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LEASE
THIS INDENTURE, made this tenth day of October, 1996, by and
between Adelante Development Center, Inc., a New Mexico nonprofit
corporation hereinafter, whether singular or plural, masculine,
feminine, or neuter, designated as "Lessor," which expression
shall include Lessor's heirs, personal representatives, assigns,
and successors in interest, and Palatin Technologies, Inc., a
Delaware corporation, hereinafter, whether singular or plural,
masculine, feminine, or neuter, designated as "Lessee," which
expression shall include all Lessees, jointly and severally, and
shall include Lessee's heirs, personal representatives, assigns,
and successors in interest,
WITNESSETH:
I. DEMISE OF PREMISES. Lessor, for and in consideration of the
covenants and agreements herein contained to be kept and
performed by Lessee, Lessee's heirs, personal representatives,
assigns, and successors in interest, and upon the terms and
conditions herein contained, does hereby let, lease, and demise
to Lessee the following-described premises situated in
Albuquerque in the County of Bernalillo, State of New Mexico, to
wit: the building and lot at 4255 and 0000 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx, as modified effective March 1, 1997, as set forth in
the attached Addendum to Lease dated the same date as this Lease.
II. TERM OF LEASE. The term of this Lease shall be for a period
of eight (8) months, beginning on the first day of January 1997,
and ending on the 31st day of August, 1997.
III. RENT. Lessee, for and in consideration of this Lease and the
demise of the said premises by Lessor to Lessee, hereby agrees
and covenants with Lessor to pay as rent for the said premises,
without notice or demand, the sum of thirty-six thousand four
hundred thirty-five and sixty/100 Dollars ($36,435.60) in the
following manner, to wit:
$4,554.45 per month payable on the first of every month without
demand or offset. In the event that Lessor does not receive the
rent due on or before the fifteenth (15th) day of the month in
which it is due, Lessee will pay an additional two percent 2%
late charge on the overdue balance.
All of the rent shall be paid by Lessee to Lessor or Lessor's
order in lawful money of the United States at 0000X Xxxxxxxxx,
X.X., Xxxxxxxxxxx, XX 00000, attention Accounts Receivable or at
such other place as Lessor may designate from time to time for
this purpose.
IV. USE OF PREMISES. Lessee, for and in consideration of this
Lease and the demise of the said premises by Lessor to Lessee,
hereby agrees and covenants with Lessor to use and occupy the
said premises for the purpose of maintaining Lessee's current
bio-medical research business and related items and for no other
purpose without first obtaining the written consent of Lessor
therefor; the Lessee shall not use or occupy or permit the
demised premises to be used or occupied, or do or permit anything
to be done in or on the demised premises, in a manner which will
make void or voidable any insurance then in force with respect
thereto, or which will make it impossible to obtain fire or other
insurance required to be furnished hereunder, or which will cause
or be likely to cause structural damage to the demised premises
or any portion thereof, or which will constitute a public or
private nuisance. Further, the Lessee shall not use or occupy or
permit the demised premises to be used or occupied for any
business, purpose, or use deemed disreputable or extra-hazardous,
or for any purpose or in any manner which is in violation of any
present or future municipal, state and federal ordinances, laws,
rules and regulations.
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V. CONDITION OF PREMISES AND REPAIRS. Lessee, for and in
consideration of this Lease and the demise of the said premises,
hereby agrees and covenants with Lessor that Lessee has examined
the said premises prior to the execution hereof, knows the
condition thereof, and acknowledges that Lessee has received the
said demised premises in good order and condition, and that no
representation or warranty as to the condition or repair of the
said premises has been made by Lessor, and, at the expiration of
the term of this Lease, or any renewal or extension thereof,
Lessee will yield up peaceably the said premises to Lessor in as
good order and condition as when the same were entered upon by
Lessee, loss by fire or inevitable accident, damage by the
elements, and reasonable use and wear expected; that Lessee will
keep, at Lessee's own expense, the said premises in good order
and repair during the term of this Lease, or any extension or
renewal thereof, and will repair and replace promptly, at
Lessee's own expense, any and all damage, including, but not
limited to, damage to roof, walls, floors and foundations,
heating and cooling units, plumbing, glass, sidewalks, and all
other appurtenances, that may occur from time to time; that
Lessee hereby waives any and all right to have such repairs or
replacements made by Lessor or at Lessor's expense; and that, if
Lessee fails to make such repairs and replacements promptly, or,
if such repairs and replacements have not been made within
fifteen (15) days after the occurence of damage, Lessor may, at
Lessor's option, make such repairs and replacements, and Lessee
hereby agrees and covenants to repay the cost thereof to Lessor
on demand.
