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EXHIBIT 10.28
LEASE BETWEEN
AIRPORT ASSOCIATES,
LANDLORD,
AND
VIVUS, INC.,
TENANT.
FOR PREMISES
AT
000 XXXXXXX XXXX
XXXXXXXX, XXX XXXXXX
Prepared by:
XXXXX X. XXXXXXXXX, ESQ.
ST. XXXX & XXXXX, L.L.C.
XXX XXXX XXXXX XXXX
XXXXXX, XXX XXXXXX 00000-0000
Dated As Of January 1, 1997
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TABLE OF CONTENTS
Page
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1. DEMISE AND TERM OF DEMISE....................................................................................1
2. RENT, TAXES, ASSESSMENTS AND OTHER CHARGES...................................................................1
3. USE OF PREMISES, COMPLIANCE WITH LAWS........................................................................3
4. LIMITED REPRESENTATIONS BY LANDLORD..........................................................................4
5. INSURANCE....................................................................................................4
6. DAMAGE OR DESTRUCTION........................................................................................6
7. CONDEMNATION.................................................................................................8
8. SUBORDINATION, ATTORNMENT, ESTOPPEL CERTIFICATE.............................................................10
9. REPAIRS, MAINTENANCE, ALTERATIONS, ETC......................................................................11
10. SECURITY DEPOSIT............................................................................................13
11. ASSIGNMENTS, SUBLETTING AND MORTGAGING......................................................................13
12. INDEMNITY...................................................................................................15
13. DEFAULT PROVISIONS, LANDLORD'S REMEDIES.....................................................................16
14. BANKRUPTCY AND INSOLVENCY...................................................................................19
15. ENTRY BY LANDLORD, ETC......................................................................................20
16. COVENANT OF QUIET ENJOYMENT.................................................................................21
17. EFFECT OF CONVEYANCE; LIMITS OF LIABILITY OF LANDLORD,
DEFINITION OF "LANDLORD"..................................................................................21
18. SURRENDER, HOLDING OVER BY TENANT...........................................................................22
19. CURING DEFAULTS, FEES AND EXPENSES..........................................................................22
20. MECHANICS' AND OTHER LIENS..................................................................................23
21. SIGNS, ADDRESS..............................................................................................24
22. WAIVERS AND SURRENDERS TO BE IN WRITING; RIGHT TO TERMINATE.................................................24
23. COVENANTS BINDING ON SUCCESSORS AND ASSIGNS.................................................................25
24. RESOLUTION OF DISPUTES......................................................................................25
25. NOTICES.....................................................................................................25
26. DEFINITIONS; HEADINGS; CONSTRUCTION OF LEASE................................................................25
27. FORCE MAJEURE...............................................................................................26
28. BROKERAGE...................................................................................................27
29. MISCELLANEOUS PROVISIONS....................................................................................27
30. COMPLIANCE WITH ENVIRONMENTAL LAWS..........................................................................28
31. ENVIRONMENTAL REPORTS.......................................................................................33
32. OPTION TO RENEW.............................................................................................34
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This Lease is entered into as of January 1, 1997, between AIRPORT
ASSOCIATES, a New Jersey general partnership, having an address at 000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Landlord"), and VIVUS, INC., a Delaware
corporation, having an address at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxx,
Xxxxxxxxxx 00000 (the "Tenant").
W I T N E S S E T H:
1. DEMISE AND TERM OF DEMISE
1.1 Landlord demises and leases unto Tenant, and Tenant hires
and takes from Landlord, in consideration of the rents to be paid and the
covenants, agreements and conditions to be performed, observed and fulfilled by
Tenant, the Premises (hereinafter defined), including the building (consisting
of approximately 40,000 square feet) (the "Building") and land located at 000
Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx. The Building and the land on which the
Building is located and all other improvements thereon are sometimes hereinafter
collectively referred to as the "Premises".
1.2 The term of this Lease (the "Term") shall be five (5)
years, commencing as of January 1, 1997 (the "Commencement Date") and expiring
December 31, 2001. Tenant shall, at Landlord's request, execute a certificate as
to the Commencement Date of this Lease.
2. RENT, TAXES, ASSESSMENTS AND OTHER CHARGES
2.1 Tenant shall pay to Landlord, at the address set forth
above or at such other place of which Landlord shall have given Tenant written
notice, a basic annual rental of $202,000.00, in monthly installments of
$16,833.33 each.
2.2 Such rent shall be paid by Tenant to Landlord in advance,
on the first day of each calendar month during the Term (except the pro-rated
rent for the unexpired portion of the month in which the Commencement Date
occurs, which shall be due on the Commencement Date), without notice, demand,
abatement, deduction, counterclaim or set off of any kind. Tenant shall pay the
rent in lawful money of the United States which shall be legal tender for all
debts, public and private, at the time of payment. Any obligation of Tenant for
payment of rent which shall have accrued with respect to any period during the
Term shall survive the expiration or termination of this Lease.
2.3 Whenever under the terms of this Lease any sum of money is
required to be paid by Tenant in addition to the rental reserved, and said
additional amount so to be paid is not designated as "additional rent," then
said amount shall nevertheless, if not paid when due, be deemed "additional
rent" and collectible as such with any installment of rental thereafter falling
due hereunder, or, if no such installment thereunder shall fall due, on demand.
2.4 Tenant shall pay, to Landlord, monthly, or as Landlord may
otherwise demand, as additional rent, all real estate taxes, all special
assessments, all general assessments, all water and sewer charges, rates and
rents, water meter charges, and all such other taxes, levies and charges of any
kind, general and special, extraordinary as well as ordinary, and each and every
installment thereof which shall
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or may during the Term be charged, levied, laid, assessed, imposed, become due
and payable, or liens upon or for or with respect to the Premises or by reason
of the use or occupancy of or any transaction or activity carried on or
conducted in the Premises, together with all interest and penalties thereon (but
not for any interest or penalty if Tenant timely pays any such imposition). If
any assessment is payable in installments, Landlord shall elect to pay such
assessments over the longest permissible period allowed without penalty and
Tenant shall be responsible for installments which are due and payable or accrue
during the Term (equitably pro-rated for installments which accrue during the
Term but are payable prior to the Commencement Date or after the expiration of
the Term). All taxes, assessments, levies and charges described in this Section
2.4 (including interest and penalties thereon) are sometimes herein referred to
as "impositions."
2.5 Nothing contained in this Lease shall require Tenant to
pay any federal, state, municipal or other income, gross receipts or excess
profits taxes assessed against Landlord, or any franchise, corporation, capital
levy, estate, succession, inheritance, devolution, payroll, stamp, gift or
transfer taxes of Landlord, or any similar tax, or any tax imposed solely
because of the nature of the entity of Landlord, or any tax imposed on rent
received by Landlord under this Lease; provided, however, that if at any time
during the Term the methods of taxation prevailing at the commencement of the
Term shall be altered so that in lieu of or as a substitute, in whole or in
part, for the taxes, assessments, levies, impositions or charges now or
hereafter levied, assessed or imposed on real estate and the improvements
thereon, there shall be levied, assessed or imposed any tax or other charge on
or in respect of the Premises or the rents, income or gross receipts of Landlord
therefrom (including any municipal, state, or federal levy), then such tax or
charge shall be deemed an imposition, but only to the extent that such
imposition would be payable if the Premises or the rent, income or gross
receipts received therefrom, were the only property of Landlord subject to such
imposition, and Tenant shall pay and discharge the same as herein provided in
respect of the payment of impositions.
2.6 Tenant shall pay monthly, or as Landlord may otherwise
demand, all HVAC maintenance contract charges (if any), stand-by fire
protection, sprinkler system and central station alarm charges charged with
respect to the Premises. Tenant shall also pay, when due, all charges for heat,
electricity, gas and other public and private utilities and services furnished
to the Premises during the Term.
2.7 If Tenant shall fail to pay, within ten (10) days of the
date when the same is due and payable, any rent or other charge pursuant to this
Lease, Tenant shall upon demand pay Landlord a late charge of five (5%) percent
of the amount past due, or, if such late charge shall exceed the maximum late
charge permitted by law, the Tenant shall pay the maximum late charge permitted
by law.
2.8 Except as otherwise expressly provided in this Lease, (a)
this Lease shall be deemed and construed to be a "net-net-net" Lease; (b)
Landlord shall receive all rent from Tenant free from any and all charges,
assessments, expenses or deductions of any and every kind or nature whatsoever,
to the end that this Lease shall yield net to Landlord the rent and additional
rent payable hereunder during each year of the Term; and (c) all costs, expenses
and obligations of every kind and nature whatsoever relating to the Premises
during the Term shall be paid or cause to be paid by Tenant.
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3. USE OF PREMISES, COMPLIANCE WITH LAWS
3.1 Subject to Section 3.2, the Premises may be used only for
the manufacturing, packaging and distribution of pharmaceutical products and
related offices.
3.2 Tenant shall not use or occupy or permit anything to be
done in or on the Premises, in whole or in part, in a manner which would in any
way violate any certificate of occupancy affecting the Premises, make void or
voidable any insurance then in force with respect thereto, or which may make it
more costly (unless Tenant pays the increased cost therefor) or impossible to
obtain fire or other insurance thereon, cause or be apt to cause structural
injury to the Building or any part thereof, constitute a public or private
nuisance, or which may violate any present or future, ordinary or extraordinary,
foreseen or unforeseen Legal Requirements or Insurance Requirements, as
hereinafter defined. In addition, Tenant shall not allow any animals to be kept
on the Premises or use or allow the Premises to be used for residential or
dwelling purposes.
3.3 Tenant shall, at its expense, promptly comply or cause
compliance with, and not jeopardize or make more costly Landlord's compliance
with (but it being agreed that except as may otherwise be expressly set forth to
the contrary in this Lease, compliance with the following shall be the
obligation of Tenant at Tenant's expense):
3.3.1 the requirements of every statute, law,
ordinance, regulation, rule, requirement, order or directive, including but not
limited to the Americans with Disabilities Act of 1990, now or hereafter made by
any federal, state, city or county government or any department, political
subdivision, bureau, agency, office or officer thereof, or of any other
governmental authority having jurisdiction with respect to and applicable to (i)
the Premises, (ii) the condition, equipment, maintenance, use or occupation of
the Premises, including, without limitation, such of the foregoing applicable to
the making of any alteration or addition in or to any structure appurtenant
thereto and to pollution and environmental control; and (iii) the tenants or
subtenants thereof (all of the foregoing being herein referred to as "Legal
Requirements"); and
3.3.2 the rules, regulations, orders and other
requirements of the National and any local Board of Fire Underwriters, or other
body having the same or similar functions and having jurisdiction of, and which
are applicable to, the Premises and of any liability, fire or other insurance
policy which Tenant or Landlord is required hereunder to maintain (herein
referred to as "Insurance Requirements"), whether or not such compliance
involves changes in the use of the Premises or any part thereof, or be required
on account of any particular use to which the Premises, or any part thereof may
be put, and whether or not any such Legal Requirements or Insurance Requirements
be of a kind not now within the contemplation of the parties hereto.
3.4 Notwithstanding anything to the contrary contained in this
Section 3, Landlord shall be responsible for any alterations that should have
been made to the Building upon its completion in 1988 (the "Completion Date") in
order that the Building would have been in substantial compliance with Legal
Requirements on the Completion Date, however Landlord shall be obligated under
this Section 3.4 only if and to the extent that such alterations would, as of
the date hereof, be mandated by
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the appropriate governmental authority(ies) with jurisdiction thereover but only
to the extent of compliance with Legal Requirements in effect as of the
Completion Date.
4. LIMITED REPRESENTATIONS BY LANDLORD
4.1 Tenant covenants and agrees that it will accept the
Premises in their existing "as is" state or condition as of the date of delivery
of possession and without any further representation or warranty, express or
implied, in fact or by law, by Landlord or its agents and without recourse to
Landlord or its agents, as to the nature, condition, or useability thereof, the
title thereto, or the use or occupancy which may be made thereof, except as
specifically provided in this Lease.
4.2 Landlord hereby makes the following representations and
warranties to Tenant:
4.2.1 Landlord has insurable title to the Property
and there is no outstanding tenancy, lease or right to possession of the
Premises.
4.2.2 For a period of one (1) year from and after the
Commencement Date, Landlord shall maintain the structure of the Building, the
roof of the Building, and the plumbing, electrical and sewer systems in good
working order, unless the repair is occasioned by (a) the act or omission of
Tenant, its agents, employees, guests, licensees, invitees, subtenants,
assignees, successors or independent contractors or (b) any alteration made to
the Building by or on behalf of Tenant, in which events Tenant shall be
responsible for such repairs.
