THIS LEASE AGREEMENT, made this this 7th day of July 2004,
THIS
LEASE AGREEMENT,
made this this 7th day of July 2004,
Between
Princeton
Corporate Plaza, LLC,
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a
New Jersey limited liability company, located at 0 Xxxx Xxxx Xxxxx,
Xxxxx
X, in the Township of South Brunswick in the County of Middlesex
and State
of New Jersey and having a postal address at Xxxxxxxx Xxxxxxxx,
XX 00000 (
“Landlord”),
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And
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Xenomics, Inc.,
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a
California Corporation, located at 0000 Xxxxxxx Xxxxxx, in the
City of
Richmond in the County of Contra Costa and State of California
and
having a postal code of 94805 ( “Tenant”);
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Witnesseth
that Landlord does hereby lease to Tenant and Tenant does hereby
rent from
Landlord, the following described premises: approximately 3,698
square
feet of space in Landlord’s building at 1 Deer Park Drive, Suite F (the
“Demised
Premises”),
in the Township of South Brunswick in the County of Middlesex and
State of
New Jersey being known as Block 97 Lot 13.04 on the tax map of
the
Township of South Brunswick (the “Property”)
and being further described as the cross-hatched area on the Demised
Premises Plan marked Exhibit
A
attached hereto and made a part hereof, for a Term
of two (2) years, commencing on September 1, 2004 (the “Commencement
Date”)
and ending on August 31, 2006 (the “Expiration
Date”),
to be used and occupied only and for no other purpose than office
and
laboratory (the “Use”),
provided, however, that said Use shall be strictly limited and
subject to
the activities set forth in Tenant’s Application for Nonresidential Use
Performance Standards and Tenancy Review submitted to and approved
by the
Township of South Brunswick regardless of whether said approval
has been
received as of the date of execution of this Lease (the “Tenancy
Review”).
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Upon
the following Conditions and Covenants:
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1st
|
Payment
of Rent.
Commencing on the Commencement Date, Tenant
covenants and agrees to pay to Landlord, as Base
Rent
for and during the Term hereof without defense, demand or offset,
the sum
of One Hundred Seventy Seven Thousand Five Hundred Four Dollars
and no/100
Dollars ($177,504.00) payable on the first day of each month during
the
Term in the following manner: $7,396.00 per month together
with such Additional Rent as may hereinafter be provided (collectively,
the “Rent”).
If the Commencement Date shall fall on a day other than the first
day of a
month, the Base Rent and any Additional Rent payable hereunder
shall be
apportioned for the number of days remaining in that month from
the
Commencement Date through the last day of the calendar month in
which the
Commencement Date occurs.
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2nd
|
Advance
Rental.
Upon the execution hereof, Tenant shall pay $24,820.00 to Landlord
representing:
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1)
|
one
month’s advance rental (applied to the first month’s rent) broken out as
follows:
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one
(1) month’s Base Rent in the amount of $7,396.00
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one-twelfth
(1/12) of Tenant’s Proportionate Share of estimated annual Operating
Expenses $1,310.00
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one
(1) month's HVAC maintenance in the amount of $90.00
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one
(1) month's gas and electric usage in the amount of $1,232.00
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2)
|
the
security required hereunder in the amount of $14,792.00
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3rd
|
Not
Used.
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4th
|
Security.
Tenant has this day deposited with Landlord the sum of $14,792.00,
as
security for the pay-ment of the Rent hereunder and the full and
faithful
performance by Tenant of the covenants and conditions on the part
of
Tenant to be performed. Said sum shall be returned to Tenant, without
interest, after the expiration of the Term hereof provided that
Tenant has
fully and faithfully performed all such covenants and conditions
on the
part of Tenant to be performed. During the Term hereof, Landlord
may, if
Landlord so elects, have recourse to such security, to make good
any
default by Tenant in which event Tenant, shall, on demand, promptly
restore said security to its original amount. Liability to repay
said
security to Tenant shall run with the reversion and title to the
Demised
Premises, whether any change in ownership thereof be by voluntary
alienation or as the result of judicial sale, foreclosure or other
proceedings, or the exercise of a right of taking or entry by any
mortgagee. Landlord shall have the right to assign or transfer
said
security for the benefit of Tenant, to
any subsequent owner or holder of the reversion or title to the
Demised
Premises, in which case the assignee shall become liable for the
repayment
thereof as herein provided, and the assignor shall be deemed to
be
released by Tenant from all liability to return such security.
This
provision shall be applicable to every alienation or change in
title and
shall in no way be deemed to permit Landlord to retain the security
after
termination of Landlord’s ownership of the reversion or title. Tenant
shall not mortgage, encumber or assign said security without the
prior
written consent of Landlord.
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5th
|
Net
Lease.
It is the purpose and intent of Landlord and Tenant that the Base
Rent
shall be net to Landlord, so that this Lease shall yield, net to
Landlord,
the Base Rent specified in the 1st
Section of this Lease in each year during the Term of this Lease.
All
costs, expenses, taxes, damages and charges of every kind and nature
relating to the Demised Premises (except any payment on account
of
interest and principal under any mortgages or deeds of trust) which
may
arise or become due during the Term of this Lease shall be paid
by
Tenant.
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6th
|
Proportionate
Share.
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1)
|
The
approximate area of the Demised Premises leased to Tenant is approximately
3,698 square feet. The total area of the building of which the
Demised
Premises are a part is approximately 60,097 square feet.
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1
Tenant's share of costs and charges, if applicable, as set forth in this Lease shall be determined by dividing the square footage of the Demised Premises by the total square footage of the building of which the Demised Premises is a part (“Tenant’s Proportionate Share”). As of the Commencement Date it is, therefore, established that Tenant's Proportionate Share is six and fifteen one-hundredths percent (6.15%). | ||
2)
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Tenant’s
Proportionate Share shall be adjusted from time to time as appropriate
based upon adjustments to the total square footage of the building
and/or
the square footage rented by Tenant.
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7th
|
Operating
Expenses.
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1)
|
It
is understood and agreed that in addition to the Base Rent to be
paid by
Tenant during the Term of this Lease and any renewals thereof,
Tenant
shall pay to Landlord Tenant’s Proportionate Share of all taxes,
assessments, water rents, rates and charges, sewer rents and other
governmental impositions. Tenant shall also pay Tenant’s Proportionate
Share of Landlord’s cost of the operation of common area appurtenances,
the maintenance, repairs and replacements of and for the building
of which
the Demised Premises are a part, the maintenance, repair and replacement
of the parking lot, sidewalks, curbs and landscaped areas, which
shall
include but not necessarily be limited to the following: cleaning,
sweeping, snow removal, striping, landscaping, insurance, lighting,
trash
removal, and policing if necessary, plus an administrative charge
of
fifteen percent (15%) of said costs (“Operating
Expenses”).
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2)
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Nothing
herein contained shall require or be construed to require Tenant
to pay
any inheritance, estate, succession, transfer, gift, franchise,
corporation, income or profit tax, or capital levy that is or may
be
imposed upon or that is or may be payable by Landlord, its successors
or
assigns.
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3)
|
Commencing
on the Commencement Date, Tenant shall pay monthly Tenant’s Proportionate
Share of Operating Expenses based upon Landlord’s reasonable estimate of
the current year expenses due from Tenant. Thereafter, Landlord
shall
provide an actual statement of expenses to Tenant on a calendar
year basis
and Tenant shall pay or receive a credit for the difference between
the
actual amount and the estimate. Tenant's subsequent monthly estimated
payments shall be adjusted accordingly. Upon Tenant's request,
Landlord
shall provide to Tenant copies of invoices substantiating the statement
of
actual expenses. To the extent that Landlord incurs expenses that
are
disproportionately allocable to Tenant as a result of Tenant's
occupancy
as determined by Landlord, Tenant's Proportionate Share shall not
apply to
said disproportionate expense items and Tenant shall pay the amount
that
is actually incurred by Landlord as a result of its
tenancy.
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4)
|
Landlord’s
cost for regular HVAC maintenance to units servicing the Demised
Premises
shall be billed monthly to Tenant as a separate item.
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5)
|
Should
Tenant's maintenance or service requirements exceed the standard
supplied
to the other tenants of the Property, Tenant shall pay the additional
costs attributable to such extra requirements. Said additional
costs will
be billed to Tenant either (i) as incurred or (ii) with the annual
Operating Expense reconciliation, in the sole discretion of
Landlord.