VI. LIABILITY OF LESSOR. Lessee, for and in consideration of this
Lease and the demise of the said premises, hereby agrees and
covenants with Lessor that Lessor shall not be liable for any
damage to persons or property arising from any cause whatsoever,
which shall occur in any manner in or about the said premises,
and Lessee hereby agrees to indemnify and save harmless Lessor
form any and all claims and liability for damage to persons or
property arising from any cause whatsoever, which shall occur in
any manner in or about the said premises. Further, Lessee hereby
agrees and covenants with Lessor that Lessor shall not be liable
for any damage to the said demised premises, or to any part
thereof, or to any property or effects therein or thereon, caused
by leakage from the roof of said premises or by bursting,
leakage, or overflowing of any waste pipes, water pipes, tanks
drains, or stationary washstands, or by reason of any damage
whatsoever caused by water from any source whatsoever, and Lessee
hereby agrees and covenants to indemnify and save harmless Lessor
from any and all claims and liability for any damage to the said
demised premises, or to any part thereof, or to any property or
effects therein or thereon. VII. REQUIREMENTS OF PUBLIC AUTHORITY
Lessee, for and in consideration of this Lease and the demise of
the said premises, hereby agrees and covenants with Lessor that
during the term of this Lease, lessee shall, at its own cost and
expense, promptly observe and comply with all present and future
municipal, state, and federal ordinances, laws, rules, and
regulations affecting the demised premises or appurtenances
thereto, or any part thereof, whether the same are in force and
effect at the time of the commencement of the term of this Lease
or may in the future be passed, enacted, or directed, and lessee
shall pay all costs, expenses, liabilities, losses, damages,
fines, penalties, claims, and demands, including reasonable
attorney's fees, that may in any manner arise out of or be
imposed because of the failure of Lessee to comply with the
covenants and agreements of this paragraph VII. Further, Lessee
hereby agrees and covenants with Lessor that if Lessee fails to
comply promptly with any present or future municipal, state, and
federal ordinances, laws, rules, and regulations, or fails to
comply by such time that compliance may be required by law,
Lessor may, at Lessor's option, take such actions as may be
necessary to comply with all present and future municipal, state,
and federal ordinances, laws, rules, and regulations, and Lessee
hereby agrees and covenants to repay the cost incurred by Lessor
in taking such action to Lessor on demand.
VIII. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS. Lessee, for and
in consideration of this Lease and the demise of the said
premises, hereby agrees and covenants with Lessor that Lessee
shall not make, or suffer or permit to be made, any alterations,
additions, or improvements whatsoever in or about the said
demised premises without first obtaining the written consent of
Lessor therefor; provided, however, that such consent, if given,
shall be subject to the express condition that any and all
alterations, additions, and improvements shall be done at
Lessee's own expense and in accordance and compliance with all
applicable municipal, state, and federal ordinances, laws, rules,
and regulations, and that Lessee hereby covenants and agrees with
Lessor that in doing and performing such work Lessee shall do and
perform the same at Lessee's own expense, in conformity and
compliance with all applicable municipal, state, and federal
ordinances, laws, rules, and regulations, and that no liens of
mechanics, materialmen, laborers, architects, artisans,
contractors, sub-contractors, or any other lien of any kind
whatsoever shall be created against or imposed upon the said
demised premises, or any part thereof, and that Lessee shall
indemnify and save harmless Lessor from any and all liability and
claims for damages of every kind and nature which might be made,
or from judgments rendered against Lessor or against said demised
premises on account of or arising out of such alterations,
additions, or improvements.
IX. OWNERSHIP OF ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.
Lessee, for and in consideration of this Lease and the demise of
the said premises, hereby agrees and covenants with Lessor that
any and all alterations, additions, and improvements, except
signs, shelving, movable furniture and equipment not affixed to
the roof, walls, or floors, made at Lessee's own expense after
having first obtained the written consent of Lessor therefor, in
accordance with the provisions contained in Paragraph VII hereof,
whether or not attached to the roof, walls, floors, foundations,
or the premises in any manner whatsoever, shall immediately merge
and become a permanent part of the realty, and any and all
interest of the Lessee therein shall immediately vest in Lessor,
and all such alterations, additions, and improvements shall
remain on the said premises and shall not be removed by Lessee at
the termination of this Lease. The signs, shelving, moveable
furniture and equipment not affixed to the roof, walls, or
floors, shall be removed by Lessee at Lessee's expense on or
before the termination of the Lease, and Lessee shall repair any
damage caused thereby at Lessee's own expense, such that the
premises shall be in as good order and condition as when the same
were entered upon by Lessee.
X. ASSIGNMENT AND SUBLETTING. Lessee, for and in consideration of
this Lease and the demise of the said premises, hereby agrees and
covenants with Lessor that neither Lesser nor Lessee's heirs,
personal representatives, assigns, or successors in interest
shall assign this Lease or sublet the said demised premises, in
whole or in part, without first obtaining the written consent of
Lessor therefor: that no assignment of this Lease or any
subletting of the said demised premises, in whole or in part,
shall be valid, except by and with the written consent of Lessor
first obtained; that the consent of Lessor to any such assignment
or subletting shall not operate to discharge Lessee or Lessee's
heirs, personal representatives, assigns, or successors in
interest from their liability upon the agreements and covenants
of this Lease, and Lessee, Lessee's personal representatives,
assigns, and successors in interest shall remain liable for the
full and complete performance of all of the terms, conditions,
covenants, and agreements herein contained as principals and not
as guarantors or sureties, to the same extent as though no
assignment or sublease had been made; that any consent of Lessor
to any such assignment or subletting shall not operate as a
consent to further assignment or subletting or as a waiver of
this covenant and agreement against assignment and subletting;
and that following any such assignment or subletting, the
assignee and/or sublettee shall be bound by all of the terms,
conditions, covenants, and agreements herein contained including
the covenant against assignment and subletting.
XI. UTILITY AND OTHER CHARGES. Lessee, for and in consideration
of this Lease and the demise of the said premises, hereby agrees
and covenants with Lessor to pay promptly all utility and other
charges of whatsoever kind and nature, including charges for
electrical, gas, garbage, sewage, telephone, and other services,
which may be incurred in connection with Lessee's use of the said
premises, and to indemnify and save harmless Lessor therefrom.
