNDRED AND FOUR DOLLARS AND ZERO CENTS ($38,304.00) per
month.
The Term rental for the 31 month term of this Lease shall be ONE
MILLION ONE HUNDRED EIGHTY SEVEN THOUSAND FOUR HUNDRED TWENTY FOUR DOLLARS AND
ZERO CENTS ($1,187,424.00).
Tenant agrees that this Lease shall, unless sooner terminated,
pursuant to the covenants hereof, expires absolutely on the expiration date
without the requirement of any further notice from Landlord.
2. USE. Tenant shall use and occupy the Premises only for laboratories, light
manufacturing, warehousing, offices, distribution, and allied uses pursuant to
I-R zoning of Cherry Hill Township or any subsequent zone designated for the
Premises by Cherry Hill Township.
3. RENT. Rent is payable on the first day of each month, in advance, during the
Term, at the office of the Landlord or such other place as Landlord may
designate.
Tenant shall assume the risk of lateness or failure of delivery of the mails,
and no lateness or failure of the mails will excuse Tenant from its obligation
to have made any payment of rent or additional rent as required under this
Lease.
No payment by Tenant or receipt or acceptance by Landlord of a lesser amount
than the correct rent or additional rent shall be deemed to be other than a
payment on account, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance or pursue any other remedy in this Lease or at law
provided.
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4. SECURITY. VOID
5. ADDITIONAL RENT. Additional rent charges shall be paid to the Landlord within
fifteen (15) days of receipt of notice of a bill sent by the Landlord to the
tenant.
6. LANDSCAPING. Tenant shall do all grass cutting and landscape maintenance
pursuant to standards as established by Landlord. Landlord.
Tenant shall keep the lawn, landscaped areas, paved surfaces, sidewalks
and similar areas free of debris and other waste material at all times. In the
event debris and/or other waste material is present upon any of the
aforementioned areas, or if, in Landlord's reasonable determination debris
and/or waste material originating from Tenant's Premises is upon other
properties owned by Landlord, Landlord may, at its option and WITHOUT PRIOR
NOTICE OR APPROVAL OF TENANT, remove same. All costs and charges relating
thereto shall be payable by Tenant as additional rent. The minimum charge for
this service shall be $50.00 per instance and/or occurrence.
7. SNOW REMOVAL. VOID.
8. UPGRADING. Tenant agrees to pay to Landlord, as additional rent, during the
term of this Lease the sum of $ 400 per month toward Landlord's costs related to
the maintenance and repair of the road easement within Block 490.01 Lot 1 as
shown on exhibits B and C attached hereto and made a part hereof.
9. SPRINKLER SYSTEM SERVICE. Tenant shall pay, as additional rent, one hundred
(100 %) percent of all charges relating to Building # 15 for sprinkler
supervisory service and sprinkler standby fees.
10. UTILITIES. Tenant shall pay for all deposits, costs and charges relating to
heat, water, sewer, CCMUA, electricity, gas and similar services rendered or
supplied to or upon the Premises, or in connection with the use and occupation
of building #15 prior to the date same are due.
Tenant shall not be released or excused from the performance or any of its
obligations under this Lease for any failure, interruption or curtailment of any
utilities or services; nor shall any such failure, interruption or curtailment
constitute a constructive or partial eviction.
11. PERSONAL PROPERTY TAXES. Tenant shall pay all personal property taxes and
other taxes and assessments pertaining to its goods, chattels, machinery,
equipment, fixtures, personal property and similar items prior to the date same
are due.
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12. REAL PROPERTY TAXES. Tenant shall pay to Landlord, as additional rent One
hundred (100%) percent of all real property taxes and assessments levied upon
Block 490.01, Lot 1 (Bldg # 15, with adjoining land) under or by virtue of any
present or future laws or regulations of any governmental or lawful authority
having jurisdiction over the Premises.
If at any time during the Term any governmental or quasi-governmental
authority, having jurisdiction over the Premises imposes (a) a tax, assessment,
levy, imposition, license fee or other charge on the rents collected by
Landlord, or (b) any other additional or substitute tax, assessment, levy,
imposition or charge relating to Block 497.01, Lot 1, any such items shall be
deemed to be included within the term "Real Estate Taxes" for the purposes
hereof.
Landlord may, at its option, appeal any real property tax or assessment
affecting the Premises utilizing such attorneys and/or experts as Landlord deems
advisable. In the event of any successful appeal Tenant shall pay to Landlord,
as additional rent, either the tax savings to the Tenant for one year or one
half of the total tax savings to the Tenant during the remainder of the Term,
whichever is less.
13. INSURANCE. In respect to Landlord's fire insurance policy with standard
extended coverage and difference in condition policy, Tenant agrees: (a) it will
not do nor permit any acts or things which will invalidate or be in conflict
with any provisions thereof or which shall cause the insurance rate on the
Premises to be higher than on the date of the commencement of this Lease; (b) it
shall comply with all present and future rules, regulations and recommendations
thereof and shall promptly make all changes, modifications, replacements and
alterations as are necessary and/or required.
The aforementioned policy shall insure only the Landlord's property
against damage and/or losses for perils specified therein. In no event will
Landlord be responsible for charges and/or costs related to damage, loss, or
repair and/or replacement of any property: (a) caused by conditions, exclusions
or reasons not covered therein; (b) within the deductible provisions of the
aforementioned policies; and/or (c) any property not owned by Landlord.
Landlord's fire insurance policy with standard extended coverage policy,
difference in condition policy and rental income insurance
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policy shall contain a waiver of subrogation of the rights of the Landlord's
insurance carrier to proceed against the Tenant for matters are covered therein.
Tenant is invited and encouraged to review and ascertain the type,
deductibles and limits related to Landlord Insurance policies required herein.
Tenant is responsible for, and hereby saves and holds harmless Landlord, for all
costs, charges and expenses relating to or ensuing from damage, loss, and/or
replacement to/of any property, of whatever nature and from any cause
whatsoever, not covered by or within the deductible limits of Landlords
insurance policies referenced herein.
Tenant shall pay, as additional rent, 100 percent of Landlord's premiums
for fire insurance with standard extended coverage policy, difference in
condition policy and rental income insurance policy to the extent the
aforementioned policies relate to Building # 15, as determined by Landlord One
hundred.
14. TENANT'S INSURANCE OBLIGATIONS. Tenant, as a minimum, shall carry the
following insurance policies applicable to the Premises (and other areas as may
be required herein) with reputable companies authorized to issue policies in the
State of New Jersey having a Moody rating of at least A. The Certificate of
Insurance shall indicate Cherry Hill Industrial Sites, Inc. as the additional
insured under the "description" portion of the certificate, as follows: "Cherry
Hill Industrial Sites, Inc. as additional insured relative to any and all
lease/rental premises utilized by the Tenant":
(a) Comprehensive Public Liability Insurance. Such insurance shall be for
a Combined Single Limit (CSL) for bodily injury (including death) and property
damage or loss (for occurrences in or about the Premises or arising out of
Tenants ownership, maintenance, use or occupancy of the Premises) in the amount
of $1,000,000 for each occurrence, and $3,000,000 in the aggregate.
(b) Personal Property Insurance in amounts and types of coverage to insure
against damage or loss to any property including, but not limited to any Tenant
alterations, improvements or betterments in or about the Premises that is not
the property of Landlord caused by: (1) water, rain, sleet, snow, or ice
entering, seeping or leaking into or through the Premises or any portion
thereof; (2) fire, explosion, tornado, wind, earthquake or any other casualty or
any other similar occurrences; (3) theft, burglary, vandalism, malicious
mischief, or other similar occurrences; (4) accidents of any kind, type or
nature; (5) electrical, gas or water failure, cutoffs, surges or similar
occurrences; (6) loss or damage to property not owned by Landlord by any similar
reason.
(c) Such other insurance, and in such amount, as may from time to time be
reasonably required by Landlord or required by law. No insurance requirements as
set forth in this Lease shall preclude Tenant from obtaining whatever additional
insurance coverages Tenant shall deem necessary or prudent.
(d) NOTE: Tenant shall have the right to procure its required insurance on
a blanket master policy basis and/or an umbrella basis; provided, however, that
all such coverage shall otherwise comply with
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all of the requirements contained herein.
All insurance policies required of Tenant shall: (a) provide at least
thirty (30) days prior notice to Landlord and Tenant of any change,
modifications or cancellation; and (b) contain a waiver of subrogation of the
rights of the Tenant's insurance carrier to proceed against the Landlord for
matters which are required to be or are covered by the Tenant's insurance
policies.
Tenant shall give prompt notice to Landlord in case of any fire, casualty,
accident or similar occurrence.
15. FIRE. If the Premises shall be partially damaged by fire or similar casualty
as is covered under insurance policies carried by Landlord, the damage shall be
repaired by and at the expense of Landlord to the extent provided for pursuant
to the provisions thereof. Any fire or similar casualty damage to the Premises,
within the deductible limits of the aforementioned policies shall be repaired by
Landlord, but paid for by Tenant as additional rent.
The rent, until such repairs are made, shall be apportioned according to
the portion of the Premises which was damaged or which has been made unusable,
whichever is less. Nevertheless the Lease shall continue in full force and
effect.
If the Premises are totally or substantially damaged by fire or similar
casualty as is covered under policies required of Landlord pursuant to the
covenants of this Lease, and if Landlord, at its option, decides not to restore
or not to rebuild same, Landlord shall then, within sixty (60) days after such
fire, give Tenant notice of such decision, and thereupon this Lease shall expire
by lapse of time upon the fifth day after such notice is given. Tenant shall
then vacate the Premises and surrender same to Landlord.
For the purpose of this Lease substantial damage is defined as that which
is greater than twenty (20%) percent of the insured value of the premises as
determined by the cost estimate of Landlord.
Tenant acknowledges that Landlord will not carry insurance on the
furniture, furnishings, inventory, fixtures, equipment, improvements,
alterations, additions, property, appurtenances, or similar items that are not
the property of Landlord in or upon the Premises and agrees that Landlord is not
and shall not be obligated to repair any damage or loss thereto, nor replace
same, nor compensate any person or party for any loss, damage, or destruction
regardless of cause and/or reason.
In the event Landlord, at its option, decides to restore or rebuild the
Premises, no penalty shall accrue for reasonable delay which may arise by reason
of adjustment of insurance on the part of Landlord and/or Tenant, or for delays
on account of labor troubles or other reasons or causes beyond Landlord's
control.
In accordance with this paragraph, Tenant explicitly waives applicability
of N.J.S.A. 46:8-6 and N.J.S.A. 46:8-7.
