EXIBHIT 10.121
LEASE AGREEMENT
BETWEEN
LINCOLN FAIR LAWN ASSOCIATES, LESSOR
AND
VYTERIS HOLDINGS (NEVADA), INC., LESSEE
00-00 XXXXXXX XXXXX XXXXXXXXX,
XXXX XXXX, XXX XXXXXX 00000
PREPARED BY:
XXXX X. XXXXXXXXX, ESQ.
XXXXXXXX & XXXXXXXXXX, LLC
0000 XXXXXX XXXXX XXXXXX
X.X. XXX 000
XXXXXXXXX, XX 00000
1
TABLE OF CONTENTS
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SUMMARY OF BASIC LEASE PROVISIONS AND DEFINITIONS.......................... 1
1. ADDITIONAL RENT................................................ 1
2. BROKER......................................................... 1
3. BUILDING....................................................... 1
4. COMMENCEMENT DATE.............................................. 1
6. EXHIBITS....................................................... 2
7. FIXED BASIC RENT............................................... 2
8. BUILDING AREA.................................................. 2
9. PARKING SPACES................................................. 2
10. PERMITTED USE.................................................. 2
11. SECURITY DEPOSIT............................................... 2
12. TERM........................................................... 3
13. TERMINATION DATE............................................... 3
14. NORTH AMERICAN INDUSTRIAL CLASSIFICATION SYSTEM (NAICS)........ 3
15. LEASE YEAR..................................................... 3
16. FORCE MAJEURE.................................................. 3
17. AFFILIATED COMPANY............................................. 3
18. LESSEE'S PERCENTAGE............................................ 3
1. DESCRIPTION.......................................................... 4
2. TERM................................................................. 4
3. RENT................................................................. 4
(A) PAYMENT........................................................ 4
(B) ADDITIONAL RENT................................................ 4
(C) NET LEASE...................................................... 5
(D) LATE CHARGE.................................................... 5
(E) HABITUAL LATE PAYER............................................ 5
4. REAL ESTATE TAXES.................................................... 5
5. NO SERVICES TO BE PROVIDED BY LESSOR................................. 6
(A) NO SERVICES TO DEMISED PREMISES................................ 6
(B) COMMON AREA CHARGES............................................ 6
(C) CAPITAL REPLACEMENTS AND IMPROVEMENTS.......................... 7
6. USE OF PREMISES...................................................... 7
(A) PERMITTED USE ONLY............................................. 7
(B) GOVERNMENTAL REQUIREMENTS...................................... 8
7. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL............................ 8
(A) REPAIR OBLIGATIONS............................................. 8
(B) GLASS REPLACEMENT.............................................. 9
(C) ALTERATIONS.................................................... 9
(D) RESTORATION UPON REMOVAL....................................... 10
(E) ENVIRONMENTAL COMPLIANCE....................................... 10
8. RIGHT TO INSPECT AND REPAIR.......................................... 11
I
9. FLOOR LOAD........................................................... 11
10. ABANDONMENT.......................................................... 11
11. INSOLVENCY OF LESSEE................................................. 11
12. DEFAULT OF LESSEE.................................................... 12
13. LESSOR'S REMEDIES ON DEFAULT OF LESSEE............................... 12
(A) TERMINATION AND LESSEE'S LIABILITIES........................... 13
(B) ACCELERATION OF THE RENTS...................................... 13
(C) SPECIFIC PERFORMANCE OF LEASE.................................. 14
(D) WAIVER OF RIGHT OF REDEMPTION.................................. 14
(E) OTHER REMEDIES................................................. 14
(F) NON-EXCLUSIVITY................................................ 14
14. ATTORNEY'S FEES...................................................... 15
15. DAMAGES TO BUILDING.................................................. 15
16. SUBORDINATION OF LEASE............................................... 16
17. SECURITY DEPOSIT..................................................... 16
18. RIGHT TO CURE LESSEE'S BREACH........................................ 19
19. MECHANIC'S LIENS..................................................... 19
20. ASSIGNMENT AND SUBLEASE.............................................. 19
(A) FINANCIAL INFORMATION/RECAPTURE................................ 19
(B) LESSOR'S APPROVAL.............................................. 20
(C) APPROVAL NOT REQUIRED.......................................... 21
(D) TRANSFERS...................................................... 21
(E) BANKRUPTCY..................................................... 21
(F) ACCEPTANCE OF RENT FROM OTHERS................................. 22
21. EMINENT DOMAIN....................................................... 22
22. INSURANCE............................................................ 22
(A) BUILDING INSURANCE............................................. 23
(B) LESSOR PUBLIC LIABILITY INSURANCE.............................. 23
(C) LESSEE'S PERSONAL PROPERTY INSURANCE........................... 23
(D) LESSEE'S GENERAL LIABILITY INSURANCE........................... 24
(E) RENT INSURANCE................................................. 24
(F) WAIVER OF SUBROGATION.......................................... 25
(G) LESSOR'S RIGHT TO PURCHASE/ INTEREST CHARGE.................... 25
23. COMPLIANCE WITH LAWS, ETC............................................ 25
24. LESSEE'S ESTOPPEL.................................................... 25
25. HOLDOVER TENANCY..................................................... 26
26. AS IS/LESSEE'S WORK.................................................. 26
II
(A) "AS IS" CONDITION.............................................. 26
(B) INTENTIONALLY DELETED.......................................... 26
(C) CONDITIONS ATTACHING TO LESSEE'S WORK.......................... 26
27. LEASE COMMENCEMENT................................................... 27
28. RIGHT TO SHOW PREMISES............................................... 28
29. WAIVER OF TRIAL BY JURY.............................................. 28
30. NO OTHER REPRESENTATIONS............................................. 28
31. QUIET ENJOYMENT...................................................... 28
32. PERSONAL LIABILITY................................................... 28
(A) LESSOR'S EXCULPATION........................................... 28
(B) LESSOR'S CONSENT............................................... 29
33. LESSOR'S LIABILITY FOR LOSS OF PROPERTY.............................. 29
34. INDEMNITY............................................................ 29
35. BROKER............................................................... 30
36. PARKING SPACES....................................................... 30
37. ACCORD AND SATISFACTION.............................................. 30
38. EFFECT OF WAIVERS OF DEFAULT......................................... 30
39. NO OPTION............................................................ 30
40. NOTICES.............................................................. 31
41. PARAGRAPH HEADINGS................................................... 31
42. APPLICABILITY TO HEIRS AND ASSIGNS................................... 31
43. NUMBER AND GENDER.................................................... 31
44. CORPORATE/AUTHORITY/REPRESENTATIONS.................................. 31
(A) CORPORATE AUTHORIZATION........................................ 31
(B) LESSEE'S REPRESENTATIONS....................................... 32
45. RECORDING............................................................ 32
46. MISCELLANEOUS........................................................ 32
(A) MORTGAGEE'S MODIFICATIONS/LESSEE'S FINANCIALS.................. 32
(B) JURISDICTION/VENUE............................................. 32
(C) SIGNS.......................................................... 33
(D) WAIVER OF DAMAGE CLAIMS........................................ 33
47. OFAC COMPLIANCE...................................................... 33
III
48. RIGHT OF FIRST OFFER................................................. 34
IV
NET LEASE
---------
LEASE, made the _____ day of July, 2006, between LINCOLN FAIR LAWN
ASSOCIATES, A NEW JERSEY GENERAL PARTNERSHIP, with offices c/o Marcus Associates
Property Management, Inc., 00 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx
00000 (hereinafter referred to as "Lessor"); and VYTERIS HOLDING (NEVADA), INC.,
A NEVADA CORPORATION whose address is 00-00 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxx Xxxx,
Xxx Xxxxxx 00000 (hereinafter referred to as "Lessee").
PREAMBLE
SUMMARY OF BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the
following terms whenever used in this Lease should have only the meanings set
forth in this section, unless such meanings are expressly modified, limited or
expanded elsewhere herein and all of such terms are deemed expressly
incorporated into the Lease.
1. ADDITIONAL RENT
Shall mean all sums in addition to Fixed Basic Rent payable by Lessee to Lessor
pursuant to the provisions of this Lease or sums expended by Lessor on Lessee's
behalf, or fines imposed upon Lessor as a result of Lessee's failure to comply
with the terms hereof.
2. BROKER
Shall mean Marcus Associates, LLC.
3. BUILDING
Shall mean the approximately 39,047 square foot building located at 00-00
Xxxxxxx Xxxxx Extension, in the Borough of Fair Lawn, County of Bergen and State
of New Jersey and all land thereon as described in Exhibit B ("Legal
Description") hereto.
4. COMMENCEMENT DATE
Is October 1, 2006.
5. DEMISED PREMISES OR PREMISES
A 27,400 square foot portion of the Building let and demised to Lessee herein
including all exterior appurtenances such as sidewalks, curbs, loading dock
areas, parking areas, exterior doors, adjacent green areas and the like all as
shown on Exhibit A hereto
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including an allocable share of parking to be 50 parking spaces as shown in red
on Exhibit A.
6. EXHIBITS
The following Exhibits attached to this Lease are incorporated herein and made a
part hereof:
Exhibit A Premises/Parking Plan
Exhibit B Legal Description
Exhibit C Form of Letter of Credit
7. FIXED BASIC RENT
Shall mean the rent to be paid during the Term in amounts as follows:
MONTHLY INSTALLMENTS:
Months 1 - 30: $25,116.67 per Month ($11.00 PSF)
Months 31 - 60: $26,686.46 per Month ($11.68 PSF)
8. BUILDING AREA
Lot_2 Block 4702 on the tax map of the Borough of Fair Lawn, Bergen County, New
Jersey.
9. PARKING SPACES
Shall mean those fifty (50) parking spaces as shown in red on Exhibit A.
10. PERMITTED USE
Lessee to use the Leased Premises only for general corporate office use, in
furtherance of any research, development, creation, manufacture and/or
distribution related to drug delivery systems and/or drug development
activities, laboratory use and/or manufacturing and production of medical
products, all as permitted as of right without need for use variance and of
non-environmentally hazardous products and nothing else.
11. SECURITY DEPOSIT
Shall be Three Hundred Ninety Six Thousand Seven Hundred Fifty Two and 00/100
($396,752) Dollars ($198,376 in cash and the balance in the form of a letter of
credit)(which total represents twelve months gross rent)
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12. TERM
Shall mean Five (5) Years from the Commencement Date.
13. TERMINATION DATE
Shall be September 30, 2011.
14. NORTH AMERICAN INDUSTRIAL CLASSIFICATION SYSTEM (NAICS)
Of Lessee is _547100.
15. LEASE YEAR
The First (1st) Lease Year shall be the period commencing on the Commencement
Date and ending twelve (12) months thereafter on September 30, 2007. Each
subsequent twelve (12) month period shall be a Lease Year and the Termination
Date shall remain unchanged.
16. FORCE MAJEURE
Shall mean and include those situations beyond Lessor's control, including by
way of example and not by way of limitation, acts of God; accidents; repairs;
strikes; shortages of labor, supplies or materials; destructive weather; or
where applicable, the passage of time while waiting for an adjustment of
insurance proceeds.
17. AFFILIATED COMPANY
With respect to Lessee shall mean any corporation or other business entity
related to Lessee as a parent, subsidiary or brother-sister corporation so that
such corporation and Lessee or such corporation and Lessee and other
corporations constitute a controlled group as determined under Section 1563 of
the Internal Revenue Code of 1986, as amended and as elaborated by the Treasury
Regulations promulgated thereunder.
18. LESSEE'S PERCENTAGE
Shall mean 70.17% of allocable costs charged to the entire building for
maintenance, insurance and taxes and non-metered utility charges.
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WITNESSETH:
For and in consideration of the covenants herein contained, including
the terms, covenants, conditions and definitions in the Preamble set forth above
and specifically incorporated herein, and upon the terms and conditions herein
set forth below, Lessor and Lessee agree as follows:
1. DESCRIPTION.
Lessor hereby leases to Lessee and Lessee hereby hires from the Lessor, upon and
subject to the covenants, agreements, terms, provisions and conditions of this
Lease, the Demised Premises and the Building erected thereon as defined in the
Preamble (hereinafter called "Demised Premises" or "Premises"), as shown on the
plan or plans initialed by the parties hereto marked Exhibits A and B attached
hereto and made part hereof.