XII. LESSOR'S RIGHT OF ENTRY AND TO MAKE ALTERATIONS, ADDITIONS,
AND IMPROVEMENTS. Leasee, for and in consideration of this Lease
and the demise of the said premises, hereby agrees and covenants
with Lessor that Lessor shall have the right at any time, upon
reasonable notice to Lessee, to enter upon the said premises to
inspect the same and to make any and all improvements,
alterations, and additions of any kind whatsover upon the said
premises, providing such improvements, alterations, and additions
are reasonably necessary or convenient to the use to which the
said premises are being put at the time, but at no time shall
Lessor be compelled or required to make any improvements,
alterations, or additions.
XIII. TAXES, OTHER ASSESSMENTS, AND INSURANCE. Lessee and Lessor
hereby covenant and agree that all taxes and special and general
assessments of whatsover kind and nature, extraordinary as well
as ordinary, which have been or may be levied upon the said
demised premises and upon any alterations, additions, and
improvements thereon, shall be paid by Lessee at the time when
the same become due and payable, and that all taxes and special
and general assessments of whatsoever kind and nature,
extraordinary as well as ordinary, which have been or may be
levied upon the personal property located upon the said demised
premises shall be paid by Lessee at the time when the same shall
become due and payable. Lessee, for and in consideration of this
Lease and the demise of the said premises, hereby agrees and
covenants with Lessor to carry and maintain in full force and
effect during the term of this Lease, and any extension or
renewal thereof, at Lessee's expense, public liability insurance
covering bodily injury and property damage liability, in a form
and with an insurance company acceptable to Lessor, with limits
of coverage of not less than $1,000,000 for each person and
$1,000,000 in the aggregate for bodily injury or death liability
for each accident, and $1,000,000 for property damage liability
for each accident, for the benefit of both Lessor and Lessee as
protection against all liability claims arising from the
premises. Lessee hereby agrees and
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covenants with Lessor to deliver a copy of the
insurance as soon thereafter as practicable, and to give Lessor
not less than ten (10) days' written notice informing Lessor of
the expiration of any such policy. Fire and extended coverage
insurance upon all buildings, alterations, and improvements upon
the said premises shall be provided for as follows: Lessee will
provide, and fire and extended coverage insurance upon all of the
contents and other personal property situated upon the said
premises shall be provided for as follows Lessee will provide.
It is understood and agreed by and between the parties that a
copy of each policy of fire and extended coverage insurance shall
be provided to the parties hereto at the beginning of the term of
this Lease, or as soon thereafter as practicable, and that the
party who is responsible for paying the premiums on each policy
of fire and extended coverage insurance shall give the other
party not less than ten (10) days' written notice informing the
other party of the expiration of any such policy.
XIV. HOLDING OVER. Lessee, for and in consideration of this Lease
and the demise of the said premises, agrees and covenants with
Lessors that no holding over by Lessee after the expiration of
this Lease, or any renewal or extension thereof, whether with or
without the consent of Lessor, shall operate to extend or renew
this Lease, and that any such holding over shall be construed as
a tenancy from month to month at the monthly rental which shall
have been payable at the time immediately prior to when such
holding over shall have commenced, and such tenancy shall be
subject to all the terms, conditions, covenants, and agreements
of this Lease.
XV. BANKRUPTCY AND CONDEMNATION. Lessee, for and in consideration
of this Lease and the demise of the said premises, hereby agrees
and covenants with Lessor that should Lessee make an assignment
for the benefit of creditors or should be adjudged a bankrupt,
either by voluntary or involuntary proceedings, or if otherwise a
receiver or trustee should be appointed by any court of competent
jurisdiction for Lessee because of any insolvency, or any
execution, attachment, replevin, or other court order should be
issued against the Lessee or any of Lessee's property, whereby
the demised premises or any building or buildings, or
alterations, additions, or improvements thereon, shall be taken
or occupied or attempted to be taken or occupied by someone other
than the Lessee, the occurrence of any such event shall be deemed
a breach of this Lease, and, in such event, Lessor shall have the
option to forthwith terminate this Lease to re-enter the said
demised premises and take possession thereof, whereupon Lessee
shall quit and surrender peaceably the said demised premises to
Lessor. In no event shall this Lease be deemed an asset of lessee
after the assignment for the benefit of creditors, the
adjudication in bankruptcy, the appointment of a receiver or
trustee, or the issuance of a Writ of Execution, a Writ of
Attachment, a Writ of Replevin, or other court order against
Lessee or Lessee's property whereby the demised premises or any
building or buildings, or alterations, additions, or improvements
thereon, shall be taken or occupied or attempted to be taken or
occupied by someone other than the Lessee. Further, Lessee hereby
covenants and agrees with Lessor that in the event the said
demised premises, or any part thereof, shall be taken for any
public or quasi-public use under any statute or by right of
eminent domain, this Lease shall automatically terminate, as to
the part so taken, as of the date possession shall have been
taken, and the rent reserved shall be adjusted so that Lessee
shall be required to pay for the remainder of the term that
portion of the rent reserved in the proportion that the said
demised premises remaining after the taking for public or
quasi-public use bears to the whole of the said demised premises before
the taking for public or quasi-public use. All damages and
payments resulting from the taking for public or quasi-public use
of the said demised premises shall accrue to and belong to
Lessor, and Lessee shall have no right to any part thereof.