16. FIRE PREVENTION SYSTEMS.
a. If the National Board of Fire Underwriters or any local Board of Fire
Underwriters or Insurance Exchange (or other bodies hereafter exercising similar
functions) shall require or recommend the installation of fire extinguishers, a
"sprinkler system", fire detection and prevention equipment (including, but not
limited to, smoke detectors and heat sensors), or any changes, modifications,
alterations, or the installation of additional sprinkler heads or other
equipment for any existing sprinkler, fire extinguishing system,
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and/or fire detection system for any reason, whether or not attributable to
Tenant's use of the Premises or Alterations performed by or on behalf of Tenant;
OR
b. If any law, regulation, or order or if any bureau, department or
official of the Federal, State, and/or Municipal Governments shall require or
recommend the installation of fire extinguishers, a "sprinkler system", fire
detection and prevention equipment (including, but not limited to, smoke
detectors and heat sensors), or any changes, modification, alterations, or the
installation of additional sprinkler heads or other equipment for any existing
sprinkler system, fire extinguishing system, and/or fire detection system for
any reason, whether or not attributable to Tenant's use of the Premises or
Alterations performed by or on behalf of Tenant; OR
c. If any such installations, changes, modifications, alterations,
sprinkler heads, or other equipment become necessary to prevent the imposition
of a penalty, an additional charge, or an increase in the fire insurance rate as
fixed by said Board or Exchange, from time to time, or by any fire insurance
company as a result of the use of the Premises whether or not the same is a
permitted use as defined elsewhere herein, then Tenant shall, at Tenant's sole
cost and expense, promptly make such installations within the Premises and make
such changes, modifications, alterations or the installation of additional
sprinkler heads or other required or recommended equipment.
17. REPAIRS, REPLACEMENTS. Tenant shall keep premises in good order and repair
and shall promptly make any and all repairs, maintenance, and replacements to
the Premises of whatever nature, ordinary and extraordinary, foreseen and
unforeseen, except as is specifically provided for herein. All repairs,
maintenance and replacements shall be in quality, usefulness, and class at least
equal to the original installation.
Landlord shall not be required to furnish any services, improvements,
alterations, or similar items, nor to make any repairs, maintenance, or
replacements to the Premises except as is specifically provided for herein.
18. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements without Landlord's approval, which shall not be unreasonably
withheld or delayed.
In the event Tenant proposes any alterations, additions, or improvements,
it shall submit a complete set of plans and specifications relating thereto,
prepared by any architect or professional engineer registered in the State of
New Jersey to Landlord. Landlord, at its option, shall grant or deny approval
within 15 days after receipt. Landlord may impose any conditions and/or
requirements upon Tenant as Landlord considers necessary or prudent to protect
Landlord's interest in the Premises. Tenant must agree in writing to adopt any
such conditions and/or requirements before any approval is effective.
If Landlord shall grant approval for the proposed work and provided Tenant
has agreed to any conditions and/or requirements made a part of such approval,
the following additional conditions shall apply:
a. Prior to making any alterations, additions or improvements Tenant shall
assure itself that the work will not impair the structural integrity of the
Premises, or any portion thereof.
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Approval of the proposed work by Landlord shall not constitute or imply a
warranty or representation by Landlord that the existing Premises, or any part
thereof, is adequate to withstand work proposed by Tenant. By making any
alterations, additions, or improvements, Tenant expressly warrants that the same
will not impair the structural integrity of the Premises nor any part thereof
and are in full compliance with the requirements of all governmental agencies or
authorities having jurisdiction. Landlord reserves the right to approve or
reject Tenant's contractor. If Tenant's proposed alteration involves a tie-in to
building systems, Landlord further reserves the option of requiring Tenant to
use Landlord's contractor.
b. All costs related to the proposed work, irrespective of their nature,
are the sole responsibility of Tenant and shall be promptly paid by Tenant at
such time as they may be due.
c. All contractors, labor and/or material suppliers, and similar parties
shall agree, in writing, prior to the commencement of any work or procurement of
materials, (1) to jointly comply with Tenant with the mechanics lien
restrictions contained elsewhere in this Lease; (2) that they are entering into
any agreements for labor and/or material with Tenant and not on behalf or for
the benefit of Landlord; (3) that the work to be done shall be in conformance
with the last plans and specifications approved by Landlord and that no changes
shall be made thereto without the approval of Landlord and Tenant; and (4) that
they, and their employees and other agents, shall comply with all rules and
regulations contained in Tenant's Lease regarding their conduct on the Premises.
Proof of such agreements shall be given to Landlord prior to the commencement of
the proposed work.
d. Tenant shall insure, indemnify and hold Landlord harmless for any loss
to which Landlord may be subject or which Landlord may sustain relating to
accidents, injury to persons (including death), property loss or damage of any
nature whatsoever, regardless of cause, arising during or ensuing from the work
undertaken by Tenant.
e. All such alterations, additions and improvements upon completion shall
immediately become the property of Landlord, without compensation by Landlord to
Tenant or any other party, and simultaneously become part of the Premises, and
Tenant's obligations and responsibilities pursuant to the terms and conditions
of this Lease shall thenceforth apply to the aforementioned alterations,
additions, or improvements. Upon the termination of the Tenant's lease and/or
Tenant's vacating of the premises, Tenant shall remove said alterations,
additions and improvements at Tenant's expense, if so requested by Landlord.
f. Upon completion of the work, Tenant will submit to Landlord as-built
drawings and certifications of inspections certifying the completion of the
alteration, addition or improvement.
19. COMPLIANCE WITH LAWS. With respect to the Premises or the use and occupation
thereof, Tenant shall promptly comply with all laws, orders, regulations, and
requirements now in force, or which may hereafter be in force, of (a) Federal,
State, County, and Municipal authorities and (b) private, quasi-public and
public utility companies and similar parties providing services.
Tenant acknowledges that during the term of this Lease, a system, or
materials and components thereof, now existing on the Premises may be legally
banned or subject to mandatory modification or conversion to some other system,
material or component. Tenant agrees that it will not, on the basis of such
legal ban or mandatory modification or
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conversion, claim frustration of purpose, seek termination of the Lease, or seek
abatement of rent.
Tenant shall immediately notify Landlord upon receipt of notice of a ban,
conversion requirement, violation or alleged violation of any of the foregoing.
Tenant shall also provide Landlord, upon Landlord's request, affidavits and/or
representations executed by a knowledgeable officer or principal of the company
concerning Tenant's best knowledge and belief regarding Tenant's compliance with
particular laws, orders, regulations and requirements as may be cited by
Landlord in its request.
20. RULES AND REGULATIONS. Without limiting Tenant's obligations pursuant to any
of the terms and conditions of this Lease, Tenant has the following duties:
a. Between April 15 and May 15 of each year Tenant shall provide to
Landlord, in form and content satisfactory to Landlord, a certification from a
reputable heating, ventilating and air conditioning contractor acceptable to
Landlord, or a professional engineer licensed to practice in the State of New
Jersey, confirming that all heating, ventilating and air conditioning systems
within the Premises are in good working order and repair and are being properly
serviced by Tenant.
b. Tenant shall keep: (1) the roof and exterior wall systems in a
watertight condition; (2) gutters, downspouts, drainage, and sewerage systems
free from obstructions and blockages; (3) all yard and exterior wall mounted
lighting on during night time hours; (4) parking areas, driveways, walkways, and
similar items free from snow, ice, potholes and all other defects and/or
hazards; (5) the Premises in a clean, safe, and orderly condition free from
debris, refuse, trash, vermin, pests, defects and/or hazards; (6) the
dissemination of smoke, dust, odors, fumes, and other noxious gases shall be
within the limits of the industrial tolerance standards of the State Department
of Health, Bureau of Adult and Industrial Health.
c. Tenant shall not cause, commit or permit: (1) areas allocated for
driveways, walkways, or the parking of automobile vehicles to be used for any
other purpose; (2) any public or private nuisance; (3) use or occupancy in a
manner reasonably offensive or objectionable to the Landlord by reason of, but
not limited to, noise and/or vibrations; (4) debris, dirt, holes, scuff marks,
smears, graphics and/or similar items on wall, floor, or ceiling surfaces; (5)
any utility service or equipment to be overloaded; (6) anything that will impair
or tend to impair, in Landlord's reasonable judgement, the character, value, or
appearance of the Premises; (7) outside storage of any kind except as is
specifically provided for herein; (8) parking of inoperable vehicles,
non-motorized vehicles or trailers in or about the Premises; (9) any part or the
whole of the sidewalks, entrances, passages, stairways, corridors or halls of
the premises to be obstructed or encumbered or used for any purpose other than
ingress and egress to and from the Premises; (10) any signs, advertisements,
objects, notices or other lettering to be exhibited, inscribed, painted, or
affixed on any part of the outside or inside of the Premises, so as to be
visible from the exterior without prior approval of Landlord; (11) any show
cases or other items to be put in front of or affixed to any part of the
exterior of the building; (12) any water and wash closets and other plumbing
fixtures to be used for any purposes other than those for which they were
designed/constructed, and no sweepings, rubbish, rags or other substances shall
be thrown
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therein; (13) any wires to be installed except in conduits, ducts or outlets
established for that purpose, unless prior written consent of Landlord has been
obtained; (14) disturbance or interference with other Tenants or occupants of
the building or neighboring buildings; (15) canvassing, soliciting or peddling
within the Premises; (16) installation of a television, radio, or two-way radio
antenna, or any other similar antenna, on the roof, in the windows or upon the
exterior of the Premises, without the prior approval of Landlord; (17) any
cooking within the Premises, without the prior written consent of Landlord,
provided, however, that the heating, refrigerating and preparing of beverages
and light snacks for employees shall be permitted if there are appropriate and
adequate facilities and equipment for such purposes; (18) unusual or
objectionable odors to be produced upon or emanate from the Premises; (19)
storage, manufacture or sale of liquor or illegal drugs; (20) any portion of the
Premises to be used for lodging or sleeping or for any immoral or illegal
purpose; (21) animals of any kind to be brought or kept about the Premises
without Landlord's prior approval; (22) notices, posters, or advertising media,
except for purposes of emergency, to be affixed on the exterior of the building;
and (23) burning of trash or garbage of any kind in or about the Premises.
d. Tenant shall: (1) store discarded material temporarily being stored
outside of the building, forming part of the Premises, within fence-enclosed
waste storage containers of a type and at locations approved by Landlord; (2)
arrange for and enforce good housekeeping procedures and practices satisfactory
to Landlord; (3) arrange for liquid wastes and effluents to be discharged into
an approved existing sewage treatment plant in accordance with that plant's
regulations and state and federal regulations, or shall treat its own wastes and
effluents in a treatment plant or process which is in compliance with the New
Jersey State and Federal Statutes and with the requirements of the New Jersey
State Department of Health; (4) shall comply with the New Jersey State Statutes
and requirements of the New Jersey State Department of Labor and Industry
Precaution against fire hazards, radiation, explosion, proper handling and
storage of materials and structural design, and safeguards for the health of
workers.
e. Tenant, its agents, employees, contractors, invitees, licensees, and
similar parties shall not: (1) interfere with the business of Landlord or other
Tenants or persons on any other property owned by Landlord; (2) bring or keep
within the premises any flammable, combustible or explosive fluid, chemical or
substance of types or quantities not permitted by law and/or Landlord's fire and
casualty insurance carrier.
f. Tenant, its agents, employees, contractors, invitees, licensees, and
similar parties shall: (1) obey speed limit, warning and related type signs
posted within the road/driveway system of the Cherry Hill Industrial Center; (2)
obey fire regulations and procedures governing the premises; (3) keep access
lids on exterior waste storage containers in a closed position except when waste
is actually being placed within said containers.
g. Landlord shall have the right to prohibit any advertising by any Tenant
which, in Landlords reasonable judgment, tends to impair the reputation of said
Tenant's Premises or the Cherry Hill Industrial Center, and upon notice from
Landlord, such Tenant shall refrain from or discontinue such advertising.