4.2.3 The use of the Premises for the limited
purposes set forth in Section 3.1 of this Lease are, as of the date hereof,
permitted uses under the Lakewood Township Code.
5. INSURANCE
5.1 Landlord shall maintain the following types of insurance
in the amounts specified, and Tenant shall pay to Landlord, monthly, or as
Landlord may otherwise demand, all premiums therefor:
5.1.1 Fire and extended coverage insurance covering
the Building against loss or damage by fire and other risks now or hereafter
embraced by "all risk" coverage with vandalism and malicious mischief
endorsements in an amount not less than 100% of the full replacement value of
the Building, without deduction for depreciation (including coverage for
increased costs of construction, demolition and building ordinance casualties).
5.1.2 Rent or rental value insurance against loss of
rent or rental value due to fire, including extended coverage endorsement, with
vandalism and malicious mischief endorsements, in an amount equal to two years'
rent for the Building.
5.1.3 Such other insurance, and in such amounts, as
may from time to time be reasonably placed by the Landlord against other
insurable hazards which at the time are commonly insured against in the case of
premises similarly situated, including without limitation, flood hazard
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insurance if the Building is located in a designated flood hazard area and
commercial general liability insurance.
5.2 During the Term, Tenant, at Tenant's sole cost and
expense, shall carry and maintain:
5.2.1 Commercial general liability insurance,
including property damage liability coverage, protecting and indemnifying
Tenant, Landlord (and naming Landlord as additional insured thereon) and any
designee of Landlord against damages to person or property, or for loss of life
or of property occurring in or about the Premises or arising out of the
ownership, maintenance, use or occupancy thereof. The coverage limits of the
policy shall be at least $3,000,000 combined single limit.
5.2.2 Fire and extended coverage insurance covering
Tenant's personal property, improvements and alterations, against loss or damage
by fire and other risks now or hereafter embraced by "all risk" coverage, with
vandalism and malicious mischief endorsements, to the extent of at least ninety
(90%) percent of their full replacement value. The proceeds from any such policy
shall be used by Tenant for the replacement of personal property or the
restoration of Tenant's improvements or alterations, unless this Lease is
terminated in which case such proceeds shall be paid to Tenant.
5.3 Upon the commencement of the Term and thereafter not less
than 30 days prior to the expiration dates of the expiring policies theretofore
furnished by Tenant pursuant to Section 5.2, Tenant shall deliver to Landlord
certificates of the insurers showing the requisite coverage to be in full and in
force for the pertinent period. All such insurance shall be in form, providing
coverage and be maintained with carriers, reasonably satisfactory to the
Landlord (Landlord hereby deeming Chubb Insurance Company to be acceptable to it
as of the date hereof).
5.4 Tenant shall not take out separate insurance concurrent in
form or contributing in the event of loss with that required to be furnished
pursuant to Section 5.1 unless such additional insurance is written on an excess
or contingency basis and does not reduce the amounts payable in the event of
loss covered by the insurance maintained pursuant to Section 5.1. If Tenant
takes out any such separate insurance, it shall immediately notify Landlord
thereof and shall deliver copies of the policies to Landlord.
5.5 All policies of insurance provided for in Section 5.1.1
shall name Landlord and any fee mortgagee as the insureds as their respective
interests may appear, as to any such mortgagee, by standard mortgagee clause
without contribution, but with proceeds payable to Landlord or as such fee
mortgagee may require. Any loss under such policy shall be adjusted with the
insurance company solely by Landlord. All policies of insurance provided for in
Section 5.1.2 shall name Landlord as the insured with proceeds payable to, and
to be adjusted by, Landlord.
5.6 Notwithstanding any provision to the contrary contained in
this Lease, Landlord and Tenant hereby release each other and each other's
officers, directors, employees and agents, from liability or responsibility for
any loss or damage to property covered by valid and collectible fire insurance
with standard extended coverage endorsement or which would have been covered
under insurance
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required to be maintained pursuant to this Lease. This release shall apply not
only to liability and responsibility of the parties to each other, but shall
also extend to liability and responsibility for anyone claiming through or under
the parties by way of subrogation or otherwise. This release shall apply even if
the fire or other casualty shall have been caused by the fault or negligence of
a party or anyone for whom a party may be responsible. However, this release
shall apply only with respect to loss or damage actually recovered from an
insurance company or which would have been recovered had the insurance required
by this Lease been maintained. This release shall not apply to loss or damage of
property of a party unless the loss or damage occurs during the times the fire
or extended coverage insurance policies of a party contain a clause or
endorsement to the effect that any release shall not adversely affect or impair
the policies or prejudice the right of the party to recover thereunder; provided
that if any policy required to be covered under this Lease does not contain such
clause or endorsement, the party maintaining such insurance had so notified the
other party at least thirty (30) days prior to the casualty in question.
Landlord and Tenant each agree that any fire and extended coverage insurance
policies covering the Premises or contents shall include this clause or
endorsement as long as the same shall be obtainable without extra cost, or if
extra cost shall be charged therefor, so long as the other party pays the extra
cost. If extra cost shall be chargeable, the party whose policy is subject to
the extra cost shall advise the other thereof, and of the amount of the extra
cost.
5.7 Each policy or certificate therefor furnished by Tenant
pursuant to Section 5.3 shall contain an agreement by the insurer that should
such policy be canceled prior to its expiration date the insurer will endeavor
to give Landlord at least 30 days' prior written notice of cancellation.
5.8 No policy furnished by Tenant pursuant to Section 5.2
shall have a deductible or a self-insured amount in excess of $2,500.00
(provided Landlord shall not unreasonably withhold its consent to any increase
in such amount up to $50,000.00).
6. DAMAGE OR DESTRUCTION
6.1 In every case of fire, explosion, damage by the elements
or other casualty, Tenant shall immediately give notice to Landlord.
6.2 In the event the Building, or any portion thereof, is
damaged by fire or other perils covered by insurance maintained by Landlord
pursuant to Section 5.1, to an extent not exceeding fifty percent (50%) of the
full insurable value of the Building and if the damage thereto is such that the
repair or restoration thereof may, in Landlord's reasonable opinion, be
completed within one hundred twenty (120) days from the date of such casualty
and Landlord will receive insurance proceeds sufficient to cover the entire cost
of such repair and restoration, less the applicable deductible, Landlord shall
commence and proceed diligently with the work of repair and restoration and this
Lease shall continue in full force and effect. If such work of repair and
restoration requires a period longer than one hundred twenty (120) day to
complete, in Landlord's reasonable opinion (as evidenced by a written estimate
from a contractor selected by Landlord and reasonably acceptable to Tenant), or
exceeds fifty (50%) of the full insurable value of the Building, or if said
insurance proceeds will not be sufficient to cover the entire cost of such
repairs, or is not an insured peril, Landlord may either elect to so repair and
restore the Building and this Lease shall continue in full force and effect, or
Landlord may elect not to so repair and restore the
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Building and this Lease shall in such event terminate. Under any of the
conditions contained in this Section 6.2, Landlord shall give written notice
(the "Restoration Notice") to Tenant of its intention with forty-five (45) days
from the date of such event of damage or destruction. In the event Landlord
elects not to restore the Building, this Lease shall be deemed to have been
terminated as of the date of such damage or destruction (except to the extent
that Tenant remains in possession of any part of the Building beyond the date of
such damage or destruction, in which case as to such occupied part of the
Building the Lease shall be deemed terminated as of the date Tenant surrenders
same to Landlord, and the basic annual rental hereunder shall be reduced on an
equitable basis from and after the date of damage or destruction). The
Restoration Notice shall provide an estimate of the time required, in Landlord's
reasonable business judgment, to repair or restore the damage and, if such
estimate is longer than one hundred twenty (120) days, the damage has materially
impaired Tenant's use of the Premises and the damage is not the result of the
willful misconduct of Tenant or Tenant's agents, employees, licensees, invitees,
contractors or subtenants, Tenant shall have the right to terminate this Lease
by written notice of such election to Landlord within fifteen (15) days after
receipt of the Restoration Notice. Tenant shall also have the right to terminate
this Lease effective as of the date of the damage or destruction (except to the
extent that Tenant remains in possession of any part of the Building beyond the
date of such damage or destruction, in which case as to such occupied part of
the Building the Lease shall be deemed terminated as of the date Tenant
surrenders same to Landlord, and the basic annual rental hereunder shall be
reduced on an equitable basis from and after the date of damage or destruction)
in the event that (i) Landlord shall not deliver the Restoration Notice within
the specified forty-five (45) day period, or (ii) Landlord, after having elected
to restore, shall not have substantially completed the restoration with the
specified one hundred twenty day (120) period (or such longer period specified
in the Restoration Notice); and Tenant's option to terminate specified in this
sentence shall be exercised by written notice to Landlord within sixty (60) days
after the casualty event as to clause (i) and within one hundred thirty-five
(135) days after the casualty event as to clause (ii).
6.3 Upon any termination of this Lease under any of the
provisions of Section 6.2, the parties shall be released without further
obligation to the other from the date possession of the Premises is surrendered
to Landlord except for items which have theretofore accrued and are then unpaid.
6.4 In the event of repair or restoration by Landlord as
herein provided, the rent payable under this Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the period of such repair or restoration. In no event shall
Tenant be entitled to any compensation or damages for loss in the use of the
whole or any part of the Premises and/or any inconvenience or annoyance
occasioned by such damage, repair or restoration.
6.5 Tenant shall not be released from any of its obligations
under this Lease in an event of casualty except to the extent and upon the
conditions expressly stated in this Section 6.
6.6 If Landlord is obligated to or elects to repair or restore
as herein provided, Landlord shall be obligated to make repair or restoration
only to those portions of the Premises which were originally provided at
Landlord's expense, and the repair and restoration of items within the Premises
not provided at Landlord's expense shall be the obligation of Tenant. Tenant
agrees to coordinate the restoration and repair of those items it is required to
restore or repair with Landlord's
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repair and restoration work and in coordination with a work schedule prepared by
Landlord, or Landlord's contractor. Further, Tenant's work shall be performed in
accordance with the terms, standards and conditions contained in Article 9
hereof.
6.7 Notwithstanding anything to the contrary contained in this
Section 6, Landlord shall not have any obligation whatsoever to repair or
restore the Building when the damage thereto is the result of any casualty which
occurs during the last twelve (12) months of the term of this Lease or any
extension hereof. However, Landlord shall be required to give the Restoration
Notice to Tenant of its intention within thirty (30) days from the date of such
event of damage or destruction. In the event Landlord elects not to restore the
Building, Tenant shall have the right to terminate the Lease by delivering
notice thereof to Landlord within fifteen (15) days after receipt of such
notice, in which case this Lease shall be deemed to have been terminated as of
the date of such damage or destruction (except to the extent that Tenant remains
in possession of any part of the Building beyond the date of such damage or
destruction, in which case as to such occupied part of the Building the Lease
shall be deemed terminated as of the date Tenant surrenders same to Landlord,
and the basic annual rental hereunder shall be reduced on an equitable basis
from and after the date of damage or destruction). In addition, and
notwithstanding anything to the contrary contained in Section 6, in the event
the Building or any portion thereof is damaged by fire of other perils during
the last twelve (12) months of the term of this Lease or any extension hereof
such that the repair or restoration thereof may not, in Landlord's reasonable
opinion, be completed within sixty (60) days from the date of such casualty,
Landlord and Tenant shall have the right, upon written notice to the other, to
terminate this Lease. Notwithstanding the foregoing, this provision shall not be
applicable during the last twelve (12) months of the (a) original Term if Tenant
has properly exercised the option to extend the Term for the first Renewal Term
as provided in Section 32, and (b) first Renewal Term of Tenant has properly
exercised the option to further extend the Term for the second Renewal Term as
provided in Section 32.
6.8 Notwithstanding anything to the contrary contained in this
Lease, if (i) the damage or destruction results from the fault of Tenant or any
of its agents, employees, licensees, invitees, subtenants, guests, assigned or
contractors, and (ii) the insurance proceeds received by Landlord (or the
proceeds that would have been received by Landlord had it maintained the
insurance required under Section 5.1.1) are not sufficient (without regard to
any deductible) to cover the entire cost of repairs, the Tenant shall be
responsible for the cost to replace, repair or rebuild the damaged or destroyed
improvements to substantially their condition prior to the casualty event to the
extent of the insurance proceeds deficiency.
6.9 Tenant agrees that the foregoing provisions are in lieu of
any other rights or remedies that Tenant may have pursuant to N.J.S.A. 46:8-6 or
46:8-7, and Tenant waives any statutory rights of termination which may arise by
reason of any partial or total destruction of the Premises.