2. TERM.
The Premises are leased for the Term to commence on the Commencement Date, and
to end at 11:59 pm on the Termination Date, all as defined in the Preamble or on
such other date as the Term may expire or be terminated pursuant to the
provisions of this Lease or pursuant to law.
3. RENT.
(A) PAYMENT
The Lessee shall pay to the Lessor during the Term the Fixed Basic Rent as
defined in the Preamble (hereinafter called "Fixed Basic Rent"), payable in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts. The Fixed Basic
Rent shall be payable in advance on the first day of each calendar month during
the Term at the Monthly Installments as defined in the Preamble, except that a
proportionately lesser sum may be paid for the first and last months of the Term
of this Lease if the Term commences on a day other than the first day of the
month, in accordance with the provisions of this Lease herein set forth. Lessee
shall pay Fixed Basic Rent, and any Additional Rent as hereinafter provided, to
Lessor at c/o Marcus Associates Property Management, Inc., 00 Xxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxx Xxxxxx 00000, or at such other place as Lessor may
designate in writing, without demand and without counterclaim, deduction or
setoff or abatement.
(B) ADDITIONAL RENT
The Lessee shall, and will, during the Term, well and truly pay, or cause to be
paid, to the Lessor, the Monthly Installments and all other sums that may become
due and payable by the Lessee, hereunder, at the time and in the manner herein
provided; and all other sums due and payable by the Lessee hereunder (including
without limitation intended charges
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as set forth in Paragraph 5) may, at the Lessor's option, be deemed to be, and
treated as, Additional Rent, and added to any Fixed Basic Rent due and payable
by the Lessee hereunder, and, in the event of nonpayment of such other sums, the
Lessor shall have all the rights and remedies herein provided for in the case of
the nonpayment of Fixed Basic Rent, or of a breach of any covenant to be
performed by the Lessee.
(C) NET LEASE
The Fixed Basic Rent payable by the Lessee pursuant to this Lease is intended to
be net to the Lessor, of all insurance, taxes, utilities and maintenance charges
and these and all other charges, impositions, assessments and expenses imposed
upon the Demised Premises or incurred in connection with its use, occupancy,
care, maintenance, operation and control shall be paid by the Lessee as
Additional Rent as provided in this Lease.
(D) LATE CHARGE
Anything in this Lease to the contrary notwithstanding, at Lessor's option,
Lessee shall pay a "Late Charge" of six (6%) of any installment of Rent or
Additional Rent paid more than five (5) days after the due date thereof, to
cover the extra expense involved in handling delinquent payments. The late
charge shall not be compounded for each month outstanding, but shall be imposed
one time for each late payment. Notwithstanding the foregoing to the contrary,
once during each Lease Year, Lessee shall permitted to pay rent late without a
late charge provided the rent is received no later than the tenth day of the
month.
(E) HABITUAL LATE PAYER
Should Lessee pay Fixed Basic Rent or Additional Rent later than five (5) days
after the due date more than once within a four (4) month period or more than
three (3) times within a twelve (12) month period after written notice to cease
such habitual late payment, then Lessee shall be deemed an "Habitual Late
Payer".
4. REAL ESTATE TAXES.
Lessee shall pay as soon as they are due, as Additional Rent, Lessee's
Percentage of all real estate taxes assessed against the Demised Premises and
Building Area. As used herein real estate taxes shall mean the property taxes
and assessments (including, but not limited to, all assessments, including
special assessments, for public improvements or benefit and water and sewer
rents) imposed upon the Building and Building Area, or upon the Fixed Basic Rent
and Additional Rent, as such, payable to Lessor, including, but not limited to,
real estate, city, county, village, school, and transit taxes, or taxes,
assessments, or charges levied, imposed, or assessed against the Building and
Building Area by any other taxing authority, whether general or specific,
ordinary or extraordinary, foreseen or unforeseen. Subject to the following
sentence, Lessee shall have no obligation to pay any income, estate succession,
inheritance, transfer and franchise taxes of Lessor. If due to a future change
in the method of taxation, any franchise, income or profit tax shall be levied
against Lessor in substitution for, or in lieu of, or in addition to, any tax
which would otherwise constitute a real estate tax, such franchise, income or
profit tax shall be deemed to be a real estate tax for the purpose hereof;
conversely, any
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additional real estate tax hereafter imposed in substitution for, or in lieu of,
any franchise, income or profit tax (which is not in substitution for, or in
lieu of, or in addition to, a Real Estate Tax as hereinbefore provided) shall
not be deemed a Real Estate Tax for the purposes hereof.
Notwithstanding anything herein contained to the contrary, Lessor
shall invoice Lessee monthly for 1/12th of Lessee's Percentage of the annual
taxes and, Lessee shall promptly pay to Lessor together with all other
Additional Rent and Basic Rent the required amount as may be adjusted from time
to time.
Lessee shall not have the right to institute a tax appeal on the
Property without first obtaining Lessor's consent. Notwithstanding Lessor's
consent, in the event Lessee's appeal shall result in an increase in the
assessed value of the Property, then Lessee shall remain liable for the
increased tax liability for a period of three years after such determination
which obligation shall survive the expiration or sooner termination of this
Lease. In the event Lessor shall file a tax appeal which is ultimately
successful, Lessee shall be obligated to reimburse Lessor its Percentage for all
attorneys' fees and costs incurred in the appeal. Notwithstanding anything in
the forgoing to the contrary, in the event the assessed valuation within the
first three Lease Years is changed to reflect a valuation exceeding $125.00 per
square foot, Lessor will take an appeal at Lessee's cost and expense.
5. NO SERVICES TO BE PROVIDED BY LESSOR.
(A) NO SERVICES TO DEMISED PREMISES.
Nothing in this Lease shall impose upon the Lessor any obligation to
provide any services for the benefit of the Lessee, including, but not
limited to, water, gas, electricity, heat, air conditioning, ventilation,
janitorial, dumpster and fire sprinkler service, maintenance, upgrades
required by law arising from Lessee's use and annual sprinkler testing and
Lessee agrees that it shall be Lessee's responsibility to contract for and
pay for all of such services without exception.
(B) COMMON AREA CHARGES
Lessor shall arrange and pay the contractors for maintenance of the Common
Areas including snow plowing and landscaping and maintenance of exterior
structural items such as the roof and parking areas, with all of same to be
charged back the Lessee as a Common Area Maintenance charge. Lessor shall,
in advance of the first day of each month, remit an invoice to Lessee for
all such Additional Rent items to include the monthly charge for taxes,
insurance and CAM.
Monthly charges shall initially be paid based upon Lessor's estimation of
expenses which at present are $3.52 per square foot (i.e., $8,037.33 per
month). If, during any particular Lease Year, there is a change in the
information on which Lessor based the estimate upon which Lessee is then
making its payment so that such statement furnished to Lessee is no longer
accurate, Lessor shall be permitted as reasonably necessary to revise such
statements by notifying Lessee, and there shall be such adjustments made in
the Additional Rent on the first day of the month following the serving of
such statement on Lessee as shall be necessary by either increasing or
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decreasing, as the case may be, the amount of Additional Rent then
being paid by Lessee for the balance of the Lease Year (but in no
event shall any such decrease result in a reduction of the Rent below
the Monthly Rent plus all other actual amounts of Additional Rent).
Lessor's and Lessee's responsibilities with respect to the Additional
Rent described herein shall survive for two (2) years after the
expiration or early termination of this Lease. Within 120 days
following the conclusion of each Calendar Year (or within 90 days
following the termination of this Lease) Lessor will deliver a
statement to Lessee detailing the actual charges incurred during the
prior Calendar Year ("Final Statement") and the monthly statement will
be adjusted to reflect such actual charges. Lessee shall have the
right to review the books and records of Lessor relating only to
expenses shown on the itemized statement provided said review request
is made within six months after receipt of the Final Statement.
Failure to request a timely review shall be deemed a waiver of this
right for all time. If an error of greater than 10% is disclosed by
the audit, then Lessor agrees to reimburse Lessee's reasonable cost to
audit, no to exceed $5,000. In the event Lessee's review demonstrates
an error in Lessor's Final Statement, an appropriate adjustment will
be made on the next monthly statement or Lessor shall reimburse Lessee
if the Lease has expired or terminated.
(C) CAPITAL REPLACEMENTS AND IMPROVEMENTS
Lessee shall also be responsible for Lessee's Percentage of all charges
incurred by Lessor for the replacement and improvement of capital items as
shall be commercially and reasonably necessary, but same shall be paid by
Lessee monthly, but only that portion of the total cost of the item
calculated as a fraction, the numerator of which shall be the remaining
months in the Lease divided by the total months of the useful life of the
item as the useful life is determined in accordance with generally accepted
accounting principles. Said payment shall be Additional Rent and payable
with the next succeeding monthly rent and each monthly rent thereafter. In
the event Lessee renews the term herein by exercise of any option contained
herein or otherwise extends the term hereof through agreement with Lessor,
then the unpaid balance shall be paid in monthly installments over the
Extension Period.
6. USE OF PREMISES.
(A) PERMITTED USE ONLY
The Premises shall be used and occupied only for the Permitted Use described in
the Preamble to this Lease and for no other use or purpose. Lessee shall not use
or permit the use of the Premises or any part thereof in any way which would
violate any certificate of occupancy for the Building or Premises, or any of the
covenants, agreements, terms, provisions and conditions of this Lease or for any
unlawful purposes or in any unlawful manner and Lessee shall not suffer or
permit the Premises or any part thereof to be used in any manner or anything to
be done therein or suffer or permit anything to be brought into or kept in the
Premises which, in the reasonable judgment of Lessor, shall in any way impair
the appearance of the Building, impair or interfere with any of the Building
services or the proper and economic heating, cleaning, air conditioning or other
servicing of the Building or the Premises.
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(B) GOVERNMENTAL REQUIREMENTS
If any governmental license or permit (including the the certificate of
occupancy required to be obtained by Lessee at Lessee's sole cost and expense)
shall be required for the proper and lawful conduct of Lessee's business or
other activity carried on in the Premises by Lessee and if the failure to secure
such license or permit would, in any way, affect Lessor's interests in the
Building of the Premises, Lessee, at Lessee's expense, shall duly procure and
thereafter maintain such license or permit and submit the same to inspection by
Lessor, Lessee, at Lessee's expense, shall, at all times, comply with the terms
and conditions of each such license or permit.
7. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL.
(A) REPAIR OBLIGATIONS
The Lessee shall keep the Demised Premises and all fixtures and appurtenances
thereto in good condition and repair, and shall redecorate, paint, and renovate
the Demised Premises as may be reasonably necessary to keep them in good
condition, repair, and appearance as of the Commencement Date, reasonable wear
and tear excepted. The Lessee shall keep the Demised Premises and all parts
thereof in a clean and sanitary condition and free from trash, inflammable
material and other objectionable matter. Substances such as cleaning supplies
used in the ordinary course of maintenance of the Demised Premises and other
quantities of Hazardous Substances or Hazardous Materials as those terms are
defined by ISRA in quantities that would be eligible for an ISRA De Minimus
quantity exemption used in the ordinary course of Lessee's business shall not be
deemed "objectionable". Lessee shall provide a list to Lessor of any hazardous
Substances or Hazardous Materials used in Lessee's business together with the
average quantity regularly maintained on Premises. This list shall be updated
every six (6) months. The Lessee shall keep the sidewalks and roadways, if any,
forming part of the Demised Premises free of obstructions. Except as hereinafter
in this Lease set forth, throughout the Term, the Lessee, at its sole cost and
expense, will take good care of the Demised Premises interior and exterior
including all walls and the sidewalks and curbs adjoining the Demised Premises
and will keep the same in good order and condition and make all necessary
repairs thereto, interior and exterior, ordinary and extraordinary, foreseen and
unforeseen. Specifically excluded herefrom shall be any obligation for repairs
or replacements to the roof and exterior common Areas and capital repairs which
shall be performed and paid for by Lessor and to be billed back to Lessee as set
forth in Paragraph 5 above, provided said repairs are not necessitated as a
result of the negligent or intentional acts or omissions of Lessee, its
employees, agents, visitors or invitees, in which event Lessee shall pay for all
such repairs at its sole cost and expense. Conversely, Lessee shall not be
billed for any repairs to the Common Areas or other leased areas caused solely
by the negligence of other tenants or Lessor. In this regard, Lessee shall not
make any installations on or repairs to the roof without Lessor's prior
reasonable consent. Lessor may predicate any consent to access to the roof upon
Lessee's retention of Lessor's approved roofer to avoid any interference with or
invalidation of the roofing guaranty. When used in this Paragraph 7 the term
"repairs" shall include all necessary replacement parts and renewals necessary
to maintain the existing systems, including major building systems such as HVAC,
plumbing, electric and fire sprinkler systems and equipment in good operating
order and the term "repairs" shall also include total system replacement if the
equipment is irreparable or dysfunctional. All repairs made by Lessee shall be
equal in quality and class to the original work. The Lessee shall quit and
surrender the Demised
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Premises at the end of the Term in as good condition as the reasonable use
thereof will permit and in a "broom clean" condition, reasonable wear and tear
excepted.