Landlord shall have the right to enforce this provision by injunction.
h. Landlord's employees shall not be required to perform, and
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shall not be required by tenant to perform, any work outside of their regular
duties, unless under specific instructions from the office of Landlord.
i. Tenant shall immediately notify Landlord of any serious breakage, or
fire or disorder, occurring within the Premises.
j. Landlord reserves the right to rescind, amend, alter or waive any of
the foregoing Rules and Regulations at any time when, in its judgment, it deems
it necessary, desirable or proper for its best interest and/or for the best
interest of the tenants, and no such recission, amendment, alteration or waiver
of any rule or regulation in favor of one Tenant shall operate as an alteration
or waiver in favor of any other Tenant. Any such rescission, amendment,
alteration, or waiver shall become effective ten (10) days after notice by
Landlord to Tenant.
k. Nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to impose the rules and regulations against any
other Tenant or any employees or agents of any other Tenant, and Landlord shall
not be responsible or liable to Tenant or others for non-observance or violation
of the rules and regulations by any other Tenant or its employees, agents,
invitees or licensees at any time.
l. Tenant, its employees, contractors, agents, assignees, sublessees,
invitees, licensees and similar parties shall obey and observe all reasonable
rules and regulations established by Landlord from time to time for the conduct
of Tenant and/or the welfare, care, cleanliness, preservation of good order,
and/or safety of the Cherry Hill Industrial Center. Landlord shall give Tenant
at least (10) days notice of the establishment thereof. Nothing contained in
this Lease shall be construed to impose upon Landlord any duty or obligation to
enforce the rules and regulations against any other Tenant or any employees or
agents of any other Tenant, and Landlord shall not be liable to Tenant or others
for violations of the rules and regulations by any other Tenant or its
employees, contractors, agents, invitees, licensees or similar parties.
21. EMINENT DOMAIN. If the Premises or any portion thereof are taken under the
power of eminent domain, this Lease shall terminate as to the part so taken as
of the date the condemning authority takes title. If more than 10% of the floor
area of the Premises, or more than 25% of the non floor area of the Premises is
taken by condemnation, Tenant may, at Tenant's option, to be exercised by
written notice to the Landlord within 10 days after the Landlord shall have
given Tenant notice of such taking, terminate this Lease as of the date the
condemning authority takes title. If Tenant does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the rent shall be
reduced in proportion to the floor area of the Premises taken to the total floor
area of the Premises. Any award for taking of all or any part of the Premises
under the power of eminent domain or any payment made under threat of the
exercise of such power shall be the property of the Landlord, whether such award
shall be made as compensation for diminution in value of the Leasehold or for
the taking of the fee, or as severance damages, or other compensation to which
Landlord may be entitled. Tenant may make a separate application for
compensation relating to its trade fixtures or personal property.
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22. FORCE MAJEURE. Except as the effect of this paragraph may be expressly
excluded in other provisions hereof, the parties shall be excused for the period
of any delay in the performance of any obligation hereunder when prevented from
so doing by a cause or causes beyond the parties control which shall include,
without limitation, all labor disputes, civil commotion, war, war-like
operations, invasion, rebellion, hostilities, military or usurped power
sabotage, governmental regulations or controls, fire or other casualty, or
through Acts of God.
23. LANDLORDS NON-LIABILITY. Except as is specifically provided for herein:
Landlord shall not be liable or responsible for any loss or damage to any
property regardless of its nature or ownership at any time on or about the
Premises arising from any cause or reason whatsoever. Nor shall Landlord be
liable or responsible for any harm or injury (including death) to any person at
any time on or about the Premises, arising from any cause or reason whatsoever.
Tenant shall not hold Landlord in any way responsible or liable therefor and
hereby releases and remises Landlord therefrom.
Without limiting or diminishing Landlord's non-liability as provided for
herein, Landlord shall not be responsible or liable to Tenant, its employees,
invitees, agents, or any other party for any loss or damage to any property or
harm or injury to any persons (including death): (a) which is and/or should have
been covered by an insurance policy required of Tenant or which Tenant failed to
obtain or keep in force and effect; (b) caused by work stoppages, business
interruptions, or similar events; (c) caused by other Tenants, its agents,
invitees, employees, and similar parties; (d) caused by operations in
construction of any private, public or quasi-public works; (e) caused by any
latent or patent defects in the Premises or in any part of the building of which
the Premises may form a part; (f) arising out of the design or construction of
the Premises; (g) caused by snow, wind, rain, leakage, and similar events into
or out of any portion of the Premises; (h) caused by leakage, overflows,
obstructions, blockages, explosions, collapse, bursts, surges, and similar
events of any mechanical, structural, or other component and/or part thereof;
(i) arising from or caused by Tenant's business operation, occupancy and/or use
of the Premises and/or the streets, rights of way, and walkways adjacent
thereto, or any other similar reason.
All non-liability, waivers of liability, and save and hold harmless
references in this Lease given Cherry Hill Industrial Sites, Inc., as Landlord,
shall apply to (a) Cherry Hill Industrial Sites, Inc., as General Contractor,
Designer, Contractor, or Subcontractor; and (b) any partner, joint venturer,
director, officer, agent, stockholder, and employee of Cherry Hill Industrial
Sites, Inc.
24. INDEMNIFICATION. Tenant shall not do, nor permit to be done, any act or
thing in or upon the Premises, which may, will, or does subject Landlord to any
claims, penalties, expenses, judgments, responsibility, liability, damages or
similar occurrence by reason of damage or loss to any property or harm and/or
injury (including death) to any persons at any time.
Tenant agrees to and shall hold and save harmless and indemnify the
Landlord from and for any and all payments, expenses, costs, attorney fees,
claims and liability for losses or damage to property
11
and/or injury to any person (including death) resulting from any acts or
omissions by the Tenant, or its agents, employees, guests, licensees, invitees,
sub-tenants, contractors and similar parties, or for any cause or reason arising
out of or by reason of Tenant's use and/or occupancy of the Premises and/or the
conduct of Tenant's business and/or the breach by Tenant of any of the terms and
conditions of this Lease and/or similar reason.
25. FAILURE TO GIVE POSSESSION. If Landlord, for any reason, shall be unable to
give possession of the Premises on the date set for the commencement of the
Term, Landlord shall not be subject to any liability for such failure. Under
such circumstances, provided the delay is not caused or contributed to by
Tenant, the rent payments shall not commence until possession of the Premises is
given or the Premises are available for occupancy by Tenant, whichever occurs
first. Failure to give possession on the date of commencement of the term shall
in no way affect the validity of this Lease or the obligations of Tenant
hereunder nor shall it be construed in any way as an extension to the Term or
expiration date of this Lease.
If Landlord, at its option, grants Tenant permission to enter into the
possession of the Premises prior to the date specified as the commencement of
the Term, Tenant agrees that such occupancy shall be pursuant to the terms and
conditions of this Lease.
26. LIENS. Tenant shall not do anything which shall interfere with Landlord's
rights of ownership in the Premises. Tenant shall not permit nor allow any
notice of intention to file any type of lien (including, but not limited to,
mechanics liens) to be filed against the Premises. However, in the event any
notice of intention to file a lien is filed for work to be performed, material
to be furnished, or a lien is filed for work claimed to have been done or for
materials claimed to have been furnished to Tenant, same shall be discharged of
record and satisfied by Tenant within five (5) days thereafter at Tenant's own
cost and expense, or Tenant shall file a bond pursuant to statute releasing such
liens. Failure to do so shall entitle Landlord to resort to such remedies as are
provided herein in case of any default of this Lease, in addition to such as are
permitted by law.
27. ACCESS TO PREMISES. Landlord, its employees and agents shall have the right
to enter the Premises at all reasonable times for the purpose of: (a) examining
or inspecting the same; (b) showing the same to prospective purchasers,
mortgagees or Tenants; (c) making such alterations, repairs, improvements or
additions to the Premises or to the Building as may be necessary; (d) any other
similar or reasonable purpose.
If representatives of Tenant shall not be present to open and permit entry
into the Premises at an time when such entry by Landlord is necessary or
permitted hereunder, Landlord may enter by means of a master key (or forcibly in
the event of an emergency) without: (a) liability to Landlord, its employees,
agents, invitees and similar parties; (b) hindrance or molestation from Tenant,
its employees, and agents; and (c) such entry constituting an eviction of Tenant
or termination of this Lease.
28. ASSIGNMENT.
a. Tenant shall not assign, mortgage, pledge, encumber or in any manner
transfer this Lease or any portion thereof, or any interest
12
herein, or sublet the whole or any part of the Premises, without obtaining the
approval of Landlord. In the event of any such occurrence, with or without
Landlord's approval, Tenant shall, nevertheless, remain liable for the
performance of all the terms and conditions of this Lease and will require any
assignee/sublessee to execute and deliver to Landlord an assumption of all of
the terms and conditions of this Lease in form satisfactory to Landlord.
Landlord shall be entitled to, and Tenant shall promptly remit to Landlord, any
profit which may inure to the benefit of Tenant as a result of any partial or
entire subletting of the Premises or assignment of this Lease, whether or not
approved by Landlord.
b. For the purposes of this paragraph, Tenant understands that the
transfer of a majority of Tenant's stock is tantamount to an assignment.
c. As a condition precedent to Tenant's right to sublease the Premises or
to assign this Lease, Tenant shall, at Tenant's own expense, first comply with
ECRA and fulfill all of Tenant's environmental obligations under this Lease
pursuant to paragraph 51 which also arise upon termination of Tenant's lease
term. If this condition is not satisfied, then Landlord shall have the right to
withhold consent to sublease or assignment.