7. CONDEMNATION
7.1 If the whole of the Premises shall be taken under the
power of eminent domain by any public or private authority or in the event of
sale to such authority in lieu of formal proceedings of eminent domain, then
this Lease shall cease and terminate as of the date of such taking or sale,
which date
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is defined, for all purposes of this Section 7, as the date the public or
private authority has the right to possession of the property being taken or
sold.
7.2 In the event of any taking or sale of all or any part of
the Premises, the entire proceeds of the award or sale shall be paid to
Landlord, and Tenant shall have no right to any part thereof, provided, however,
that nothing contained herein shall be construed to prevent Tenant from
recovering any allowance for its personal property, moving expenses and other
awards which the law permits to be made to tenants, so long as such allowance
does not diminish the award paid to Landlord.
7.3 If any public or private authority shall, under the power
of eminent domain, make a taking, or should a sale in lieu thereof occur, of
less than the whole of the Premises then Landlord may, at its election if
Landlord in its sole and reasonable discretion determines that it is not
commercially feasible for it to continue operating the Premises, terminate this
Lease by giving Tenant written notice of the exercise of its election within 20
days after the nature and extent of the taking or sale have been finally
determined. In the event of termination by Landlord under the provisions of this
Section 7.3, this Lease shall cease and terminate as of the date of such taking
or sale. If Landlord does not so terminate this Lease, subject to Section 7.5,
this Lease shall continue in full force and effect.
7.4 In the event of a partial taking or sale not resulting in
a termination of this Lease pursuant to Section 7.3, Landlord shall, if
Landlord's mortgagee consents thereto, effectuate all such repairs and
restoration as are necessary to restore the Premises for the operation of
Tenant's business, to the extent net proceeds of the award or sale are
available, but nothing contained herein shall be construed so as to require
Landlord to pay any cost of repair in excess of the net proceeds of the award or
sale price received from the condemning authority. In such case, as of the date
of the taking, the basic and additional rent reserved hereunder shall be
reduced, but only until such time as Landlord completes its repair or
restoration in accordance herewith, by an amount that is in the same ratio to
the rental then in effect as the value of the portion of the Premises taken or
sold bears to the total value of the Premises immediately before the date of
taking or sale (provided that an equitably determined abatement shall continue
to compensate Tenant for any loss of use or enjoyment of the Premises which
continues after such repair or restoration). If the net proceeds of the award or
sale are not sufficient to repair or restore the Premises, Tenant may, at its
own expense, complete such repairs or restoration, in accordance with the terms
of this Lease.
7.5 Tenant shall have the option, to be exercised by written
notice to Landlord within fifteen (15) days after such taking or sale, to
terminate this Lease in the event (i) more than 10% of the floor area of the
Building is taken in condemnation; (ii) (A)(1) more than 15% of the parking area
on the Premises is taken in condemnation, or (2) less than 15% of the parking
area is taken in condemnation and the Township of Lakewood revokes the
certificate of occupancy for the Building, and (B) Landlord (or an affiliate
thereof) shall not provide reasonable alternative parking to Tenant; or (iii)
the Lease continues notwithstanding a partial condemnation and within 120 days
after the condemnation, Landlord does not restore the balance of the Premises
substantially to their condition prior to the condemnation.
7.6 The taking of the Premises or any part thereof by military
or other public authority shall constitute a taking of the Premises under the
power of eminent domain only when the use and
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occupancy by the taking authority has continued for longer than 90 consecutive
days. During the 90-day period all the provisions of this Lease shall remain in
full force and effect, except that rental reserved (including the additional
rent) shall be abated during such period of taking based on the extent to which
the taking interferes with Tenant's use of the Premises. Landlord shall be
entitled to whatever award may be paid for the use and occupation of the
Premises for the period involved.
8. SUBORDINATION, ATTORNMENT, ESTOPPEL CERTIFICATE
8.1 Provided Landlord obtains a Non-Disturbance Agreement
(hereinafter defined), this Lease is and shall be subject to all mortgages which
may now or hereafter affect the Premises, to each and every advance made or
hereafter to be made under such mortgages, and to all renewals, modifications,
consolidations, replacements, and extensions of such mortgages irrespective of
the date of recording thereof. In confirmation of such subordination, Tenant
agrees, without payment to Tenant of any consideration therefor, to promptly
(but in any event, with ten (10) days of request) execute and deliver any
Non-Disturbance Agreement that Landlord or the holder of any such mortgage or
any of their respective successors in interest may request to evidence such
subordination. The mortgages to which this Lease is, at the time referred to,
subject and subordinate shall sometimes be collectively called "superior
mortgages." Landlord shall, upon the request of Tenant, use its good faith
efforts to obtain from the holder of any superior mortgage an agreement (a
"Non-Disturbance Agreement") in a commercially reasonable form, to the effect
that provided Tenant is not in default under this Lease Tenant's possession of
the Premises shall not be disturbed in the event that the holder of a superior
mortgage forecloses its superior mortgage; provided, however, Landlord (i) shall
not be required to incur any costs or liabilities in connection therewith and
(ii) shall not have any liability to Tenant if Landlord shall fail to procure
such Non-Disturbance Agreement.
8.2 In the event of any act or omission of Landlord which
would give Tenant the right, immediately or after lapse of a period of time, to
cancel or terminate this Lease, or to claim a partial or total eviction, Tenant
shall not exercise such right: (i) until it has given written notice of such act
or omission to the holder of each superior mortgage whose name and address shall
previously have been furnished to Tenant in writing and (ii) unless such act or
omission shall be one which is not capable of being remedied by Landlord or such
mortgage holder within thirty (30) days, until a thirty (30) day period for
remedying such act or omission shall have elapsed following the giving of such
notice), provided such holder shall with due diligence give Tenant written
notice of intention to, and commence and continue to, remedy such act or
omission.
8.3 If the holder of a superior mortgage shall succeed to the
rights of Landlord, then at the request of such party so succeeding to
Landlord's rights (herein sometimes called successor-landlord) and upon such
successor-landlord's written agreement to accept Tenant's attornment, Tenant
shall attorn to and recognize such successor-landlord as Tenant's landlord under
this Lease and shall promptly, without payment to Tenant of any consideration
therefor, execute and deliver any commercially reasonable instrument that such
successor-landlord may request to evidence such attornment. Upon such
attornment, this Lease shall continue in full force and effect as, or as if it
were, a direct lease between the successor-landlord and Tenant upon all of the
terms, conditions, and covenants as are set forth in this Lease and shall be
applicable after such attornment, except that the
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successor-landlord shall not: (i) be obligated to repair, restore, replace, or
rebuild the Property, in case of total or substantially total damage or
destruction, beyond such repair, restoration or rebuilding as can reasonably be
accomplished with the net proceeds of insurance actually received by, or made
available to, the successor-landlord; (ii) be liable for any previous act or
omission of Landlord; (iii) be subject to any prior defenses or offsets; (iv) be
bound by any modification of this Lease not expressly provided for in this Lease
or by any previous prepayment of more than one month's rent (except to the
extent received by such successor-landlord), unless such modification or
prepayment shall have been expressly approved in writing by the holder of the
superior mortgage through or by reason of which the successor-landlord shall
have succeeded to the rights of Landlord; or (v) be liable for the performance
of Landlord's covenants and agreements contained in this Lease to any extent
other than to the successor-landlord's ownership in the Premises, and no other
property of such successor-landlord shall be subject to levy, attachment,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies,
8.4 In the event that a bona fide institutional lender shall
request reasonable modifications to this Lease, then Tenant shall not
unreasonably withhold or delay its written consent to such modifications
provided that the same do not (and Tenant shall not demand the payment to Tenant
of any consideration for consent thereto), increase in any material manner the
obligations of Tenant hereunder or materially adversely affect the leasehold
interest hereby created or Tenant's use and enjoyment of the Premises.
8.5 Tenant agrees, at any time, and from time to time (and
without payment to Tenant of any consideration therefor), upon not less than ten
(10) days' prior notice by Landlord, to execute, acknowledge and deliver to
Landlord, a statement in writing addressed to Landlord (and/or Landlord's
designee) certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect
as modified and stating the modifications), stating the dates to which the rent
has been paid, stating such other information concerning this Lease and Tenant's
tenancy as Landlord reasonably shall request, and stating whether or not there
exists any default in the performance by Landlord of any term, covenant or
condition contained in this Lease and, if so, specifying each such default, it
being intended that any such statement delivered pursuant to this Section 8.5
may be relied upon by Landlord and by any mortgagee or prospective mortgagee of
any mortgage affecting the Property or any purchaser or prospective purchaser of
the Property. When so requested by Landlord, such statement shall be submitted
in writing under oath by a person or persons having knowledge of the statements
made therein.
9. REPAIRS, MAINTENANCE, ALTERATIONS, ETC.
9.1 Except as provided in Sections 3.5, 4.2.2, 6, 7 and the
next sentence in this Section 9.1, Tenant at its cost shall maintain, in good
condition, and shall repair if damaged and replace as required, all portions of
the Premises, including, without limitation, the HVAC system, all of Tenant's
personal property, the roof, exterior walls, steel structures and plumbing,
electrical and sprinkler systems of the Building, and the grounds, driveways and
parking areas on the Premises (including removal of ice and snow from the
sidewalks and curbs on the Premises) and the Landlord shall not be required to
furnish any services or facilities or to make any repairs, replacements or
alterations in or to the Premises. Notwithstanding the foregoing, Landlord shall
be responsible for normal and ordinary landscaping
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maintenance, snow removal from parking areas, and well and irrigation system
maintenance, unless any such maintenance is necessary as a result of the
negligence or misconduct of Tenant or any of Tenant's agents, employees,
licenses, invitees, subtenants or contractors, in which case Tenant shall be
responsible for such maintenance.
9.2 Landlord shall not be liable for any failure of water
supply, gas or electric current or of any utility or for any damage to property
caused by or resulting from gasoline, oil, steam, gas, electricity, or
hurricane, tornado, flood, wind or similar storms or disturbances, or water,
rain or snow which may leak or flow from the street, sewers, gas mains or any
sub-surface area or from any part of the Building, or leakage of gasoline or oil
from pipes, appliances, sewer or plumbing works therein, or from any other
place, or for interference with light or other incorporeal hereditaments by
anyone, or caused by operations by or of any public or quasi-public work.
9.3 Tenant shall have the right to make, at its sole cost and
expense, additions, alterations and changes (collectively, "Alterations") in or
to the Building, provided Tenant shall not then be in default in the performance
of any of the covenants in this Lease beyond any applicable notice or grace
period, subject, however, in all cases to the following conditions:
9.3.1 No Alterations shall be commenced except after
fifteen (15) days' prior written notice, which shall include reasonably detailed
final plans and specifications and working drawings of the proposed Alterations
and the name of the contractor, to Landlord.
9.3.2 No single, integrated Alteration costing in
excess of $25,000.00 and no structural, Building system or exterior Alterations,
regardless of cost, shall be made without the prior written consent of Landlord,
which shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing Landlord hereby consents to the performance by Tenant of the
Alterations specified on Exhibit B.
9.3.3 No Alterations shall be undertaken until Tenant
shall have procured and paid for, so far as the same may be required from time
to time, all permits and authorizations of all governmental authorities having
jurisdiction.
9.3.4 All Alterations shall be made promptly
(unavoidable delays excepted), in a good and workmanlike manner and in
compliance with all applicable permits, authorizations and all Legal
Requirements and all Insurance Requirements.
9.3.5 Before commencing the Alterations and at all
times during construction, Tenant's contractor shall maintain builder's risk
insurance coverage satisfactory to Landlord.
9.3.6 If the estimated cost of the Alterations
exceeds $100,000.00, before the commencement of the Alterations Tenant at its
cost shall furnish to Landlord a performance and completion bond issued by an
insurance company qualified to do business in New Jersey in a sum equal to the
cost of the Alterations (as determined by the construction contract between
Tenant and its
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contractor) guaranteeing the completion of the Alterations free and clear of all
liens and other charges, and in accordance with the plans and specifications.
9.4 Prior to the expiration of the Term or sooner termination
of this Lease, Tenant, at Tenant's cost, shall remove any Alterations that
Tenant has made to the Premises and repair any damage caused by the removal of
such Alterations. Notwithstanding the foregoing, Tenant, at its election, shall
not be required to so remove those Alterations described on Exhibit C annexed
hereto, provided, however, if Tenant shall elect to so remove any of such
Alterations, it shall do so prior ro the expiration of the Term or sooner
termination of this Lease, and repair any damage caused by the removal of such
Alterations. This Section shall survive the expiration or termination of this
Lease.