(B) GLASS REPLACEMENT
The Lessee shall replace, at the Lessee's expense, all glass in and on the
Demised Premises which may become broken after the Commencement Date. In case of
destruction of or any damage to the glass in the Demised Premises by any reason
or cause whatsoever, or the destruction of or damage of any other kind
whatsoever to said Demised Premises caused by the carelessness, negligence or
improper conduct on the part of the Lessee or the Lessee's agents, employees,
guests, licensees, invitees, subtenants, assignees or successors, Lessee shall
repair the said damage or replace or restore any destroyed parts of the Demised
Premises, as speedily as possible, at the Lessee's own cost and expense.
(C) ALTERATIONS
The Lessee shall not make any alterations, additions, installations, or
improvements to the interior or exterior of the Demised Premises without the
prior written consent of the Lessor, which Lessor shall not unreasonably
withhold, delay or condition. Lessor shall not be deemed unreasonable for
requiring additional cash security to bond the reasonably estimated future
removal and restoration costs to be required by any such alterations that cost
more than $50,000.00. Notwithstanding anything to the contrary provided herein,
Lessee may make any decorative changes and any other non-structural alteration
not affecting Building systems or structure without the need to obtain Lessor's
consent or approval. For the purposes of this Lease, the term "decorative
changes" shall mean alterations to the Premises which are purely decorative and
aesthetic in nature, such as hanging of artwork, plaques and picture frames,
painting, carpeting and such other decorative changes or alterations which do
not involve any structural parts of the Building, do not involve the removal of
any walls (or any portion thereof), and/or do not involve changes or adjustments
to the Building mechanical, plumbing, electrical or HVAC systems or the like.
All erections, alterations, additions, and improvements, whether temporary or
permanent in character, which may be made upon or to the Demised Premises either
by the Lessor or the Lessee, except furniture or movable trade fixtures
installed at the expense of the Lessee, shall be the property of the Lessor and
shall remain upon and be surrendered with the Demised Premises as a part thereof
at the Termination Date, without compensation to the Lessee and without
hindrance, molestation or injury. Notwithstanding the foregoing, Lessor shall
have the right to require Lessee to remove such installations at Lessee's sole
cost and expense at the expiration of the Term and restore the Premises to its
original condition as of the Commencement Date at the Lessee's sole cost and
expense, provided such removal requirement is contained within the written
approval granted by Lessor. Any alterations made in violation of the provisions
of this paragraph shall be subject to Lessor's right to have same removed and
/or restored at any time including upon the expiration or sooner termination of
the Lease. All other property of Lessee remaining on the Premises after the last
day of the Term shall be conclusively deemed abandoned and may be removed by
Lessor, and Lessee shall reimburse Lessor for the cost of such removal. Lessor
may have any such property stored at Lessee's risk and reasonable expense.
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(D) RESTORATION UPON REMOVAL
Upon the expiration or sooner termination of this Lease, Lessee agrees that it
shall restore the Premises to their original condition as of the Commencement
Date of this Lease, reasonable wear and tear excepted. Notwithstanding the
foregoing, Lessee shall not be required to remove the office space or laboratory
facilities. All damage caused by Lessee shall be repaired and the Premises
restored such that on or prior to the last day of the Lease, the Premises shall
be delivered up broom swept free of Lessee's product, furniture and equipment in
good and rentable condition with all restoration work completed as required
hereunder, and any excess materials and construction equipment utilized in the
restoration process removed from the Premises. As used herein, "rentable" shall
include completion of Lessee's obligations with respect to Environmental
Compliance as more fully set forth in Paragraph 7 (E) below. Provided Lessor
shall have delivered notice to Lessee at least thirty (30) days prior to the
Termination Date of Lessor's intention to enforce the provisions of this
Paragraph, then, in addition to being liable to Lessor as a holdover tenant,
Lessee shall be responsible for all consequential damages to Lessor as a result
of Lessee's failure to timely surrender the Premises in accordance with this
Lease and this clause shall survive the termination of the Lease.
(E) ENVIRONMENTAL COMPLIANCE
(i) Lessee acknowledges the existence of the environmental
laws,rules, and regulations, including, but not limited to, the New Jersey
Industrial Site Recovery Act of 1993 ("ISRA") (N.J.S.A. 13:1K-6 et seq.) Lessee
shall comply with any and all such laws, rules, and regulations, including
Section 20 of ISRA. Lessee represents to Lessor that Lessee's North American
Industrial Classification Systems Number as same is set forth in the Preamble to
this Lease and as used on Lessee's Federal Tax Return will not subject the
Premises to ISRA applicability. Any change by Lessee to an operation with a SIC
Number subject to ISRA shall require Lessor's written consent. Any such proposed
change shall be sent in writing to Lessor thirty (30) days prior to the proposed
change. Lessor, at its sole option, may arbitrarily deny such consent.
(ii) Lessee hereby agrees to execute such documents as
Lessor reasonably deems necessary to make such applications as Lessor reasonably
requires to assure compliance with ISRA. Lessee shall bear all costs and
expenses incurred by Lessor and shall otherwise indemnify, defend and hold
harmless Lessor from and against any and all loss, cost, claim or damage
associated with any required ISRA compliance resulting from Lessee's use of the
Demised Premises, including, but not limited to, state agency fees, engineering
fees, clean-up costs, filing fees, and suretyship expenses. As used in this
Lease, ISRA compliance shall include applications for determinations of
non-applicability by the appropriate governmental authority. The foregoing
undertaking shall survive the Termination Date or sooner expiration of this
Lease and surrender of the Demised Premises and shall also survive sale, lease,
or assignment of the Demised Premises by Lessor. The above indemnification shall
also extend to any violation of ISRA occasioned by Lessee's use of the Demised
Premises. The Lessee shall immediately provide the Lessor with copies of all
correspondence, reports, notices, orders, findings, declarations, and other
materials pertinent to the Lessee's compliance and the Department of
Environmental Protection and Energy ("DEP") requirements under ISRA as they are
issued or received by the Lessee. In connection herewith, Lessor hereby warrants
and represents that it has no knowledge of
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any existing violation of ISRA or its predecessor [Environmental Clean-up
Responsibility Act (ECRA)], that no notice of any violation has ever been
received and to Lessor's knowledge, all prior tenants in the premises have been
exempt for being defined as non-industrial establishments within the meaning
ISRA. On this basis, Lessor agrees to indemnify, defend and hold harmless Lessee
from and against any and all loss, cost or damage arising from a violation ISRA
which occurred prior to the execution of this Lease.
8. RIGHT TO INSPECT AND REPAIR.
Lessor may enter the Premises but shall not be obligated to do so (except as may
be required by any specific provision of this Lease) at reasonable times during
normal business hours on reasonable notice to Lessee (except that no notice need
be given in case of emergency) for the purpose of inspection or the making of
such repairs, replacement, or additions, in, to, on or about the Premises or the
Building, as Lessor deems reasonably necessary or desirable and Lessee shall
have no claims or cause of action against Lessor by reason thereof. In no event
shall Lessee have any claim against Lessor for interruption to Lessee's
business, however occurring, including, but not limited to, that arising from
the negligence of Lessor, its agents, servants, or invitees, or from defects,
errors or omissions in the construction or design of the Demised Premises an/or
the Building, including the structural and non-structural portions thereof,
unless the interference to Lessee is the result of a demonstrable continuous
pattern of Lessor's bad faith after delivery by Lessee of a written notice to
cease such particular interfering conduct..
9. FLOOR LOAD.
Lessee shall not place a load upon any floor of the Demised Premises exceeding
the floor load per square foot area which it was designed to carry and which is
allowed by law. Lessor reserves the right to prescribe the weight and position
of all safes, business machines and mechanical equipment. Such installments
shall be placed and maintained by Lessee, at Lessee's expense, in settings
sufficient, in Lessor's reasonable judgment, to absorb and prevent unreasonable
vibration, noise and annoyance.
10. ABANDONMENT.
Lessee shall not, without first obtaining the written reasonable consent of
Lessor, abandon the Premises, or allow the Premises to become vacant or deserted
unless Lessee continues to pay rent, and provides extermination and reasonable
security measures to prevent third party entry and immediately complies with all
requests of any insurance underwriter or adjuster and pays all insurance
surcharges incurred by reason of the vacancy.
11. INSOLVENCY OF LESSEE.
Subject to federal bankruptcy laws, either (a) the appointment of a receiver to
take possession of all or substantially all of the assets of Lessee, or (b) a
general assignment by Lessee for the benefit of creditors, or (c) any action
taken or suffered by Lessee, voluntarily or involuntarily, under any insolvency,
reorganization or bankruptcy law or act, shall constitute a default under this
Lease by Lessee, and Lessor may terminate this Lease forthwith and upon notice
of such termination Lessee's right to possession of the
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Demised Premises shall cease, and Lessee shall then quit and surrender the
Premises to Lessor but Lessee shall remain liable as hereinafter provided in
Paragraph 13 hereof.
12. DEFAULT OF LESSEE.
Any of the following events shall be a default of Lessee: (a) Lessee's default
in the payment on the due date of the Basic Rents and/or additional rents and/or
any other payment required of Lessee by this Lease, unless Lessee shall cure
such default within five (5) days after the due date of such Basic Rent (except
that once each Lease Year the due date shall be extended to ten (10) days so as
to be consistent with the one time extension for late payment granted at
Paragraph 3(D) above) and/or Additional Rent and/or other payment required of
Lessee hereunder; (b) Lessee's default in the performance of any of the other
covenants of Lessee or conditions of this Lease, unless Lessee shall cure such
default within twenty (20) days after written notice of such default given by
Lessor (or if any such default is of such nature that it cannot be completely
cured within such period, then unless Lessee shall commence such curing within
twenty (20) days after written notice of such default given by Lessor and shall
thereafter proceed with reasonable due diligence and in good faith to cure such
default and shall succeed in curing such default within a reasonable period of
time, and provided that the existence of such default for more than twenty (20)
days does not, in Lessor's reasonable judgment, itself result in substantial
damages to Lessor and place Lessor in risk of substantial damage by such
additional time to cure such default); (c) insolvency of Lessee as set forth in
Paragraph 11 of this Lease; (d) the sale or attempted sale by or under execution
or other legal process of Lessee's leasehold interest hereunder and/or
substantially all of Lessee's other assets; (e) the initiation of legal
proceedings to effect, or resulting in, the seizure, sequestering or impounding
of any of Lessee's goods or chattels used in, or incident to, the operation of
the Premises by Lessee; (f) assignment by operation of law of Lessee's leasehold
interest hereunder; (g) any attempt by Lessee to assign the within Lease or
sublet the Demised Premises without the express prior written consent of the
Lessor other than as permitted in this Lease.