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6)
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All
taxes, charges, costs and expenses which Tenant assumes or agrees
to pay
under any provisions of this Lease together with all interest and
penalties that may accrue thereon in the event of Tenant's failure
to pay
the same as herein provided shall be deemed to be Additional Rent
and, in
the event of non-payment, Landlord shall have all the rights and
remedies
herein provided in the case of non-payment of Rent.
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8th
|
Taxes,
Licenses and Fees.
Tenant shall make timely payment of all ad valorem or other taxes
and
assessments levied upon Tenant’s stock of merchandise, fixtures,
furnishings, furniture, equipment, supplies and other property
located on
or used in connection with the Demised Premises and of all privilege
and
business licenses, fees, taxes and similar charges.
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9th
|
Tenant's
Electric Responsibility.
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1)
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All
electrical current utilized by Tenant within the Demised Premises,
including, without limitation, HVAC shall be at Tenant's sole cost
and
expense. Landlord shall not be liable for any inconvenience or
harm caused
by any stoppage or reduction of any utilities and services, and
in no
event shall the stoppage of any utilities and services excuse Tenant
from
the timely payment of Rent.
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2)
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Landlord
may install a separate meter to measure Tenant’s use of electricity and,
in such event, Tenant shall, at Tenant’s sole cost and expense, arrange
and pay for all utilities and services required for the Demised
Premises,
including payment of any deposit which may be required by the utility
company.
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3)
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In
the event a separate meter is not provided, then bills shall be
rendered
to Tenant based upon an estimated amount of $924.00 per month.
The
estimated amount may be adjusted from time to time based upon changes
in
utility company rates or if, in the judgment of Landlord, Tenant's
demand
and consumption varies from this estimate. The amount thereof shall
be
deemed to be Additional Rent and shall be due and payable at the
same time
as the monthly installments of Rent shall be due from Tenant.
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10th
|
Tenant's
Gas Usage Responsibility.
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1)
|
Landlord
shall provide Tenant heat at Tenant's sole cost and expense. All
gas usage
utilized by Tenant within the Demised Premises shall be strictly
at
Tenant's sole cost and expense. Landlord shall not be liable for
any
inconvenience or harm caused by any stoppage or reduction of any
utilities
and services, and in no event shall the stoppage of any utilities
and
services excuse Tenant from the timely payment of
Rent.
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2
2)
|
Landlord
may install a separate meter to measure Tenant's gas usage and,
in such
event, Tenant shall, at Tenant’s sole cost and expense, arrange and pay
for all utilities and services required for the Demised Premises,
including payment of any deposit which may be required by the utility
company.
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3)
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In
the event a separate meter is not provided, then bills shall be
rendered
to Tenant based upon an estimated amount of $308.00 per month.
The
estimated amount may be adjusted from time to time based upon changes
in
utility company rates or if, in the judgment of Landlord, Tenant's
demand
and consumption varies from this estimate. The amount thereof shall
be
deemed to be Additional Rent and shall be due and payable at the
same time
as the monthly installments of Rent shall be due from
Tenant
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11th
|
Acceptance
and Workletter.
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1)
|
Landlord
shall complete at its own expense and in a good and workmanlike
manner all
of the alterations set forth on Exhibit
B
(“Landlord’s
Work”)
attached hereto and made a part hereof.
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2)
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Tenant
acknowledges that it has inspected and examined the Demised Premises
and,
except as set forth in Exhibit
B,
has entered into this Lease without any representations on the
part of
Landlord, its agents or representatives as to the condition thereof,
and,
except as set forth in Exhibit
B,
is leasing and accepting the Demised Premises “as-is” and “where-is”. No
representations or promises, except as specified herein, have been
made by
or on behalf of Landlord, its agents, employees or representatives,
or by
any real estate broker, prior to or at the execution of this Lease,
and
Landlord is not bound by, and Tenant will make no claim on account
of, any
representation, promise or assurance, expressed or implied, with
respect
to conditions, repairs, improvements, services, accommodations,
concessions or any other matter, other than as contained
herein.
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12th
|
Commencement
Date.
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1)
|
The
Commencement Date shall be earlier or later than the date set forth
at the
beginning of this Lease under the following
circumstances:
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a)
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The
Lease will not commence until the work listed in Exhibit
B,
to be performed by Landlord, is substantially completed, unless
Tenant
chooses to occupy the Demised Premises, or any part thereof, prior
to
substantial completion, in which case the Commencement Date shall
be the
date of said occupancy by Tenant and the Expiration Date shall
be the last
day of the month immediately preceding the 2nd anniversary of the
Commencement Date.
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b)
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Except
as provided in the preceding paragraph, the Commencement Date will
not be
altered if the work listed in Exhibit
B,
to be performed by Landlord, is not substantially completed due
to
(i)changes requested by Tenant to Exhibit
B
after this Lease was executed or (ii) the failure of Tenant to
promptly
provide Landlord with any information necessary for the timely
completion
of the work listed in Exhibit
B
or (iii) the failure of Tenant to cooperate with Landlord in completion
of
the work listed in Exhibit
B
to such an extent as to cause the delay.
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2)
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If
the Commencement Date occurs other than on the first day of a month,
the
Expiration Date shall be the last day of the calendar month in
which the
2nd anniversary of the Commencement Date occurs. Substantial completion
shall be deemed to have occurred even though (i) minor details
of
Landlord’s work remain to be done, provided such details do not materially
interfere with the Tenant’s occupancy of the Demised Premises, or (ii) any
work or installation other than Landlord’s work being performed by Tenant
itself has not been completed.
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3)
|
Landlord
shall not be liable for failure to give possession of the Demised
Premises, or any part thereof, upon the Commencement Date by reason
of the
fact that the Demised Premises, or any part thereof, are not ready
for
occupancy, or due to a prior tenant holding over in the Demised
Premises
or due to any other person being in possession of the Demised Premises
or
for any other reason.
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13th
|
Repairs
and Care.
Tenant has examined the Demised Premises and has entered into this
Lease
without any representation on the part of Landlord as to the condition
thereof. Tenant shall take good care of the Demised Premises and
shall at
Tenant’s sole cost and expense, make all repairs, including painting and
decorating, and shall maintain the Demised Premises in good condition
and
state of repair. Tenant shall neither encumber nor obstruct the
sidewalks,
driveways, yards, entrances, hallways and stairs in and about the
Property, but shall keep and maintain the same in a neat and clean
condition as to its own activities, free from debris, trash and
refuse.
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14th
|
Glass,
Damage and Repairs.
In case of the destruction of or any damage to the glass in the
Demised
Premises, or the destruction of or damage of any kind whatsoever
to the
Property, which is caused by the carelessness, negligence or improper
conduct on the part of Tenant or Tenant’s agents, employees, guests
licensees, invitees, subtenants, assignees or successors, Tenant
shall
promptly repair at its sole cost and expense said damage or replace
or
restore said glass at Tenant’s sole cost and expense.
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15th
|
Utilities.
Tenant shall be responsible for the cost of the prompt repair of
any
utility, ventilating, heating, air conditioning, electrical, gas
and other
utility lines within the Demised Premises, except if damage outside
the
Demised Premises is caused by the acts or omissions of Tenant,
its agents,
servants or employees, in which event Tenant shall likewise be
responsible
for the cost of repair of such damage outside the Demised Premises.
Landlord will guarantee the HVAC and electrical systems for the
period of
one (1) year from the Commencement Date except in the case where
damage is
due to the acts or omissions of Tenant, including, but not limited
to,
Tenant’s failure to reimburse Landlord its HVAC maintenance charges.
Landlord shall not be liable for any inconvenience or harm caused
by any
stoppage or reduction of any utilities and services, and in no
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3
event shall the stoppage or reduction of any utilities and services excuse Tenant from the timely payment of Rent. | ||
16th
|
Alterations
and Improvements.
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1)
|
No
alterations, additions or improvements shall be made, and no climate
regulating, air conditioning, cooling, heating or sprinkler systems,
television or radio antennas, heavy equipment, apparatus or fixtures,
shall be installed in or attached to the Demised Premises, without
the
prior written consent of Landlord, which shall not be unreasonably
withheld, and the issuance of all required permits from all government
agencies having jurisdiction. Except as provided below, all such
alterations, additions or improvements installed
in or attached to the Demised Premises shall belong to and become
the
property of Landlord and be surrendered with the Demised Premises
and as a
part thereof upon the expiration or sooner termination of this
Lease,
without hindrance, molestation or injury.