10. SECURITY DEPOSIT
10.1 Tenant has this day deposited (by check subject to
collection) with Landlord the sum of $33,666,67 to secure the full and faithful
performance by Tenant of all the terms, covenants and conditions of this Lease
upon Tenant's part to be performed, which sum shall be returned to Tenant
without interest promptly after the expiration of the Term, less any amount,
applied by Landlord pursuant to this Section 10 and not previously restored by
Tenant. In no event shall Tenant be entitled to credit against any rent due
hereunder by virtue of the deposit of such security. In the event of a sale of
the Premises, Landlord shall have the right to transfer the security to the
vendee for the benefit of Tenant, and Landlord shall be considered released by
Tenant from all liability for the return of such security; Tenant shall look to
the new landlord solely for the return of the security, and it is agreed that
this shall apply to every transfer or assignment made of the security to a new
landlord. The security deposited under this Lease shall not be mortgaged,
assigned or encumbered by Tenant. Tenant shall from time-to-time deposit
additional amounts hereunder so that the total amount deposited hereunder shall
at all times be equal to $33,666.67.
11. ASSIGNMENTS, SUBLETTING AND MORTGAGING
11.1 Neither Tenant, nor Tenant's successors or assigns, shall
(unless expressly permitted to do so) assign, mortgage, pledge or encumber this
Lease, in whole or in part, or sublet the Premises, in whole or in part, or
permit the same or any portion thereof to be used or occupied by others, or
enter into a management contract or other arrangement whereby the Premises shall
be managed and operated by anyone other than the then owner of Tenant's
leasehold estate, nor shall this Lease be assigned or transferred by operation
of law, without the prior consent in writing of Landlord in each instance. If
this Lease be so assigned or transferred, or if all or any part of the Premises
be sublet or occupied by anybody other than Tenant, Landlord may, after such
default by Tenant, collect rent from the assignee, transferee, subtenant or
occupant, and apply the net amount collected to the rent reserved herein, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver of
any agreement, term, covenant or condition of this Lease, or the acceptance of
the assignee, transferee, subtenant or occupant as tenant, or a release of
Tenant from the performance or further performance by Tenant of the terms,
covenants and conditions of this Lease, and Tenant shall continue to be liable
under this Lease. The consent by Landlord to an assignment, mortgage, pledge,
encumbrance, transfer, management contract or subletting shall not be construed
to relieve Tenant from obtaining the express
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consent in writing of Landlord to any further assignment, mortgage, pledge,
encumbrance, transfer, management contract or subletting. Landlord shall have
the right to unreasonably withhold its consent to an assignment (except as
provided in Section 11.6), mortgage, pledge or other encumbrance, however
Landlord shall not unreasonably withhold its consent to a proposed subletting
(subject, however, to the provision of Section 11.3). Notwithstanding anything
to the contrary herein contained, an assignment of this Lease shall include,
without limitation, the following: (a) if Tenant shall be a corporation and a
controlling amount of its voting stock or all or substantially all its assets
shall be sold, mortgaged, assigned, pledged, encumbered or otherwise transferred
(whether in one (1) single transaction or in more than one (1) successive
transaction); or (b) if Tenant shall be a partnership, limited liability
company, joint venture, syndicate or other group and all or any portion of the
interest of any partner, member or other equity holder shall be sold or
otherwise transferred (however this provision shall not, as to a corporation or
other entity whose stock or other equity interests are publicly traded on a
recognized stock exchange, be applicable to sales of stock or other equity
interests on such stock exchange).
11.2 If Tenant shall desire to assign this Lease or sublet all
or a portion of the Premises, Tenant shall submit to Landlord a written request
for Landlord's consent to such assignment or subletting, which request shall
contain or be accompanied by the following information: (a) the name and address
of the proposed assignee or subtenant, (b) in the case of a proposed subletting,
a description identifying the space to be sublet and the term of such
subletting, (c) the nature and character of the business of the proposed
assignee or subtenant, (d) in the case of a proposed assignment, a current
financial statement of the proposed assignee, and (e) the proposed form of the
instrument of assignment or sublease.
11.3 Notwithstanding anything to the contrary contained in
Section 11.1, Landlord shall not unreasonably withhold its consent to a proposed
sublease provided that (a) the proposed subtenant shall not have a character or
reputation or be engaged in a business, in the reasonable opinion of Landlord,
making it unsuitable for occupancy in the Lakewood Industrial Park, and (b) the
proposed subtenant shall not be either (i) an occupant of any space in the
Building or any other space in Ocean County owned by Landlord or an affiliate
thereof, or (ii) a person to whom, in response to a written request submitted by
such person, Landlord (or an affiliate thereof), during the one hundred eighty
(180) day period prior to the submission of Tenant's request for consent, has
submitted a lease proposal, or whom, during the one hundred eighty (180) day
period prior to the submission of Tenant's request for consent, has submitted to
Landlord a lease proposal. Landlord shall, within fifteen (15) days after its
receipt of the materials required by this Section 11.3, either (1) grant its
consent or (2) withhold consent; provided, however, Landlord shall not be
required to consent if a default under this Lease by Tenant shall have occurred
and remain uncured.
11.4 Tenant, within twenty (20) days of its receipt of
Landlord's request therefor, shall reimburse Landlord for all reasonable
out-of-pocket costs incurred by Landlord in considering whether or not to
consent, including reasonable attorney's fees and disbursements and the
reasonable costs of making investigations regarding the proposed subtenant or
assignee. After Landlord shall have granted its consent, but before the
subtenant or assignee shall take possession, Tenant shall deliver to Landlord a
fully-executed counterpart of the sublease or instrument of assignment.
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11.5 If Tenant shall sublease any portion of the Premises or
assign this Lease, Tenant shall pay to Landlord fifty percent (50%) of any
consideration received by Tenant (net of reasonable costs incurred by Tenant to
effect any such assignment or sublet, such as advertising, brokerage, legal and
construction expenses) from the subtenant or assignee, as the case may be, to
the extent such consideration exceeds the basic annual rental and additional
rent payable hereunder.
11.6 Notwithstanding the provisions of Section 11.1, Tenant
may, without the consent of Landlord, assign this Lease, or sublease all or any
part of the Premises, to any Successor (hereinafter defined). As used above, the
term "Successor" shall mean an entity (a) succeeding to Tenant by merger,
consolidation or sale or other transfer of all or substantially all the assets
of Tenant, and (b) whose net worth as of the effective date of the assignment or
sublease shall be equal to or greater than the net worth of Tenant at such time.
All financial criteria set forth in this Section 11.6 shall be determined in
accordance with generally accepted accounting principles consistently applied
and based upon financial statements of Tenant and such assignee audited by an
independent public accounting firm.
11.7 Any subletting, whether made with or without Landlord's
consent, shall be subject and subordinate to this Lease. Furthermore,
notwithstanding any assignment of this Lease or subletting of all or any part of
the Premises, whether made with or without Landlord's consent, the Tenant
originally named herein, and each Successor Tenant, shall be and remain jointly
and severally liable for all obligations of Tenant hereunder.
12. INDEMNITY
12.1 Notwithstanding that joint or concurrent liability may be
imposed upon Landlord by statute, ordinance, rule, regulation, order, or court
decision, Tenant shall, notwithstanding any insurance furnished pursuant hereto
or otherwise, indemnify, protect, defend and hold harmless Landlord (which for
purposes of this Section 12.1 shall include its agents, employees, partners and
principals) from and against any and all liability, fines, suits, claims,
obligations, damages, losses, penalties, demands, actions and judgments, costs
and reasonable expenses of any kind or nature (including reasonable attorneys'
fees) (collectively,"Costs"), by anyone whomsoever, due to or arising out of:
12.1.1 any work or thing done in, on or about the
Premises or any part thereof by Tenant or anyone claiming through or under
Tenant or the respective employees, agents, licensees, contractors, servants or
subtenants of Tenant or any such person;
12.1.2 any use, possession, occupation, condition,
operation, maintenance or management of the Premises or any part thereof,
including, without limitation, any air, land, water or other pollution caused by
Tenant;
12.1.3 any negligence or wrongful act or omission on
the part of Tenant or any person claiming through or under Tenant or the
respective employees, agents, licensees, invitees, contractors, servants or
subtenants of Tenant or any such person;
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12.1.4 any accident or injury to any person
(including death) or damage to property (including loss of property) occurring
in or on the Premises or any part thereof,
12.1.5 any failure on the part of Tenant to perform
or comply with any of the covenants, agreements, terms, provisions, conditions
or limitations contained in this Lease on its part to be performed or complied
with; and
12.1.6 any failure on the part of Tenant to perform
or comply with Legal Requirements or Insurance Requirements.
In case any action or proceeding is brought against Landlord by reason of any of
the foregoing, Tenant, upon written notice from Landlord shall, at Tenant's
expense, resist or defend or cause to be resisted or defended such action or
proceeding. Tenant or its counsel shall keep Landlord apprised at all times of
the status of the action or proceeding. At the request of Tenant, Landlord will
cooperate with Tenant in any such action or proceeding, and will execute any
documents and pleadings reasonably required for such purpose, Tenant hereby
agreeing to save Landlord harmless from all cost, expense (excluding attorneys'
fees), loss and damage on account of, growing out of, or resulting from, such
cooperation. The establishment of limits of coverage for the insurance required
by Section 5 shall not serve in any way to limit Tenant's obligations pursuant
to this Section 12. The provisions of this Section shall survive the expiration
or termination of this Lease.
Notwithstanding the foregoing provisions of this Section 12.1, Tenant shall not
be obligated to indemnify Landlord to the extent any Costs result from the (a)
negligence or misconduct of Landlord or Landlord's agents, employees or
contractors, or (b) breach of this Lease by Landlord,
12.2 To the extent not covered by insurance, Landlord agrees
to indemnify, defend (with counsel reasonably approved by Tenant) and hold
Tenant harmless from and against all Costs resulting from any accident or injury
to any person occurring in or on the Premises resulting from the negligence of
Landlord or Landlord's agents, employees or contractors; provided, however, the
foregoing indemnity shall not include any Costs for which Tenant is otherwise
responsible under Section 12.1.
13. DEFAULT PROVISIONS, LANDLORD'S REMEDIES
13.1 Any of the following events ("Events of Default") shall
constitute a default under this Lease:
13.1.1 Tenant's default in the payment of any
installment of rent, or in the payment of any additional rent, on any day upon
which the same shall be due and payable and such default shall continue for five
(5) days after the date on which Tenant is given notice that such payment is
past due(the "Rent Grace Period"), provided, however, Tenant shall have the
benefit of the Rent Grace Period not more frequently than two (2) times in any
six (6) month period; or
13.1.2 Tenant's doing or permitting anything to be
done, whether by action or inaction, contrary to any of Tenant's obligations
pursuant to this Lease (except as to the payment of rent
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and additional rent and the matters set forth in Sections 13.1.3 and 14) and
such situation shall continue and shall not be remedied by Tenant within thirty
(30) days after Landlord shall have given to Tenant notice specifying the same;
or, in the case of a happening or default which cannot with due diligence be
cured within a period of thirty (30) days and the continuance of which for the
period required for cure will not subject Landlord (or any of its directors,
officers, shareholders, partners, agents or employees) to the risk of criminal
or civil liability or foreclosure of any superior mortgage or any other lien on
the Premises, if Tenant shall not duly institute within such 30 day period and
promptly and diligently prosecute to completion all steps necessary to remedy
the same; or
13.1.3 The occurrence of any event or the arising of
any contingency whereby this Lease, any interest in it, the estate thereby
granted or, any portion thereof, or the unexpired balance of the Term would by
operation of law or otherwise devolve upon or pass to any person, firm or
corporation other than Tenant, except as expressly permitted by Section 11.
13.2 Upon the occurrence of any Event of Default, the Landlord
may exercise any one or more of the following remedies, in addition to all other
remedies provided in this Lease and by law or in equity:
13.2.1 The Landlord may, by written notice to Tenant,
accelerate all rental and other sums due or to become due hereunder, which shall
thereupon be immediately due and payable in full.
13.2.2 The Landlord may give the Tenant a notice (the
"Termination Notice") of its intention to terminate this Lease and, upon the day
specified in the Termination Notice, this Lease and the term and estate hereby
granted shall expire and terminate and all rights of the Tenant under this Lease
shall expire and terminate, but the Tenant shall remain liable for damages as
hereinafter set forth. Notwithstanding the foregoing, the Landlord may institute
dispossess proceedings for non-payment of rent, distraint or other proceedings
to enforce the payment of rent without giving the Termination Notice.