Tenant shall promptly furnish to Landlord true and complete copies of all
documents, submissions and correspondence provided by Tenant to the NJDEP and
all documents, reports, directives and correspondence provided by the NJDEP to
Tenant. Tenant shall also promptly furnish to Landlord true and complete copies
of all sampling and test results obtained from samples and tests taken at and
around the Premises. Tenant shall notify Landlord in advance of all meetings
scheduled between Tenant and NJDEP, and Landlord may attend all such meetings.
d. Should Tenant make an assignment or sublet the Premises or any portion
thereof without the approval of Landlord, then Landlord may, at its option,
terminate this Lease by giving Tenant five (5) days notice of Landlord's
intention to do so and, upon the expiration of five (5) days, this Lease shall
terminate and Tenant shall peaceably quit and surrender the Premises to
Landlord; nevertheless Tenant shall remain liable as provided elsewhere in this
Lease. This Lease shall not, nor shall any interest therein, be assignable as to
the interest of Tenant by operation of law, without the approval of Landlord.
e. Subletting or assigning this Lease to anyone other than an actual user
of the Premises is positively prohibited.
f. Tenant may assign this Lease or sublet the Premises or any part thereof
to a subsidiary or controlled or affiliated concern of Tenant and of its parent,
or a surviving company of a merger or consolidation of any of the foregoing
without the Landlord's consent. Tenant is expressly granted consent to assign or
sublet the Premises, or any portion thereof, to a wholly owned subsidiary.
29. SUBORDINATION. This Lease shall be subject and subordinate at all times to
the lien of any mortgages and/or other encumbrances, common right-of-way's,
easements and similar items existing or hereafter placed upon the Premises by
Landlord, or with the permission of Landlord, without the necessity of any
further instrument or act on the part of Tenant to effectuate such
subordination. Tenant agrees, however, at the election of a mortgagee, to attorn
to any holder of any mortgage to which this Lease is subordinate. Tenant agrees
to
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execute and deliver promptly upon demand, and without charge, such further
instrument or instruments evidencing such subordination of this Lease to the
lien of any mortgage and/or other encumbrance. Tenant hereby irrevocably
appoints Landlord as Tenant's attorney in fact to execute and deliver such
instrument or instruments for and in the name of the Tenant provided same have
not been executed by Tenant within ten (10) days after Landlord's notice to
Tenant.
Landlord agrees that the subordination of the Lease to any future mortgage
relating to the Premises shall be conditional and contingent upon any such
mortgagee's agreeing that, so long as Tenant is not in default under the terms
and conditions of the Lease, such mortgages shall not disturb Tenant's use,
possession and occupancy of the Premises.
30. CERTIFICATIONS. Tenant agrees, within ten (10) days after Landlord's notice,
to execute, acknowledge and deliver to Landlord a written instrument in
recordable form certifying: (1) that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same are in full force
and effect as modified and stating the modifications); (2) that the Tenant has
accepted possession of the Premises and the date on which the term of the Lease
commenced; (3) the dates to which rent and additional rent have been paid in
advance, if any; (4) whether or not to the best knowledge of the signer of such
certificate, Landlord is in default in the performance of any covenant of this
Lease, and, if so, specifying each such default of which the signers may have
knowledge; (5) any other reasonable stipulation as may be required and/or
requested by Landlord. It is understood that such instrument may be relied upon
by a prospective purchaser of the fee or any mortgagee of the Premises.
Tenant shall provide to Landlord, if requested, its latest audited
financial statement, accurately reflecting its financial condition for the
latest fiscal year of Tenant. It is understood that such statement may by relied
upon by a prospective purchaser of the fee or any mortgagee of the Premises.
31. DEFAULT AND REMEDIES.
a. Default. The occurrence of any of the following shall constitute a
material default and breach of this Lease by Tenant:
(1) Failure of Tenant to accept possession of the Premises within
thirty (30) days after the effective date of the Lease;
(2) The vacating or abandonment of the Premises by Tenant;
(3) The failure by Tenant to pay, when due, any installment of rent
hereunder or any additional rent or any such other sum herein required to be
paid by Tenant;
(4) A failure by Tenant to observe and perform any other provision
or terms and conditions of this lease to be observed or performed by Tenant,
where such failure continues for fifteen (15) days (or a lesser time period when
an emergency or law requires or makes such a reduction for abatement and/or
correction prudent; or when a lessor of non notice provision is specifically
provided for in any covenant of this Lease) after written notice thereof from
Landlord to Tenant provided, however, that if the nature of the default is such
that the same cannot reasonably be cured within such fifteen (15) day period,
Tenant shall not be deemed to be in default if Tenant shall within such period
commence such cure and thereafter diligently prosecute the same to completion;
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b. Remedies. Upon the occurrence of any such event of default set forth
above;
(1) Landlord may (but shall not be required to) perform for the
account of Tenant the curing of any default of Tenant and immediately recover as
additional rent any expenditure made and the amount of any obligations incurred
in connection therewith, plus interest at the rate of four percent (4%) per
annum over the Midlantic National Bank/South prime rate from the date of such
expenditure;
(2) Tenant may cure any monetary default by making payment of the
monies due, together with a late charge of 5% of the amount due not later than
ten (10) calendar days after notice of the default has been given to Tenant. If
said default should continue for a longer period, Landlord may accelerate all
rent and additional rent due for the succeeding nine (9) months of the term of
this Lease and declare the same to be immediately due and payable.
(3) Tenant may cure any non-monetary default by correcting the
default condition described in Landlord's notice to Tenant if said corrections
are completed within twenty (20) calendar days after notice of the default has
been given to Tenant. If said default should continue for a longer period,
Landlord may accelerate all rent and additional rent due for the succeeding nine
(9) months of the term of this Lease and declare the same to be immediately due
and payable.
(4) In the event of default, and the failure of Tenant to cure same
within the designated time period, Landlord, at its option, may serve notice
upon Tenant that this Lease and the then unexpired term hereof and all renewal
options shall cease and expire and become absolutely void on the date specified
in such notice, to be not less than five (5) days after the date of such notice
without any right on the part of the Tenant to save the forfeiture by payment of
any sum due or by the performance of any terms, provision, covenant, agreement
or condition broken; and, thereupon and at the expiration of the time limit in
such notice, this Lease and the term hereof granted, as well as the right, title
and interest of the Tenant hereunder, shall wholly cease and expire and become
void in the same manner and with the same force and effect (except as to
Tenant's liability) as if the date fixed in such notice were the date herein
granted for expiration of the term of this Lease. Thereupon, Tenant shall
immediately quit and surrender to Landlord the Premises, and Landlord may enter
into and repossess the Premises by summary proceedings, detainer, ejectment or
otherwise and remove all occupants thereof and, at Landlord's option, any
property thereon without being liable to indictment, prosecution or damages
therefor. No such expiration or termination of this Lease shall relieve Tenant
of its liability and obligations under this Lease, whether or not the Premises
shall be relet;
(5) Landlord may, at any time after the occurrence of any event of
default, re-enter and repossess the Premises and any part thereof and attempt in
its own name, as agent for Tenant if this Lease not be terminated or in its own
behalf if this Lease be terminated, to relet all or any part of such Premises
for and upon such terms and to such persons, firms or corporations and for such
period or periods as Landlord, in its sole discretion, shall determine,
including the term beyond the termination of this Lease; and Landlord shall not
be required to accept any tenant offered by Tenant or observe any instruction
given by Tenant about such reletting or do any act or exercise any care or
diligence with respect to such reletting or to the mitigation of damages. For
the purpose of such reletting, Landlord may decorate or make repairs, changes,
alterations
15
or additions in or to the Premises to the extent deemed by Landlord desirable or
convenient; and the cost of such decoration, repairs, changes, alterations or
additions shall be charged to and be payable by Tenant as additional rent
hereunder, as well as any reasonable brokerage and legal fees expended by
Landlord; and any sums collected by landlord from any new tenant obtained on
account of the Tenant shall be credited against the balance of the rent due
hereunder as aforesaid. Tenant shall pay to Landlord monthly, on the days when
the rent would have been payable under this Lease, the amount due hereunder less
the amount obtained by Landlord from such new Tenant;
(6) The parties recognize and agree that the damage to Landlord
resulting from any failure by Tenant to timely surrender possession of the
Premises will be substantial, will exceed the amount of the monthly installments
of the Rent payable hereunder, and will be impossible to measure accurately.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord upon the expiration date or sooner termination of the Lease, in
addition to any other rights or remedies Landlord may have hereunder or at law,
Tenant shall pay to Landlord, as liquidated damages, for each month and for each
portion of any month during which Tenant holds over in the Premises after the
expiration date or sooner termination of this Lease, a sum equal to two times
the aggregate of that portion of Base Annual Rent and Additional Rent that was
payable under this Lease during the last month of the Term.
(7) Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the expiration date or sooner
termination of the Lease.
(8) In addition to all remedies provided herein or by law, Tenant
shall pay to Landlord reasonable attorneys fees and court costs and any other
expenses incurred as a result of such breach or default.
32. BANKRUPTCY.
a. Anything elsewhere in this lease to the contrary notwithstanding, this
Lease may be cancelled by Landlord by the sending of a written notice to Tenant
within a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor; or (2) the making by Tenant of an assignment
or any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
premises demised but shall forthwith quit and surrender the premises. If this
Lease shall be assigned in accordance with its terms, the provisions of this
Article 31 shall be applicable only to the party then owning Tenant's interest
in this Lease.
b. It is stipulated and agreed that in the event of the termination of
this Lease pursuant to (a) hereof, Landlord shall forthwith, notwithstanding any
other provisions of this Lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rent reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such
16
premises or any part thereof be re-let by the Landlord for the unexpired term of
said Lease, or any part thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of rent reserved upon
such reletting shall be deemed to be the fair and reasonable rental value for
the part or the whole of the premises so re-let during the term of the
re-letting. Nothing herein contained shall limit or prejudice the right of the
Landlord to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
33. EXPIRATION. Upon the expiration date of this Lease or prior termination
specified by Landlord pursuant to notice as provided for elsewhere in this
Lease: (a) Tenant shall remove all of its personal property from the Premises;
(b) Tenant shall peacefully quit and surrender to Landlord the Premises, broom
clean and in the same condition in which Tenant has agreed to keep it during the
Term. Tenant's obligation to observe or perform this covenant shall survive the
expiration or prior termination date of this Lease; (c) Tenant, for itself and
on behalf of any and all persons claiming through or under it, including, but
not limited to, creditors of every kind, shall and does hereby waive and
surrender all rights and privileges which it may have under or by reason of any
present or future law, to redeem the Premises or to have a continuance of this
Lease; (d) Landlord may enter and repossess the Premises as of Landlord's former
estate and expel Tenant, and those claiming through or under Tenant from the
Premises; (e) Landlord may remove from the Premises any property of Tenant
and/or the property of those cliaming through or under Tenant and, without
notice to Tenant or others, sell such property or any part thereof at public or
private sale or Landlord may treat such property or any part thereof as
abandoned and dispose of same in any manner as Landlord, at its option, elects,
all at the risk and cost of Tenant and without any liability to Landlord
whatsoever.