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2)
|
Provided
that Tenant is not in default of any of the terms of this Lease,
Tenant
shall have the right to remove any trade fixtures which were installed
at
Tenant’s sole cost and expense; provided, however, that (i) Tenant shall
not remove any equipment, furnishings or mechanical fixtures that
are
fixed in place and mechanically or electrically connected to the
building
and/or its systems and (ii)Tenant shall restore the Demised Premises
to
the condition existing prior to the installation of the trade fixtures
which are removed, reasonable wear and tear excepted.
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17th
|
Construction
Lien.
If any construction, mechanics’ or other liens shall be created or filed
against the Demised Premises by reason of labor per-formed or materials
furnished for Tenant in the creation, construction, completion,
alteration, repair or addition to any building or improvement,
Tenant
shall, at Tenant’s sole cost and expense within ten (10) days of filing,
cause
such lien or liens to be satisfied and discharged of record together
with
any other liens that may have been filed. Failure to discharge
said liens
within the aforesaid ten (10) day period shall entitle Landlord
to resort
to such remedies as are provided herein in the case of any default
of this
Lease, in addition to any remedies permitted by law.
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18th
|
Tenant
Loans and Landlord Subordination.
Should Tenant desire to use its property located within the Demised
Premises as collateral on any loan, Landlord shall not be required
to
execute any documents evidencing its consent and subordination
to any such
loan unless and until Landlord has been provided with true copies
of all
of the loan documents, including, but not limited to, the note,
the
security agreement and a complete description of the proposed collateral.
Any such consent and subordination documents shall be in a form
and under
terms and conditions that are acceptable to Landlord.
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19th
|
Signs.
Tenant shall not place any signs of any kind whatsoever upon, in
or about
the Property or any part thereof, except of a design and structure
and in
or at such places as may be indicated and consented to by Landlord
in
writing. In case Landlord or Landlord’s agents, employees or
representatives shall deem it necessary to
remove any such signs in order to
paint or make any repairs, alterations or improvements in or upon
the
Property or any part thereof, they may be so removed, but shall
be
replaced at Landlord’s expense when the said repairs, alterations or
improvements shall have been completed. Any signs permitted by
Landlord
shall at all times conform with all municipal ordinances or other
laws and
regulations applicable thereto. Landlord’s consent shall not be required
for signs placed within the Demised Premises which are not visible
from
outside the Demised Premises.
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20th
|
End
of Term.
Upon the Expiration Date or sooner termination of this Lease, Tenant
shall: (a) leave the Demised Premises in a “broom clean” condition; (b)
remove all of Tenant’s property; (c) remove all signs in and about the
Demised Premises and restore that portion of the Demised Premises
on which
they were placed; (d) repair all damage caused by moving; and (e)
return
the Demised Premises to Landlord in the same condition as it was
at the
beginning of the Term, except for normal wear and tear.
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21st
|
Removal
of Tenant’s Property.
Any equipment, fixtures, goods or other property of Tenant not
removed by
Tenant upon the expiration or sooner termi-nation of this Lease
or upon
any quitting, vacating or abandonment of the Demised Premises by
Tenant,
or upon Tenant’s eviction, shall be considered as abandoned and Landlord
shall have the right, without any notice to Tenant, to sell or
otherwise
dispose of the same, at the sole cost and expense of Tenant, and
shall not
be accountable to Tenant for any part of the proceeds of such sale,
if
any.
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22nd
|
Compliance
with Laws, Etc.
Tenant shall promptly comply with (i) all laws, ordinances, rules,
regulations, requirements and directives of the Federal, State
and
Municipal governments or public authorities and of all of their
departments, bureaus and subdivisions, applicable to and affecting
the
Demised Premises, its use and occupancy, for the correction, prevention
and abatement of nuisances, violations or other grievances in,
upon or
connected with the Demised Premises, during the Term; and (ii)
all orders,
regulations, requirements and directives of the Board of Fire Underwriters
or similar authority; and (iii) the requirements of any insurance
companies which have issued or are about to issue policies of insurance
covering the Property and/or its contents, for the prevention of
fire or
other casualty, damage or injury, at Tenant’s sole cost and
expense.
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23rd
|
Environmental
Matters.
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1)
|
Tenant
warrants and represents that, with respect to maintenance and operations
thereon of the Demised Premises and any other premises that it
occupies
anywhere in the United States, it is in compliance with all laws,
ordinances, rules, regulations and policies of any government authority
having jurisdiction regarding the environment, human health or
safety
(collectively, “Environmental
Laws”),
including, but not limited to, its storage and use of chemicals,
its
generation and disposal of hazardous wastes and the training, education
and safety of its employees.
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4
2)
|
Tenant
shall remain in compliance with the above representations during
its
entire occupancy of the Property or any part thereof.
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3)
|
Landlord
and Landlord’s agents, employees or other representatives shall have the
right to demand documentation supporting these representations.
The
failure of Tenant to supply any documentation so demanded within
sixty
(60) days of written notice of such demand (or immediately in the
case of
an emergency or suspected violation) shall entitle Landlord to
the option
of canceling this Lease, and the Term hereof is hereby expressly
limited
accordingly.
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4)
|
Tenant
shall comply with all of the terms of Exhibit
C
which is attached hereto and made a part hereof.
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24th
|
Restriction
of Use.
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|
1)
|
Tenant
shall not occupy or use the Demised Premises or any part thereof,
nor
permit or suffer the same to be occupied or used for any purposes
other
than for the Use, nor for any purpose deemed unlawful, disreputable,
or
extra-hazardous on account of fire or other casualty, nor in a
manner
which interferes with other tenants in the beneficial use of their
premises.
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2)
|
Tenant
covenants and agrees not to suffer, allow or permit any offensive
or
obnoxious vibration, noise, odor or other undesirable effect to
emanate
from the Demised Premises or from any machine, equipment or other
installation therein, or otherwise suffer, allow or permit the
same to
constitute a nuisance or otherwise interfere with the safety, comfort
or
convenience of Landlord or any of the other tenants or occupants
of the
building or their customers, clients, patron, guests, agents or
invitees,
or any others lawfully in or upon the Property. Tenant, and its
employees,
customers, clients, patrons, guests, agents or invitees, shall
not make or
commit any unreasonable noises or disturbances of any kind in the
Demised
Premises, nor anywhere else on the Property, nor xxxx or defile
the water
closets, toilet rooms or the walls, windows, doors or any other
part of
the Property, nor interfere in any way with other tenants or those
having
business in the Property. Tenant, and its employees, customers,
clients,
patrons, guests, agents or invitees, shall comply with the State
of New
Jersey’s law regarding smoking in pubic places and will only smoke in
designated areas.
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3)
|
Tenant
shall not conduct, nor permit any other person to conduct, any
auction
upon the Demised Premises. Tenant shall not permit the Demised
Premises to
be used for gambling or any other illegal activity. Canvassing,
soliciting
and peddling on the Property are prohibited, and Tenant shall cooperate
to
prevent the same.
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25th
|
Assignment
and Sublet.
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1)
|
Tenant
shall not, without the prior written consent of Landlord, assign,
mortgage
or hypothecate this Lease, nor sublet or sublease the Demised Premises
or
any part thereof or permit any other person or business to use
the Demised
Premises except as permitted in this 25th
Section .
If Tenant shall be a corporation, limited liability company or
partnership, more than fifty percent (50%) of the stock, membership
interests or partnership interests, as the case may be, shall be
deemed an
assignment of this Lease and subject to the provisions of this
Section.