13.3 Upon any such termination or expiration of this Lease, or
other termination of Tenant's possession under this Lease, the Tenant shall
peaceably quit and surrender the Premises to the Landlord, and the Landlord or
Landlord's agents and employees may without further notice immediately or at any
time thereafter enter upon or re-enter the Premises, or any part thereof, and
possess or repossess itself or themselves thereof either by summary dispossess
proceedings, ejectment, any suitable action or proceeding at law, agreement,
force or otherwise, and may dispossess and remove Tenant and all other persons
and property from the Premises without being liable to indictment, prosecution,
or damages therefor, and may repossess the same, and may remove any persons
therefrom, to the end that Landlord may have, hold and enjoy the Premises again.
The words "enter" or "reenter", "possess" or "repossess" as used in this Lease
are not restricted to their technical legal meaning.
13.4 In the event of any breach or threatened breach by Tenant
of any of the agreements, terms, covenants or conditions contained in this
Lease, Landlord shall be entitled to enjoin such breach or threatened breach and
shall have the right to invoke any right and remedy allowed at law or in equity
or provided in this Lease.
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13.5 Each right and remedy of the Landlord provided for in
this Lease shall be cumulative and shall be in addition to every other right or
remedy provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
by the Landlord of any one or more of the rights of remedies provided for in
this Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by Landlord of
any or all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise.
13.6 Suit or suits for the recovery of damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained in this Lease shall be deemed to require
Landlord to postpone suit until the date when the term of this Lease would have
expired if it had not been so terminated under the provisions of this Section 13
or under any provision of law, or had Landlord not re-entered the Premises.
Nothing contained in this Lease shall be construed to limit or preclude recovery
by Landlord against Tenant of any sums or damages to which Landlord may lawfully
be entitled by reason of any default under this Lease or otherwise on the part
of Tenant. Nothing contained in this Lease shall be construed to limit or
prejudice the right of Landlord to prove and obtain as liquidated damages by
reason of the termination of this Lease or reentry on the Premises for the
default of Tenant an amount equal to the maximum allowed by any statute or rule
of law in effect at the time when, and governing the proceeding in which, such
damages are to be proved.
13.7 Upon the occurrence of an Event of Default, the Tenant
hereby authorizes and empowers the Landlord, at the Landlord's option (without
imposing any duty upon the Landlord to do so), to re-enter the Premises as agent
for the Tenant or any successor-occupant of the Premises under the Tenant, or
for its own account or otherwise, and to relet the same for any term expiring
either prior to the original expiration date hereof, or simultaneously
therewith, or beyond such date, and to receive rent and apply same to pay all
reasonable fees and expenses incurred by the Landlord as a result of such Event
of Default, including without limitation any legal fees and expenses arising
therefrom, the cost of re-entry and re-letting and to the payment of the rent
and other charges due hereunder. No entry, re-entry or reletting by the
Landlord, whether by summary proceedings, termination or otherwise, shall
discharge the Tenant from its liability to the Landlord as set forth herein;
provided, however, Tenant shall not be responsible for any physical damage to or
deterioration of the Premises to the extent (a) caused by Landlord or any party
to whom the Premises are relet, or (b) occurring after vacation of the entire
Premises by Tenant.
13.8 The Tenant shall be liable for all costs, charges and
expenses, including reasonable attorney's fees and disbursements, incurred by
the Landlord by reason of the occurrence of any Event of Default or the exercise
of the Landlord's remedies with respect thereto.
13.9 Landlord shall have a lien upon and a security interest
in all of Tenant's property located on the Premises for the rent, any and all
additional rent, for all other payments to be made by Tenant to Landlord or any
other person hereunder, for Tenant's performance of all of Tenant's obligations
pursuant to this Lease and for all of Tenant's breaches thereof, provided,
however, if no default by Tenant hereunder shall have occurred and be
continuing, Landlord shall subordinate such lien to the lien on Tenant's
property held by a bona fide lender.
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13.10 The Tenant, for the Tenant, and on behalf of any and all
persons claiming through or under the Tenant, including creditors of all kinds,
does hereby waive and surrender all rights and privileges which they or any of
them might have under or by reason of any present or future law, to redeem the
Premises or to have a continuance of this Lease for the Term after being
dispossessed or ejected therefrom by the valid order of a court of competent
jurisdiction.
13.11 The provisions of this Section 13 shall survive the
expiration or termination of this Lease.
14. BANKRUPTCY AND INSOLVENCY
14.1 Neither Tenant's interest in this Lease, nor any estate
hereby created in Tenant nor any interest herein or therein, shall pass to any
trustee or receiver or assignee for the benefit of creditors or otherwise by
operation of law except as may specifically be provided pursuant to the United
States Bankruptcy Code.
14.2 In the event the interest or estate created in Tenant
hereby shall be taken in execution or by other process of law, or if Tenant is
adjudicated insolvent by a court of competent jurisdiction other than the United
States Bankruptcy Court, or if a receiver or trustee of the property of Tenant
shall be appointed by reason of the insolvency or inability of Tenant to pay its
debts, or if Tenant shall file a voluntary petition or proceeding under any
federal or state law dealing with bankruptcy, insolvency, reorganization or any
other adjustment of its debts, or if any assignment shall be made of the
property of Tenant for the benefit of creditors, then this Lease and all rights
of Tenant hereunder shall automatically cease and terminate with the same force
and effect as though the date of such event were the date originally set forth
herein and fixed for the expiration of the Term, and Tenant shall vacate and
surrender the Premises but shall remain liable as herein provided.
14.3 Tenant shall not cause or give cause for the appointment
of a trustee or receiver of the assets of Tenant and shall not make any
assignment for the benefit of creditors or become or be adjudicated insolvent,
or file any voluntary petition or commence any voluntary proceeding in respect
thereto. The allowance of any petition under any insolvency law except under the
Bankruptcy Code or the appointment of a trustee or receiver of Tenant or of its
assets, shall be conclusive evidence that Tenant caused, or gave cause therefor,
unless such allowance of the petition, or the appointment of a trustee or
receiver, is vacated within sixty (60) days after such allowance or appointment.
Any act described in this Section 14.3 shall be deemed a material breach of
Tenant's obligations hereunder, and this Lease shall thereupon automatically
terminate. Landlord does, in addition, reserve any and all other remedies
provided in this Lease or by law or in equity.
14.4 Upon the filing of a petition by or against Tenant under
the United States Bankruptcy Code:
14.4.1 Tenant, as debtor and as debtor in possession,
and any trustee who may be appointed agree as follows: (a) to perform each and
every obligation of Tenant under this Lease, until such time as this Lease is
either rejected or assumed by order of the United States Bankruptcy Court; and
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(b) to pay monthly in advance on the first day of each month as reasonable
compensation for use and occupancy on the Premises an amount equal to all rent,
additional rent and other charges otherwise due pursuant to this Lease; and (c)
to reject or assume this Lease within 60 days of the filing of such petition
under the Bankruptcy Code; and (d) to give Landlord at least 45 days' prior
written notice of any proceeding relating to any assumption of this Lease; and
(e) to give Landlord at least 30 days' prior written notice of any abandonment
of the Premises; any such abandonment to be deemed a rejection of this Lease;
and (f) to do all other things of benefit to Landlord otherwise required under
the Bankruptcy Code; and (g) to be deemed to have rejected this Lease in the
event of the failure to comply with any of the above, and (h) to have consented
to the entry of an order by an appropriate United States Bankruptcy Court
providing all of the above, waiving notice and hearing of the entry of same.
14.4.2 No Event of Default or default of this Lease
by Tenant, either prior to or subsequent to the filing of such a petition, shall
be deemed to have been waived unless expressly done so in writing by Landlord.
14.4.3 Included within and in addition to any other
conditions or obligations imposed upon Tenant or its successor in the event of
assumption and/or assignment are the following: (a) the cure of any monetary
defaults and the reimbursement of pecuniary loss within not more than 30 days of
assumption and/or assignment; and (b) the use of the Premises as set forth in
Section 3 of this Lease; and (c) the prior written consent of any mortgagee to
which this Lease has been assigned as collateral security; and (d) the Premises,
at all times, remains a single leasehold structure and no physical changes of
any kind may be made to the Premises unless in compliance with the applicable
provisions of this Lease.
14.5 Notwithstanding anything to the contrary contained in
this Lease, if any of the bankruptcy events described in this Article 14 occurs
and any and all such events are discharged or withdrawn in full within sixty
(60) days following the occurrence thereof, the occurrence of such events(s)
shall not constitute an Event of Default.
15. ENTRY BY LANDLORD, ETC.
15.1 Tenant shall permit Landlord and its authorized
representatives to enter the Premises, or any part thereof, at all reasonable
times for the purpose of curing defaults of Tenant in accordance with, and after
such notice (if any) as may be required by, the provisions of Section 13. In
addition, Tenant, after reasonable prior notice, shall permit Landlord and fee
mortgagees and their respective authorized representatives, to enter the
Premises, or any part thereof, at all reasonable times during usual business
hours on reasonable prior notice for the purpose of inspecting the same,
provided such persons shall comply with Tenant's reasonable confidentiality
procedures.
15.2 Landlord shall also have the right, after reasonable
prior notice, to enter the Premises, or any part thereof, at all reasonable
times during usual business hours for the purpose of showing the same to
appraisers, prospective lenders and prospective purchasers or fee mortgagees
thereof and, at any time within six months prior to the expiration of this
Lease, for the purpose of showing the same to prospective tenants.
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15.3 If, at any time during which Landlord or any fee
mortgagee shall have the right to enter the Premises, admission to the Premises
for the purposes aforesaid cannot be obtained, they, or their respective agents,
servants, employees, contractors and representatives, may (on such notice, if
any, as may be reasonable under the circumstances, which notice need not be in
writing if an emergency exists in respect of the protection of the Premises)
enter the Premises and accomplish such purpose. Any entry on the Premises by
Landlord or a fee mortgagee shall be at such times and by such methods (other
than in the event of such an emergency) as will cause as little inconvenience,
annoyance, disturbance, loss of business or other damage to Tenant as may be
reasonably practicable in the circumstances.
16. COVENANT OF QUIET ENJOYMENT
16.1 Landlord covenants that Tenant, on paying the rents and
performing and observing all the covenants and conditions contained in this
Lease, shall and may peaceably and quietly have, hold and enjoy the Premises
during the Term, subject, however, to the terms of this Lease and to the matters
to which this Lease is subject.
17. EFFECT OF CONVEYANCE; LIMITS OF LIABILITY OF LANDLORD,
DEFINITION OF "LANDLORD"
17.1 The term "Landlord" as used in this Lease shall mean and
include only the owner or owners (and any mortgagee in possession) at the time
in question of the fee estate in the Premises, so that in the event of any
transfer or transfers (by operation of law or otherwise) of the title to such
fee estate, Landlord herein named (and in case of any subsequent transfers or
conveyances, the then transferor) shall be and hereby is automatically freed and
relieved, from and after the date of such transfer or conveyance, of all
liability in respect of the performance of any covenants or obligations on the
part of Landlord contained in this Lease thereafter to be performed, provided
that (a) any funds in which Tenant has an interest, in the hands of such
Landlord or the then transferor at the time of such transfer, shall then be
turned over to the transferee, (b) any amount then due and payable to Tenant by
Landlord or the then transferor under any provision of this Lease shall then be
paid to Tenant, and (c) the transferee shall be deemed to have assumed and
agreed to perform, subject to the limitations of this Section 17 (and without
further agreement between or among the parties or their successors in interest,
and/or the transferee) and only during and in respect of the transferee's period
of ownership, all of the terms, covenants and conditions in this Lease contained
on the part of Landlord thereafter to be performed, which terms, covenants and
conditions shall be deemed to "run with the land," it being intended hereby that
the terms, covenants and conditions contained in this Lease on the part of
Landlord shall, subject as aforesaid, be binding on Landlord, its successors and
assigns, only during and in respect of their respective successive periods of
ownership.