If during the last month of the term or prior termination, Tenant has
removed all or substantially all of the Tenant's property from the Premises,
Landlord may, without notice to Tenant, immediately enter the Premises to
renovate and decorate the Premises, without liability to Tenant and without
reducing or otherwise affecting Tenant's obligations hereunder.
34. USE AND OCCUPANCY ON HOLDOVER. Tenant agrees that if possession of the
Premises is not surrendered to Landlord upon the expiration date or sooner
termination of the Lease, in addition to any other rights or remedies Landlord
may have hereunder or at law, Tenant shall pay to Landlord, as use and
occupancy, for each month and for each portion of any month during which Tenant
holds over in the Premises after the expiration date or sooner termination of
this Lease, a sum equal to two times the aggregate of that portion of Base
Annual Rent and Additional Rent that was payable under this Lease during the
last month of the Term.
Nothing herein contained shall be deemed to permit Tenant to retain
possession of the Premises after the expiration date or sooner termination of
the Lease.
17
35. NON-WAIVER BY LANDLORD. Landlord may restrain any breach or threatened
breach of any covenant of this Lease by Tenant. However, the recitation herein
of any particular remedy shall not preclude the Landlord from any other remedy
it may have, either at law or in equity. Landlord, at its option, may pursue
more than one remedy available either concurrently or separately. The failure of
Landlord to insist upon the strict performance of any one of the terms and
conditions of this Lease or to exercise any right, remedy or election provided
for in this Lease, or permitted by law, shall not constitute or be construed as
a waiver or relinquishment of such right, remedy or election. Landlord may, at
its option, mitigate any damages caused or arising out of Tenant's breach of any
of the terms and conditions of this Lease, but shall not be under any obligation
or duty to do so. Any rights and remedies of Landlord, whether created by the
terms of this Lease or existing at law, in equity, or otherwise, shall be
distinct, separate and cumulative and no one of them, whether exercised by
Landlord or not, shall be deemed to be in exclusion of any other.
No covenant of this Lease shall be deemed to have been waived by Landlord
unless such waiver is in writing, signed by Landlord.
36. QUIET ENJOYMENT. Landlord covenants that upon Tenant observing and
performing all the terms and conditions of this Lease, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises for the term
aforementioned.
37. BILLS/NOTICES. Except as otherwise provided in this Lease, any bill,
statement, or notice shall be deemed sufficient if written and delivered to
Tenant personally or sent by certified mail, return receipt requested, to Tenant
at the Premises. The time of mailing of such bill or statement and of the giving
of such notice or communication shall be deemed to be the time when same is
mailed to Tenant as herein provided. Any notice by Tenant to Landlord must be
served by certified mail, return receipt requested, to Landlord at the address
herein given or at such other address as Landlord shall designate.
38. WAIVER OF TRIAL BY JURY. Landlord and Tenant agree that the respective
parties shall and hereby do waive trial by jury in any action or proceeding
brought by either of the parties hereto against the other on any matters arising
out this Lease.
In any action brought by the Landlord against the Tenant, Tenant shall not
interpose any counterclaim against Landlord, but same shall be subject to an
independent action which is not to be consolidated with the Landlord's action.
This Lease shall be construed without regard to any presumption or other
rule requiring construction against the party causing this Lease to be drafted.
If Landlord institutes a dispossess or eviction action in response to
Tenant's refusal to vacate the Premises, Tenant waives its right to invoke
N.J.S.A. 2A.18-60. In any action brought by the Landlord against the Tenant,
Tenant shall not interpose any counterclaim against Landlord, but same shall be
subject to an independent action which is not to be consolidated with the
Landlord's action.
39. SIGNS. The Tenant shall not place nor allow to be placed any signs upon or
about the exterior of the building or the grounds of the
18
Premises, or other property of Landlord unless of a design and structure and at
such locations as shall be first approved by the Landlord and then the
appropriate governmental authorities and/or agencies, if required.
Tenant, shall pay, as additional rent, all costs and charges incurred by
Landlord related to the installation, repair, maintenance, or replacement of all
signs related to the Tenant within the Cherry Hill Industrial Center.
40. BROKER. Tenant represents to Landlord that it has not dealt with any
brokerage company regarding this Lease. Tenant shall hold and keep Landlord
harmless from and against any claim for brokerage commissions and all
liabilities and expenses arising therefrom.
41. NO REPRESENTATIONS. (a) Tenant has rented the Premises after a complete
inspection and examination of its present condition and without any
representation on the part of the Landlord, its agents, employees, and similar
parties as to the condition or usefulness of the Premises; (b) Tenant does not
acquire any rights, easements or licenses by implication or otherwise, except as
are specifically provided for herein; (c) Tenant's possession of the Premises
shall be conclusive evidence that the Premises were in good and satisfactory
condition at the time Tenant took possession and that Tenant accepted same "as
is" and in its present condition without any express or implied warranties; (d)
upon execution of this Lease or anytime thereafter Tenant assumes the full and
sole responsibility for the condition, safety, operation and management of the
Premises pursuant to the terms and conditions contained herein.
42. LANDLORD'S APPROVAL. Except where specifically stated otherwise:
Whenever Landlord's approval or consent is required pursuant to any term
or condition of this Lease, such approval shall be in writing and in advance for
each occurrence. Landlord is under no duty or obligation to grant approvals.
Whenever this Lease provides for a Landlord's option, it is agreed such
does not imply or constitute a duty or an obligation of Landlord.
Whenever this Lease provides for Landlord's approval which shall not be
unreasonably withheld, it is agreed that Tenant's remedy in the event of
Landlord's non-approval is limited to specific performance.
43. NET LEASE. It is intended that the rent and additional rent reserved
hereunder shall be an absolutely net return to the Landlord throughout the Term.
The rent and additional rent reserved hereunder shall be paid to the Landlord
without any claim on the part of Tenant, or those claiming under Tenant, for
diminution, setoff, deduction, or abatement except as is specifically provided
for herein.
Tenant's obligation to pay rent and additional rent hereunder, and to
perform the terms and conditions of this Lease shall in no way be affected,
impaired or excused because Landlord is unable to fulfill any of its obligations
hereunder, or because Tenant's use and occupancy of the Premises is disturbed,
for any reason other than "as is" specifically provided for herein.
44. LANDLORD'S BREACH. Tenant shall look solely to a sum that shall not exceed
twenty percent (20%) of the net annual rental or ten
19
percent (10%) of the balance of the term rent, whichever is less, for the
satisfaction of the remedies of Tenant in the event of a breach by Landlord of
any of the covenant(s) of this Lease.
45. TENANTS WARRANTY. Tenant warrants that if it is a corporation that: (a) it
is duly incorporated and/or qualified under the laws of the State of NEW JERSEY
and is authorized to do business in the State of New Jersey and is in good
standing; (b) all necessary corporate action necessary to authorize the
execution of this Lease upon the terms and conditions set forth herein have been
duly taken; and (c) the officer(s) executing and delivering this Lease have been
duly authorized to bind the corporation to the terms and conditions herein
contained.
46. ADVERSE POSSESSION. Tenant shall not suffer or permit the Premises, or any
portion thereof, to be used without restriction or in such a manner as might
reasonably tend to impair Landlord's title to the Premises or in such manner as
might reasonably make possible claims of adverse usage or adverse possession, or
of implied dedication of the Premises or any portion thereof.
47. COMPLIANCE WITH THE NJ ENVIRONMENTAL CLEANUP RESPONSIBILITY ACT.
a. Tenant shall, at Tenant's own expense, comply with the Environmental
Cleanup Responsibility Act, N.J.S.A. 13:1K-6 et seq., the regulations
promulgated thereunder and any successor legislation and regulations, and any
amendments or additions thereto, (hereinafter referred to as "ECRA"). Tenant
shall, at Tenant's own expense, make all submissions to, provide all information
to, and comply with all requirements of, the Industrial Site Evaluation or its
successor ("Element") of the New Jersey Department of Environmental Protection
("NJDEP").
b. Tenant's obligations under this paragraph shall arise if there is any
closing, termination or transferring of operations of an industrial
establishment at the premises pursuant to ECRA, whether triggered by Landlord or
Tenant.
c. Provided this Lease is not previously cancelled or terminated by either
party or by operation of law, Tenant shall commence its submission to the
Element in anticipation of the end of the lease term no later than one (1) year
prior to the expiration of the lease term. Tenant shall promptly furnish to
Landlord true and complete copies of communications provided by Tenant to the
Element, and all documents, reports, directives, correspondence and oral or
written communications by the Element to Tenant. Tenant shall also promptly
furnish to Landlord true and complete copies of all sampling and tests taken at
and around the Premises. Tenant shall notify Landlord in advance of all meetings
scheduled between Tenant and NJDEP, and Landlord may attend all such meetings.
d. Should the Element or any other division of NJDEP determine that a
cleanup plan be prepared and that a cleanup be undertaken because of a spill or
discharge of a hazardous substance or waste at the Premises which occurred
during the term of the Lease, Tenant shall, at Tenant's own expense, promptly
prepare and submit the required plan and financial assurances and shall promptly
carry out the approved plans.
e. At no expense to Landlord, Tenant shall promptly provide all
20
information requested by Landlord or NJDEP for preparation of a
non-applicability affidavit, de minimus quantity exemption application, negative
declaration application, limited conveyance application or other submission and
shall promptly sign such affidavits and submissions when requested by Landlord
or NJDEP.
f. Should Tenant's operations at the Premises be outside of those
industrial operations covered by ECRA, Tenant shall, at Tenant's own expense,
obtain a letter of non-applicability or de minimus quantity exemption from the
Element prior to termination of the Lease term and shall promptly provide
Tenant's submission and the Element's exemption letter to Landlord. Should
Tenant obtain a letter of non-applicability or de minimus quantity exemption
from the Element, then Tenant shall, at Landlord's option, hire a consultant
satisfactory to Landlord to undertake sampling at the Premises sufficient to
determine whether or not Tenant's operations have resulted in a spill or
discharge of a hazardous substance or waste at or around the Premises. Should
the sampling reveal any spill or discharge of a hazardous substance or waste,
the Tenant shall, at Tenant's expense, promptly clean up the Premises to the
satisfaction of Landlord and NJDEP.