The provisions of this Section shall be binding upon the legal
representatives of Tenant and every person to whom Tenant’s interest under
this Lease passes by operation of law or otherwise, except that
it shall
not apply to an assignment or subletting to an affiliate, a subsidiary
or
related entity of Tenant, nor to the sale of Tenant’s business or in
connection with a merger or consolidation (collectively, a “Permitted
Transfer”),
provided that Tenant has notified Landlord of the Permitted Transfer
and
supplied Landlord with any reasonable information and documentation
it may
request.
|
|
2)
|
Provided
Tenant is not in default under any of the terms or conditions of
this
Lease, Landlord will not unreasonably withhold consent to a partial
sublet
of the Demised Premises, provided that Tenant remains in occupancy
of the
Demised Premises and that the subtenant does not violate any of
the terms
of this Lease.
|
|
3)
|
If
Tenant requests Landlord’s consent to an assignment of this Lease or a
subletting of all or any part of the Demised Premises, Tenant shall
submit
to Landlord: (i) the name of the proposed assignee or subtenant;
(ii) the
terms of the proposed assignment or subletting; (iii) the nature
of the
proposed assignee or subtenant’s business and its proposed use of the
Demised Premises; (iv) such information as to the financial responsibility
and general reputation of the proposed assignee or subtenant as
Landlord
may require; and (v) a summary of plans and specifications for
revising
the floor layout of the Demised Premises.
|
|
4)
|
Upon
receipt of all such information from Tenant, Landlord shall have
the
option, to be exercised in writing within thirty (30) days after
such
receipt, to cancel and terminate this Lease if the request is to
assign
this Lease or to sublet all or substantially all of the Demised
Premises
or, if the request is to sublet a portion of the Demised Premises
only, to
cancel and terminate this Lease with respect to such portion, in
each case
as of the date set forth in Landlord’s notice of exercise of such option
which shall not be less than thirty (30) nor more than ninety (90)
days
after the date of such notice. If Landlord shall fail to exercise
its
option to cancel and terminate this Lease with respect to all or
a part of
the Demised Premises as above provided, Landlord shall not thereby
be
deemed to have consented to the proposed assignment or subletting,
unless,
prior to the expiration of the aforesaid thirty (30) day period,
Landlord
shall have delivered its written consent thereto to
Tenant.
|
|
5)
|
If
Landlord shall cancel this Lease in whole or in part as above provided,
Tenant shall surrender possession of the Demised Premises, or the
portion
of the Demised Premises which is the subject of the request, as
the case
may be, on the date set forth in such notice in accordance with
the
provisions of this Lease relating to surrender of the Demised Premises.
If
this Lease shall be cancelled as to a portion of the Demised Premises
only, (i) the Rent payable by Tenant hereunder shall be adjusted
proportionately by multiplying the Rent
|
5
then in effect by a fraction, the numerator of which is the number of rentable square feet in the portion of the Demised Premises to be retained and the denominator of which is the rentable square feet of the entire Demised Premises leased at the time of Tenant’s request for consent to the assignment or sublet, and (ii) Landlord, at Landlord’s expense, shall have the right to make any alterations to the Demised Premises required, in Landlord’s judgment, to make the portion of the Demised Premises surrendered a self-contained rental unit with access through corridors to any and all common areas, elevators, toilets and amenities serving such space. At Landlord’s request, Tenant shall execute and deliver an agreement, in form satisfactory to Landlord, setting forth any modifications to this Lease contemplated or resulting from the operation of this Section; however, neither Landlord’s failure to request such agreement nor Tenant’s failure to execute such agreement shall vitiate the effect of any cancellation pursuant to this Section. | ||
6)
|
Notwithstanding
any assignment or sublet, Tenant shall not be released from any
obligation
under this Lease without the express written consent of Landlord,
which
consent may be withheld in Landlord’s sole discretion.
|
|
26th
|
Access
to Demised Premises.
Tenant agrees that Landlord and Landlord’s agents, employees or other
representatives, shall have the right to enter into and upon the
Demised
Premises or any part thereof, at all reasonable hours and with
reasonable
notice, for the purpose of examining the same or making such repairs
or
alterations therein as may be necessary for the safety and preservation
thereof as determined in Landlord’s sole and absolute discretion. This
clause shall not be deemed to be a covenant by Landlord nor be
construed
to create an obligation on the part of Landlord to make such inspection
or
repairs. Landlord shall have the right to enter the Demised Premises
at
any time without notice to Tenant in case of emergency. In all
cases of
entry by Landlord, Landlord shall use commercially reasonable efforts
to
minimize disruption of Tenant’s use of the Demised
Premises.
|
|
27th
|
Reimbursement
of Landlord.
|
|
1)
|
If
Tenant shall fail or refuse to comply with or perform any conditions
and
covenants of this Lease, Landlord may, if Landlord so elects, carry
out
and perform such conditions and covenants, at the cost and expense
of
Tenant, and the said cost and expense shall be payable on demand,
or at
the option of Landlord shall be added to the installment of Rent
due
immediately thereafter but in no case later than one (1) month
after such
demand, whichever occurs sooner, and shall be due and payable as
such.
This remedy shall be in addition to such other remedies as Landlord
may
have hereunder by reason of the breach by Tenant of any of the
covenants
and conditions contained in this Lease.
|
|
2)
|
Tenant
shall pay all legal fees and expenses incurred by Landlord in (i)
enforcing or modifying the terms of the Lease, (ii) commencing
and
prosecuting a suit for the recovery of the Demised Premises, damages
or
any amounts owed to Landlord, (iii) commencing and prosecuting
a
declaratory action, (iv) prosecuting the Landlord’s rights in any
bankruptcy proceeding involving the Tenant, (v) defending an action
or
counterclaim brought by Tenant, (vi) preparing for or appearing
in an
arbitration, mediation or other non-judicial proceeding and (vii)
connection with the enforcement of any post-judgment collection
remedy.
|
|
28th
|
Late
Charges, Returned Check Charges, Etc..
Tenant hereby acknowledges that late payment by Tenant to Landlord
of Rent
or other sums due hereunder will cause Landlord to incur costs
not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Accordingly:
|
|
1)
|
If
any installment of Rent or any sum due from Tenant shall not be
received
by Landlord or Landlord's designee within seven (7) days after
the due
date then Tenant shall pay to Landlord a late charge equal to ten
percent
(10%) of such overdue amount.
|
|
2)
|
If
any Tenant check deposited by Landlord is returned unpaid, Tenant
shall
pay to Landlord a returned check charge equal to two (2) times
the amount
charged to Landlord by Landlord’s Bank.
|
|
3)
|
If
two (2) or more Tenant checks are returned to Landlord in any twelve
(12)
month period, Landlord shall have the right to require all charges
due
from Tenant for the balance of the Term to be paid by certified
check,
bank check or money order.
|
|
4)
|
If
and when any installment of Rent or any sum due from Tenant has
not been
paid within ninety (90) days after the due date, then Landlord
shall have
the right from the ninety-first (91st)
day forward to charge interest on Tenant’s entire unpaid balance at the
rate of eight percent (8%) per annum until all Rent due from Tenant
has
been received by Landlord.
|
|
5)
|
Any
such late charge, returned check charge and/or interest charge,
if not
previously paid, shall, at the option of the Landlord, be added
to and
shall become part of the succeeding rental payment to be made hereunder
and shall be deemed to constitute Additional Rent.
|
|
6)
|
Late
charges, returned check charges and interest charges shall be in
addition
to and not in lieu of any other remedy Landlord may have and is
in
addition to any reasonable fees and charges of any agents or attorneys
Landlord may employ as a result of any default under this
Lease.
|
|
29th
|
Default;
Remedies upon Tenant’s Default.
If there should occur any default on the part of Tenant in the
performance
of any conditions and cove-nants herein contained including, without
limitation, the payment of Rent when due, or if during the Term
hereof the
Demised Premises or any part thereof shall be or become abandoned
or
deserted, vacated or vacant, or should Tenant be evicted by summary
proceedings or otherwise, Landlord, in addition to any other remedies
herein contained or as may be permitted by law, may either by force
|
6
or otherwise, without being liable for prosecution therefor or for damages, re-enter the Demised Premises and have and again possess and enjoy the same; and as agent for Tenant or otherwise, re-let the Demised Premises and receive the rents therefor and apply the same, first to the payment of such expenses, reasonable attorney fees and costs, as Landlord may have incurred in the re-entering and repossessing of the same and in making such repairs and alterations as may be necessary; and second to the payment of the Rent due hereunder. Tenant shall remain liable for such Rent as may be in arrears and also the Rent as may accrue subsequent to the re-entry by Landlord, to the extent of the difference between the Rent reserved hereunder and the Rent, if any, received by Landlord during the remainder of the unexpired term hereof, after deducting the aforementioned expenses, fees and costs; the same to be paid as such deficiencies arise and are ascertained each month. Landlord shall have the right to elect to terminate the Term by giving notice of such election, and the effective date thereof, to Tenant and to receive Termination Damages, defined as the amount which, at the time of actual payment thereof to Landlord, is the sum of : | ||
1)
|
all
accrued but unpaid Rent;
|
|
2)
|
the
present value (calculated using the most recently available (at
the time
of calculation) published weekly average yield on United States
Treasury
securities having maturities comparable to the balance of the then
remaining Term) of the sum of all payments of Rent remaining due
(at the
time of calculation-) until the date the Term would have expired
(had
there been no election to terminate it earlier) less the present
value
(similarly calculated) of all payments of Rent to be received through
the
end of the Term (had there been no election to terminate it earlier)
from
a lessee, if any, of the Demised Premises under commercially reasonable
terms existing at the time of calculation (and it shall be assumed
for
purposes of such calculations that (i) the amount of future Additional
Rent due per year under this Agreement will be equal to the average
Additional Rent per month due during the twelve (l2) calendar months
immediately preceding the date of any such calculation, increasing
annually at a rate of eight percent (8%) compounded; and (ii) if
any
calculation is made before the end of the first full calendar year
of
occupancy under this Lease, operating expenses may be extrapolated
based
on the year-to-date experience of Landlord);
|
|
3)
|
Landlord's
cost of demolishing any leasehold improvements to the Demised Premises;
and
|
|
4)
|
that
amount, which as of the occurrence of the default on the part of
Tenant,
bears the same ratio to the costs, if any, incurred by Landlord
(and not
paid by Tenant) in building out the Demised Premises in accordance
with
this Lease as the number of months remaining in the Term (immediately
before the occurrence of the said default) bears to the number
of months
in the entire Term (immediately before the occurrence of the said
default).