13. LESSOR'S REMEDIES ON DEFAULT OF LESSEE.
Upon any default of Lessee beyond applicable notice and cure periods as set
forth in Paragraph 11 or Paragraph 12 of this Lease, Lessor, at Lessor's sole
option, may elect and enforce any one of the remedies hereinafter provided in
this Paragraph 13; provided, however, that Lessor may, at Lessor's sole option,
elect and enforce multiple remedies from among those remedies hereinafter
provided to the extent such remedies are not inconsistent and are not legally
mutually exclusive and to the extent Lessor, in Lessor's reasonable judgment,
deem the enforcement of such multiple remedies necessary or appropriate to
indemnify and make Lessor whole from any loss or damage as a result of the
default or defaults of Lessee; and provided further that Lessor, at Lessor's
sole discretion, may successively elect and enforce any number of the remedies
hereinafter provided to the extent that Lessor, in Lessor's reasonable judgment,
deems necessary or appropriate to indemnify and make Lessor whole from any loss
or damage as a result of the default or defaults of Lessee:
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(A) TERMINATION AND LESSEE'S LIABILITIES
Lessor shall have the right to terminate this Lease forthwith, and upon notice
of such termination given by Lessor to Lessee in accordance with the notice
provisions of this Lease, Lessee's right to possession, use and enjoyment of the
Demised Premises shall cease, and Lessee shall immediately quit and surrender
the Demised Premises to Lessor, but Lessee shall remain liable to Lessor as
hereinafter provided. Upon such termination of this Lease, Lessor may at any
time thereafter re-enter and resume possession of the Premises by any lawful
means and remove Lessee and/or other occupants and their goods and chattels. In
any case where Lessor has recovered possession of the Premises by reason of
Lessee's default, Lessor may, at Lessor's option, occupy the Premises or cause
the Premises to be redecorated, altered, divided, consolidated with other
adjoining premises, or otherwise changed or prepared for reletting, and may
relet the Premises or any part thereof as agent of Lessee or otherwise, for a
term or terms to expire prior to, at the same time as, or subsequent to, the
original expiration date of this Lease, at Lessor's sole option, and Lessor
shall receive the rent therefor. Rent so received shall be applied first to the
payment of such reasonable expenses as Lessor may have incurred in connection
with the recovery of possession, redecorating, altering, dividing, consolidating
with other adjoining premises, or otherwise changing or preparing for reletting,
and the reletting, including brokerage and reasonable attorney's fees, and then
to the payment of damages in amounts equal to the rent (basic and additional)
and other payments required of Lessee hereunder and to the costs and expenses of
performance of the other covenants of Lessee as herein provided. Lessee agrees,
in any such case, whether or not Lessor has relet, to pay to Lessor damage equal
to the basic and additional rent and other sums herein agreed to be paid by
Lessee, less the net proceeds of the reletting, if any, as ascertained from time
to time, and the same shall be payable by Lessee on the several rent days above
specified. Lessee shall not be entitled to any surplus accruing as a result of
any such reletting. In reletting the Premises as aforesaid, Lessor may grant
rent concessions, and Lessee shall not be credited therewith. No such reletting
shall constitute a surrender and acceptance or be deemed evidenced thereof. If
Lessor elects, pursuant hereto, actually to occupy and use the Premises or any
part thereof during any part of the balance of the term as originally fixed or
since extended, there shall be allowed against Lessee's obligation for rent,
other payments and damages as herein defined, during the period of Lessor's
occupancy, the reasonable value of such occupancy, equal to in any event the
basic and additional rent herein reserved. In no event shall such occupancy by
Lessor be construed as a release of Lessee's liability hereunder.
(B) ACCELERATION OF THE RENTS
In the event Lessee shall default in the Lease payments and be dispossessed,
provided Lessee shall continue thereafter to make up arrears and pay all rent
current on a monthly basis, no acceleration of the rent shall occur. In the
event Lessor shall rent to a third party for less than the rent reserved
hereunder, Lessee shall pay the difference on a monthly basis. In the event
Lessee shall default in its obligation to pay the monthly difference, then in
that event the right of acceleration shall be afforded Lessor as more fully
described herein. Upon the happening of the foregoing, Lessor shall have the
right to declare the entire remaining unpaid Basic Rents and all other then
known Additional Rents and other payments required of Lessee by this Lease for
the full balance of the Lease term to be immediately due and payable. Such
declaration of acceleration shall be made by notice given by Lessor to Lessee in
accordance with the notice provisions of this Lease. Upon notice of declaration
of acceleration Lessee shall immediately pay to Lessor, without further demand
or notice, an amount equal to the sum of the entire remaining
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unpaid Basic Rents provided in Paragraph 3 of this Lease for the entire Lease
term, plus the entire remaining balance of all unpaid Additional Rents provided
in this Lease of the entire Lease term to the extent the amount of such
Additional Rents are then known, plus all unpaid other payments required of
Lessee by this Lease for the entire Lease term to the extent the amount of such
other payments are then known. Upon timely payment of all the sums hereinabove
provided in this Subparagraph 13(B), Lessee shall (subject to the rights of any
tenant in possession) have the right to continue to re-enter possess, occupy and
enjoy the Demised Premises for the remaining balance of the Lease term, subject
to strict observance by Lessee of all the covenants, conditions and other
provisions of this Lease and provided that Lessee shall pay when due all
Additional Rents as provided in this Lease and all other payments required of
Lessee by this Lease, the amount of which Additional Rents and other payments
were not paid upon the declaration of this Subparagraph 13(B). Lessor shall have
the right to immediately enforce declaration of acceleration as hereinabove
provided by means of distress or any legal action. The foregoing
notwithstanding, Lessor shall have the right to declare an acceleration and
collect upon same and, in addition, to dispossess Lessee and re-enter and take
possession of the Premises if Lessor is dispossessing and evicting Lessee for
the purpose of ultimately reducing Lessee's liabilities under this Lease. In the
event Lessor shall declare an acceleration as provided in this Subparagraph
13(B) and the amounts due hereunder shall not be paid forthwith, then Lessor, at
Lessor's sole option, may exercise Lessor's right to terminate this Lease as
provided in Subparagraph 13(A) hereof, in which event Lessor shall be entitled
to the full benefits of, and full enforcement of, Subparagraph 13(A) hereof.
(C) SPECIFIC PERFORMANCE OF LEASE
Lessor shall have the right to enforce Lessee's specific performance of each and
every covenant, condition and other provision of this Lease.
(D) WAIVER OF RIGHT OF REDEMPTION
Lessee hereby waives all right of redemption to which Lessee or any person under
the Lessee might be entitled by any law now or hereafter in force.
(E) OTHER REMEDIES
Lessor's remedies hereunder are in addition to any remedy allowed by law or in
equity.
(F) NON-EXCLUSIVITY
The remedies set forth above shall be non-exclusive and the Lessor's election to
enforce any remedy shall not be deemed a waiver of any other remedy Lessor may
be entitled to hereunder or as allowed by law or in equity.
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14. ATTORNEY'S FEES.
In the event Lessor shall employ an attorney to enforce any of the conditions of
this Lease, or to enforce Lessee's covenants hereunder, or any of Lessor's
rights, remedies, privileges or options under this Lease, or incur legal expense
at the request of Lessee or at law or in equity, the Lessor shall be entitled to
reimbursement from Lessee of all actual costs and expenses incurred or paid by
Lessor in so doing, including, but not by way of limitation, all attorney's fees
and costs incurred or paid by Lessor at any time or times in connection
therewith, or by arbitration, or by legal action at the trial court level and at
any and all appellate court levels. All of such legal fees shall be deemed
Additional Rent and payable as such.
15. DAMAGES TO BUILDING.
If the Building is damaged by fire or any other cause to such extent that time
to repair, as determined by an independent architect ("Architect's Notice")
within thirty (30) days of the casualty, will exceed nine (9) months (excluding
delays for reason of Force Majeure) then either party may, no later than the
fifteenth (15th) day following receipt of the Architect's Notice, deliver to the
other a notice of election to terminate this Lease. In the event of election to
terminate, this Lease shall be deemed to terminate on the thirtieth (30th) day
after the giving of said notice, and Lessee shall surrender possession of the
Premises within a reasonable time thereafter, and the Fixed Basic Rent, and any
Additional Rent, shall be apportioned as of the date of said surrender and any
Fixed Basic Rent or Additional Rent paid for any period beyond said date shall
be repaid to Lessee. If neither party elects to terminate this Lease, Lessor
shall, subject to the availability and adequacy of the insurance proceeds
restore the Building and the Premises with reasonable promptness, subject to
Force Majeure (as hereinabove defined), and Lessee shall have no right to
terminate this Lease, unless the Demised Premises are not substantially restored
and lawfully habitable as evidenced by the issuance of a Certificate of
Occupancy within twelve months from the date of casualty, subject to Force
Majeure. If the damage occurs within the last twelve months of the Lease and the
Architect's Notice stipulates a repair period exceeding six months, then Lessee
or Lessor shall have a right to terminate in accordance with the provisions
hereof. Lessee understands that Lessor will not carry insurance of any kind on
Lessee's furniture, fixtures, equipment or improvements and Lessor shall not
restore said fixtures and improvements owned by Lessee, including any
alterations made pursuant to Paragraph 7 or elsewhere unless Lessor shall have
received full reimbursement for replacement of the Building plus, an amount in
excess thereof to cover the cost of repair or replacement of Lessee's
installations. This language shall apply notwithstanding Lessor's ownership of
Lessee's installation by reason of the language in Paragraph 7.
The Fixed Basic Rent and Additional Rent payable under this Lease
shall not xxxxx, nor shall this Lease be terminated by reason of any damage,
partial or complete, (or as stated elsewhere in this Lease with respect to
termination) to any building or other structure on the Demised Premises or to
the Demised Premises or any part thereof, except that Lessee shall be relieved
from the payment of rent to the extent of any insurance proceeds paid to Lessor
under a rent insurance policy.. The words "restoration" and "restore" as used in
this Paragraph 15 shall include repairs. If the damage results from the fault of
the Lessee, or Lessee's agents, servants, visitors, or licensees, Lessee shall
not be entitled to any abatement or reduction in Fixed Basic Rent or Additional
Rent.
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If the damage or destruction shall have been due to fire or any
other casualty covered by the aforementioned insurance policies, then the Lessor
shall be entitled to receive all net proceeds of insurance collected on account
of such damage or destruction. Lessee shall cooperate with Lessor in collection
of any insurance monies from insurance companies.
16. SUBORDINATION OF LEASE.
This Lease shall at Lessor's option, be subject and subordinate to any Mortgage
which may hereafter affect the real property of which the Premises form a part,
and also to all renewals, modifications, consolidations, and replacements of
said Mortgage. Although no instrument or act on the part of Lessee shall be
necessary to effectuate such subordination, Lessee will, nevertheless, within
ten (10) days of receipt of same, execute and deliver such further instruments
confirming such subordination of this Lease as may be reasonably desired by the
holder of said Mortgage. Lessee hereby appoints Lessor attorney-in-fact,
irrevocably, to execute and deliver any such instrument for Lessee. If any
Mortgage superior to this Lease is foreclosed upon or otherwise sold, Lessee
shall, on timely request, attorn to the owner of the reversion. Lessor shall use
its best efforts to obtain an agreement on behalf of Lessee from any such Ground
Lessee, Mortgagee or Deed of Trust Holder stipulating that Lessee's possession
shall not be disturbed in the event of foreclosure or such lienholder takes
possession and shall not name Lessee as a defendant in any suit therefor or
enlarge Lessee's obligations, or decrease Lessee's rights under the Lease.
17. SECURITY DEPOSIT.
Lessee shall deposit with Lessor on the signing of this Lease the total cash
amount of the Security Deposit as defined in the Preamble (and shall deliver the
Letter of Credit portion of the Security Deposit no later than August 1, 2006),
for the full and faithful performance of Lessee's obligations under this Lease,
including, without limitation, the surrender of possession of the Premises to
Lessor as herein provided. If Lessor applies any part of said Security Deposit
to cure any default of Lessee, Lessee shall on demand deposit or deliver an
amended Letter of Credit with Lessor the amount so applied so that Lessor shall
have the full Security Deposit on hand at all times during the Term of this
Lease. Lessor, in the event that the Demised Premises are sold, shall transfer
and deliver the Security Deposit, as such, to the purchaser of the Demised
Premises and shall notify Lessee thereof, and thereupon Lessor shall be
discharged from any further liability in reference thereto. The Security Deposit
(less any portions thereof used, applied or retained by Lessor in accordance
with the provisions of this Paragraph 17), shall be returned to Lessee without
interest provided Lessee has cured any outstanding defaults and after delivery
of the entire Premises to Lessor in accordance with the provisions of this Lease
including ISRA compliance. Lessee covenants that it will not assign or encumber
or attempt to assign or encumber the Security Deposit and Lessor shall not be
bound by any such assignment, encumbrance or attempt thereof.