17.2 It is specifically understood and agreed that in the
event of a breach by Landlord of any of the terms, covenants or conditions of
this Lease to be performed by Landlord, the monetary liability of Landlord in
relation to any such breach shall be limited to the equity of Landlord in the
Premises, including Landlord's interest in this Lease, moneys held by any
trustee for the benefit of Landlord and any sums at the time due or to become
due under this Lease and insurance proceeds (and the term "equity" as used in
this Section 17.2 shall be deemed to include all of the foregoing). Tenant
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shall look only to Landlord's equity in the Premises for the performance and
observance of the terms, covenants and conditions of this Lease to be performed
or observed by Landlord and for the satisfaction of Tenant's remedies for the
collection of any award, judgment or other judicial process requiring the
payment of money by Landlord in the event of a default in the full and prompt
payment and performance of any of Landlord's obligations hereunder. No property
or assets of Landlord, other than Landlord's equity in the Premises, shall be
subject to lien, levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies in any matter whatsoever arising out of or in
any way connected with this Lease or any of its provisions, any negotiations in
connection therewith, the relationship of Landlord and Tenant hereunder or the
use and occupancy of the Premises; and in confirmation of the foregoing, if any
such lien, levy, execution or other enforcement procedure so arising shall be on
or in respect of any property or assets of Landlord, other than Landlord's
equity in the Premises, Tenant shall promptly release any property or assets of
Landlord, other than Landlord's equity in the Premises, from such lien, levy,
execution or other enforcement procedure by executing and delivering, at
Tenant's expense and without charge to Landlord, any instrument or instruments,
in recordable form, to that effect prepared by Landlord (but any such instrument
of release shall not release any such lien, levy, execution or other endorsement
procedure on or in respect of Landlord's equity in the Premises).
18. SURRENDER, HOLDING OVER BY TENANT
18.1 On the expiration or termination of this Lease, Tenant
shall peaceably and quietly leave, surrender and deliver to Landlord the
Premises, and Tenant shall remove all Alterations which may have been made upon
the Premises and tangible personal property of any kind or nature which Tenant
may have installed or affixed on, in or to the Premises, except as provided in
Section 9.4, and Tenant shall remove all of the foregoing to be surrendered in
good, substantial and sufficient repair, order and condition, reasonable use,
wear and tear casualty and condemnation damage and hazardous substances
(hereinafter defined) for which Tenant is not responsible excepted and free of
occupants. If as a result of or in the course of the removal of Alterations and
Tenant's property any damage occurs to the Premises, Tenant shall pay to
Landlord the reasonable cost of repairing such damage. If Tenant fails to so
quit and surrender the Premises upon the expiration or termination of this
Lease, it shall be liable to Landlord for the damages caused to Landlord by
reason of such holdover and it is agreed that such damages shall be liquidated
in an amount equal to double the rental rate provided for in this Lease,
prorated based upon the period of holdover. The acceptance by Landlord of such
damages or rental after termination of this Lease shall not be construed as
consent to continued occupancy, nor shall such holding over constitute a renewal
or extension of this Lease. Landlord may, at its option, construe such holding
over as a tenancy from month to month, subject to all the terms, covenants and
conditions of this Lease, except as to duration thereof, and in that event the
Tenant shall pay rent and additional rent in advance at the rate provided in
this Lease as effective during the last month thereof Tenant's obligation to
observe or perform this covenant shall survive the expiration or termination of
this Lease.
19. CURING DEFAULTS, FEES AND EXPENSES
19.1 If Tenant shall fail to pay any imposition or to make any
other payment required hereunder or shall otherwise default in the full and
prompt performance of any covenant contained herein and to be performed on
Tenant's part, Landlord, without being under any obligation to do so and without
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thereby waiving such default, may, after 30 days' notice to Tenant, or such
notice (which may be oral) as may be reasonable in the circumstances if any
emergency exists in respect of the protection of the Premises, make such payment
or perform such covenant for the account and at the expense of Tenant and may
enter upon the Premises for any such purpose and take all action thereon as may
be necessary therefor.
19.2 All sums so paid by Landlord in connection with the
payment or performance by it of any of the obligations of Tenant hereunder and
all actual and reasonable costs, expenses and disbursements paid in connection
therewith or enforcing or endeavoring to enforce any right under or in
connection with this Lease, or pursuant to law, together with interest thereon
at the rate of 12% per annum (or, if lower, the maximum rate permitted by law)
from the respective dates of the making of each such payment shall constitute
additional rent payable by Tenant under this Lease and shall be paid by Tenant
to Landlord within 15 days after demand by Landlord. Landlord shall not be
limited, in the proof of any damages which Landlord may claim against Tenant
arising out of or by reason of Tenant's failure to provide and keep in force
insurance as required by Section 5 hereof, to the amount of the insurance
premium or premiums not paid or incurred by Tenant.
19.3 If Landlord shall fail to perform its covenants as to
insurance under Section 5.1 or as to repairs and maintenance under Section 9.1,
and Landlord shall not institute measures to remedy the same within 30 days
after Tenant shall have given to Landlord written if notice specifying the
failure and thereafter promptly and diligently complete the remedy, Tenant,
without being under any obligation so to do and without thereby waiving such
default, may, perform such covenant for the account and at the expense of
Landlord and may deduct the actual and reasonable cost thereof from the next
rental payment(s) coming due under this Lease.
19.4 The provisions of this Section 19 shall survive the
expiration or termination of this Lease.
20. MECHANICS' AND OTHER LIENS
20.1 If any mechanic's, laborer's or materialman's lien shall
at any time be filed against the Premises or any part thereof with respect to
any work done, or labor or materials furnished, or caused to be furnished, by
Tenant or anyone claiming through or under Tenant, or any judgment, attachment
or levy is filed or recorded against the Premises or any part thereof by anyone
claiming through or under Tenant, Tenant, within 30 days after the date on which
Tenant receives notice of such filing, shall cause the same to be discharged of
record by payment, deposit, bond, order of a court of competent jurisdiction or
otherwise. If Tenant shall fail to cause such lien, judgment, attachment or levy
to be discharged within the period aforesaid, then, in addition to any other
right or remedy, Landlord may, but shall not be obligated to, discharge the same
by bonding proceedings, if permitted by law (and if not so permitted, by deposit
in court). Any amount so paid by Landlord, including all reasonable costs and
expenses paid by Landlord in connection therewith, together with interest
thereon at the rate of 12% per annum (or, if lower, the maximum rate permitted
by law) from the respective dates of Landlord's so paying any such amount, cost
or expense, shall constitute additional rent payable by Tenant under this Lease
and shall be paid by Tenant to Landlord on demand.
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20.2 Nothing contained in this Lease shall be deemed or
construed in any way as constituting the consent or request of Landlord, express
or implied, by inference or otherwise, to any contractor, subcontractor, laborer
or materialman for the performance of any labor or the furnishing of any
materials for any specific improvement, alteration to or repair of the Premises,
or any part thereof, or as giving Tenant any right, power or authority to
contract for or permit the rendering of any services or the furnishing of any
materials that would give rise to the filing of any mechanic's liens against
Landlord's interest in the Premises. Notice is hereby given that Landlord shall
not be liable for any labor or materials furnished or to be furnished to Tenant
upon credit, and that no mechanic's or other lien for any such labor or
materials shall attach to or affect the reversion or estate or interest of
Landlord in and to the Premises.
21. SIGNS, ADDRESS
21.1 Tenant, subject to all Legal Requirements, may place on
the exterior of the Premises a sign or signs of such size, design and color, and
in such location, as shall be approved in advance in writing by Landlord.
21.2 Landlord shall have the right to (a) install, maintain,
move, remove and reinstall advertising signs on and off the Premises (other than
on the Building) or signs identifying the Premises for sale or for rent, and (b)
change the address of the Premises.
22. WAIVERS AND SURRENDERS TO BE IN WRITING; RIGHT TO TERMINATE
22.1 The receipt, acceptance and/or deposit (including the
endorsement of any check) of full or partial rent by Landlord with knowledge of
any breach of this Lease by Tenant or of any default on the part of Tenant in
the observance or performance of any of the provisions or covenants of this
Lease shall not be deemed to be a waiver of any such provision, covenant or
breach of this Lease. No waiver or modification by either party, unless in
writing and signed by the waiving party, shall discharge or invalidate any
provision or covenant or affect the right of the waiving party to enforce the
same in the event of any subsequent breach or default. The failure on the part
of Landlord to insist in any one or more instances upon the strict performance
of any of the provisions or covenants of this Lease, or to enforce any covenant
or provision herein contained consequent upon a breach of any provision of this
Lease shall not affect or alter this Lease or be construed as a waiver or
relinquishment for the future of such one or more provisions or covenants or of
the right to insist upon strict performance or to exercise such right, remedy or
election, but the same shall continue and remain in full force and effect with
respect to any then existing or subsequent breach, act or omission whether of a
similar nature or otherwise. The receipt, acceptance and/or deposit (including
the endorsement of any check) by Landlord of any rent or any other sum of money
or any other consideration hereunder paid by Tenant after the termination, in
any manner, of the Term, or after the giving by Landlord of a termination
notice, shall not reinstate, continue or extend the Term, or destroy, or in any
manner impair the efficacy of any such termination notice as may have been given
hereunder by Landlord to Tenant prior to the receipt, acceptance and/or deposit
(including the endorsement of any check) of any such rent, or other sum of money
or other consideration, unless so agreed to in writing and signed by Landlord.
Neither acceptance of the keys nor any other act or thing done by Landlord or
any agent or employee shall be deemed to be an acceptance of a surrender
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of the Premises, or any part thereof, excepting only an agreement in writing
signed by Landlord. No payment by Tenant or receipt, acceptance and/or deposit
(including the endorsement of any check) by Landlord of a lesser amount than the
correct rent shall be deemed to be other than a payment on account, nor shall
any endorsement or statement on any check be deemed to effect or evidence an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy
in this Lease provided.
23. COVENANTS BINDING ON SUCCESSORS AND ASSIGNS
23.1 All of the terms, covenants and conditions of this Lease
shall apply to and inure to the benefit of and be binding upon the respective
heirs, executors, administrators, successors and assigns of the parties, except
as expressly otherwise herein provided. If there shall be more than one Tenant,
they shall all be bound jointly and severally by the terms, covenants and
agreements herein contained. No rights, however, shall inure to the benefit of
any assignee or subtenant of Tenant unless the assignment or subletting, as the
case may be, has been made in accordance with the provisions set forth in
Section 11.
24. RESOLUTION OF DISPUTES
24.1 The parties hereto waive a trial by jury (to the extent
permitted by law) on any and all issues arising in any action or proceeding
between them or their successors under or in any way connected with this Lease
or any of its provisions, any negotiations in connection therewith, the
relationship of Landlord and Tenant, or Tenant's use or occupation of the
Premises, including any claim of injury or any emergency or other statutory
remedy with respect thereto. The provisions of this Section shall survive the
expiration or termination of this Lease.
25. NOTICES
25.1 Any statement, demand, election, request, notice,
approval, consent or other communication, (collectively, "notice") authorized or
required by this Lease must be in writing and shall be deemed given when
delivered by telecopier, by special courier, by hand, against receipt, or sent
postage prepaid by United States certified mail, return receipt requested, in a
prepaid wrapper, addressed to the intended recipient at the address provided at
the head of this Lease (except that after the commencement of the Term any
notice to Tenant shall be addressed to Tenant at the Premises) or such other
address as either party may designate by notice given from time to time in
accordance with this Section. Any notices by a party signed by counsel to such
party shall be deemed a notice signed by such party. Notice shall be deemed
given on the date of delivery or the date delivery is refused.
26. DEFINITIONS; HEADINGS; CONSTRUCTION OF LEASE
26.1 For the purposes of this Lease, unless the context
otherwise requires:
26.1.1 The term "Landlord's agents" shall be deemed
to include agents, servants, employees and contractors of landlord.
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26.1.2 The term "person" shall be deemed to include
individuals, corporations, partnerships, firms, associations and any other legal
or business entities.
26.1.3 The term "unavoidable delays" shall mean any
and all delays beyond the reasonable control of the party otherwise responsible,
including delays caused by the other party, governmental restrictions,
governmental preemption, strikes, labor disputes, lockouts, shortage of labor or
materials, acts of God, enemy action, civil commotion, riot or insurrection,
fire, holdover tenancies or other unavoidable casualty or any other cause beyond
the responsible party's control, but shall not include delays occasioned by lack
of money.
26.1.4 The terms "include," "including" and "such as"
shall be construed as if followed by the phrase "without being limited to". The
words "herein," "hereof," "hereby," "hereunder" and words of similar import
shall be construed to refer to this Lease as a whole and not to any particular
Section hereof unless expressly so stated.
26.2 The various terms which are defined in other Sections of
this Lease shall have the meanings specified in such other Sections for all
purposes of this Lease unless the context otherwise requires.
26.3 The Section headings in this Lease and the Table of
Contents prefixed to this Lease are inserted only as a matter of convenience and
reference and are not to be given any effect whatsoever in construing this
Lease.