XVI. DESTRUCTION. Lessee, for and in consideration of this Lease
and the demise of the said premises, agrees and covenants with
Lessor that if at any time during the term of this Lease, or any
extension or renewal thereof, the said demised premises shall be
totally or partially destroyed by fire, flood, earthquake, or
other calamity, then Lessor shall have the option to rebuild or
repair the building or buildings, and any alterations, additions,
or improvements on the demised premises, in as good condition as
they were immediately prior to such calamity; provided, however,
that such rebuilding or repair shall be commenced within a period
of thirty days after notice in writing to Lessor of such
destruction or damage. In such case, a just and proportionate
part of the rental herein specified shall be abated until such
demised premises shall have been rebuilt and repaired. In case,
however, Lessor shall within thirty days following notice in
writing to him of such damage elect not to rebuild or repair said
premises, Lessor shall so notify Lessee and, thereupon, this
Lease shall terminate and become null and void. Moreover, in no
event, shall Lessor have any duty or obligation to rebuild or
repair any signs, shelving, moveable furniture, equipment not
affixed to the roof, walls, or floors as a permanent part of the
realty, or any other personal property owned or leased by the
Lessee and used to carry out the purpose for which Lessee is
leasing the demised premises.
XVII. SIGNS. Lessor and Lessee covenant and agree that Lessee may
at Lessee's own expense erect and maintain a sign or signs to
carry out the purpose for which Lessee is leasing the said
demised premises; provided, however, the location, type and
design of all exterior signs shall be first approved in writing
by Lessor. Upon the expiration of this Lease, or any renewal or
extension thereof, Lessee shall remove such sign or signs and
shall repair any damage to the premises caused thereby at
Lessee's own expense. Further, at any time within thirty days
prior to the termination of this Lease, or any renewal or
extension thereof, Lessor shall have the right to place upon any
part of said demised premises any "For Rent" or "For Lease" signs
that Lessor may select.
XVII. TERMINATION AND REMEDIES. It is expressly understood and
agreed between the parties hereto, that if the rent above
reserved, or any part thereof, shall be in arrears or unpaid on
the day of payment thereon the same ought to be paid as
aforesaid, or if default shall be made in any of the covenants or
agreements herein contained to be kept by Lessee, Lessee's heirs,
personal representatives, assigns, and successors in interest, it
shall and may be lawful for the Lessor, Lessor's heirs, personal
representatives, agents, attorneys, assigns, or successors in
interest, at Lessor's election, to declare said term ended and to
re-enter the said premises, or any part thereof, either with or
without process of law, and to expel, remove, and put out the
Lessee, or any other person or persons occupying the demised
premises, using such force as may be necessary in so doing, and
to repossess and enjoy the same premises again as in its first
and former state, and to distrain for any rent that may be due
thereon any property belonging to Lessee, whether or not the same
be exempt from execution and distress by law, and Lessee in that
case hereby waives any and all legal rights which Lessee now has
or may have, to hold or retain any such property under any
exemption laws now or hereafter in force in the State of New
Mexico, or in any other way. It is the intent of the parties
hereto to hereby recognize in Lessor, Lessor's heirs, personal
representatives, assigns, or successors in interest, a valid
first lien as provided by the laws of New Mexico, upon any and
all goods, chattels, and other property belonging to Lessee and
located in said premises, as security for the payment of said
rent and fulfillment of the faithful performance of the
agreements, covenants, terms, and conditions hereof as herein
provided, anything hereinbefore mentioned to the contrary
notwithstanding. And if at any time said term shall be ended at
such election of Lessor, Lessor's heirs, pesonal representatives,
assigns, or successors in interest, as aforesaid, or in any other
way, Lessee, Lessee's heirs, personal representatives, assigns,
or successors in interest, do hereby covenant and agree to
surrender and deliver up the above-described premises and
property peaceably to Lessor, Lessor's heirs, personal
representatives, assigns, or successors in interest, immediately
upon the termination of said term as aforesaid, and if Lessee
shall remain in possession of the same ten (10) days after notice
of such default, or after the termination of the Lease in any of
the ways above named, Lessee shall be deemed guilty of a forcible
detainer of said premises under the laws of New Mexico and shall
be subject to all the conditions and provisions above named, and
shall also be subject to eviction and removal forcible or
otherwise, with or without process of law as above stated.
Further, it is covenanted and agreed by and between the parties
hereto that at any time after any such termination, the Lessor
may relet the demised premises, or any part thereof, in the name
of the Lessor or otherwise, for such term and on such conditions
as the Lessor, in Lessor's sole and absolute discretion, may
determine, and may collect and receive the rent therefor.
Moreover, in the event Lessor relets the demised premises, or any
part thereof, it is explicitly understood and agreed by and
between the parties hereto that the term may be greater of lesser
than the period which would otherwise have constituted the
balance of the term of this Lease, and the conditions may include
free rent or other concessions which may be reasonably required
to induce another party to lease the demised premises.
Notwithstanding anything herein to the contrary, the Lessor shall
have no obligation hereunder to relet the demised premises, or
any part thereof, and shall in no way be responsible or liable
for any failure to collect any rent due upon such reletting. It
is also covenanted and agreed by and between the parties hereto
that no such termination of this Lease shall relieve the Lessee
of its liabilities and obligations under this Lease, and such
liabilities and obligations shall survive any such termination.
In the event of any such termination, whether or not the demised
premises, or any part thereof, shall have been relet, the total
remaining balance of the rent which would be due and payable for
the remainder of the term of this Lease, if this Lease were still
in effect, less the net proceeds of any reletting effected
pursuant to the Lessor's sole discretion, after deducting from
the net proceeds all of the Lessor's expenses in connection with
such reletting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, reasonable
attorney's fees, alteration costs, and expenses of preparation
for such reletting, shall become immediately due and payable, as
and for liquidated damages of the Lessee's default. Nothing
herein contained, however, shall limit or prejudice the right of
Lessor to prove for and obtain as liquidated damages by reason of
such termination, an amount equal to the maximum allowed by
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 than, equal to, or less than, the
amount of the difference referred to above, and whether or not
such amount shall be immediately or otherwise due and payable.