|
|
30th
|
Termination
on Default.
Upon the occurrence of any of the contingencies set forth in the
29th
Section of this Lease, or should Tenant be adjudicated a bankrupt,
insolvent or placed in receivership, or should proceedings be instituted
by or against Tenant for bankruptcy, insolvency, receivership,
agreement
of composition or assignment for the benefit of creditors, or if
this
Lease or the estate of Tenant hereunder shall pass to another by
virtue of
any court proceedings, writ of execution, levy, sale or by operation
of law, Landlord may, if Landlord so elects, at any time thereafter,
terminate this Lease and the Term hereof, upon giving to Tenant
or to any
trustee, receiver, assignee or other person in charge of or acting
as
custodian of the assets or property of Tenant, five (5) days notice.
Upon
the giving of such notice, this Lease and the Term hereof shall
end on the
date fixed in such notice as if the said date was the date originally
fixed in this Lease for the expiration hereof; and Landlord shall
have the
right to remove all persons, goods, fixtures and chattels therefrom,
by
force or otherwise, without liability for damages.
|
|
31st
|
Tenant’s
Right to Cure. Anything
in this Lease to the contrary notwithstanding, in the event of
a default
under the terms, covenants, provisions and conditions of this Lease
other
than the vacating by Tenant of the Demised Premises, Tenant shall
have the
right to cure and correct the same but only within the following
specified
periods next following receipt of notice from Landlord specifying
said
event of default:
|
|
1)
|
five
(5) days with respect to defaults in the payment of Rent;
and
|
|
2)
|
sixty
(60) days with respect to an adjudication of bankruptcy of Tenant
or any
assignment by Tenant for the benefit of its creditors;
and
|
|
3)
|
ten
(10) days with respect to all other acts of default; and if the
correction
of the said event of default requires the performance by Tenant
of any
work which cannot reasonably be performed within such time period,
the
said period shall be extended until said work is completed provided
that
Tenant commences the performance of said work and thereafter promptly
and
diligently pursues said work to completion. In any such event,
Tenant
shall furnish Landlord with written evidence of its acts and efforts
in
the performance and completion of any said work and Tenant
shall indemnify and
hold harmless the Landlord and each mortgagee of the Property from
and
against any and all liabilities, damages, claims, losses, judgments,
causes of action, costs and expenses (including the reasonable
fees and
expenses of counsel) which may be incurred by the Landlord or any
such
mortgagee relating to or arising out of the Tenant's failure to
complete
the work within the time required hereunder.
|
|
32nd
|
Non-Waiver
by Landlord.
The various rights, remedies, options and elections of Landlord
expressed
herein are cumulative, and the failure of Landlord to enforce strict
performance by Tenant of the conditions and covenants of this Lease
or to
exercise any
remedy herein conferred or the acceptance by Landlord of any installment
of Rent after any breach by Tenant, in one or more instances, shall
not be
construed or deemed to be
|
7
a waiver or a relinquishment for the future by Landlord of any such conditions, covenants, options, elections or remedies, but the same shall continue in full force and effect. | ||
33rd
|
Waiver
of Redemption.
Upon the expiration or sooner termination of this Lease or in the
event of
entry of judgment for the recovery of possession of the Demised
Premises
in any action or proceeding, or if Landlord shall enter the Demised
Premises by process of law or otherwise, Tenant, for itself and
all
persons claiming through or under Tenant, including, but not limited
to,
its creditors, hereby waives and surrenders any right or privileges
of
redemption provided or permitted by any statute, law or decision
now or
hereafter in force, to the extent legally authorized, and does
hereby
waive and surrender all rights or privileges which it may or might
have
under and by reason of any present or future law or decision, to
redeem
the Demised Premises or for a continuation of this Lease after
having been
dispossessed or ejected therefrom by process of law, or otherwise.
Such
expiration or termination shall not release or discharge any obligation
of
Tenant to pay Rent or any other liability incurred by reason of
any
covenant herein contained on the part of Tenant to be
performed.
|
|
34th
|
Renewal
Option.
|
|
1)
|
Tenant
has the option to renew for one (1) successive one (1) year term(s)
upon
six (6) months written notice to Landlord prior to the expiration
of the
term of this Lease, time being of the essence; provided, however,
that
Tenant is not in default under any of the terms and conditions
of this
Lease and no event has occurred which with the giving of notice,
passage
of time, or both, would constitute an event of default on the date
(i)
this option is exercised and (ii) the renewal term commences. Base
Rent
for the renewal term shall be increased by the greater of five
percent
(5%) or the increases (if any) in the Consumer Price Index as published
by
the U.S. Department of Labor (“CPI”).
Base Rent for the renewal term shall be determined (and shall be
effective
for the entire then operative lease years in the renewal term)
by
multiplying the annualized Base Rent in the last month of the prior
term
by the greater of a) five percent (5%) or b) a fraction, the denominator
of which fraction shall be the CPI figure for the month which is
two (2)
months prior to the month in which the Commencement Date occurred
(the
“CPI
Month”)
and the numerator of which fraction shall be the figure published
for the
corresponding month in the preceding lease year. The CPI used shall
be the
All Urban Consumers (CPI-U), U.S. City Average.
|
|
2)
|
Should
the CPI cease to be published, then the closest similar published
index by
an agency of the U.S. Government shall be substituted. Should there
be no
such substitute, the parties hereto shall, under the rules of the
American
Arbitration Association, agree to a substitute formula or source,
designed
to accomplish the same original purpose of this
provision.
|
|
35th
|
Limitations.
Any claim, demand, right or defense by Tenant that arises out of
this
Lease, or the negotiations that preceded this Lease, shall be barred
unless Tenant commences an action thereon, or interposes a defense
by
reason thereof, within six (6) months after the date of the inaction,
omission, event or action that gave rise to such claim, demand,
right or
defense. Tenant acknowledges and understands, after having consulted
with
its legal counsel, that the purpose of this Section is to shorten
the
period within which Tenant would otherwise have to raise such claims,
demands, rights or defenses under applicable Laws.
|
|
36th
|
Not
Used.
|
|
37th
|
Not
Used.
|
|
38th
|
Casualty
Insurance.
Landlord shall carry insurance for fire, extended coverage, vandalism,
malicious mischief and other endorsements deemed advisable by Landlord,
insuring all improvements on the Property, including the Demised
Premises
and all leasehold improvements thereon and appurtenances thereto
(excluding Tenant's merchandise, trade fixtures, furnishings, equipment
and personal property) for the full insurable value thereof, with
such
deductibles as Landlord deems advisable. The cost of such insurance
shall
be included in Operating Expenses.
|
|
39th
|
Right
to Exhibit.
Tenant agrees from time to time to permit Landlord and Landlord’s agents,
employees or other representatives to enter and show the Demised
Premises
to persons wishing to rent or purchase the same, and Tenant agrees
that on
and after six (6) months next preceding the expiration of the Term,
Landlord or Landlord’s agents, employees or other representatives shall
have the right to place notices on the front of the Property or
the
Demised Premises or any part thereof, offering the same for rent
or for
sale; and Tenant hereby agrees to permit the same to remain thereon
without hindrance or molestation.
|
|
40th
|
Mortgage
Priority.