In the event of the insolvency of Lessee, or in the event of the
entry of a material judgment in any court against Lessee which if paid would
render Lessee insolvent which is not discharged within sixty (60) days after
entry, or in the event a petition is filed by or against Lessee under any
chapter of the bankruptcy laws of the State of New Jersey or the United States
of America, then in such event, Lessor may require the Lessee to deposit
additional security in an amount which in Lessor's sole judgment would be
sufficient to adequately assure Lessee's performance of all of its obligations
under this Lease including all payments subsequently accruing. Failure of Lessee
to deposit the
16
security required by this Paragraph within twenty (20) days after Lessor's
written demand shall constitute a material breach of this Lease by Lessee.
As to the portion of the security deposited hereunder permitted to be
delivered in the form of an irrevocable straight Letter of Credit, then upon a
material, monetary Default by Lessee, Lessor shall have the right to draw down
the entire amount of the Letter of Credit and place same in an interest bearing
account with the interest to accrue to the benefit of the Lessee, subject to
deduction for Lessor's reasonable expenses for the cost of opening and
maintaining said account. Lessor shall have no obligation to achieve any
specified rate of return on the money so deposited. The Letter of Credit shall
be substantially in the form as attached hereto as Exhibit C and drawn against a
banking institution maintaining assets of no less than Five Hundred Million
Dollars ($500,000,000.00) and shall specify that same shall be drawn upon demand
by Lessor and deliverable by Lessor and payable to Lessor in Hackensack, New
Jersey via wire transfer and shall require only a statement of default by Lessor
delivered together with an accounting of the amounts in default. Lessor approves
Wachovia Bank, N.A. as an acceptable issuer of the Letter of Credit, subject to
all of the other terms hereof. Lessor shall not be liable for any costs, loss or
damage, however incurred by Lessee in connection with any drawing down against
the Letter of Credit even if at a later time it is proven in a court of law or
otherwise that Lessor did not have a right to draw down against the Letter of
Credit or that Lessor's conduct was without basis. Under such circumstances,
Lessor's only obligation shall be to replenish the Security Deposit without
interest.
The acceptance by Lessor of the Letter of Credit shall be further subject to the
following conditions:
A. The Letter of Credit shall be irrevocable for the term thereof and shall
provide that it is automatically renewable for a period ending not earlier
than thirty (30) days after the expiration of the Term without any action
whatsoever on the part of Lessor; provided that the issuing bank shall have
the right not to renew said Letter of Credit on written notice to Lessor
not less than thirty (30) days prior to the expiration of the then current
term thereof (it being understood, however, that the privilege of the
issuing bank not to renew said Letter of Credit shall not, in any event,
diminish the obligation of Lessee to maintain such irrevocable Letter of
Credit with Lessor through the date which is thirty (30) days after the
expiration of the term hereby demised).
B. The form and terms of the Letter of Credit (and the bank issuing the same)
shall be acceptable to Lessor (and substantially in the form attached
hereto as Exhibit E and shall provide, among other things, in effect that:
(1) Lessor, or its then managing agent, shall have the right to draw down
an amount up to the face amount of the Letter of Credit upon the
presentation to the issuing bank of Lessor's (or Lessor's then
managing agent's) statement that such amount is due to Lessor under
the terms and
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conditions of this lease, it being understood that if Lessor or its
managing agent be a corporation, partnership or other entity, then
such statement shall be signed by an officer (if a corporation), a
general partner (if a partnership), or any authorized party (if
another entity);
(2) The Letter of Credit will be honored by the issuing bank without
inquiry as to the accuracy thereof and regardless of whether the
Lessee disputes the content of such statement;
(3) In the event of a transfer of Lessor's interest in the Building of
which the Demised Premises are a part, Lessor shall have the right to
transfer the Letter of Credit to the transferee and upon such
transferee's receipt of the Security Deposit and such transferee's
written assumption of Lessor's obligations hereunder, the Lessor
shall, without any further agreement between the parties, be released
by Lessee from all liability therefor, and it is agreed that the
provisions hereof shall apply to every transfer or assignment of said
Letter of Credit to a new Lessor.
C. Lessee further covenants that it will not assign or encumber said Letter of
Credit or any part thereof and that neither Lessor nor its successors or
assigns will be bound by any such assignment, encumbrance, attempted
assignment or attempted encumbrance.
D. Without limiting the generality of the foregoing, if the Letter of Credit
expires earlier than thirty (30) days after the expiration of the term of
this Lease, or the issuing bank notifies Lessor that it shall not renew the
Letter of Credit, Lessor will accept a renewal thereof or substitute Letter
of Credit (such renewal or substitute Letter of Credit to be in effect not
later than thirty (30) days prior to the expiration thereof), irrevocable
and automatically renewable as above provided to thirty (30)days after the
end of the term of this Lease upon the same terms as the expiring Letter of
Credit or such other terms as may be reasonably acceptable to Lessor.
However, (i) if the Letter of Credit is not timely renewed or a substitute
Letter of Credit is not timely received, (ii) or if Lessee fails to
maintain the Letter of Credit in the amount and terms set forth in this
Paragraph, Lessee, at least thirty (30) days prior to the expiration of the
Letter of Credit, or promptly upon its material failure to comply with each
and every term of this Paragraph, must deposit with Lessor cash security in
the amounts required by, and to be held subject to and in accordance with,
all of the terms and conditions set forth in this Paragraph pertaining to
cash security deposits and the amounts so specified in Preamble Paragraph
11 hereof, failing which the Lessor may present such Letter of Credit to
the bank in accordance with the terms of this Paragraph, and the entire sum
secured thereby shall be paid to Lessor, to be held by Lessor as provided
in this Paragraph.
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18. RIGHT TO CURE LESSEE'S BREACH.
If Lessee breaches any covenant or condition of this Lease, Lessor may, without
thereby waiving such default, on reasonable notice to Lessee (except that no
notice need be given in case of emergency), cure such breach at the reasonable
expense of Lessee and the reasonable amount of all expenses, including
attorney's fees, incurred by Lessor in so doing (whether paid by Lessor or not)
shall be deemed Additional Rent payable on demand.
19. MECHANIC'S LIENS.
The Lessee covenants not to suffer or permit any mechanic's or materialmen's or
other liens to be filed against Lessor's fee or leasehold interest in the
Building, Building Area or Demised Premises by reason of work, labor, services
or materials supplied or claimed to have been supplied to the Lessee or any
contractor, subcontractor or any other party or person acting at the request of
the Lessee or anyone holding the Demised Premises or any part thereof or under
the Lessee, unless the Lessee shall, within thirty (30) days after receiving
notice of the filing thereof, cause the same to be discharged of record by
payment, deposit, bond or Order of a Court of competent jurisdiction or
otherwise. Nothing in this Lease contained shall be deemed or construed in any
way as constituting consent by Lessor to the making of any alterations or
additions by Lessee for the purposes of N.J.S.A. 2A:44-68, et seq., or any
amendment thereof, or constituting a request by Lessor, express or implied, to
any contract, subcontract, labor or materialmen for the performance of any labor
or the furnishing of any materials for the use or benefit of the Lessor.
20. ASSIGNMENT AND SUBLEASE.
Lessee may assign or sublease the within Lease to any party subject to the
following:
(A) FINANCIAL INFORMATION/RECAPTURE
In the event that the Lessee desires to sublease the whole or any portion of the
Premises or assign the within Lease to any other party, the terms and conditions
of such sublease or assignment, together with the name and address of the
proposed assignee or sublessee, financial statements prepared by a certified
public accountant, certified to the President of the proposed assignee or
sublessee; the nature and character of the business of the proposed sublessee or
assignee; and any other information requested by Lessor reasonably calculated to
enable Lessor to determine the proposed assignee or sublessee's financial
responsibility, shall be communicated to Lessor in writing no later than fifteen
(15) days prior to the effective date of any such sublease or assignment, and,
prior to such effective date, Lessor shall have the option, exercisable in
writing to Lessee within fifteen (15) days of receipt of said information, to
recapture the within Lease so that such prospective sublessee or assignee shall
then become the sole Lessee of Lessor hereunder, or alternatively, to recapture
said space.
Upon receipt by Lessee of said notification of intent to
recapture, Lessee shall then remove itself and all of its personal property from
the Demised Premises pursuant to all the terms, conditions and provisions of
this Lease and
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in accordance with Paragraph 7 of this Lease pertaining to Lessee's removal and
restoration of the Demised Premises.
In the event the Lessor shall recapture the Demised Premises
pursuant to this Paragraph as above stated, the Lessee's obligation to pay Fixed
Basic Rent, Additional Rent and all other payments due hereunder shall continue
until Lessee has completed its removal and restoration of the Demised Premises
pursuant thereto. Lessee shall be required to pay the full monthly rental for
every month or any portion thereof in which it remains in occupancy hereunder up
to and until it has completed its removal from the Demised Premises in
accordance with all of the terms of this Lease and Lessor has retaken possession
thereof. After Lessee's removal from the Demised Premises and restoration of
same, and Lessor has retaken possession thereof, this Lease Agreement shall
terminate, cease and come to an end.
(B) LESSOR'S APPROVAL
In the event that the Lessor elects not to recapture the Lease as hereinabove
provided, or Lessee desires to sublet less than the whole of the Demised
Premises the Lessee may nevertheless assign this Lease or sublet the whole or
any portion of the Premises, subject to the Lessor's prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed;
provided, however, that Lessor shall not be deemed unreasonable if, in the
reasonable judgment of Lessor, the business of such proposed subtenant or
assignee is not compatible with the type of occupancy of the Building, or
consistent with Lessee's permitted use or will create an overparking situation
and on the basis of the following terms and conditions:
(1) The terms and conditions of the sublease or assignment
shall not be materially altered from those terms and conditions previously
communicated to Lessor.
(2) The assignee or sublessee shall assume, by written
instrument satisfactory to Lessor, all of the obligations of this Lease, and a
copy of such assumption agreement shall be furnished to the Lessor within ten
(10) days of its execution.
(3) The Lessee and each assignee shall be and remain liable
for the observance of all the covenants and provisions of this Lease, including,
but not limited to, the payment of Fixed Basic Rent and Additional Rent reserved
herein, throughout the Term, as the same may be renewed, extended or otherwise
modified.
(4) The Lessee and any assignee shall promptly pay to Lessor
50% of any consideration received for any assignment or sublet or all of the
Fixed Basic Rent and Additional Rent received by Lessee in excess of the Fixed
Basic Rent and Additional Rent required to be paid by Lessee for the area
assigned or sublet, computed on the basis of an average square foot rent for the
gross square footage Lessee has leased less reasonable brokerage, attorneys fees
and disbursements, advertising, demising costs and rent incentives..
(5) In any event, the acceptance by the Lessor of any Fixed
Basic Rent or Additional Rent from the assignee or from any of the subtenants,
or the failure of the Lessor to insist upon a strict performance of any of the
terms, conditions, and covenants contained herein, shall not release the Lessee
herein, nor any
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assignee assuming this Lease or sublessee, from any and all of the obligations
herein during and for the entire Term.
(6) Lessor shall require a Five Hundred and 00/100 ($500.00)
Dollar payment to cover its handling charges for each request for consent to any
sublet or assignment prior to its consideration of the same. Lessee shall
further reimburse to Lessor all reasonable attorneys fees incurred in the
drafting, negotiation or completion of the transaction. Lessee acknowledges that
its sole remedy with respect to any assertion that Lessor's failure to consent
to any sublet of assignment is unreasonable shall be the remedy of specific
performance and Lessee shall have no other claim or cause of action against
Lessor as a result of Lessor's actions in refusing to consent thereto.
(C) APPROVAL NOT REQUIRED
Any sublet or assignment to a parent, subsidiary, affiliate ("Affiliated
Company") as defined in the Preamble, or successor entity of Lessee shall not be
subject to the provisions of Subparagraphs (A) and (B) (4) and (6) hereof and
shall not require Lessor's prior written consent, but all other provisions of
this Paragraph shall apply.
The provisions of this Section 20 shall not apply to transactions with an entity
into or with which Lessee is merged or consolidated or to which all or
substantially all of Lessee's assets are transferred or to any entity which
controls or is controlled by Lessee or is under common control with Lessee,
provided and on condition that such transaction is for a bona fide business
purpose and not, either directly or indirectly, principally for the purpose of
transferring the leasehold created by this Lease.