26.4 All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural, as the identity
of the person or persons or entity or entities in question may require.
26.5 Anything in this Lease to the contrary notwithstanding,
in the event that (a) any act or omission of Tenant shall require the consent or
approval of Landlord pursuant to this Lease, and (b) this Lease provides that
Landlord shall not unreasonably withhold such consent or approval, and (c)
Tenant shall claim that Landlord has unreasonably withheld such consent or
approval, then the sole recourse of Tenant upon the inability of the parties to
agree shall be to bring an appropriate action in a court of competent
jurisdiction against Landlord solely to issue a determination of whether the
withholding of such consent or approval by Landlord is "reasonable" or
"unreasonable", and Tenant shall not be entitled to any damages or other remedy
other than specific performance for the issuance by Landlord of such consent or
approval if a court of competent jurisdiction shall determine that such
withholding of consent was unreasonable.
27. FORCE MAJEURE
27.1 Whenever the performance of any obligation of either
party hereunder shall be delayed, hindered or prevented due to unavoidable
delays, the time for performance of such obligation, unless other provision is
expressly made therefor in this Lease, shall be extended, subject to and limited
by the following conditions:
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27.1.1 The extension shall be for no longer a period
than the delay actually so occasioned;
27.1.2 The party delayed shall promptly notify the
other party of the cessation of such unavoidable delay and of the extent of the
delay which the party delayed claims was occasioned thereby;
27.1.3 No statement of fact contained in any such
notice shall be binding on the party receiving such notice; and
27.1.4 In no event shall lack of funds be deemed a
matter beyond either party's control.
28. BROKERAGE
28.1 Landlord and Tenant each warrant and represent to the
other that either: (i) if any broker is listed here: NONE, such broker is the
only broker who was instrumental in bringing about this Lease; or (ii) if the
word "NONE" appears in the line in clause (i), no broker was instrumental in
bringing about this Lease. Each party (the "breaching party") hereto agrees to
indemnify, defend and hold the other party (the "non-breaching party") harmless
with respect to any judgments, damages, legal fees, court costs and any and all
liabilities of any nature whatsoever incurred by the non-breaching party arising
from a breach of the applicable warranty and representation by the breaching
party. The provisions of the foregoing representation and indemnity shall
survive the expiration or termination of this Lease.
29. MISCELLANEOUS PROVISIONS
29.1 This Lease sets forth all the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Premises. There are no oral agreements or understandings between the parties
hereto affecting this Lease, and this Lease supersedes and cancels any and all
previous negotiations, arrangements, agreements and understandings, if any,
between the parties hereto with respect to the subject matters hereof, and none
thereof shall be used to interpret or construe this Lease. Except as otherwise
herein expressly provided, no subsequent alteration, amendment, change, waiver
or addition to or of any provision of this Lease, nor any surrender of the Term,
shall be binding upon Landlord or Tenant unless reduced to writing and signed by
the party against whom the same is charged or such party's successors in
interest.
29.2 Neither this Lease nor a memorandum thereof shall be
recorded by either party without the written consent of the other.
29.3 This Lease shall be governed in all respects by the laws
of the State of New Jersey.
29.4 This Lease may be executed in several counterparts, each
of which shall be an original, but all of which shall constitute one and the
same instrument.
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29.5 All obligations of Tenant which shall not have been
performed prior to the end of the Term or which by their nature involve
performance, in any particular, after the end of the Term, or which cannot be
ascertained to have been fully performed until after the end of the Term, shall
survive the expiration or termination of the Term.
29.6 If any term, covenant, condition, or provision of this
Lease or the application thereof to any person or circumstance shall, at any
time or to any extent, be invalid or unenforceable, the remainder of this Lease,
or the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term, covenant, condition, and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
30. COMPLIANCE WITH ENVIRONMENTAL LAWS
30.1 Tenant shall, at Tenant's sole cost and expense, comply
with the requirements of any Federal, state, county, municipal or other
governmental law, ordinance, rule, regulation, requirement and/or directive
pertaining to the environment (an "Environmental Law" or "Environmental Laws"),
including, but not limited to, the New Jersey Spill Compensation and Control Act
(N.J.S.A. 58:10-23.11 et seq.); the New Jersey Water Pollution Control Act
(N.J.S.A. 58:10A-1 et seq.); the Worker and Community Right To Know Act
(N.J.S.A. 34:5A-1 et seq.); the Resource Conservation and Recovery Act of 1976
(42 U.S.C. Section 6901 et seq.); the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.); and the
Industrial Site Recovery Act (N.J.S.A. 13:1 K-6 et seq.) ("ISRA") arising out of
or relating to Tenant's operations at, use or occupancy of the Premises. In this
regard, Tenant shall, at Tenant's sole cost and expense, make all submissions
to, provide all information to and comply with all requirements of any
governmental authority. Should said governmental authority determine that action
is necessary to cleanup, remove and/or eliminate any spills or discharges of
Hazardous Substances (hereinafter defined), subject to the provisions of Section
30.7 of this Lease, Tenant agrees to take all actions as required by any
government agency to remove and clean-up said Hazardous Substances. As used
herein, "Hazardous Substances" means any substance that is toxic ignitable,
reactive, or corrosive and that is regulated by any local government, the State
of New Jersey or the United States government, any and all material or
substances that are defined as "hazardous waste," "extremely hazardous waste,"
or a "hazardous substance" pursuant to state, federal, or local government law,
and any asbestos, polychlorobiphinyls (PCBs), and petroleum. Tenant's
obligations pursuant to this Section shall arise whenever required by any
appropriate governmental agency, including, but not limited to, any closing,
terminating or transferring of operations at the Premises.
30.1.1 Tenant shall obtain, at its sole cost and
expense, at least one hundred twenty (120) days prior to the expiration of the
Term of this Lease or any extension renewal thereof, a written statement by the
New Jersey Department of Environmental Protection ("NJDEP") that the termination
of Tenant's operation at the Premises would not cause ISRA to become applicable
and Tenant shall provide Landlord with a copy of such written statement promptly
upon receipt thereof by Tenant. Tenant shall apply to the NJDEP not later than
six (6) months prior to the expiration of the Term or extensions thereof In the
event the NJDEP determines that Tenant's use of the Premises and its
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subsequent termination of its operation would trigger the requirements of ISRA,
or in the event Tenant is unable or fails to obtain such written statement at
least one hundred twenty (120) days prior to the expiration of this Lease or any
renewal hereof, then Tenant shall promptly comply with ISRA, and shall be
responsible for all expenses and costs in complying with ISRA. Subject to
Section 30.7 herein, Tenant shall be responsible for obtaining a negative
declaration or effecting a clean-up plan prior to the expiration of this Lease
or any renewal thereof in accordance with ISRA. If Landlord is required by the
NJDEP to perform any act in order to obtain said negative declaration or effect
a clean-up plan, Landlord shall comply with same but Tenant shall (subject to
Section 30.7) reimburse Landlord for any and all costs incurred by Landlord,
including, without limitation, attorneys' and engineers' fees, if any.
30.1.2 Subject to Section 30.2.3(b), Landlord shall,
at Landlord's cost and expense, comply with ISRA during the Term of this Lease
to the extent that same is necessary as a result of any action or inaction by
Landlord, including but not limited to, any sale or other transfer or change in
ownership of the Premises by Landlord, or sale of the controlling share of
Landlord's assets. Landlord shall indemnify and defend Tenant from and against
any and all liability, loss and expenses, including Tenant's reasonable
attorneys' fees, which Tenant may incur by reason of Landlord's breach of the
provisions of this Section 30.
30.1.3(a) At no expense to Landlord, Tenant shall
promptly provide all information reasonably requested by Landlord for
preparation of an application for an ISRA letter of non-applicability, an ISRA
letter of negative declaration or similar applications to evidence compliance
with the provisions of ISRA and/or completion of a Hazardous Substance cleanup
from the state or federal environmental agency having jurisdiction over the
Premises, and affidavits, and shall promptly sign any documents, including
affidavits, in connection with such applications, when reasonably requested by
Landlord.
30.1.3(b) Notwithstanding anything to the contrary
contained herein in this Section 30, the party responsible for the obligation to
comply with ISRA or any Environmental Law shall not be required to bear the cost
of any cleanup to the extent the need for such cleanup arises from the acts or
omissions of the other party or its employees, agents and contractors, in which
event such other party shall bear the cost of the cleanup to such extent.
30.1.3(c) Landlord and Tenant agree to cooperate with
each other and provide such documents, affidavits and information as may be
reasonably necessary for each of the parties to comply with ISRA.
30.1.4 For purposes of this Section, the term
"Environmental Documents" shall mean all environmental documentation concerning
the Premises or its environs, in the possession or under the control of Tenant,
including without limitation all sampling plans, cleanup plans, preliminary
assessment plans and reports, site investigation plans and reports, remedial
investigation plans and reports, remedial action plans and reports or the
equivalent, sampling results, sampling result reports, data, diagrams, charts,
maps, analyses, conclusions, quality assurance/quality control documentation,
correspondence to or from the Element or any other municipal, county, state or
federal governmental authority, submissions to the Element or any other
municipal, county, state or federal governmental
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authority and directives, orders, approvals and disapprovals issued by the
Element or any other municipal, county, state or federal governmental authority.
During the Term and subsequently promptly upon receipt by Tenant or Tenant's
representatives, Tenant shall deliver to Landlord all Environmental Documents
concerning or generated by or on behalf of Tenant, whether currently or
hereafter existing.
30.1.5 Tenant shall notify Landlord in advance of all
meetings scheduled between Tenant or Tenant's representatives and NJDEP or any
other environmental authority, and Landlord and Landlord's representatives shall
have the right, without the obligation, to attend and participate in all such
meetings.
30.1.6 Subject to the provisions of Section 30.7 of
this Lease, should the element or any other division of the NJDEP or other
governmental authority determine that a Remedial Action Workplan be prepared and
that remediation be undertaken because Hazardous Substances have been spilled,
discharged or placed in, on, under or about the Premises during the Term or any
Revised Term, Tenant shall at Tenant's own expense promptly prepare and submit a
Remedial Action Workplan and, if required, establish a remediation funding
source required by the NJDEP and shall promptly implement the approved Remedial
Action Workplan. In no event shall Tenant's Remedial Action involve engineering
or institutional controls, including without limitation capping, Deed Notice,
Declaration of Restriction or other institutional controls pursuant to PL 1993
(c) 139, and notwithstanding NJDEP's requirements, Tenant's remedial action
shall meet the NJDEP residential remediation standards for soil, surface water
and groundwater. Promptly upon completion of all required investigatory and
remedial activities, Tenant shall restore the affected areas of the Property
from any damage or condition caused by the work, including without limitation
closing, pursuant to law, any xxxxx installed at the Property.
30.1.7 At no expense to Landlord, Tenant shall
promptly provide all information requested by Landlord or NJDEP for preparation
of a non-applicability affidavit, de minimis quantity exemption application,
limited conveyance application or other submission and shall promptly sign such
affidavits and submissions when requested by Landlord or NJDEP.
30.1.8 Should Tenant obtain a letter of
Non-Applicability or a de minimis quantity exemption from the Element, Landlord
may, at its option, hire a consultant to undertake sampling at the Premises
sufficient to determine whether any Hazardous Substances have been spilled,
discharged or placed in, on or under or about the Premises. Should it be
determined that a Remedial Action Workplan be prepared and that remediation be
undertaken because hazardous substances have been spilled, discharged or placed
in, on, under or about the property during the Term as the result of Tenant's
use, occupancy and operations, Tenant shall at Tenant's own expense promptly
prepare and submit a Remedial Action Workplan and, if required, establish a
remediation funding source required by the NJDEP and shall promptly implement
the approved Remedial Action Workplan. In no event shall Tenant's Remedial
Action involve engineering or institutional controls, including without
limitation capping, Deed Notice, Declaration of Restriction or other
institutional controls pursuant to PL 1993 (c) 139, and notwithstanding NJDEP's
requirements, Tenant's remedial action shall meet the NJDEP residential
remediation standards for soil, surface water and groundwater.