Further, it is covenanted and agreed to by and between the
parties hereto, that in addition to other remedies provided for
in this Lease, the Lessor shall be entitled to restraint by
injunction of the violation, or attempted or threatened
violation, of any agreement or covenant of this Lease, or to a
decree specifically compelling performance of any such agreement
or covenant. The Lessee, the Lessee's heirs, personal
representatives, assigns, and successors in interest, hereby
expressly waives, so far as permitted by law, the service of any
notice of intention to re-enter provided for in any statute, or
of the institution of legal proceedings to that end. Lessee, the
Lessee's heirs, personal representatives, assigns, and successors
in interest, also
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hereby expressly waives any right of redemption
or re-entry or repossession or to restore the operation of this
Lease in case the Lessee shall be dispossessed by a judgment or
by warrant of any court or judge or in case of re-entry or
repossession by the Lessor. It is further covenanted and agreed
by and between the parties hereto, that the Lessee shall pay and
discharge all costs, reasonable attorney's fees, and expenses
incurred by Lessor, Lessor's heirs, personal representatives,
assigns, or successors in interest, in enforcing the covenants of
this Lease, or incurred by Lessor in pursuing any or all remedies
which are or may be available hereunder or allowed at law or in
equity, or incurred by Lessor in connection with reletting the
demised premises.
XIX. LESSOR'S REMEDIES ARE CUMULATIVE. The specified remedies to
which the Lessor may resort under the terms of this Lease are
cumulative and and are not intended to be exclusive of any other
remedies or means of redress to which the Lessor may be lawfully
entitled in case of any breach or threatened breach by the Lessee
of any of the agreements and covenants herein contained.
XX. WAIVERS. Lessee, for and in consideration of this Lease and
the demise of the said premises, agrees and covenants with Lessor
that the delay or omission in the enforcement of any of the
agreements and covenants herein contained, or in the exercise of
any of Lessor's rights hereunder, shall not affect the duty of
the Lessee to thereafter faithfully fulfill and perform all of
the agreements and covenants herein contained, and that the
failure, neglect, or omission of Lessor to terminate this Lease
for any one or more breaches of any agreements and covenants
hereof, shall not be deemed a consent by Lessor of such breach
and shall not impede, impair, estop, bar or prevent Lessor from
thereafter terminating this Lease, either for such violation, or
for prior or subsequent violations of any covenant or agreement
hereof.
XXI. BINDING ON HEIRS, PERSONAL REPRESENTATIVES, ASSIGNS, AND
SUCCESSORS IN INTEREST. It is understood and agreed by and
between the parties hereto that the agreements, covenants, terms,
conditions, provisions, and undertakings in this Lease, or in any
extension or renewal thereof, shall extend to and be binding upon
the heirs, personal representatives, assigns, and successors in
interest of the respective parties hereto, as if they were in
every case named and expressed, and shall be construed as
covenants running with the land; and wherever reference is made
to either of the parties hereto, it shall be held to and include
and apply also to the heirs, personal representatives,
successors, and assigns of such party, as if in each and every
case so expressed.
XXII. ADDRESSES FOR NOTICES. Any and all notices required or
permitted to be given hereunder shall be considered to have been
given if in writing and delivered to the respective party
designated below upon the date of such personal delivery, or upon
a date three (3) days following the mailing of any such notice by
certified or registered mail, return receipt requested, addressed
to the respective party at the respective address set forth
below, or at such other address as either party may furnish the
other for this purpose by written notification delivered or
mailed to the other as herein provided: NOTICES TO LESSOR:
NOTICES TO LESSEE:
XXIII. DECLARATION OF CONTRACTUAL LIABILITY. If there is more
than one party Lessee, the covenants and agreements of the Lessee
shall be joint and several obligations of each such party.
XXIV. GRAMMATICAL USAGE. In construing this Lease, feminine or
neuter pronouns shall be substituted for those masculine in form
and vice versa, and plural terms shall be substituted for
singular and singular for plural in any place in which the
context so requires.
XXV. COVENANT TO EXECUTE ADDITIONAL INSTRUMENTS. The parties
hereto hereby agree to execute and deliver any instruments in
writing necessary to carry out any agreement, covenant, term,
condition, or assurance in this Lease whenever an occasion shall
arise and request for such instrument shall be made.
XXVI. SEVERABILITY. If any provision of this Lease, or any
application thereof, shall be declared invalid or unenforceable
by any court of competent jurisdiction, the remainder of this
Lease, and any other application of such provision, shall
continue in full force and effect.
XXVII. CAPTIONS. The section headings are for convenience of
reference only and shall not otherwise affect the meaning hereof.
XXVIII. GOVERNING LAW. The Lease shall be governed by and
construed in accordance with the laws of the State of New Mexico.
XXIX. AMENDMENTS. It is understood and agreed by and between the
parties hereto that this Lease shall not be altered, changed, or
amended except by instrument in writing executed by the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands the day and year first above written.
Adelante Development
Center, Inc.
------------------------------------
By: /s/ Xxxx Xxxxxx
Palatin Technologies, Inc.
----------------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
------------------------------------
name:
name:
Xxxxxxx X. Xxxxxx
-----------------------------------------------------------
title: Exec. Dir. title: Exec. VP
ACKNOWLEDGEMENTS
A. For a natural person acting in his own right.
STATE OF NEW MEXICO COUNTY OF Bernalillo----}ss.