(D) TRANSFERS
Notwithstanding Subparagraph (C) above, if Lessee is a corporation and if at any
time during the Term the persons owning a majority of its "voting stock" at the
time of the execution of this Lease should cease to own a majority of such
voting stock (except as the result of transfers by bequest or inheritance or
among other present minority owners of stock in the corporation), Lessee
covenants to so notify Lessor. Lessor may terminate this Lease by Notice to
Lessee to be effective ninety (90) days after service if the resulting company
has a net worth less than the net worth of Lessee existing on the date of
execution of this Lease or the date of assignment, whichever is higher. This
section shall not apply whenever Lessee is a corporation, the outstanding stock
of which is listed on a recognized stock exchange. For the purposes of this
Subparagraph (D), stock ownership with the principles set forth in Section 544
of the Internal Revenue Code of 1986, as amended, to and including the date of
this Lease, and the term "voting stock" shall refer to shares of stock regularly
entitled to vote for the election of directors of the corporation.
(E) BANKRUPTCY
If, pursuant to the Federal Bankruptcy Code (or any similar law hereafter
enacted having the same general purpose), Lessee is permitted to assign this
Lease, notwithstanding the restrictions contained in this Lease, adequate
assurance of future performance by an assignee expressly permitted under such
code shall be deemed to mean the deposit of cash security or Letter of Credit in
an amount equal to the sum of one (1) year's Fixed
21
Basic Rent plus an amount equal to the sum of all other charges due and payable
by Lessee hereunder for the calendar year preceding the year in which such
assignment is intended to become effective, which deposit shall be held by
Lessor for the balance of the Term, without interest, as security for the full
performance of all of Lessee's obligations under this Lease, to be held and
applied in the manner specified for security in Paragraph 16.
(F) ACCEPTANCE OF RENT FROM OTHERS
If this Lease be assigned, or if the Demised Premises or any part thereof be
underlet or occupied by anyone other than Lessee, Lessor may, after default by
Lessee collect Fixed Basic Rent or Additional Rent from the assignee,
undertenant or occupant and apply the net amount collected to the Fixed Basic
Rent or Additional Rent herein reserved, but no such assignment, underletting,
occupancy or collection shall be deemed a waiver of this lease, or the
acceptance of the assignee, undertenant or occupant as Lessee, or a release of
Lessee from the further performance by Lessee of all covenants on the part of
Lessee herein contained. The consent by Lessor to an assignment or underletting
shall not in any way be construed to relieve Lessee from obtaining the express
consent in writing of Lessor to any further assignment or underletting as
provided in this Section 20, nor shall the same release or discharge Lessee from
any liability, past, present or future, under this Lease, and Lessee shall
continue fully liable in all respects hereunder. Additionally, such action by
Lessor shall in no manner be construed as an obligation or undertaking to return
any security to such undertenant.
21. EMINENT DOMAIN.
If Lessee's use of the Premises is materially affected due to the taking by
eminent domain of (a) the Premises or any part thereof or any estate therein; or
(b) any other part of the Building; then, in either event, this Lease shall
terminate on the earlier of (i) the date of delivery of the Deed by the owner of
the fee to the Condemnor or (ii) the date of lawful physical possession by
Condemnor provided said possession materially and permanently affects Lessee's
use of the Demised Premises. The Fixed Basic Rent and any Additional Rent, shall
be apportioned as of said termination date and any Fixed Basic Rent or
Additional Rent paid for any period beyond said date shall be repaid to Lessee.
Lessee shall not be entitled to any part of the award for such taking or any
payment in lieu thereof, but Lessee may file a separate claim for any taking of
fixtures and improvements owned by Lessee which have not become Lessor's
property, and for moving expenses, provided the same shall in no way affect or
diminish Lessor's award. In the event of a partial taking, which does not
adversely affect Lessee's business in the Premises (as reasonably determined by
Lessee) and which does not affect a termination of this Lease, but does deprive
Lessee of the use of a portion of the Demised Premises, there shall either be an
abatement or an equitable reduction of the Fixed Basic Rent, and an equitable
adjustment reducing the Base Period Costs, depending on the period for which and
the extent to which the Premises so taken are not reasonably usable for the
purpose for which they are leased hereunder.
22. INSURANCE.
(A) BUILDING INSURANCE
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The Lessor shall, during the Term of this Lease, cause the Building to be
insured for its benefit, and any and all mortgagees, in an amount not less than
Three Million Five Hundred Thousand and 00/100 ($3,500,000.00) Dollars under the
terms of a blanket policy maintained by Lessor. The Lessee shall pay Lessee's
Percentage of the total premium for the Building, on a monthly basis when billed
and before the date when said premium shall be required to be paid to the
insurance company. In addition, the Lessee shall pay any increase in the premium
imposed by reason of its being a named insured and any increase assessed against
the entire Building occasioned by the Lessee's use. Likewise, any increase in
the amount of insurance required by reason of any addition or alteration by or
at the request of Lessee to the entire Building shall be the sole obligation of
the Lessee. The Lessee's obligation hereunder shall constitute Additional Rent
required to be paid by the Lessee under this Lease. Lessee shall have the
further obligation, in the event of casualty, to pay an appropriate allocable
share of any deductible under the policy as reasonably determined by Lessor.
Lessor represents the current deductible is $1,000.00. Notwithstanding anything
contained herein, the Lessee shall have the right to obtain the insurance above
described from a different company licensed to do business in the State of New
Jersey with a Bests rating of A-VII or better, selected by the Lessee and
willing to provide the required insurance if the premium therefor shall be less
than the premium to be charged by the insurance company selected by the Lessor.
Lessor reserves the right to have the building insurance amounts increased after
appraisal by a representative of the insurance company and Lessee shall pay the
increased cost of such premiums.
(B) LESSOR PUBLIC LIABILITY INSURANCE
The Lessor will obtain public liability insurance insuring itself with respect
to its ownership, maintenance and use against liability for injury or damage to
persons or property in or about the entire real property, Building and any
easements used in connection therewith. Said insurance coverage shall be in
amounts Lessor determines appropriate which are currently
$1,000,000/$10,000,000. The Lessee shall pay Lessee's Percentage of the total
premium, promptly when billed and before the date when said premium shall be
required to be paid to the insurance company. The Lessee's obligation hereunder
shall constitute Additional Rent required to be paid by the Lessee under this
Lease. Lessor reserves the right to require an increase in the aforesaid amount
during the Term of this Lease to an amount reasonable under the circumstances
considering the character and location of the Building and Lessee's use and
occupancy of the Demised Premises.
(C) LESSEE'S PERSONAL PROPERTY INSURANCE
Lessee covenants and represents (said representation being specifically designed
to induce Lessor to execute this Lease), that Lessee's personal property and
fixtures and any other items which Lessee may bring to the Premises which may be
subject to any claim for damages or destruction due to Lessor's negligence shall
be fully insured by a policy of insurance covering all risks with a deductible
not in excess of Five Thousand and 00/100 ($5,000.00) Dollars. Lessee agrees as
a material inducement to Lessor to permit said deductible, that Lessee shall act
as a self-insurer to the amount of any such deductible and that Lessee shall
make no claim against Lessor therefor. Said policy shall specifically provide
for a waiver of subrogation for Lessor without regard to whether or not same
shall cost an additional premium and notwithstanding anything to the contrary
contained in this Lease. Should Lessee fail to maintain said all risk insurance
with the required
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waiver of subrogation, or fail to maintain the liability insurance, naming
Lessor as an additional named insured, then Lessee shall be in default hereunder
and shall be deemed to have breached its covenants as set forth herein. In
naming Lessor as an additional insured, same shall be without regard to any
policy separately maintained by Lessor and Lessee's policy shall be primary and
not contributing with or in excess to Lessor's policy.
(D) LESSEE'S GENERAL LIABILITY INSURANCE
Lessee shall purchase at its own expense and keep in force during this Lease a
policy or policies of (i) commercial general liability insurance, including
personal injury and property damage, in the amount of not less than Two Million
Dollars ($2,000,000.00) combined single limit per occurrence or person and
Five-Hundred Thousand and 00/100 ($500,000) Dollars in respect of property
damage, together with excess liability insurance not less than Five Million and
00/100 ($5,000,000.00), and comprehensive automobile liability insurance
covering Lessee against any losses arising out of liability for personal
injuries or deaths of persons and property occurring in or about the Premises
and Property and (ii) "all-risk" property insurance covering Lessee's property
(and otherwise resulting from any acts or operations of Lessee). Said policies
shall (a) name Lessor, any managing agent of Lessor and any party holding an
interest to which this Lease may be Subordinated as additional insureds; (b) be
issued by an insurance company with a Best rating of A-VII or better and
otherwise reasonably acceptable to Lessor and licensed to do business in the
State of New Jersey; (c) provide that said insurance shall not be canceled or
materially modified unless thirty (30) days prior written notice shall have been
given to Lessor; (d) provide coverage on an occurrence basis; (e) provide
coverage for all repair and indemnity obligations of Lessee under this Lease
including without limitation intended those obligations expressly set forth in
Paragraphs 7 and 34 hereof and all other damage to the premises whether
incidental, accidental, known or unknown; (f) contain a severability of insured
parties provision and a cross liability endorsement; (g) be primary, not
contributing with, and not in excess of coverage which Lessor may carry; (h)
contain a hostile fire endorsement; and (i) otherwise be in such form and
include such overages as Lessor may reasonably require. Said policy or policies
or, at Lessor's option, Certificate of Insurance on the so-called "ACCORD" Form
25.S evidencing said policies, shall be delivered to Lessor by Lessee upon
commencement of the Lease and renewals thereof shall be delivered at least
thirty (30) days prior to the expiration of said insurance. Said limits shall be
subject to periodic review, and Lessor reserves the right to increase said
coverage limits if, in the reasonable opinion of Lessor, said coverage becomes
inadequate and is less than that commonly maintained by tenants in similar
buildings in the area by tenants having similar uses.
(E) RENT INSURANCE
Lessor shall provide and keep in force, during the Term of this Lease, for the
benefit of the Lessor, rental income insurance insuring the Lessor against the
loss of Fixed Basic Rent and Additional Rent, as in this Lease provided, from
the perils of fire and extended coverage for a period of no less than one (1)
year. The Lessee shall pay Lessee's Percentage of the premium to the Lessor
promptly when billed as Additional Rent.
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(F) WAIVER OF SUBROGATION
Each insurance policy carried by the Lessor insuring the Demised Premises
against loss by fire and causes covered by standard extended coverage, and each
insurance policy carried by the Lessee and insuring the Demised Premises and its
fixtures and contents against loss by fire, water, and causes covered by
standard extended coverage, shall be written in a manner so as to provide that
the insurance company waives all right of recovery by way of subrogation against
the Lessor or the Lessee in connection with any loss or damage covered by any
such policies.
(G) LESSOR'S RIGHT TO PURCHASE/ INTEREST CHARGE
Upon failure at any time on the part of the Lessee to procure any or all of the
policies of insurance as herein provided, or to pay the premiums therefor, the
Lessor shall be at liberty from time to time as often as such failure shall
occur, to procure such insurance and pay the premiums therefor as herein
provided in case of fire insurance, and all and any sums paid for such insurance
by the Lessor together with interest thereon at the rate of Eighteen (18%) per
annum plus late charges as applicable to late paid Fixed Basic Rent declared to
be Additional Rent under this Lease, forthwith due and payable, and shall be
collectible accordingly.
23. COMPLIANCE WITH LAWS, ETC.
The Lessee shall not do or permit anything to be done in the Demised Premises
which shall constitute a public nuisance or which will conflict with the
regulations of the fire department or with any insurance company having issued
or about to issue a policy of insurance in favor of Lessor covering said Demised
Premises and its contents for the prevention of fire or other casualty damage or
injury and Lessee covenants to comply at its own expense with all such related
orders, rules, regulations or policies of any such company or public authority.
The Lessee shall, at its own expense, obtain all necessary environmental and
operating permits and promptly comply with all requirements of law and with all
ordinances or orders, rules, and regulations of any Federal, State, Municipal or
other public authority having jurisdiction over the Demised Premises and with
all requirements of the Fire Insurance Exchange or similar body, and of any
liability insurance company insuring the Lessor (or about to issue a policy of
insurance to Lessor) against liability for accidents in or connected with the
Demised Premises, including, but not limited to, laws, regulations, ordinances,
orders and rules, which apply to the interior or exterior of the Demised
Premises, the structural or non-structural parts thereof, are ordinary or
extraordinary, foreseen or unforeseen. In the alternative, Lessor shall assure
compliance with laws in the areas for which Lessor is responsible to make
repairs, subject to Lessor's right to chargeback same as a Common Area cost.