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30.1.9 If Tenant (a) fails to obtain either (i) a
Letter of Non-Applicability, (ii) a de minimis quantity exemption, (iii) an
unconditional approval of Tenant's negative declaration, or (iv) a no further
action letter with respect to Tenant's Remedial Action Workplan (collectively
referred to as "ISRA Clearance") from the Element, or fails to remediate the
Premises pursuant to Section 30.1.8 above, prior to the expiration or earlier
termination of the Term, and (b) as a result of Tenant's failure to satisfy the
provision of the foregoing clause (a) Landlord shall not be able to relet or
sell the Premises upon the expiration or earlier termination the Term or any
renewal or extension thereof, then upon the expiration or earlier termination of
the Term or any renewal or extension thereof Landlord shall have the option
either to consider the Lease as having ended or to treat Tenant as a holdover
tenant in possession of the Premises pursuant to Section 18 of this Lease. If
Landlord considers the Lease as having ended, then Tenant shall nevertheless be
obligated to promptly obtain ISRA Clearance or fulfill the obligations set forth
in Section 30.1.8 above, as the case may be. If Landlord treats Tenant as a
holdover tenant in possession of the Premises, then Tenant shall monthly pay to
Landlord basic and additional rental at the rate set forth in Section 18 of this
Lease until such time as Tenant obtains ISRA Clearance, Landlord is able to
relet the Premises or sells the Premises, or Tenant fulfills its obligations
under Section 30.1.8 above, as the case may be, and during the holdover period
all of the terms of this Lease shall remain in full force and effect. In the
event the holdover tenancy ends as a result of Landlord reletting or selling the
Premises, Tenant's obligation to obtain ISRA Clearance or fulfill its
obligations set forth in Section 30.1.8 shall continue until satisfied.
30.2 Tenant represents and warrants to Landlord that Tenant
intends to use the Premises for only the use specified in Section 3.1 of this
Lease, which operations have the following Standard Industrial Classification
("S.I.C.") numbers as defined by the most recent edition of the Standard
Industrial Classification Manual published by the Federal Executive Office of
the President, Office of Management and Budget: 2834. Tenant's use of the
Premises shall be restricted to the classifications set forth above. Annexed
hereto as Exhibit A is an affidavit of an officer of Tenant ("Officer's
Affidavit") setting forth Tenant's S.I.C. numbers and a detailed description of
the operations and processes Tenant shall undertake at the Premises, organized
in the form of a narrative report, including a description and quantification of
Hazardous Substances to be generated, manufactured, refined, transported,
treated, stored, handled or disposed of at the Premises. Following commencement
of the Term, Tenant shall notify Landlord by way of a supplemental Officer's
Affidavit as to any changes in Tenant's operation, S.I.C. numbers or use,
generation, manufacture, refining, transportation, treatment, storage, handling
or disposal of Hazardous Substances. Tenant shall also supplement and update the
Officer's Affidavit upon each anniversary of the commencement of the Term and
upon the expiration or earlier termination of the Term. Tenant shall not
commence or alter any operations at the Premises prior to: (i) obtaining all
required operating and discharge permits or approvals, including but not limited
to air pollution control permits and water pollution discharge elimination
system permits from NJDEP, from all governmental or public authorities having
jurisdiction over Tenant's operations or the Premises, and (ii) providing copy
of the permits or approvals to Landlord.
30.3 Promptly upon the written request of Landlord, from time
to time, Tenant shall provide Landlord, at Landlord's expense, with an
environmental site assessment or environmental audit report prepared by an
environmental engineering firm acceptable to Landlord to assess with a
reasonable degree of certainty the presence or absence of any Hazardous
Substances and the potential costs in
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connection with abatement, cleanup, or removal of any Hazardous Substances found
on, under, at, within or about the Premises. Upon reasonable notice, which may
be oral, Tenant shall permit Landlord and Landlord's agents, servants and
employees, including but not limited to legal counsel and environmental
consultants and engineers, access to the Premises for the purposes of
environmental inspection and sampling during regular business hours, or during
other hours either by agreement of the parties or in the event of any
environmental emergency. At all times, a representative of Tenant shall
accompany Landlord and his agents, servants and employees during the inspection.
Tenant shall not restrict access to any part of the Premises, and Tenant shall
not impose any conditions to access. In the event that Landlord's environmental
inspection shall include sampling and testing of the Premises, Landlord shall
use reasonable efforts to avoid unreasonably interfering with Tenant's use of
the Premises.
30.4 Tenant shall at all times indemnify, defend (with counsel
selected by Landlord) and hold harmless Landlord against and from any and all
claims, suits, liabilities, actions, debts, damages, costs, losses, obligations,
judgments, charges, and expenses caused by Tenant's operation of the Premises,
Tenant's negligence, Tenant's willful misconduct, Tenant's breach of this Lease
or other acts or omissions of Tenant with respect to:
30.4.1 Any actual discharge of Hazardous Substances,
or the actual presence of any Hazardous Substances on, in, upon, under, or
affecting the Property, whether or not the same originates or emanates from the
Premises, or any other real estate, including any loss of value of the Premises
as a result of any of the foregoing;
30.4.2 Any costs of removal or remedial action
incurred by any governmental authority, any response costs incurred by any other
person or damages from injury to, destruction of, or loss of natural resources,
including reasonable costs of assessing such injury, destruction or loss,
incurred pursuant to any Environmental Laws;
30.4.3 Liability for personal injury or property
damage arising under any statutory or common-law tort theory, including, without
limitation, damages assessed for the maintenance of a public or private nuisance
or for the carrying on of an abnormally dangerous activity at or near the
Premises; and/or
30.4.4 any other environmental matter affecting the
Premises within the jurisdiction any other federal agency, or any state or local
environmental agency or political subdivision or any court, administrative panel
or tribunal.
Tenant's obligations pursuant to this Section 30.5 of this Lease shall
arise upon the discovery of any Hazardous Substance, whether or not any other
federal agency or any state or local environmental agency or political
subdivision or any court, administrative panel, or tribunal has taken or
threatened any action in connection with the presence of any Hazardous
Substances.
30.5 In the event of any discharge of Hazardous Substances or
the presence of any Hazardous Substance affecting the Property, whether or not
the same originates or emanates from the Premises or any other real estate,
and/or if Tenant shall fail to comply with any of the requirements of the
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Environmental Laws, Landlord may at its election, but without the obligation so
to do, give such notices and/or cause such work to be performed at the Property
and/or take any and all other actions as Landlord shall deem necessary or
advisable in order to xxxxx the discharge of any Hazardous Substance, remove the
Hazardous Substance or cure Tenant's noncompliance.
30.6 Notwithstanding anything to the contrary herein
contained, Tenant shall not be responsible for the cleanup, removal or
elimination of any (a) spill or discharge of Hazardous Substances that were
present in, on, under or about the Premises prior to the Commencement Date, or
(b) subsurface soil or groundwater migration of any Hazardous Substances onto
the Premises from an off-site source, provided any of the events or conditions
described in clauses (a) or (b) was not caused or exacerbated by Tenant or any
of its agents, employees, licensees, invitees, contractors or subtenants.
30.7 This Section 30 shall survive the expiration or earlier
termination of this Lease. Either party shall have the right of injunctive
relief to enforce any and all of the other parties' obligations under Section 30
of this Lease.
30.8 Landlord represents and warrants to Tenant that to
Landlord's knowledge, without investigation, no discharge or spill of Hazardous
Substances in violation of Environmental Laws has occurred on the Premises on or
before the date hereof
30.9 Landlord shall notify Tenant in advance of all meetings
scheduled between Landlord or Landlord's representatives and NJDEP or any other
environmental authority pertaining to environmental contamination on the
Premises and Tenant and Tenant's representatives shall have the right, without
the obligation, to attend and participate in all such meetings.
31. ENVIRONMENTAL REPORTS
31.1 Tenant shall promptly provide Landlord with all
documentation and correspondence provided to NJDEP pursuant to the Worker and
Community Right to Know Act, N.J.S.A. 34:5A-1 et seq. and the regulations
promulgated thereunder.
31.2 Tenant shall promptly supply to Landlord all reports and
notices made by Tenant pursuant to the Hazardous Substance Discharge--Reports
and Notices Act, N.J.S.A. 13:1K-15 et seq. and the regulations promulgated
thereunder.
31.3 Tenant shall promptly supply Landlord with any notices,
correspondence and submissions made by Tenant to NJDEP, the United State
Environmental Protection Agency, the United States Occupational Safety and
Health Administration, or any other local, state or federal authority which
requires submission of any information concerning Environmental Laws,
environmental matters or hazardous wastes or substances. Tenant shall also
promptly supply Landlord with all documentation, notices and correspondence
delivered to Tenant by any such authority with respect to Environmental Laws,
environmental matters or hazardous wastes or substances.
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32. OPTION TO RENEW
Provided the following "Conditions to Renewal" are currently
satisfied, Tenant shall have two (2) five (5)-year renewal options (for two (2)
"Renewal Terms"), each to be exercised by the Tenant's giving to the Landlord
written notice to renew at least one (1) year prior to the expiration of the
original Term or incumbent Renewal Term, as the case may be. Upon the Tenant's
giving of any such notice to renew, this Lease shall be automatically renewed
for a Renewal Term of five (5) years, without the necessity of the execution of
any further instrument or instruments, upon the same terms and conditions as are
contained in this Lease, except that (A) the basic rent per annum shall be as
hereinafter specified, and (B) there shall not be included therein any option to
renew this Lease for any additional period beyond the second (2nd) Renewal Term
above referred to.
The Conditions to Renewal are that Tenant is in possession and
occupancy of the Premises, that this Lease is not previously canceled or
terminated by either party, as in this Lease provided, by operation of law or
otherwise, and that at both (i) the time of exercising the renewal option and
(ii) the commencement of the Renewal Term, the Tenant is not in default of any
monetary obligation under this Lease or in material default under any
non-monetary obligation under this Lease (without regard to any notice or remedy
period).
The basic rent per annum during each Renewal Term shall be an
amount equal to the basic rent payable during the original Term, payable in the
manner as hereinbefore set forth, multiplied by the sum of (1) 100% and (2) the
difference expressed as a percent between the Consumer Price Index (as
hereinafter defined) for the first day of the first full month of the original
Term and the Consumer Price Index for the first day of the month in which the
particular Renewal Term commences. In no event shall the basic rent per annum
during any Renewal Term be less than the greater of the basic rent per annum
during the original Term or the basic rent per annum during any previous Renewal
Term.
The Consumer Price Index shall be defined to be the Consumer
Price Index for Urban Wage Earners and Clerical Workers for New York and
Northeastern New Jersey (base years 1982-1984 = 100), published by the Bureau of
Labor Statistics, United States Department of Labor, or successor or substitute
index appropriately adjusted. In the event the Consumer Price Index (or a
successor or substitute index) is not available, a reliable governmental or
other nonpartisan publication evaluating the information theretofore used in
determining the Consumer Price Index shall be used for the computation herein
set forth.
If Tenant fails to give to the Landlord written notice of its
exercise of any its options to renew as hereinabove specified, then that option
and all subsequent options shall be null and void.
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IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals, or caused these presents to be signed by their proper corporate
officers and their proper corporate seals to be hereto affixed, the day and year
first above written.
LANDLORD
WITNESS: AIRPORT ASSOCIATES
/S/ June Langbern By:/S/ Xxxxxx Xxxxxxx, Xx.
--------------------------- -----------------------------------
Name: June Langbern Xxxxxx Xxxxxxx, Xx.
/S/ June Langbern By:/S/ Xxxxxx Xxxxxxx
--------------------------- -----------------------------------
Name: June Langbern Xxxxxx Xxxxxxx
ATTEST TENANT
VIVUS, INC.
/S/ Xxxxxx Xxxxxx By:/S/ Xxxxx X. Xxxxxx
--------------------------- -----------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer Title: Chief Financial Officer
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EXHIBIT A
OFFICER'S AFFIDAVIT
STATE OF California:
:ss.
COUNTY OF San Mateo:
Xxxxx X. Xxxxxx, of full age, being duly sworn according to
law upon his/her oath, deposes and says:
1. I am Chief Financial Officer of the Tenant.
2. The S.I.C. number(s) for the operations of the Tenant to be
conducted in the Premises is (are) 2835.
3. The following is a detailed description of the operations and
processes Tenant shall undertake in the Premises, including a description and
quantification of the Hazardous Substances to be generated, manufactured,
refined, transported, treated, stored, handled or disposed of in the Premises:
4. This affidavit is made to induce the Landlord to enter into
the Lease, knowing the Landlord will rely on the truth of these statements.
/S/ Xxxxx X. Xxxxxx
Sworn to and subscribed before
me this 27th day of January, 1997.
/S/ Xxxxxxx Xxxxxx
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EXHIBIT B
INITIAL ALTERATIONS
[This exhibit will set forth those Alterations that the Landlord will permit
Tenant to perform.]
40
EXHIBIT C
[This exhibit will set forth those Alterations that Tenant may elect to remove
prior to the expiration of the Term or sooner termination of this Lease.]