This Lease shall not be a lien against the Property in respect
to any
mortgages that may hereafter be placed upon said Property. This
Lease is
subject and subordinate to all ground or underlying leases and
to all
mortgages that may now or hereafter affect the Property, including
all
renewals, modifications, consolidations, replacements and extensions
of
any such underlying leases and mortgages. The recording of any
such
mortgage or mortgages shall have preference and precedence and
be superior
and prior in lien to this Lease, irrespective of the date of recording.
This clause shall be self-operative and no further instrument of
subordination shall be required by any ground lessor or by any
mortgagee
in order to effectuate such subordination.
|
|
41st
|
Certification.
Tenant shall, without charge, and at any time during the Term execute
and
promptly deliver to Landlord or its agent, within ten (10) days
after
written request from Landlord or its agent, as the case may be,
its
certification as to: (i) whether this Lease has been modified or
amended,
and if so, the date, substance and manner of such modification
or
amendment; (ii) as to the validity and force and effect of this
Lease;
(iii) as to the existence of any default hereunder, and if so,
the nature,
scope and extent thereof; (iv) as to the existence of any offsets,
counterclaims or defenses on the part of Tenant, and if so, the
nature,
scope and extent thereof; (v)
|
8
as to the commencement and termination dates of the Term; (vi) as to the dates to which Rent has been paid; (vii) such financial and other credit information as Landlord may reasonably request in connection with any prospective financing or sale of the Demised Premises or the Property; and (viii) as to any other matters as may reasonably be so requested. Any such certificate may be relied upon by Landlord and any other person, firm or corporation to whom the same may be exhibited or delivered, and Tenant shall be bound by the contents of such certificate. A refusal by Tenant to execute and deliver such certificate in accordance with the provisions of this Section shall entitle Landlord to the option of canceling this Lease on five (5) days notice. | |
42nd
|
Attornment.
Neither the foreclosure of any mortgage affecting the Demised Premises,
nor the institution of any suit, action, summary, or other proceeding
by
Landlord or any mortgagee, nor the sale, conveyance or transfer
of the
Demised Premises by Landlord, shall result, by operation of law
or
otherwise, in the cancellation or termination of this Lease or
the
obligations of Tenant hereunder, and Tenant covenants and agrees
to attorn
to Landlord, the holder of any mortgage, or the purchaser, grantee,
or
transferee of the Demised Premises.
|
43rd
|
Condemnation
and Eminent Domain.
If the land and Property of which the Demised Premises are a part,
or any
portion thereof, shall be taken under eminent domain or condemnation
proceedings, or if suit or other action shall be instituted for
the taking
or condemnation thereof, or in lieu of any formal condemnation
proceedings
or actions, Landlord shall grant an option to purchase and or shall
sell
and convey the Property or any portion thereof, to the governmental
or
other public authority, agency body or public utility seeking to
take the
Property or any portion thereof, then this Lease, at the option
of
Landlord, shall terminate, and the Term hereof shall end as of
such date
as Landlord shall fix by notice in writing as if such date were
the date
designated as the last day of the Term set forth above; and Tenant
shall
have no claim or right to claim or be entitled to any portion of
any
amount which may be awarded as damages or paid as the result of
such
condemnation proceedings or paid as the purchase price for such
option,
sale or conveyance in lieu of formal condemnation proceedings;
and all
rights of Tenant to damages, if any, are hereby assigned to Landlord.
Tenant agrees to execute and deliver any instruments promptly upon
demand,
at the expense of Landlord, as may be deemed necessary or required
to
expedite any condemnation proceedings or to effectuate a proper
transfer
of title to such governmental or other public authority, agency,
body or
public utility seeking to take or acquire the Property or any portion
thereof. Tenant covenants and agrees at its sole cost and expense
to
vacate the Demised Premises, remove all Tenant’s personal prop-erty
therefrom and deliver up peaceable possession thereof to Landlord
or to
such other party designated by Landlord in the aforementioned notice.
Failure by Tenant to comply with any provisions in this clause
shall
subject Tenant to such costs, expenses, damages and losses as Landlord
may
incur by reason of Tenant’s breach hereof including, without limitation,
attorneys’ fees.
|
44th
|
Fire
and other Casualty.
In case of fire or other casualty affecting the Demised Premises,
Tenant
shall give immediate notice to Landlord or, in case of fire or
other
casualty affecting the Property other than the Demised Premises,
Tenant
shall give immediate notice to Landlord upon Tenant obtaining knowledge
of
such fire or casualty. If the Demised Premises shall be partially
damaged
by fire, the elements or other casualty, Landlord shall repair
the same as
speedily as practicable, but Tenant’s obligation to pay the Rent hereunder
shall not cease. If, in the opinion of Landlord, the Demised Premises
is
so exten-sively and substantially damaged as to render them untenantable,
then the Rent shall cease until such time as the Demised Premises
shall be
made tenantable by Landlord. However, if, in the opinion of Landlord,
the
Demised Premises is totally destroyed or so extensively and substantially
damaged as to require practically a rebuilding thereof, then the
Rent
shall be paid up to the time of such destruction and then and from
thenceforth this Lease shall automatically and without notice come
to an
end. In no event however, shall the provisions of this clause become
effective or be applicable, if the fire or other casualty and damage
shall
be the result of the carelessness, negligence or improper conduct
of
Tenant or Tenant’s agents, employees, guests, licensees, invitees,
subtenants, assignees or successors. In such case, Tenant’s liability for
the payment of the Rent and the performance of all the cov-enants,
conditions and terms hereof on Tenant’s part to be performed shall
continue and Tenant shall be liable to Landlord for the damage
and loss
suffered by Landlord. If Tenant shall have been insured against
any of the
risks herein covered, then the proceeds of such insurance shall
be paid
over to Landlord to the extent of Landlord’s costs and expenses to make
the repairs hereunder, and such insurance carriers shall have no
recourse
against Landlord for reimbursement.
|
45th
|
Liability
Insurance.
Tenant, at Tenant’s sole cost and expense, shall obtain or provide and
keep in full force and effect for the benefit of Landlord, during
the
Term, commercial general liability insurance, insuring Landlord
against
any and all liability or claims of liability arising out of, occasioned
by
or resulting from any accident or otherwise in or about the Demised
Premises, for injuries to any person or persons, for limits of
not less
than One Million and 00/100 Dollars ($1,000,000.00) for injuries
to one
person and Two Million and 00/100 Dollars ($2,000,000.00) for injuries
to
more than one person, in any one accident or occurrence, for not
less than
One Million and 00/100 Dollars ($1,000,000.00) for loss or damage
to the
property of any person or persons. The policy or policies of insurance
shall be of a company or companies authorized to do business in
the State
in which the Property is located and shall be delivered to Landlord,
together with evidence of the payments of the premiums therefor,
not less
than fifteen (15) days prior to the commencement of the Term hereof
or of
the date when Tenant shall enter into possession, whichever occurs
sooner.
At least fifteen (15) days prior to the expiration or termination
date of
any policy, Tenant shall deliver a renewal or replacement policy
with
proof of the payment of the premium therefor. Landlord
shall obtain and maintain during the Term, commercial general liability
insurance against claims for bodily injury, personal injury, death
or
property damage occurring on, in or about the Property or as a
result of
ownership of the facilities located in the Property for limits
of not less
than One Million and 00/100 Dollars ($1,000,000.00) for injuries
to one
person and Two Million and 00/100 ($2,000,000.00) for injuries
to more
than one person in any one accident or occurrence, for not less
than One
Million and 00/100 Dollars ($1,000,000.00) for loss or damage to
the
property of any person or persons. Such policy shall include a
contractual
liability endorsement and shall cover Landlord's indemnity obligation
described in Section 47. The cost of such insurance shall be included
in
Operating Expenses. The
|
9
amount of insurance to be carried by Landlord shall be an amount Landlord deems reasonably necessary or appropriate in connection with the use and operation of the Property and customarily carried with respect to similar properties in Middlesex County, New Jersey or as any mortgagee of Landlord may require. | |
46th
|
Tenant’s
Indemnity.