This instrument was acknowledged before me on October 9, 1996, by
Xxxx Xxxxxx
------------------------------------------------------
[NAME(S) OF PERSON(S)]
/s/ Xxxxx Xxxxx
NOTARY PUBLIC
My commission expires:
(Seal)
E. For a corporation or incorporated association:
STATE OF NEW MEXICO COUNTY OF BERNALILLO
This instrument was acknowledged before me on October 9th, 1996 by
Xxxxxxx Kivitiz, Executive Director of Adelante Development
---------------------------------------------------------
(NAME OF OFFICER) (TITLE OF OFFICER) (NAME OF CORPORATION
ACKNOWLEDGING) ------- a ------------------------Center, Inc., a
New Mexico nonprofit corporation, on behalf of the corporation.
----------------------------------
(STATE OF INCORPORATION)
/s/ Xxxxx Xxxxx
NOTARY PUBLIC
My commission expires:
7/7/97 (seal)
=================================================================
LEASE BETWEEN ADELANTE DEVELOPMENT CENTER, INC. AND PALATIN
TECHNOLOGIES, INC.
ACKNOWLEDGEMENTS, continued
STATE OF New Jersey )
) ss.
COUNTY OF Xxxxxx )
The foregoing instrument was acknowledged before me on
October 10th, 1996,
by Xxxxxxx X. Xxxxxx , Executive Vice President
----------------- ------------------------
(name of officer) (title of officer)
of Palatin Technologies, Inc., a Delaware corporation, on behalf
of the corporation.
Xxxxx X. Xxxxxxxxx
-----------------------
Notary Public
My Commission Expires:
______________________________
(Seal) Xxxxx X. Xxxxxxxxx
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES JULY 31, 2000
ADDENDUM TO LEASE
Adelante Development Center, Inc., a New Mexico non-profit corporation
("Lessor") and Palatin Technologies, Inc., a Delaware corporation ("Lessee"),
agree to add the following provisions to the Lease dated October 10, 1996 the
("Lease") between Lessor and Lessee:
1. Modification of Demise of Premises. On March 1, 1997, the
description of the premises in Section I of the Lease (the "Original
Premises") will be modified to read as follows (the "Modified Premises"):
those portions of the building at 4255 and 0000 Xxxxxxx Xxxx Xxxx XX
designated as:
A. lab area
B. offices along the west wall
which are outlined in red and labeled on the floor plan attached as
Exhibit A to this Addendum.
2. Vacated Premises. Before March 1, 1997, Lessee will vacate those
portions (the "Vacated Premises") of the Original Premises not included in the
Modified Premises. At midnight on February 28, 1997, the Lease term will
expire with respect to the Vacated Premises. Lessee's obligation under
Section V of the Lease to yield up the Vacated Premises peaceably and in good
order and condition will be the same as Lessee's obligation to yield up the
Original Premises peaceably and in good order and condition. Except as
required under the terms of this Addendum, Lessee will have no further
obligation under Section V of the Lease to maintain the Vacated Premises.
During the period of February 24, 1997 to March 1, 1997, Lessee will vacate
those portions of the Vacated Premises not required for Lessee's operations
and allow Lessor full access to the Vacated Premises in order for Lessor to
commence moving into the Vacated Premises before March 1, 1997.
3. Application of Lease to Modified Premises. Except as otherwise
specifically stated in this Addendum, after February 28, 1997, each reference
in the Lease to "premises" or "demised premises" will apply to the Modified
Premises, and not to the Original Premises or the Vacated Premises.
4. Common Walls. Walls dividing the Modified Premises from the Vacated
Premises will be common walls. Red outlining on Exhibits A and B of this
Addendum lies outside the outlined premises for graphical clarity only, and
does not indicate control of common walls. Neither Lessor nor Lessee will
alter any common wall in a manner which affects the other's use of the
Modified Premises or Vacated Premises without the written consent of the
other.
5. Shared Premises. After February 28, 1997, Lessee will have equal
access with Lessor or any Other Tenant (as defined in paragraph 9 below) to
the portions of the Vacated Premises described as follows (the "Shared
Premises"):
those portions of the building at 4255 and 0000 Xxxxxxx Xxxx Xxxx XX
designated as:
C. large conference room
D. kitchen
E. common rest rooms
F. shower room
G. common hallways
H. computer network patch panel and hub cabinet
which are outlined in red and labeled on the floor plan attached as
Exhibit B to this Addendum.
Lessee will leave in place all of Lessee's furniture, equipment and appliances
currently used in the Shared Premises and listed on Exhibit C to this
Addendum. At the end of the term of the Lease, Lessee may remove from the
Shared Premises the items listed on Exhibit C. In the event that Lessor or
Lessee or their respective employees wish to use any portion of the Shared
Premises in a manner and/or at a time which excludes the other or interferes
with the other's ability freely to enjoy the use of the Shared Premises, then
upon the request of Lessee or the agent or employee of Lessee designated to
arrange such use and named in writing to Lessor (the "Lessee's
Representative"), Xxx Xxxxxxx or any other agent or employee of Lessor named
in writing to Lessee for this purpose (the "Lessor's Representative"), will
promptly determine the use of the Shared Premises.