g. If Tenant fails to obtain either: (i) a non-applicability letter; (ii)
a de minimus exemption; (iii) a negative declaration; or (iv) final approval of
cleanup; (collectively referred to as "ECRA clearance") from the Element; or
fails to clean up the Premises pursuant to subparagraph (f) above, prior to the
expiration or earlier termination of the lease term, then upon the expiration or
earlier termination of the lease term Landlord shall have the option either to
consider the Lease as having ended or to treat Tenant as a holdover tenant in
possession of the Premises. If Landlord considers the lease as having ended,
then Tenant shall nevertheless be obligated to promptly obtain ECRA clearance
and to fulfill the obligations set forth in subparagraph (f) above. If Landlord
treats Tenant as a holdover tenant in possession of the Premises, then Tenant
shall monthly pay to Landlord double the regular and additional monthly rent
which Tenant would otherwise have paid, until such time as Tenant obtains ECRA
clearance and fulfills its obligations under subparagraph (f) above, and during
the holdover period all of the terms of this Lease shall remain in full force
and effect.
h. Tenant represents and warrants to Landlord that Tenant intends to use
the Premises for activities relating to the warehousing and distribution of
pharmaceutical products. Tenant's use of the Premises shall be restricted to the
classifications set forth above unless Tenant obtains Landlord's written prior
written consent to any change in use of the Premises. Prior to the commencement
date of Tenant's lease term, Tenant shall supply to Landlord an affidavit of an
officer of Tenant ("Officer's Affidavit") setting forth Tenant's SIC numbers and
a detailed description of the operations and processes Tenant will undertake at
the Premises, organized in the form of a narrative report including a
description and quantification of hazardous substances and wastes to be
generated, manufactured, refined, transported, treated, stored, handled or
disposed of at the Premises. Following commencement of the lease term, Tenant
shall notify Landlord by way of a supplemental Officer's Affidavit, as to any
changes in Tenant's operation, SIC number or use or generation of hazardous
substances and wastes. Tenant shall also supplement and update Officer's
Affidavit upon each anniversary of the commencement of the lease term. Tenant
shall not commence or alter any operations
21
at the Premises prior to (i) obtaining all required operating and discharge
permits or approvals, including, but not limited to, air pollution control
permits and pollution discharge elimination system permits from NJDEP, all
governmental or public authorities having jurisdiction over Tenant's operations
or the Premises, and (ii) providing copies of permits and approvals to Landlord.
i. Tenant shall permit Landlord and Landlord's agents, servants and
employees, including but not limited to, legal counsel and environmental
consultants and engineers, access to the Premises for the purposes of
environmental inspections and sampling during regular business hours, or during
other hours either by agreement of the parties or in the event of any
environmental emergency. Tenant shall not restrict access to any part of the
Premises, and Tenant shall not impose any conditions to access. In the event
that Landlord's environmental inspection shall include sampling and testing of
the Premises, Landlord shall use its best efforts to avoid interfering with
Tenant's use of the Premises, and upon completion of sampling and testing shall
repair and restore the affected areas of the Premises from any damage caused by
the sampling and testing.
j. Tenant's indemnification of Landlord as set forth elsewhere within this
Lease shall extend to any and all claims, liabilities, losses, damages, and
costs, foreseen or unforeseen, including without limitation counsel, engineering
and other professional or expert fees, which Landlord may incur by reason of
Tenant's action or non-action with regard to Tenant's obligations under this
paragraph.
k. This paragraph shall survive the expiration or earlier termination of
this Lease. Tenant's failure to abide by the terms of this paragraph shall be
restrainable by injunction without limiting Landlord's right to remedy as
provided for elsewhere in this Lease.
48. RESPONSIBILITY FOR HAZARDOUS SUBSTANCES
a. Hazardous Substances: The term "Hazardous Substances", as described in
this Lease, shall include, but shall not be limited to, flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyls (PCBs), chemicals
known to cause cancer or reproductive toxicity, pollutants, contaminants,
hazardous wastes, toxic substances or related materials, petroleum and petroleum
products, and substances declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any governmental
authority.
b. Tenant's Restrictions: Tenant shall not cause or permit to occur:
(1) Any violation of any federal, state, or local law, ordinance, or
regulation now or hereafter enacted, related to environmental conditions on,
under, or about the Premises, or arising from Tenant's use or occupancy of the
Premises, including, but not limited to, soil and ground water conditions; or
(2) The use, generation, release, manufacture, refining, production,
processing, storage, or disposal of any Hazardous Substance, on, under or about
the Premises, or the transportation to or from the Premises of any Hazardous
Substance, except as specifically required during the lawful conduct of Tenant's
permitted use, as such is defined elsewhere herein.
c. Environmental Clean-Up
(1) Tenant shall, at Tenant's own expense, comply with all laws
regulating the use, generation, storage, transportation, or disposal of
Hazardous Substances ("Laws").
22
(2) Tenant shall, at Tenant's own expense, make all submissions to,
provide all information required by, and comply with all requirements of all
governmental authorities (the "Authorities") under the Laws.
(3) Should the Authority or any third party demand that a cleanup
plan be prepared and that a cleanup be undertaken because of any deposit, spill,
discharge, or other release of Hazardous Substances that occurs during the term
of the Lease, at or from the Premises, or which arises at any time from Tenant's
use or occupancy of the Premises, then Tenant shall, at Tenant's own expense,
prepare and submit the required plans and all related bonds and other financial
assurances; and Tenant shall carry out all such cleanup plans in a timely
manner.
(4) Tenant shall promptly provide all information regarding the use,
generation, storage, transportation, or disposal of Hazardous Substances that is
requested by the Landlord. If Tenant fails to fulfill any duty imposed under
this sub-paragraph within a reasonable time, Landlord may do so; and in such
case, Tenant shall cooperate with Landlord in order to prepare all documents
Landlord deems necessary or appropriate to determine the applicability of the
Laws to the Premises and Tenant's use thereof, and for compliance therewith, and
Tenant shall execute all documents promptly upon Landlord's request. No such
action by Landlord and no attempt made by Landlord to mitigate damages under any
Law shall constitute a waiver of any of Tenant's obligations under this
sub-paragraph c.
d. Tenant's Indemnity.
Tenant shall indemnify, defend and hold harmless Cherry Hill
Industrial Sites, Inc. as Landlord, Landlord and Contractor, and its officers,
directors, beneficiaries, shareholders, partners, agents, and employees from all
fines, suits, procedures, claims, and actions of every kind, and all costs
associated therewith (including attorneys' and consultants' fees) arising out of
or in any way connected with any deposit, spill, discharge, or other release of
Hazardous Substances that occurs during the term of this Lease, at or from the
Premises, or which arises at any time from Tenant's use or occupancy of the
Premises, or from Tenant's failure to provide all information, make all
submissions, and take all steps required by all Authorities under the Laws and
all other environmental laws.
e. Tenant's obligations and liabilities under this paragraph 48 shall
survive the natural expiration or sooner termination of this Lease.
f. Landlord represents that as of the date of the execution of this Lease,
Landlord has no knowledge of, and has not received any notice of any violation
from the NJDEP affecting the Premises.
49. ENVIRONMENTAL REPORTS. Tenant shall promptly provide Landlord with:
a. all documentation and correspondence provided to NJDEP pursuant to the
Worker and Community Right to Know Act, N.J.S.A. 34:5A-1, et seq. and the
regulations promulgated thereunder ("Right to Know Act"), and any amendments or
additions thereto,
b. all reports and notices made by Tenant pursuant to the Hazardous
Substances Discharge Reports and Notices Act, N.J.S.A. 13:1K-15 et seq., and the
regulations promulgated thereunder ("Reports and Notices Act"), and any
amendments or additions thereto, and
c. any notices, correspondence and submissions made by Tenant to NJDEP,
the United States Environmental Protection Agency (EPA), the
23
United States Occupational, Safety and Health Administration (OSHA), or any
other local, state or federal authority which requires submission of any
information concerning environmental matters or hazardous waste or substances.
50. ENVIRONMENTAL LIENS. Tenant shall promptly notify Landlord as to any liens
threatened or attached against the Premises pursuant to the Spill Act or any
other environmental law. In the event that such a lien is filed against the
Premises, then Tenant shall, within thirty (30) days from the date that the lien
is placed against the Premises, and at any rate prior to the date any
governmental authority commences proceedings to sell the Premises pursuant to
the lien, either: (a) pay the claim and remove the lien from the Premises; or
(b) furnish either (i) a bond satisfactory to Landlord in the amount of the
claim out of which the lien arises, (ii) a cash deposit in the amount of the
claim out of which the lien arises, or (iii) other security satisfactory to
Landlord in an amount sufficient to discharge the claim out of which the lien
arises.
51. BINDING OFFER. It is understood and agreed by the Landlord and Tenant that
this Lease is an offer only and is submitted to Tenant for signature with the
understanding that it shall not bind Landlord unless and until it has been
executed by Landlord.
52. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between the
parties. No representative, agent, or employee of the Landlord has been
authorized to make any representations or promises or to vary, alter or modify
the covenants hereof. No additions, changes, modifications, renewals or
extensions of this Lease shall be binding unless reduced to writing and signed
by the Landlord and the Tenant.
This Lease may not be cancelled or terminated by Tenant without the
consent of Landlord except as is specifically provided for elsewhere in this
Lease.
53. APPLICATION AND DURATION. Wherever in this Lease an obligation is imposed
upon or required of Tenant, same shall be at Tenant's sole cost and expense.
Obligation of Tenant pursuant to the terms and conditions of this Lease
are: (a) for the Premises as set forth in exhibit "A" unless extended in scope
pursuant to any particular provision and/or as the sense and circumstances of
the text may require; (b) for the duration/term of the Lease unless having
application before the commencement date and/or if they survive the expiration
date or prior termination date pursuant to any provision contained herein.
54. VALIDITY. The terms and conditions of this Lease shall be deemed severable,
if any clause or provision herein shall be adjudged to be invalid or
unenforceable by a court of competent jurisdiction or by the operation of any
applicable law, such an occurrence shall not affect the validity of any other
clause and/or provision herein, and this Lease and such other clauses and
provision shall remain in full force and effect.
Landlord, however, at its option, may pursue the relief or remedy sought
in any invalid clause by conforming the said clause with the provision of the
statutes or the regulation of any governmental agency as if the particular
provisions of the applicable statutes or
24
55. COUNTERPARTS. This Lease may be executed in several counterparts, each of
Which shall be deemed to be an original copy, and all of which taken together
shall constitute one agreement binding on all parties hereto, notwithstanding
that the parties shall not have signed the same counterpart.