24. LESSEE'S ESTOPPEL.
Lessee shall, from time to time (but not more than twice per Lease Year) on not
less than twenty (20) days' prior written request by Lessor, execute,
acknowledge and deliver to Lessor or to anyone Lessor shall designate, without
charge to Lessor, a written statement of Lessee certifying that (i) the Lease is
unmodified and in full force and effect, or that the Lease is in full force and
effect as modified and listing the instruments of modification;
25
(ii) the dates to which the rents and charges have been paid; (iii) that Lessee
has not discharged or used and does not discharge or use any hazardous or toxic
substance or waste at the Building; and (iv) whether or not to Lessee's
knowledge Lessor is in default hereunder, and if so, specifying the nature of
the default and as to any other matters as may reasonably be so requested. It is
intended that any such statement delivered pursuant to this Paragraph 24 may be
relied on by a prospective purchaser of Lessor's interest or mortgagee of
Lessor's interest or assignee of any mortgage of Lessor's interest.
25. HOLDOVER TENANCY.
If Lessee holds possession of the Premises after the expiration of the Term of
this Lease, Lessee shall become a Lessee from month to month under the
provisions herein provided, initially for the first month at a monthly rental of
150% of the Fixed Basic Rent provided for the last month of the Term and
thereafter at a monthly basic rental of double the rate charged herein for Fixed
Basic Rent as provided for pursuant to N.J.S.A. 2A:42-6 and without the
requirement for demand or notice by Lessor to Lessee demanding delivery of said
Premises for which this Lease and all relevant provisions shall be deemed
sufficient written demand (but Additional Rent shall continue as provided in
this Lease), which sum shall be payable in advance on the first day of each
month, and such tenancy shall continue until terminated by Lessor, or until
Lessee shall have given to Lessor, at least thirty (30) days prior to the
intended date of termination, a written notice of intent to terminate such
tenancy, which termination date must be as of the end of a calendar month. The
provisions of this Paragraph do not exclude the Lessor's rights of re-entry and
shall not be deemed or construed as a waiver by Lessor of any other rights or
remedies granted to Lessor under the terms of this Lease or available at law.
26. AS IS/LESSEE'S WORK.
(A) "AS IS" CONDITION.
Lessee agrees to accept the Building in its "as is" condition without exception.
(B) INTENTIONALLY DELETED
(C) CONDITIONS ATTACHING TO LESSEE'S WORK
In the event, at anytime during the Lease Lessee shall desire to make any
alterations, same shall be subject to the following conditions which shall be
restated in a letter agreement containing Lessor's consent:
(i) Before commencing any construction, Lessee shall deliver
to the Lessor for the Lessor's prior approval in writing, a detailed plan for
the proposed work, and as necessary or required by the municipality or governing
agency, prepared, signed and sealed by a licensed architect of the State of New
Jersey together with complete specifications therefor, which shall set forth the
location, design, layout, mechanical installations, materials and other
pertinent or relevant information, to be used in said construction;
26
(ii) All of the demolition or construction shall be
performed and completed in a good and workmanlike manner consistent in character
and quality to the Building;
(iii) All of the demolition or construction shall be carried
on and completed at the sole cost and expense of the Lessee and Lessee shall
also obtain and pay for any permits or approvals required for said work and
before commencement of the work;
(iv) Any violations or liens created or caused by virtue of
Lessee's work shall be immediately cured and removed by Lessee at its sole cost
and expense;
(v) All work, once commenced, shall be performed on a
continuous basis until complete subject to Force Majeure;
(vi) All contractors employed at the premises shall carry
xxxxxxx'x compensation insurance and general liability insurance in the minimum
amounts of $1,000,000.00 and, prior to commencement of any work shall deliver
certificates of insurance evidencing same naming Lessor thereon as an additional
insured;
(vii) The work shall be subject to Lessor's right (at its
sole option and at the time of Lessor's approval) to require Lessee to remove
all work and/or restore the Demised Premises herein to its original condition
upon expiration or sooner termination of the Lease as more fully set forth in
Paragraph 7 (C) above; and
(viii) All governmental permits and approvals shall be
obtained and paid for prior to the commencement of any work. Lessor makes no
representation as to the availability of said approvals. Lessor agrees to
cooperate with Lessee as to the making of an application for approval and shall
execute its consent provided Lessee has complied with Lessor's review right as
set forth in subparagraph (i) above, has agreed to provide by all of the other
conditions set forth herein and provided further that any reasonable cost or
legal fee incurred by Lessor shall be reimbursed by Lessee upon invoicing for
same. The commencement of this Lease and Lessee's obligations hereunder are
expressly not contingent on the obtaining of said approvals. The refusal of the
municipality or any other agency to grant the necessary permits or approvals to
perform any work that may hereinafter be requested by Lessee shall not be deemed
a cause for termination of/or non-performance of Lessee's obligations hereunder
and this Lease shall continue unabated, in full force and effect in accordance
with all of the terms, conditions and provisions stated elsewhere herein until
the expiration of the entire Term of this Lease.
27. LEASE COMMENCEMENT.
This Lease and all of its terms, conditions and provisions shall commence on
October 1, 2006. Lessee shall not be charged as a holdover for the one day of
September 30, 2006, the parties recognizing that the Lessee is presently a
subtenant under a sublease with a termination date of September 29, 2006. Lessee
originally entered into the Premises as a division of Becton Xxxxxxxxx and is
presently operating under the Continuing Certificate of Occupancy obtained by
Becton Xxxxxxxxx ("CO"). Lessee shall be obligated to obtain a new Continuing
Certificate of Occupancy as part of this lease commencement no later
27
than August 1, 2006 at its sole cost and expense. Lessee shall make any repairs
necessary to correct any violations required as part of the issuance of the CO..
28. RIGHT TO SHOW PREMISES.
Lessor may show the Premises to prospective purchasers and mortgagees during
normal business hours at any time on reasonable telephone notice. During the
twelve (12) months prior to Termination Date, of this Lease, Lessor may show the
Premises to prospective Lessees, during business hours on reasonable telephone
notice to Lessee and may place the usual "To Let" or "For Sale" signs thereon.
29. WAIVER OF TRIAL BY JURY.
It is mutually agreed by and between Lessor and Lessee that the respective
parties hereto shall and they hereby do waive trial by jury in any action or
proceeding brought by either of the parties hereto against the other on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Lessor and Lessee, Lessee's use or occupancy of the Demised
Premises, and/or any claim of injury or damage, and any emergency statute or any
other statutory remedy. Should Lessor seek recourse to equity to enforce any of
its rights under this Lease, Lessee agrees to waive any defense which it might
otherwise have that Lessor has an adequate remedy at law. Lessee further agrees
that it shall not interpose any counterclaim (other than compulsory counter
claims) or set off in a summary proceeding or in any action based, in whole or
in part, on non-payment of Fixed Basic Rent or Additional Rent.
30. NO OTHER REPRESENTATIONS.
No representations or promises shall be binding on the parties hereto except
those representations and promises contained herein or in such future writing
signed by the party making such representations(s) or promise(s).
31. QUIET ENJOYMENT.
Lessor covenants that if, and so long as, Lessee pays the Fixed Basic Rent, and
any Additional Rent as herein provided, and performs the covenants hereof,
Lessor shall do nothing to affect Lessee's right to peaceably and quietly have,
hold, and enjoy the Premises for the Term, subject to the provisions of this
Lease.
32. PERSONAL LIABILITY.
(A) LESSOR'S EXCULPATION
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary consideration
for the execution of this Lease by Lessor, its constituent members (to include,
but not be limited to, officers, directors, partners and trustees), their
respective successors, assigns or any mortgagee in possession (for the purposes
of this Paragraph, collectively referred to as "Lessor"), with respect to any of
the terms, covenants and conditions of this Lease, and that Lessee shall look
solely to the equity of Lessor in the Building, and the land thereon (including
without limitation, the rent and proceeds therefrom), for the satisfaction of
each and every
28
remedy of Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exceptions whatsoever.
(B) LESSOR'S CONSENT
With respect to any provision of this Lease which provides that Lessee shall
obtain Lessor's prior consent or approval, Lessor may withhold such consent or
approval for any reason or no reason at all unless otherwise specified. As to
any such provision, Lessee shall be permitted to bring an action for specific
performance only and no money damages shall be sought or allowed. Lessee
acknowledges that this restriction is agreed upon as a material inducement to
Lessor's agreement to enter into this Lease and that without same, this would
not have been consummated.
33. LESSOR'S LIABILITY FOR LOSS OF PROPERTY.
The Lessor shall not be liable for any damage or injury which may be sustained
by the Lessee or any other person, as a consequence of the failure, breakage,
leakage or obstruction of the water, plumbing, steam, sewer, waste or soil
pipes, roof, drains, leaders, gutters, valleys, downspouts or the like or of the
electrical, gas, power, conveyor, refrigeration, sprinkler, air-conditioning or
heating systems, elevators or hoisting equipment; or by reason of the elements;
or resulting from the carelessness, negligence or improper conduct on the part
of any other Lessee or of the Lessor of the Lessor's or this or any other
Lessee's agents, employees, guests, licensees, invitees, subtenants, assignees
or successors; or attributable to any interference with, interruption of or
failure, beyond the control of the Lessor, of any services to be furnished or
supplied by the Lessor.
34. INDEMNITY.
Except to the extent caused by the willful (and therefore uninsurable)
misconduct of Lessor, its agents, contractors or employees, the Lessee shall and
will indemnify and save harmless the Lessor from and against any and all
liability, claims, demands, damages, expenses, fees, fines, penalties, suits,
proceedings, actions and causes of action of any and every kind and nature
[including but not limited to same brought by Lessee or any other person(s) or
entity] for any damage or injury arising or growing out of or in any way
connected with the use, occupation, design or construction, management or
control of the Demised Premises and each and every part thereof and the
sidewalks, curbs, streets and yards adjoining the same, or arising out of or in
any way connected with any act, omission, or negligence of the Lessor (except to
the extent caused by the willful (and therefore uninsurable) misconduct of
Lessor) or Lessee, its successors or assigns, or any one claiming under it or
through it or resulting from any breach, violation or non-performance of any
covenant, conditions, or agreement herein contained on the part of the Lessee to
be kept and performed, or resulting in injury to person or property or loss of
life or property of any kind or nature whatsoever sustained during the term
hereof in or about the Demised Premises or any part thereof or to or upon the
adjoining sidewalks, streets, and yards; and the Lessee shall and will, at its
own cost and expense defend any and all actions, suits and proceedings which may
be brought against the Lessor or in which the Lessor may be impleaded with
others in any such actions or proceedings, and shall and will satisfy, pay and
discharge any and all judgments, order and decrees that may be recovered against
the Lessor in any such actions or proceedings or in which the Lessor may be a
party defendant.
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35. BROKER.
Each party represents and warrants to the other that the Broker, as defined in
the Preamble, is the sole broker with whom the parties have negotiated in
bringing about this Lease, and each agrees to indemnify and hold the other
harmless from any and all claims of other brokers and expenses in connection
therewith arising out of or in connection with the negotiation of or the
entering into this Lease by Lessor and Lessee. Lessor shall pay Broker pursuant
to the terms of a separate written agreement.
36. PARKING SPACES.
Lessee's occupancy of the Demised Premises shall include the use of fifty (50)
parking spaces for use by passenger vehicles only (specifically no trucks) as
designated on Exhibit A. Lessee shall do nothing to block the ingress and egress
of vehicles of other tenants in the Building Area.
37. ACCORD AND SATISFACTION.
No payment by Lessee or receipt by Lessor of a lesser amount than the Fixed
Basic Rent and Additional Rent payable hereunder shall be deemed to be other
than a payment on account of the earliest stipulated Fixed Basic Rent and
Additional Rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment for Fixed Basic Rent or Additional Rent
be deemed an accord and satisfaction, and Lessor may accept such check or
payment without prejudice to Lessor's right to recover the balance of such Fixed
Basic Rent and Additional Rent or pursue any other remedy provided herein or by
law.
38. EFFECT OF WAIVERS OF DEFAULT.
No failure by Lessor or Lessee to insist upon the strict performance of any
covenant, agreement term or condition of this Lease, or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance by Lessor of full or
partial rent during the continuance of any such breach, shall constitute a
waiver of any such breach or of such covenant, agreement, term or condition. No
consent or waiver, express or implied, by Lessor or Lessee to or of any breach
of any covenant, condition, or duty of the other shall be construed as a consent
or waiver to or of any other breach of the same or any other covenant, condition
or duty, unless in writing signed by the party to be charged with the waiver.