6. Shared Services and Equipment. After February 28, 1997, Lessor and
Lessee will share in the use and maintenance, and the costs of maintenance, of
the following services and equipment, as set forth below:
A. Mail and Courier Deliveries. Lessor and Lessee may both use
the street address number "4261" on Balloon Park Road, Northeast. Lessor's
Representative will designate a person or persons responsible for receiving
and distributing all mail and those courier packages whose addressees are not
immediately known to the employee or agent receiving the delivery. Lessee's
Representative will provide Lessor's Representative with a list of names of
potential addressees of mail and courier packages intended for Lessee and
Lessee's employees and agents. Lessee's Representative will designate to
Lessor's Representative the physical location to which the person or persons
designated by Lessor's Representative should deliver all mail and courier
packages addressed to Lessee or Lessee's employees or agents, if not delivered
to the addressee personally. Lessor and Lessee will each instruct their
respective employees and agents not to discard, return or refuse delivery of
any mail or courier package unless both Lessor's Representative and Lessee's
Representative concur that the item was delivered in error, in which case
Lessor's Representative will determine the disposition of the item.
B. Alarm Service, Assignment of Codes, Keys and Access to
Premises. Lessor agrees to maintain, or allow Lessee to maintain, the current
or an equivalent quality building alarm system, and to assume, or allow Lessee
to continue, Lessee's service contract with Protection Service Industries,
L.P. or replace it with an equivalent service contract (together, the "Alarm
System"). During the term of the Lease, Lessee will pay the entire cost of
maintaining and servicing the current Alarm System, and up to $60 per month to
maintain a replacement for the Alarm System. If Lessor replaces the current
Alarm System, choice of the replacement Alarm System will be subject to the
approval of Lessee's Representative. Lessee may, at Lessee's expense, modify
the current Alarm System to provide a zone or zones coded separately from the
rest of the Original Premises for the portion of the Modified Premises
designated as the "lab area" on Exhibit A (the "Lab Area").
Lessor's Representative will be responsible for assigning all
alarm codes and distributing all keys. Lessor's Representative will assign
alarm codes and distribute keys to those of Lessee's employees and agents whom
Lessee's Representative designates in writing to Lessor's Representative.
Except as may otherwise be required as a condition of Lessee's license to
handle radioactive or other hazardous materials, Lessee's Representative will
provide to Lessor's Representative the combinations to all combination door
locks in the Lab Area. Lessor's Representative will hold all alarm codes and
combinations in confidence, and will keep all duplicate and master keys to the
Modified Premises secure from use by persons other than those whom Lessee's
Representative designates in writing to Lessor's Representative. Lessor's
Representative may, at his or her discretion, release alarm codes and/or keys
to the Modified Premises to other persons in emergency situations and at the
instruction of law enforcement or emergency service personnel. Except in
emergency situations, Lessor and Lessor's agents or employees will enter the
Modified Premises only as permitted under Section XII of the Lease.
C. Security Service. Lessee may, at Lessee's expense, maintain
the current or similar security service and may continue Lessee's service
contract with Akal Security, Inc. or replace it with a similar service
contract (together, the "Security Service").
D. Landscaping Maintenance. Lessor agrees to maintain, or allow
Lessee to maintain, the current or equivalent quality of landscaping of the
lot on which the Original Premises are located, and to assume, or allow Lessee
to continue, Lessee's service contract with Evergreen Lawn Care or replace it
with an equivalent service contract (together, the "Landscaping"). After
February 28, 1997, during the term of the Lease, Lessor and Lessee will share
equally the cost of maintaining the Landscaping (other than the cost of water,
of which Lessee will pay a percentage as set forth in subparagraph 7C below).
Improvements in the Landscaping which Lessor undertakes will be at Lessor's
expense.
E. HVAC Systems. Lessor agrees to maintain, or allow Lessee to
maintain, the current or equivalent quality of heating, ventilation and air
conditioning systems of the Original Premises (the "HVAC Systems"). After
February 28, 1997, during the term of the Lease, Lessor and Lessee will share
equally the cost of maintaining the HVAC Systems. Improvements in the HVAC
Systems which Lessor undertakes will be at Lessor's expense.
F. Kitchen Appliances. Lessor agrees to maintain, or allow
Lessee to maintain, the current or equivalent quality of refrigerator,
dishwasher, range, microwave oven, toaster oven, coffee maker and soft drink
dispenser, and to assume, or allow Lessee to continue, Lessee's service
contract for the soft drink dispenser with Coca-Cola, Xx. Xxxxxx of
Albuquerque or replace it with an equivalent service contract (together, the
"Kitchen Appliances"), in the portion of the Shared Premises labeled as the
"kitchen" on Exhibit B. After February 28, 1997, during the term of the
Lease, Lessor and Lessee will share equally the cost of maintaining the
Kitchen Appliances. Improvements in the Kitchen Appliances which Lessor
undertakes will be at Lessor's expense.
H. Cleaning Service. Lessor agrees to maintain, or allow Lessee
to maintain, the current or equivalent quality of cleaning service, and to
assume, or allow Lessee to continue, Lessee's service contract with Perea's
Janitorial or replace it with an equivalent service contract (together, the
"Cleaning Service") for the entire Original Premises. After February 28,
1997, during the term of the Lease, Lessee will pay 64% (based on the
percentage of floor space which the Modified Premises plus one half of the
Shared Premises represent out of the total floor space of the Original
Premises) and Lessor will pay 36% of the cost of the Cleaning Service.
Improvements in the Cleaning Service which Lessor undertakes will be at
Lessor's expense.