56. GENDER NEUTER. In all references herein to any pronouns, parties, persons,
entities, or corporation, the use of any particular gender or the plural or
singular number is intended to include the appropriate gender or number as the
sense and circumstances of the context may require.
57. BINDING AGREEMENT. All the terms and conditions contained herein shall be
for and shall inure to the benefit of and shall bind the respective parties
hereto, their heirs, successors and assigns.
58. APPLICABLE LAW. Landlord and Tenant agree that this Lease and any suits
and/or special proceedings under it will be governed and construed pursuant to
the laws of the State of New Jersey.
59. CAPTIONS. The captions are inserted only as a matter of convenience and in
no way define, limit or describe the scope of this Lease nor the intent of any
covenant thereof.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed this
Lease as of the date written.
CHERRY HILL INDUSTRIAL SITES, INC.
/s/ [Illegible] Date: 11/12/96 By: /s/ Paul Heise
- -------------------------- -------------------------------
Witness as to Landlord Paul Heise, President
MARSAM PHARMACEUTICALS
/s/ [Illegible] Date: 11/12/96 By: /s/ Marvin Samson
- -------------------------- -------------------------------
Witness as to Tenant Marvin Samson, President
25
ESTOPPLE CERTIFICATE
TO: SUN NATIONAL BANK
WHEREAS, CHERRY HILL INDUSTRIAL SITES, INC., ("the landlord") has entered
into a lease (the "Lease") with MARSAM PHARMACEUTICALS, INC. ("Tenant") for the
rental of the property located in Building #15, 20 Olney Avenue, Cherry Hill
Township, New Jersey ("Premises"); and
WHEREAS, Landlord has applied to Sun National Bank ("Bank") for a loan
which is secured in part by a mortgage encumbering the Premises;
NOW, THEREFORE, the undersigned, party to the Lease confirms the
following:
1. A true, complete and correct copy of the Lease has previous been
provided to the bank by the Landlord. The Lease is presently in full
force and effect; it has not been amended or modified in any way,
and it represents the entire agreement between Landlord and Tenant.
2. The term of the Lease commenced on March 1, 1994, and will expire on
September 30, 1999. Full rental at the rate per month as set forth
in the Lease is currently accruing thereunder.
3. Tenant has accepted possession of the Premises pursuant to the terms
of the Lease and is in occupancy thereof. All construction and/or
improvements required by the Lease have been completed.
4. Tenant, as of this date, has no claim or offset under the Lease or
otherwise, against rents or other charges due to or become due
thereunder.
5. All rentals and other charges due and payable under the Lease by
Tenant have been paid up to date. No rent under the Lease has been
or will be paid more than thirty (30) days in advance of its due
date.
6. Neither Tenant nor Landlord is now in default in the performance of
any of their respective obligations under the lease.
7. Tenant has not assigned its interest in the Lease, and Tenant has
received no notice of any assignment of the rents accruing under
the Lease.
8. Landlord is holding no security deposit.
9. Tenant has an agreement to purchase the premises. A copy of which
has been previously provided the Bank by the landlord.
10. Tenant acknowledges that the Bank is relying upon this Estoppel
Certificate in making the Loan to Landlord.
11. Tenant further acknowledges that Tenant will not look to the Bank as
mortgagee, mortgagee in possession, or successor in title to the
Premises for the accountability for any future security deposit held
by Landlord, or any successor landlord, unless said sums have
actually been received by said mortgagee.
IN WITNESS WHEREOF, the party hereto intending to be legally bound hereby
has affixed hand and seal the 24th day of February, 1997.
TENANT: MARSAM PHARMACEUTICALS, INC.
BY: /s/ [Illegible]
- ------------------------ -----------------------------
Witness
/s/ Dale Desanto Witness
- ------------------------ --------------------------------
SA_9315c
AGREEMENT OF SALE
MODIFICATION SUPERSEDING PRIOR AGREEMENT OF SALE
BETWEEN THE PARTIES DATED JANUARY 18, 1994
This Agreement made this 12th day of November, 1996 by and between CHERRY
HILL INDUSTRIAL SITES, INC., a New Jersey corporation, whose address is 1998
Springdale Road, Cherry Hill, NJ 08003 (hereinafter referred to as the
"Seller"), and MARSAM PHARMACEUTICALS INC., a Delaware corporation, whose
address is Building 31, Olney Avenue, Cherry Hill, New Jersey 08003 (hereinafter
referred to as the "Buyer").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained, the parties,
intending to be legally bound, agree as follows:
1. AGREEMENT TO SELL AND PURCHASE. Seller hereby agrees to sell and convey to
Buyer, and Buyer agrees to purchase from Seller approximately 8.50 acres of land
and the building known as Building #l5 located on that certain premises
designated as Lot 1, Block 490.01 on the Tax Map of Cherry Hill Township) on the
Tax Map of the Township of Cherry Hill, County of Camden, State of New Jersey,
as more particularly described in Exhibit A attached hereto, together with all
right, title and interest and estate of Seller in and to the Premises, and the
tenements, hereditaments, appurtenances, and any right of ways and easements
appurtenant thereto; all right title and interest of Seller, if any, in and to
(i) the land lying in the bed of any street or highway in front of or adjoining
the Premises to the center line thereof, (ii) any unpaid award for any taking by
condemnation or any damage to the Premises by reason of a change of grade of any
street or highway, (iii) all improvements located on the Premises, and (iv) all
tangible and intangible rights and interests with respect to the Premises;
subject to the terms and conditions contained herein (the "Premises").
The descriptions attached hereto in Exhibit A have been prepared and
certified by the Seller's surveyor.
2. PURCHASE PRICE. The purchase price for the Premises is FIVE MILLION AND THREE
HUNDRED EIGHTEEN THOUSAND NINE HUNDRED AND NINETY DOLLARS AND ZERO CENTS
($5,318,990.00) ("Purchase Price"), which shall be payable as follows:
a. Buyer has deposited with Seller the sum of TWO HUNDRED FIFTY THOUSAND
and No/100 DOLLARS ($250,000.00) (the "Deposit"). Seller shall hold the DEPOSIT
in a separate interest-bearing account.
The Deposit shall be paid to and deposited in escrow with the Seller and
shall be held by the Seller in an interest bearing separate account. Except as
otherwise provided in this Agreement, the Deposit shall be (i) kept by Seller
until the second installment payment is made by buyer, as provided in this
agreement; (ii) paid to Buyer upon either a permitted termination of this
Agreement as provided herein or a default hereunder by Seller as provided in
this Agreement; or (iii) kept by Seller
upon a failure hereunder by Buyer to pay the balance of the Purchase Price as
provided in Paragraph 2.b of this Agreement.
All interest accruing on the deposit shall be kept by the seller.
b. Closing shall take place at the office of Seller located at 1998
Springdale Road, Cherry Hill, New Jersey, 08003; or such other place as may be
designated by Seller, no sooner than October 1, 1999 but not later than October
6, 1999.
Buyer shall make a payment of FIVE MILLION AND THREE HUNDRED
EIGHTEEN THOUSAND NINE HUNDRED AND NINETY DOLLARS AND ZERO CENTS
($5,318,990.00) ("Purchase Price") less the deposit referrenced in paragraph 2a,
by cash, or wire transfer into Seller's account, or such other account as Seller
may designate.
The following adjustments and payments shall be made at Closing:
a. Real property taxes for the then current year relating to the Premises
shall be adjusted as of the date of Closing. If the Closing shall occur before
the tax rate is fixed, the apportionment of taxes shall be on the basis of the
tax rate for the immediately preceding year, applied to the latest assessed
valuation;
b. Any assessments levied on the property shall be paid by Buyer;
c. Buyer shall pay the New Jersey Realty Transfer Tax in connection with
the conveyance (which obligation shall survive Closing);
d. Mortgages, liens or judgments of record shall be paid or otherwise
satisfied by Seller in accordance with the terms of this Agreement; and
e. The parties shall each be solely responsible for the fees and expenses
of their respective counsel.
The Deposit shall be paid to and deposited in escrow with the Seller and
shall be held by the Seller in an interest bearing separate account. Except as
otherwise provided in this Agreement, the Deposit shall be (i) kept by Seller
until the second installment payment is made by buyer, as provided in this
agreement; (ii) paid to Buyer upon either a permitted termination of this
Agreement as provided herein or a default hereunder by Seller as provided in
this Agreement; or (iii) kept by Seller upon a failure hereunder by Buyer to pay
the balance of the Purchase Price as provided in Paragraph 2.b of this
Agreement.
3. TITLE TO PREMISES. At Closing, Seller shall convey to Buyer, by special
warranty deed, good and marketable title of record in fee simple to the
Premises. All costs related to closing shall be paid by Buyer. Such costs shall
be deemed to include real property taxes, real estate transfer taxes, sewer
charges and other municipal and local taxes, assessments and levies upon the
property which are required by the title company or Buyer's lender to be paid.
The Buyer shall be required to accept at closing those restrictions of
record that may appear on the title report to be issued by Continental Title
Insurance Company, 8000 Sagemore Drive, Suite 8202, Marlton, NJ 08053 (Required
Encumbrances). Buyer further agrees that it will execute the easements, attached
hereto as Exhibits B and C, relating to the private road system in the
industrial center in which building #31 and this premises are situated. Buyer
acknowledges that the documents will be recorded along with the deed.
The Seller represents and warrants to the Buyer that it presently has
marketable title in fee simple to the premises subject only to those exceptions
listed in the title report, to be provided. The Seller further warrants that it
will not cause or permit any adverse changes in its title to the premises at any
time prior to the Closing of Title. If the title report requires actions or
payments by the Seller in order to preserve Seller's title, the Seller will
promptly make all of said payments and will promptly perform all of said acts
without permitting any default.
If at the Closing Date there may be any mortgages, liens or encumbrances
which Seller is obligated to pay and discharge, Seller may use all or any
portion of the Purchase Price payable at the Closing to satisfy the same,
provided (i) Seller shall simultaneously deliver instruments in recordable form
and sufficient to satisfy such mortgages, liens and encumbrances of record
together with the cost of recording or filing said instruments which the title
company employed by Buyer shall approve in order to omit such mortgages, liens
and encumbrances from Buyer's title insurance commitment; or (ii) Seller shall
have made arrangements with the title company employed by Buyer in advance of
Closing, which are acceptable to and required by it, to insure the obtaining and
recording of such satisfactions and the issuance of title insurance to Buyer
free of any such liens and encumbrances.
4. COMPLIANCE WITH ECRA. Buyer shall have the obligation of affirmatively
complying with all of the requirements of the New Jersey Environmental Cleanup
Responsibility Act, N.J.S.A. 13:1K-6 et seq ("ECRA"), or, in the alternative, to
obtain a letter of non-applicability stating that the transaction contained in
the agreement of sale is not a transaction which triggers the application of
ECRA.