Tenant, at its sole cost and expense agrees to and shall indemnify,
defend
and hold and keep harmless Landlord and its agents, representatives,
employees, constituent members, successors and assigns, from and
against
any and all claims, actions, demands and suits, for, in connection
with or
resulting from any accident, injury or damage whatsoever (including,
without limitation, reasonable attorneys’ fees and actual out-of-pocket
costs of enforcement of this provision) caused to any person or
property
arising, directly or indirectly, in whole or in part, out of the
business
conducted in or the use of the Demised Premises, or occurring in,
on or
about the Demised Premises, or arising, directly or indirectly,
in whole
or in part, from any act or omission of Tenant or any concessionaire
or
subtenant or their respective licensees, servants, agents, employees
or
contractors, or arising out of the breach or default by Tenant
of any
term, provision, covenant or condition contained in the Lease,
and from
and against any and all losses, costs, expenses, judgments and
liabilities
incurred in connection with any claim, action, demand, suit or
other
proceeding brought thereon. This indemnity shall include defending
or
resisting any proceeding, by attorneys reasonably satisfactory
to
Landlord. This indemnity shall be insured as a contractual obligation
under the policy of liability insurance Tenant is required to carry
hereunder.
|
47th
|
Landlord’s
Indemnity.
Landlord, at its sole cost and expense agrees to and shall indemnify,
defend and hold and keep harmless Tenant and its agents, representatives,
employees, constituent members, successors and assigns, from and
against
any and all claims, actions, demands and suits, for, in connection
with or
resulting from any accident, injury or damage whatsoever (including,
without limitation, reasonable attorneys’ fees and actual out-of-pocket
costs of enforcement of this provision) caused to any person or
property
arising from any negligence or willful misconduct of Landlord or
its
respective licensees, servants, agents, employees or contractors,
except
to the extent due to the negligence or willful misconduct of
Tenant.
|
48th
|
Tenant’s
Contents Insurance.
Tenant shall hold Landlord harmless and fully indemnify Landlord
against
any claims for damages to Tenant’s contents, except in the case of
subrogation by an insurance company. In addition to all other insurance
required hereunder, Tenant shall fully insure its contents located
in, on
or about the Demised Premises, at full replacement value. Tenant
shall
furnish Landlord with a certificate of such insurance from time
to time to
evidence the continued existence of said policy. Said certificate
shall
clearly state that such insurance may not be cancelled except upon
ten
(10) days written notice to Landlord. Should Tenant at any time
fail to
maintain said contents coverage, said failure shall not be a default
hereunder but shall constitute a defacto waiver of all rights of
recovery
against Landlord for any loss or damage of any nature whatsoever
to
Tenant's property regardless of the cause of said
damage.
|
49th
|
Exculpation.
Notwithstanding anything to the contrary set forth in this Lease,
it is
specifically understood and agreed by Tenant that there shall be
absolutely no personal liability on the part of Landlord or any
individuals associated with Landlord, including, but not limited
to, any
partners, members or shareholders of Landlord nor joint venturers
with
Landlord nor any of their successors, assignees, heirs, executors,
administrators or personal and legal representatives with respect
to any
of the terms, covenants and conditions of this Lease, and Tenant
shall
look solely to the equity, if any, of Landlord in the Property
for the
satisfaction of each and every remedy (including, without limitation,
equitable remedies) of Tenant in the event of any breach by Landlord
of
any of the terms, covenants and conditions of this Lease to be
performed
by Landlord; such exculpation of personal liability to be absolute
and
without any exception whatsoever.
|
50th
|
Non-Liability
of Landlord.
Neither Landlord nor any of its agents, co-venturers, representatives,
employees, constituent members, successors or assigns shall be
liable for
any damage or injury which may be sustained by Tenant or by any
other
person, nor shall Tenant have any right to claim an eviction or
constructive eviction as a consequence of: (i) any defect, latent
or
apparent in the Demised Premises; or (ii) any change of conditions
in the
Demised Premises; or (iii) the failure, breakage, leakage or obstruction
of the street or sub-surface; or (iv) the failure, breakage, leakage
or
obstruction of the water, plumbing, steam, sewer, waste or soil
pipes; or
(v) the failure, breakage, leakage or obstruction of the roof,
walls,
drains, leaders, gutters, valleys, downspouts or the like; or (vi)
the
failure, breakage, leakage or obstruction of the electrical, gas,
power,
conveyor, refrigeration, sprinkler, air conditioning or heating
systems;
or (vii) the failure, breakage, leakage or obstruction of elevators
or
hoisting equipment; or (viii) any structural failure; or (ix) the
elements; or (x) any theft or pilferage; or (xi) any fire, explosion
or
other casualty; or (xii) the carelessness, negligence or improper
conduct
on the part of any other tenant or of Landlord, or Landlord’s or this or
any other tenant’s respective agents, employees, guests, licensees,
invitees, subtenants, assignees or successors; or (xiii) any interference
with, interruption of or failure, beyond the control of Landlord,
of any
services to be furnished or supplied by Landlord. All property
kept,
maintained or stored in, on or at the Demised Premises shall be
so kept,
maintained or stored at the sole risk of Tenant.
|
51st
|
Increase
of Insurance Rates.
If for any reason it shall be impossible to obtain fire and other
hazard
insurance on the buildings and improvements on the Property, in
an amount
and in the form and in insurance companies acceptable to Landlord,
Landlord may, if Landlord so elects at any time thereafter, terminate
this
Lease and the Term hereof, upon giving to Tenant fifteen (15) days’
notice, and upon the giving of such notice, this Lease and the
Term
thereof shall terminate and end as of the date set forth in said
notice as
if such date were the date designated as the last day of the Term
set
forth above. If by reason of the use to which the Demised Premises
are put
by Tenant or character of or the manner in which Tenant’s business is
carried on, the insurance rates for fire and other hazards shall
be
increased, Tenant shall upon demand, pay to Landlord, as Additional
Rent,
the amount by which the premiums for such insurance are increased.
Such
payment shall be paid with the next installment of Rent but in
no case
later than one (1) month after such demand, whichever occurs sooner.
|
10
52nd
|
Waiver
of Subrogation Rights.
Tenant and Landlord waive all rights of recovery against each other
and
each other’s agents, employees or other representatives, for any loss,
damages or injury of any nature whatsoever to property or persons
for
which Tenant or Landlord is insured. Tenant shall obtain from Tenant’s
insurance carriers, and shall promptly deliver to Landlord, waivers
of
subrogation rights under its respective policies required
hereunder.
|
53rd
|
Broker.
Landlord agrees to pay, pursuant to a separate agreement, all brokerage
commissions payable in connection with the negotiations for, and
execution
of, this Lease. Tenant and Landlord warrant that they have not
dealt with
any real estate broker except Xxxxxxx and Xxxxxxxxx of New Jersey,
Inc. In
the event of any misrepresentation by either Landlord or Tenant,
the
misrepresenting party agrees to hold the other harmless from any
costs or
claims, including,without limitation, reasonable attorneys’
fees.
|
54th
|
Notices.
Any and all notices, requests or other such communications required
under
the terms of this Lease shall be given either (i) by certified
or
registered mail, return receipt requested, postage prepaid, or
(ii) a
national overnight delivery service with receipt provided therefor,
prepaid, to the address of the parties as shown at the head of
this Lease
or
to such other address as may be designated in writing, which notice
of
change of address shall be given in the same manner. Notice shall
be
deemed effective if by mail, on the third (3rd)
business day after mailing thereof, and if by overnight delivery,
on the
next business day after deposit or pick-up by such overnight delivery
service.
|
55th
|
Force
Majeure.
Except for Tenant’s obligation to pay rent, the period of time during
which Landlord or Tenant is prevented or delayed in performing
any
improvements or repairs or fulfilling any obligation required by
Landlord
or Tenant under this Lease due to delays caused by reason of fire,
catastrophe, strikes or labor trouble, civil commotion, acts of
God or the
public enemy, governmental prohibitions or regulations, or inability
or
difficulty in obtaining materials, or other causes beyond Landlord’s or
Tenant’s control, as the case may be, shall be added to Landlord’s or
Tenant’s time for performance thereof, and Landlord or Tenant shall have
no liability by reason thereof.
|
56th
|
Rules
and Regulations.
Rules and regulations regarding use of the Demised Premises and
the
Property, including the walkways and parking areas, and the use
thereof,
which may hereafter be promulgated by Landlord from time to time,
shall be
observed by Tenant and Tenant’s employees, agents and business invitees.
Landlord reserves the right to rescind any rules promulgated hereafter,
and to make such other and further rules and regulations as, in
its
reasonable judgment, may from time to time be desirable for the
safety and
cleanliness of the Demised Premises and the Property and for the
preservation of good order therein, which rules, when so made,
and notice
given to Tenant, shall have the same force and effect as if originally
made a part of this Lease.
|
57th
|
Validity
of Leases.