39. NO OPTION.
The submission of this Lease Agreement for examination does not constitute a
reservation of, or option for, the Premises, and this Lease Agreement shall
become effective as a Lease Agreement only upon execution and delivery thereof
by Lessor and Lessee.
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40. NOTICES.
Any notice, demand, consent, approval, request and any instrument or document
(the "Notice") by this Lease required to be given or served upon or by either
party to the other shall be in writing and shall be deemed to have been duly
given only if delivered personally or sent by certified mail in a postpaid
envelope addressed or by a reputatble overnight courier, if to Lessee, at the
above-described Building; if to Lessor, at Lessor's address as set forth above;
or, to either at such other address as Lessee or Lessor, respectively, may
designate in writing. Notice shall be deemed to have been duly given, on the
first day of attempted delivery. Copies of default notices to Lessee shall be
delivered to Xxxxxxxxxx Xxxxxxx, PC, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx,
Attention: Xxxxx Xxxxxxxxx, Esq.
41. PARAGRAPH HEADINGS.
The paragraph headings in this Lease and position of its provisions are intended
for convenience only and shall not be taken into consideration in any
construction or interpretation of this Lease or any of its provisions.
42. APPLICABILITY TO HEIRS AND ASSIGNS.
The provisions of this Lease shall apply to, bind, and inure to the benefit of
Lessor and Lessee, and their respective heirs, successors, legal
representatives, and assigns. It is understood that the term "Lessor" as used in
this Lease means only the owner, a mortgagee in possession or a term lessee of
the Building, so that in the event of any sale of the Building or of any lease
thereof, or if a mortgagee shall take possession of the Premises, the Lessor
named herein shall be and hereby is entirely freed and relieved of all covenants
and obligation hereunder accruing thereafter, and it shall be deemed without
further agreement that the purchaser, the term lessee of the Building, or the
mortgagee in possession has assumed and agreed to carry out any and all
covenants and obligations of Lessor hereunder and Lessee shall upon receipt of
notice from the owner of the reversion attorn thereto.
43. NUMBER AND GENDER.
The terms "Lessor" and "Lessee" wherever used herein shall be applicable to one
or more persons, as the case may be, and the singular shall include the plural
and neuter shall include the masculine and/or feminine, and if there be more
than one, the obligations hereof shall be joint and several.
44. CORPORATE/AUTHORITY/REPRESENTATIONS.
(A) CORPORATE AUTHORIZATION
Lessee represents and warrants that this Lease and the undersigned's execution
of this Lease has been duly authorized and approved by the corporation's Board
of Directors. The undersigned officers and representatives of the corporation
executing this Lease on behalf of the corporation represent and warrant that
they are officers of the corporation with authority to execute this Lease on
behalf of the corporation, and within fifteen (15) days of execution hereof,
Lessee will provide Lessor with a corporate resolution
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confirming the aforesaid. Lessor similarly represents that the person executing
this Lease has authority to act on behalf of Lessor and shall deliver a
certification of the Lessor confirming this representation.
(B) LESSEE'S REPRESENTATIONS
(i) Lessee represents that it is a duly organized and
validly existing corporation of the State of Nevada.
(ii) Lessee represents that it shall be the entity occupying
and conducting day to day business in the Premises.
45. RECORDING.
Lessee covenants that it will not place this Lease on record without the prior
written consent of Lessor.
46. MISCELLANEOUS.
(A) MORTGAGEE'S MODIFICATIONS/LESSEE'S FINANCIALS
If in connection with obtaining financing for the Building a bank, insurance
company or other recognized institutional Lender shall request reasonable
modifications in this Lease as a condition to such financing, Lessee hereby
consents to said modifications provided that such modifications do not (i)
increase the obligations of Lessee hereunder, or (ii) materially or adversely
decrease the rights of Lessee hereunder or the obligations of Lessor hereunder.
Furthermore, Lessee agrees to furnish upon request, but not more frequently than
once per Lease Year, to any contract purchaser, mortgagee or proposed mortgagee
of the Building, copies of Lessee's latest financial statement duly certified by
an independent Certified Public Accountant, or if no such certified statement is
available, then such statement shall be certified by the President or Chief
Operating Officer of Lessee. Such statements shall be delivered and held by
mortgagee in only the strictest of confidence. Such financial information shall
be required to be delivered only in the event Lessee is not publicly traded and
the information is not available to the general public on an SEC website.
(B) JURISDICTION/VENUE
The laws of the State of New Jersey shall govern the validity, performance and
enforcement of this Lease. The invalidity or unenforceability of any provision
hereof shall not affect or impair any other provision of this Lease. Any action
brought to enforce the provisions of this Lease shall be venued in Bergen
County, New Jersey.
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(C) SIGNS
No sign, advertisement or notice shall be affixed to or placed upon any part of
the Demised Premises by Lessee, except in such manner, and of such size, design
and color as shall be approved in writing in advance by Lessor which approval
Lessor can arbitrarily withhold. Notwithstanding the foregoing, Lessee shall be
permitted to utilize signage in the size and location as currently utilized by
Lessee (as subtenant) or the outgoing tenant, subject to municipal approval. Any
sign so affixed shall be removed upon the termination of the Lease or occupancy
in such a manner so as to cause as little damage to the Building as possible and
Lessee shall repair and pay for the cost to restore the exterior to its original
condition.
(D) WAIVER OF DAMAGE CLAIMS
Each of Lessor and Lessee hereby waives its right to make a claim against the
other for any special, consequential, or punitive damages, if and to the extent
such claim is available under this Lease.
47. OFAC COMPLIANCE
(A) Lessee represents and warrants that (a) Lessee and its respective
principals, officers, and directors and persons or entities owning ten percent
(10%) or more shares are (i) not currently identified on the Specially
Designated Nationals and Blocked Persons List maintained by the Office of
Foreign Assets Control, Department of the Treasury ("OFAC") and/or on any other
similar list maintained by OFAC pursuant to any authorizing statute, executive
order or regulation (collectively, the "LIST"), and (ii) not a person or entity
with whom a citizen of the United States is prohibited to engage in transactions
by any trade embargo, economic sanction, or other prohibition of United States
law, regulation, or Executive Order of the President of the United States, (b)
none of the funds or other assets of Lessee constitute property of, or are
beneficially owned, directly or indirectly, by any Embargoed Person (as
hereinafter defined), (c) no Embargoed Person has any interest of any nature
whatsoever in Lessee (whether directly or indirectly), (d) none of the funds of
Lessee have been derived from any unlawful activity with the result that the
investment in Lessee is prohibited by law or that the Lease is in violation of
law, and (e) Lessee has implemented procedures, and will consistently apply
those procedures, to ensure the foregoing representations and warranties remain
true and correct at all times. The term "EMBARGOED PERSON" means any person,
entity or government subject to trade restrictions under U.S. law, including but
not limited to, the International Emergency Economic Powers Act, 50 U.S.C.
Section 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq.,
and any Executive Orders or regulations promulgated thereunder with the result
that the investment in Lessee is prohibited by law or Lessee is in violation of
law. For purposes of this Section, the term "person" shall not include any
person to the extent that such person's interest in the Lessee is through a U.S.
Publicly-Traded Entity. As used in this Agreement, U.S. Publicly-Traded Entity
means a person, other than an individual, whose securities are listed on a
national securities exchange, or quoted on an automated quotation system, in the
United States, or a wholly-owned subsidiary of such a person.
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(B) Lessee covenants and agrees (a) to comply with all requirements of
law relating to money laundering, anti-terrorism, trade embargos and economic
sanctions, now or hereafter in effect, (b) to immediately notify Lessor in
writing if any of the representations, warranties or covenants set forth in this
paragraph or the preceding paragraph are no longer true or have been breached or
if Lessee has a reasonable basis to believe that they may no longer be true or
have been breached, (c) not to use funds from any "Prohibited Person" (as such
term is defined in the September 24, 2001 Executive Order Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism) to make any payment due to Lessor under the Lease and (d) at the
request of Lessor, to provide such information as may be requested by Lessor to
determine Lessee's compliance with the terms hereof.
(C) Lessee hereby acknowledges and agrees that Lessee's inclusion on
the List at any time during the Lease Term shall be a material default of the
Lease. Notwithstanding anything herein to the contrary, Lessee shall not permit
the Premises or any portion thereof to be used or occupied by any person or
entity on the List or by any Embargoed Person (on a permanent, temporary or
transient basis), and any such use or occupancy of the Premises by any such
person or entity shall be a material default of the Lease.
48. RIGHT OF FIRST OFFER.
Lessee shall have the right of first offer to lease additional space which
hereafter shall become vacant and which is contiguous to space then occupied by
Lessee under this Lease, subject only to whatever prior rights as to said space
exist in connection with the initial leasing of space in the Building to the
tenants to whom said leases are granted. For purposes of this Lease, contiguous
space shall be deemed to be space on the same floor of the Building on which the
Premises are located, and having a common demising wall with the Premises.
Lessor will advise Lessee of the terms and conditions Lessor would be willing to
accept with respect to said space which shall be not less than that rent then
being paid by Lessee under the terms of this Lease on a dollar per square foot
basis, and Lessee shall have ten (10) days within which to respond to Lessor's
offer. Should Lessee decline Lessor's offer or fail to respond, then, and in
such event, Lessee shall lose any prospective rights of first refusal in the
Building and Lessor shall be free to lease to any other tenant.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals to this Lease Agreement consisting of 34 pages (exclusive of the
cover page and table of contents) the day and year first above written.
WITNESS: LINCOLN FAIR LAWN ASSOCIATES, LESSOR
By: /S/ Xxxxxxx X. Xxxx By: /S/ Xxxxxxx X. Xxxxxx
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxx Xxxxxxx X. Xxxxxx, GENERAL PARTNER
ATTEST: VYTERIS HOLDING (NEVADA), INC., LESSEE
By: /S/ Xxxxxxx X. Xxxxxxxxx By: /S/ Xxxxxxx X. Xxxxxxxx
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxxxxx, PRESIDENT
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EXHIBIT C
FORM OF LETTER OF CREDIT
[Insert name and address of issuing bank]
[Insert date]
IRREVOCABLE LETTER OF CREDIT NO. [Insert number]
[Insert name and address of LANDLORD]
Dear Sir:
At the request and for the account of [insert name of tenant] located at [insert
address of tenant] (hereinafter called "Applicant"), we hereby establish our
Irrevocable Letter of Credit No. [insert number] in your favor and authorize you
to draw on us up to the aggregate amount of US $ [insert amount of letter of
credit] available by your draft(s) at sight drawn on us and accompanied by the
following:
A written statement by you that:
(i) "Applicant is in default under that certain lease, dated as of [insert date
of lease] between you, as landlord, and Applicant, as tenant (the
'Lease');" or
(ii) "Applicant has failed to deliver timely a renewal Letter of Credit as
provided in the Lease."
This Irrevocable Letter of Credit will be duly honored by us at sight upon
delivery of the statement set forth above without inquiry as to the accuracy of
such statement and regardless of whether Applicant disputes the content of such
statement.
We hereby engage with you that all drafts drawn under and in compliance with the
terms of this Irrevocable Letter of Credit will be duly honored by us if
presented at [insert address of issuing bank] no later than [insert expiration
date of Letter of Credit], it being a condition of this Irrevocable Letter of
Credit that it shall be automatically extended for periods of at least one year
from the present and each future expiration date unless, at least sixty (60)
days prior to the relevant expiration date, we notify you, by certified mail,
return receipt requested, that we elect not to extend this Irrevocable Letter of
Credit for any additional period.
Partial drawings are permitted. This original Letter of Credit must be submitted
to us together with any drawings hereunder for our endorsement of any payments
effected by us and/or for cancellation.
This Irrevocable Letter of Credit is transferable at no charge to any transferee
of landlord upon notice to the undersigned from you and such transferee.
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This Irrevocable Letter of Credit is subject to the Uniform Customs and
Practices for Documentary Credits (1993 revision) International Chamber of
Commerce Publication #500 and the laws of the State of New Jersey. In the event
of a conflict between the two, the laws of New Jersey shall control.
Sincerely yours,
[Insert authorized signature]
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