7. Utilities. After February 28, 1997, during the term of the Lease,
Lessor and Lessee will share in the use and costs of the following utilities,
as set forth below:
A. Telephone. Before March 1, 1997, Lessee will, at Lessee's
expense, modify the telephone service in the Original Premises and install any
additional equipment necessary to provide that, as of Xxxxx 0, 0000, Xxxxxx
and Lessor can each operate their own separate telephone systems, with at
least the number of dial tones available to Lessor which Lessor designates to
Lessee in writing before January 1, 1997. Except as necessary to provide the
modifications specified in the preceding sentence, Lessee will leave Lessee's
telephone equipment in place in the Vacated Premises for Lessor's use as a
separate telephone system, and upon termination of the Lease, Lessee will
donate to Lessor all of Lessee's telephone equipment which Lessee had
installed in the Original Premises before March 1, 1997. After February 28,
1997, during the term of the Lease, Lessor and Lessee will each pay their own
separate telephone bills, pay separately for maintenance of their own separate
telephone systems, and enter into separate service contracts for telephone
service and maintenance, except that Lessor and Lessee will share equally the
expense of required maintenance of telephone lines up to the point at which
their systems separate.
B. Electricity and Actions Affecting Electric Service. During
the term of the Lease, Lessee will continue to pay the entire cost of
electricity for the Original Premises and of maintenance of the electric
service lines in place on March 1, 1997. Improvements in electrical service
which Lessor undertakes will be at Lessor's expense. If Lessor undertakes any
change in electrical service, or any other action, which to Lessor's knowledge
will result in a cut-off of the supply of electricity to the Modified
Premises, Lessor will give Lessee's Representative at least two days' notice
of the expected cut-off. Any activity which Lessor expects to cause a cut-off
lasting more than two hours will be subject to the approval of Lessee's
Representative.
C. Natural Gas and Water. After February 28, 1997, during the
term of the Lease, Lessee will pay 64% and Lessor will pay 36% of the cost of
natural gas and water, sewer and refuse services, and of maintenance of the
natural gas and water and sewer service lines in place on March 1, 1997.
Improvements in natural gas or water, sewer and refuse services which Lessor
undertakes will be at Lessor's expense.
8. Parking. After February 28, 1997, during the term of the Lease,
Lessee will have exclusive use of the twelve (12) parking spaces currently
marked with paint lines immediately to the north of the Modified Premises, and
Lessor will have exclusive use of all other parking spaces. Service vehicles
and invitees of Lessor or Lessee may use any unoccupied parking spaces which
are not specifically marked as reserved. Failure at any time by either Lessor
or Lessee to enforce the exclusive use of designated parking spaces will not
constitute a waiver of the right of either subsequently to enforce exclusive
use.
9. Other Tenants. Lessor will perform Lessor's duties under this
Addendum as long as Lessor occupies any portion of the Vacated Premises, or
while the Vacated Premises are vacant. In the event that Lessor leases all or
any portion of the Vacated Premises to another party (an "Other Tenant"), then
Lessor will either continue to perform Lessor's duties under this Addendum, or
delegate to an Other Tenant those of Lessor's duties which Lessor does not
continue to perform, by means of a written lease agreement with the Other
Tenant. Lessor will require that any Other Tenant will abide by the
provisions of this Addendum regarding access to and use of the Shared
Premises.
10. Rent. The rent stated in the Lease will not change upon
modification of the demise of the premises as set forth in paragraph 1 above.
11. Donation of furniture and equipment Upon the expiration of the
term of the Lease, Lessee will donate to Lessor the furniture and equipment
listed in Exhibit D of this Addendum. At Lessee's request, Lessor will
provide Lessee a written receipt acknowledging Lessee's donation of these
items.
12. Condition Precedent. The Lease and this Addendum will become
effective only if and when Lessor acquires title to the Original Premises and
the lot on which the Original Premises are located.
13. Miscellaneous. This Addendum represents the entire agreement of
the parties with respect to its subject matter, may be modified only in
writing signed by both parties, is binding on the parties, their successors
and assigns, and is governed by the laws of the State of New Mexico. Any term
not otherwise defined in this Addendum has the meaning of that term as defined
or used in the Lease. The word "current," as used in this Addendum, means as
of the date of this Addendum as set forth below.
Dated as of : October __, 1996.
LESSOR:
Adelante Development Center, Inc.
By s/ Xxxxxxx Xxxxxx
Its Exec. Dir.
LESSEE:
Palatin Technologies, Inc.
By s/ Xxxxxxx X. Xxxxxx
Its Exec. VP
ACKNOWLEDGEMENTS
STATE OF NEW MEXICO )
) ss.
COUNTY OF BERNALILLO )
The foregoing instrument was acknowledged before me on October 9th,
1996,
by Xxxxxxx Xxxxxx , Executive Director of
-------------- ------------------
(name of officer) (title of officer)
Adelante Development Center, Inc., a New Mexico nonprofit corporation, on
behalf of the corporation.
/s/ Xxxxx Xxxxx
----------------
Notary Public
My Commission Expires:
7/7/97
---------------------
(Seal)
ACKNOWLEDGMENTS CONTINUED ON FOLLOWING PAGE
ACKNOWLEDGEMENTS, continued
STATE OF New Jersey )
) ss.
COUNTY OF Xxxxxx )
The foregoing instrument was acknowledged before me on October 10, 1996,
by Xxxxxxx X. Xxxxxx , Executive VicePresident of
----------------- -----------------------
(name of officer) (title of officer)
Palatin Technologies, Inc., a Delaware corporation, on behalf of the
corporation..
/s/ Xxxxx X. Xxxxxxxxx
-----------------------
Notary Public
My Commission Expires:
______________________________
(Seal) Xxxxx X. Xxxxxxxxx
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES JULY 31, 2000