In the event that the sale of the property requires that the property be
reviewed pursuant to ECRA, then Buyer shall notify the New Jersey Department of
Environmental Protection ("NJDEP") and submit all necessary forms and fees in a
timely manner so that closing is not delayed beyond the time designated in the
agreement.
Buyer shall indemnify, defend and hold Seller harmless from
and against all claims, liabilities, losses, damages and costs, foreseen and
unforeseen, including, without limitation, counsel, engineering and other
professional expert fees, which Seller may incur by reason of Buyer's action or
non-action with regard to Buyer's obligation under this paragraph. This
paragraph shall survive closing of title.
5. BUYER'S REPRESENTATIONS. Buyer represents and warrants to Seller that:
a. Buyer has the legal right, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby, and the
execution, delivery and performance of this Agreement have been duly authorized
and no other action by Buyer is requisite to the valid and binding execution,
delivery and performance of this Agreement;
b. The execution and performance of this Agreement shall not be a breach
or violation of any Agreement to which the Buyer is a party.
c. Buyer is acquiring the Property in reliance upon its own investigations
as well as Seller's warranties and representations set forth herein. The Buyer
is not relying upon any oral representations of the Seller that are not
otherwise set forth in writing herein.
6. SELLER'S REPRESENTATIONS. Seller represents and warrants to Buyer that:
a. Seller has the legal right, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby;
b. The Seller has not entered into any other Agreement for the sale of the
Premises nor does any person or entity other than Buyer have any right or option
to acquire the Premises.
c. Seller has not received written notice, and Seller is not aware, of
pending or contemplated condemnation proceedings affecting the Premises or any
part thereof as of the date of this Agreement, and, if Seller receives any such
written notice or such information prior to Closing, Seller agrees to provide
Buyer with such information, including a copy of any written notice.
d. Seller has not received written notice, and Seller is not aware, of any
default or breach under any covenant, condition, restriction, right-of-way or
easement affecting the Premises, or any portion thereof as of the date of this
Agreement, and, if Seller receives any such written notice or such information
prior to Closing, Seller agrees to provide Buyer with such information,
including a copy of any written notice.
e. Seller is a corporation of the State of New Jersey in good standing.
f. Seller has not received any written notice, and Seller is not aware, of
existing violations of any Federal, State, County, municipal or local laws,
ordinances, orders, regulations or requirements affecting the Premises as of the
date of this Agreement, and, if Seller receives any such written notice or such
information prior to Closing, Seller agrees to provide Buyer with such
information, including a copy of any written notice.
g. Seller has not received any written notice from the holder(s) of any
mortgages upon the Premises, any insurance company which has issued a policy
with respect to the Premises,
or any board of fire underwriters (or other body of similar functions) claiming
any default in Seller's performance under said documents and, if Seller receives
any such written notice prior to Closing, Seller agrees to provide Buyer with a
copy thereof.
h. Seller has received no written notice, and Seller is not aware, of any
litigation or administrative or governmental proceeding pending or threatened
against or relating to the title to the Premises or which would materially
adversely affect Buyer's purchase, ownership, operation of, construction and
development of the Premises as of the date of this Agreement, and, Seller shall
give to Buyer prompt notice of the institution of any such litigation or
proceeding prior to the Closing of which Seller receives written notice or of
which Seller becomes aware, and Seller agrees to provide Buyer with such
information including a copy of any written notice.
7. CONDITION OF THE PREMISES. Buyer acknowledges and agrees that, other than is
expressly set forth elsewhere in this Agreement, Seller has made no
representations or warranties regarding the Premises, including, without
limitation, its condition, its past use, or its suitability for Buyer's intended
use thereof, and that Buyer is acquiring the Premises on an "AS IS" basis.
8. ASSIGNABILITY. The Buyer may not assign its rights and duties under this
Contract.
9. NOTICE. All notices, requests, consents, approvals or other communications
under this Agreement shall be in writing and mailed by U.S. Registered or
Certified mail.
10. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors
and/or assigns.
11. AMENDMENT AND WAIVER. Any provisions of this Agreement may be amended or
waived, but only if such amendment or waiver is in writing and is signed by all
parties to this Agreement.
12. APPLICABLE LAW. This Agreement and the rights of the parties hereunder shall
be construed in accordance with and governed by the laws of the State of New
Jersey.
13. SEVERABILITY. In the event any one or more provisions of this Agreement
shall be determined to be void or unenforceable by a court of competent
jurisdiction or by law, such determination will not render this Agreement
invalid or unenforceable and the remaining provisions hereof shall remain in
full force and effect.
14. Said premises are sold and conveyed subject to the following:
(a) any state of facts an accurate survey or physical inspection may show
provided same does not render title
unmarketable; (b) covenants, restrictions, easements, reservations,
consents and agreements of record, if any, provided same are not violated
by the existing structure and present use thereof and/or render title
unmarketable; (c) rights, if any, acquired by the utility company to
maintain and operate lines, wires, cables, poles, etc., in, over, and upon
said premises; (d) street widenings, existing or proposed, if any,
provided same do not encroach on existing buildings or violate their
present use; (e) the violations of any covenant or restriction shall not
be deemed an objection to title provided the title company insuring title
shall agree to insure that such improvements may remain in their present
location as long as same shall stand.
15. Seller and Buyer each warrants and represents to the other that it has
dealt with no broker which would result in a commission or other
compensation being due with respect to the sale of the premises and Seller
and Buyer each agree to indemnify and hold the other harmless with respect
to any judgment, damages, legal fees, court costs and any liabilities of
any nature whatsoever arising from breach of its representation.
16. All prior understandings and agreements between Seller and Buyer are
merged into this agreement. It completely expresses their full agreement.
It has been entered into after full investigation, neither party relying
upon any statements made by anyone else that are not set forth in this
agreement.
17. If Seller is unable to transfer title to Buyer in accordance with this
agreement, Seller's sole liability shall be to refund all money paid on
account of this agreement, plus all charges made for (i) examining the
title; (ii) any appropriate additional searches made in accordance with
this agreement, and (iii) survey and survey inspection charges. Upon such
refund and payment this agreement shall be considered concelled, and
neither Seller nor Buyer shall have any further rights against the other.
18. The parties agree, subject to those contingencies and conditions to
closing contained herein, that in the event Buyer fails to comply with any
of the terms of this Agreement and closing does not take place on the
Closing date as set forth in this Agreement, then the damage which Seller
will sustain as a result thereof will be substantial but will be
difficult, if not impossible, to ascertain.
The parties therefore agree that in such event Seller's sole and
exclusive remedy shall be to terminate this Agreement, in which event all
obligations hereunder shall be deemed null and void, and to retain the
Deposit as liquidated damages, to recompense Seller for time spent, labor
and services performed, and loss of the benefit of its bargain.
19. Except as is otherwise specifically provided, no
representations or warranties by Seller shall survive the passage of the
deed.
20. Closing proceeds will be paid by certified or bank check or draft. Third
party endorsed checks, whether certified or bank checks, and uncertified
funding company, mortgage broker, attorney or private mortgage company
checks or drafts shall not be deemed to be acceptable funds hereunder.
21. In any construction of the terms of this agreement, none of its terms
shall be construed against the Sellers or their attorney by reason of the
fact that the Sellers or their attorney drew the agreement since the final
terms of this agreement are the result of negotiations by parties having
equal bargaining power, with each of the parties having full access to
legal representation.
22. Buyers, at least ten (10) days before the date scheduled for closing,
shall furnish Seller's attorney with any objections to title which may
have been returned by the title company or anyone examining title to the
premises, and if it appears from such objections or exceptions, that time
will be required within which to remove the same, then and in that event,
Sellers shall have reasonable adjournment or adjournments, from time to
time, within which to clear such objections or exceptions.
23. This agreement shall be considered only an offer on the part of the Buyers
and shall not be enforceable as against the Seller until executed by the
Seller.
IN WITNESS WHEREOF, the parties hereto have duly executed this Rider
on the day and year written below.
CHERRY HILL INDUSTRIAL SITES, INC.
A New Jersey Corporation
ATTEST:
/s/ [Illegible] By /s/ Paul Heise
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Secretary Paul Heise, President
MARSAM PHARMACEUTICALS
A Delaware Corporation
ATTEST:
/s/ [Illegible] By /s/ Marvin Samson
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Secretary Marvin Samson, President
Date: 11-12-96
[DIAGRAM]
THIS CERTIFICATION IS MADE ONLY TO ABOVE NAMED PARTIES FOR PURCHASE AND/OR
MORTGAGE TO HEREIN DELINEATED PROPERTY BY ABOVE NAMED PURCHASER. NO
RESPONSIBILITY OR LIABILITY IS ASSUMED BY SURVEYOR FOR USE OF SURVEY FOR ANY
OTHER PURPOSE INCLUDING, BUT NOT LIMITED TO, USE OF SURVEY FOR SURVEY AFFIDAVIT,
RELEASE OF PROPERTY, OR TO ANY OTHER PERSON NOT LISTED IN CERTIFICATION, EITHER
DIRECTLY OR INDIRECTLY. TO: ANY INSUROR OF TITLE RELYING HEREON AND ANY OTHER
PARTY IN INTEREST IN CONSIDERATION OF THE FEE PAID FOR MAKING THIS SURVEY, I
HEREBY CERTIFY TO ITS ACCURACY (EXCEPT SUCH EASEMENTS, IF ANY, THAT MAY BE
LOCATED BELOW THE SURFACE OF THE LANDS OR ON THE SRUFACE OF THE LANDS AND NOT
VISIBLE) AS AN INDUCEMENT FOR ANY INSUROR OF TITLE TO INSURE THE TITLE TO THE
LANDS AND PREMISES SHOWN THEREON. THIS RESPONSIBILITY LIMITED TO THE CURRENT
MATTER AS OF THE DATE OF THIS SURVEY."
/s/ Edward S. McConnell
---------------------------
EDWARD S. MCCONNELL
LICENSED SURVEYOR
NJ 17432
PA 17413
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PLAN OF SURVEY
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Building 15
Cherry Hill Industrial Sites
Cherry Hill Township
Camden County, NJ
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EDWARD S. MCCONNELL ASSOC.
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LAND SURVEYING & LAND PLANNING
P.O. Box 2202 Cherry Hill, N.J. 08034 (609) 482-0662
3119 Bayland Dr. Ocean City, N.J. 08226 (609) 398-8280
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PROJECT NUMBER DW'N. BY C K'D. BY
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102-57-93 [ILLEGIBLE] DAVID
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SCALE DATE
1" = 100' NOVEMBER 22, 1993
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