EXHIBIT 10.5
LEASE
GUARANTY
THIS LEASE GUARANTY (the
“Guaranty”) is made as of the
day of
March, 2005, by Koninklijke DSM, N.V ., a Dutch corporation,
whose mailing address is Post Bus 6500, 6401 JH Heerlen, The
Netherlands (the “ Guarantor ” ), in
favor of FALK US PROPERTY INCOME FUND, L.P., whose mailing
address is c/o Falk of North America, Inc., 6 Adelaide Street East,
Suite 310, Toronto, Ontario, Canada M5C 1H6 (the “
Landlord ” ).
W I T N E S S E T H:
WHEREAS, Bellemead Development
Corporation( “ Original Landlord ” ) and
Hoffman-LaRoche Inc. ( “ Original Tenant
” )
entered into that certain Standard Form of Net
Office Lease, dated November 6, 1996 (the “ Lease
” ) whereby Original Landlord leased to Original Tenant a
building consisting of approximately 106,680 rentable square feet
located at 45 Waterview Boulevard, Parsippany, New Jersey;
and
WHEREAS, Original Tenant assigned
its rights under the Lease to Roche Vitamins, Inc.( “
Roche Vitamins ” ) by assignment dated effective
as of January 1, 1997;
WHEREAS, Landlord purchased the
Demised Premises from Original Landlord, and Original Landlord
assigned its rights under the Lease to Landlord by Assignment and
Assumption Agreement, dated as of December 15, 1997; and
WHEREAS, Original Tenant, Roche
Vitamins, and DSM Nutritional Products, Inc.
(“Tenant”) entered into a Lease
Assignment and Assumption effective as of September 30, 2003
whereby Roche Vitamins and Original Tenant assigned their rights
under the Lease to Tenant, who purchased all or substantially all
of Roche Vitamin’s assets and assumed the obligations of
Original Tenant and Roche under the Lease; and
WHEREAS, the Initial Term of the
Lease will expire as of the 31 st day of August, 2007, and Landlord
and Tenant have agreed to extend the Initial Term for an additional
ten (10) years, and amend the Lease as more particularly described
below; and
WHEREAS, the Guarantor desires to
induce Landlord to enter into an amend to the Lease and to extend
the term of the Lease through August 31, 2017; and
WHEREAS, the entering into of the
amendment to Lease by Landlord and Tenant will be of direct
pecuniary advantage to Guarantor as the direct or indirect owner of
one hundred percent (100%) of the stock of Tenant;
NOW, THEREFORE, in consideration of
One Dollar ($1.00) paid by Landlord to Guarantor and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Guarantor hereby covenants and agrees with
the Landlord, as follows:
1. Unconditional Guarantee .
The Guarantor, as primary obligor, hereby (a) unconditionally
guarantees the prompt, punctual and full payment of the rent and
all other sums due under the Lease in accordance with the terms and
tenor thereof (including, but not limited to, any damages incurred
by Landlord as a result of any payment, performance or other
default by Tenant under the Lease to the extent such damages are
payable pursuant to the Lease) as completely and effectually as if
such guarantee had been made by Guarantor on the face of the Lease;
and (b) unconditionally covenants and agrees that in the event of
default in payments under any of the terms, covenants or conditions
thereof, the Guarantor will promptly make or cause such payment to
be made consistent with all such terms, covenants and conditions,
notwithstanding the invalidity or lack of enforceability thereof
due to the lack or power or authority of Tenant (or the person
executing the Lease on behalf of Tenant) to execute, deliver or
perform this Lease or due to any other action or omission of Tenant
or its agents, officers, employees or representatives.
2. Nature of Guaranty . This
Guaranty is and shall be construed to be an unconditional,
irrevocable, absolute, unlimited and continuing guaranty of payment
and performance.
3. Primary Liability of
Guarantor . The Landlord shall have the right to proceed
against Guarantor immediately upon any default by the Tenant in
payment or performance of any obligation under the Lease, and
Landlord shall not be required to take any action or proceedings of
any kind against the Tenant or any other party liable for the
Tenant’s debts or obligations or to look to any other
collateral Landlord may have for the obligations of Tenant under
the Lease. Should Landlord desire to proceed against Guarantor and
Tenant in the same action, Guarantor agrees that Guarantor may be
joined in any such action against Tenant and that recovery may be
had against Guarantor to the extent of Guarantor’s liability
in such action.
4. No Impairment .
Guarantor’s liability hereunder shall not be prejudiced,
impaired or affected by any of the following, whether with or
without Guarantor’s knowledge or consent: (a) any renewal or
extension of the time of payment of the rent or other sums due
under the Lease or of the time for performance by any party
obligated under the Lease; (b) any indulgence, forbearance or delay
in enforcing the payment of the rent or other sums due under the
Lease or enforcing the obligations of any party to the Lease; (c)
any modification, addition or alteration of the terms, tenor or
provisions of the Lease; (d) any assignment of the Landlord’s
or Tenant’s interest under the Lease; (e) the release of any
other collateral Landlord may hold for the obligations of Tenant;
(f) Landlord’s failure to file suit against Tenant
(regardless of whether Tenant is becoming insolvent, is believed to
be about to leave the state or any other circumstance); (g)
Landlord’s failure to give Guarantor notice of default by
Tenant, (h) the availability to Tenant of any setoff, counterclaim
or defense against Landlord unless based solely upon
Landlord’s failure to perform its obligations under the Lease
after requisite notice of default and reasonable opportunity to
cure as provided under the Lease; (i) Landlord’s failure to
exercise diligence in collection; (j) the merger, consolidation,
cessation of business, dissolution or liquidation of Tenant, (k)
the termination of any relationship of Guarantor with Tenant, or
(l) Tenant’s change of name or use of any name other than the
name used to identify Tenant in this Guaranty.
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5. Financial Condition of
Guarantor . If shares in Guarantor are publicly traded on a
United States national stock exchange or on the Amsterdam stock
exchange such that Guarantor is subject to securities disclosure
and financial reporting requirements pursuant to which quarterly
and annual financial reports are available on line via EDGAR or via
Guarantor’s website, Guarantor shall not be obligated to
furnish financial statements to Landlord. If, however, Guarantor is
not publicly traded such that financial reports are not available
for review online, the following financial reporting requirements
shall apply:
(i) On or before the 30th day of
each calendar quarter during the term of the Lease, Guarantor shall
submit to Landlord a current financial statement indicating
Guarantor’s current net worth and general financial
condition, including balance sheets and statements of income and
expenses for the preceding calendar quarter, certified as true and
correct by Guarantor’s chief financial officer.
(ii) Within ninety (90) days
following the expiration of Guarantor’s fiscal year, and no
less frequently than once every twelve (12) calendar months,
Guarantor shall submit to Landlord annual financial statements
prepared in accordance with generally accepted accounting
principles consistently applied and certified as true and correct
by Guarantor’s chief financial officer.
6. Compliance with Law .
Guarantor represents and warrants that Guarantor’s business
activities are conducted in accordance with all applicable laws and
regulations, and Guarantor covenants that such activities shall
continue to be so conducted.
7. Amendment of Lease .
Landlord may, without notice to or the joinder of Guarantor and
with affecting Guarantor’s liability hereunder, modify,
extend, accelerate, reinstate, extend or renew the Lease (with or
without the execution of new Lease) and grant any consent or
indulgence with respect the Lease.
8. Bankruptcy of Tenant . The
liability of Guarantor hereunder and Landlord’s right to
pursue Guarantor shall not be affected, delayed, limited, impaired
or discharged, in whole or in part, by reason of any stay,
extension or discharge that may be granted to the Tenant by any
court in proceedings under the Bankruptcy Code, or any amendments
thereof, or under any other state or other federal statutes. The
Guarantor expressly waives the benefits of any extension or
discharge granted to Tenant. This Guaranty shall survive
notwithstanding the expiration or termination of the Lease with
respect to any sums previously received from Tenant or from
Guarantor that Landlord may be required to repay in such
proceeding. If proceedings are instituted by Tenant under any state
insolvency law or under any federal bankruptcy law, or if such
proceedings are instituted against Tenant and are n