The terms, conditions, covenants and provisions of this Lease shall
be
deemed to be severable. If any clause or provision herein contained
shall
be adjudged to be invalid or unenforceable by a court of competent
jurisdiction or
by operation of any applicable law, it shall not affect the validity
of
any other clause or provision herein, but such other clauses or
provisions
shall remain in full force and effect.
|
58th
|
Title
and Quiet Enjoyment.
Landlord covenants and represents that Landlord is the sole owner
of the
Property herein leased and has the right and authority to enter
into,
execute and deliver this Lease; and does further covenant that
Tenant on
paying
the Rent and performing the conditions and covenants herein contained,
shall and may peaceably and quietly have, hold and enjoy the Demised
Premises for the Term.
|
59th
|
Entire
Lease.
This Lease contains the entire contract between the parties hereto.
No
representative, agent or employee of Landlord has been authorized
to make
any representations or promises with reference to the within letting
or to
vary, alter or modify the terms hereof. No additions, changes or
modifications, renewals or extensions hereof shall be binding unless
made
in writing and signed by Landlord and Tenant.
|
60th
|
Lease
Submission.
If this Lease is offered to Tenant by an employee or agent of the
Landlord, such offer is made subject to Landlord’s acceptance and
approval; and Tenant has executed this Lease upon the understanding
that
this Lease shall not in any way bind Landlord until such time as
the same
has been approved and executed by Landlord and a counterpart delivered
to
or received by Tenant.
|
61st
|
Conformation
with Laws and Regulations. Landlord
may pursue the relief or remedy sought in any invalid clause in
this
Lease, by conforming the said clause with the pro-visions of the
statutes
or the regulations of any governmental agency in such case made
and
provided, as if the particular provisions of the applicable statutes
or
regulations were set forth herein at length.
|
62nd
|
Recordation.
Tenant covenants and agrees not to place this Lease on record without
the
consent of Landlord, which consent may be withheld for any
reason.
|
63rd
|
Waiver of
Trial by Jury.
THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER ON
ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED TO
THIS
LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S USE OR OCCUPANCY
OF THE DEMISED PREMISES, AND/OR CLAIM OF INJURY OR
DAMAGE.
|
64th
|
Jurisdiction.
This Lease shall be construed and interpreted in accordance with
the
substantive and procedural laws of the State of New
Jersey.
|
11
65th
|
Headings.
The descriptive headings of the Sections of this Lease are inserted
for
convenience only and shall not control or affect the meaning or
construction of any of its provisions.
|
|
66th
|
Gender,
etc.
In all references herein to any parties, persons, entities or corporations
the use of any particular gender or the plural or singular number
is
intended to include the appropriate gender or number as the text
of the
within instrument may require.
|
|
67th
|
Succession.
All the terms, covenants and conditions herein contained shall
be for and
shall inure to the benefit of and shall bind the respective parties
hereto, and their heirs, executors, administrators, personal or
legal
representatives, successors and assigns.
|
|
68th
|
Consents.
With respect to any provision of this Lease which requires that
Landlord
shall not unreasonably withhold or unreasonably delay any consent
or
approval, Tenant hereby waives any claim for money damages. Tenant
shall
not claim any money damages by way of setoff, counterclaim or defense
based upon any claim or assertion by Tenant that Landlord has unreasonably
withheld or unreasonably delayed any consent or approval. Tenant’s sole
and exclusive remedy shall be an action or proceeding for specific
performance or injunction.
|
|
69th
|
Holding Over.
Any holding over or continued occupancy by Tenant after the Expiration
Date (other than as may have been provided for in this Lease or
in
amendments executed in accordance with the 34th
Section of this Lease) shall not operate to extend or renew this
Lease or
to imply or create a new lease. In such event, Landlord shall have
the
right to immediately terminate Tenant’s occupancy or to treat Tenant’s
occupancy as a month-to-month tenancy, in which event Tenant shall
continue to perform all Lease obligations, including the payment
of Base
Rent at a rate equal to two hundred percent (200%) of the Base
Rent as
shall be in effect immediately prior to the termination of the
Term
hereof. In no event however, shall Tenant be relieved of any liability
to
Landlord for damages resulting from such holding over. If the Demised
Premises is not surrendered as required, Tenant shall indemnify,
defend
and hold harmless Landlord from and against any and all damages,
losses
and liabilities resulting therefrom, including, without limitation,
any
claims made by any succeeding tenant arising out of such delay.
Tenant’s
obligation under this Section shall survive the expiration or sooner
termination of this Lease.
|
|
70th
|
Landlord’s
Representations.
Landlord hereby warrants and represents to Tenant that:
|
|
1)
|
Landlord
has full power and authority to enter into this Lease and the person
executing this Lease on behalf of Landlord is authorized to do
so.
|
|
2)
|
Landlord
has received no notice of any material violations affecting the
Demised
Premises or the Property.
|
|
3)
|
Landlord
has received no notice of any spills, releases, leaks or discharges
of
Hazardous Substances, as defined in Exhibit
C
attached hereto and made a part hereof, at or from the Demised
Premises.
|
|
4)
|
The
certificate of occupancy issued for the Property permits Tenant
to use the
Demised Premises for the purposes permitted under this
Lease.
|
|
5)
|
As
of the Commencement Date, the Demised Premises are free from all
occupancies or tenancies whatsoever.
|
|
6)
|
No
other tenant or occupant of the Property has been granted a right
which
would prohibit or limit the Use permitted to Tenant under this
Lease.
|
|
7)
|
All
utilities installed in the Demised Premises are in good working
order as
of the date hereof.
|
IN
WITNESS WHEREOF,
the parties hereto have hereunto set their hands and seals, or caused these
pres-ents to be signed by their proper corporate officers or other duly
authorized representatives and their proper corporate seal (if applicable)
to be
hereto affixed, as of the day and year first above written.
WITNESS: | LANDLORD | |
Princeton Corporate Plaza, LLC | ||
By: |
Princeton
Corporate Management Corp.,
Managing
Member
|
|
|
|
|
By: | ||
|
|
|
Name:
Xxxxxx Xxxx
Title:
President
|
||
|
||
Date |
WITNESS: | TENANT | |
Xenomics, Inc. | ||
|
|
|
By: | ||
|
|
|
Name:
Xxxxxx X. Xxxxxxx
Title:
President
|
||
|
||
Date |
12
Xenomics
July
7, 2004
EXHIBIT
A
Demised
Premises
13
Xenomics
July
7, 2004
EXHIBIT
A-1
Workletter
Drawing - Floor Plan
14
Xenomics
July
7, 2004
EXHIBIT
B
Description
of Landlord's Work
All
Special requirements of Tenant that are not included in this Exhibit shall
be at
the sole cost and expense of Tenant.
1.
FLOORING:
|
|||||
Office
Area:
|
Existing
|
||||
Laboratory:
|
Existing
|
||||
2.
PARTITIONS:
|
|||||
Office
Area:
|
As
shown on Exhibit A-1 Floor Plan
|
||||
Laboratory:
|
As
shown on Exhibit A-1 Floor Plan
|
||||
3.
ELECTRICAL:
|
|||||
Office
Area:
|
Existing
|
||||
Laboratory:
|
Existing
|
||||
All
outlets are 110v unless otherwise specified on Exhibit A-2. Special
Electric by Tenant.
|
|||||
4.
LIGHTING:
|
|||||
Office
Area:
|
Existing
|
||||
Laboratory:
|
Existing
|
||||
5.
CEILINGS:
|
|||||
Office
Area:
|
Existing
|
||||
Laboratory:
|
Existing
|
||||
6.
WALL FINISH:
|
|||||
Office
Area:
|
Painted,
white
|
||||
Laboratory:
|
Painted,
white.
|
||||
7.
INTERIOR DOORS:
|
|||||
Office
Area:
|
As
shown on Exhibit A-1 Floor Plan
|
||||
Laboratory:
|
As
shown on Exhibit A-1 Floor Plan
|
||||
8.
PLUMBING:
|
Existing
|
9.
HEATING & AIR CONDITIONING:
|
Cooling
78 degrees at 95 degrees.
Heating
68 degrees at 0 degrees.
|
||||
10.
FIRE EXTINGUISHERS:
|
As
per Township code.
|
||||
11.
SPRINKLERS:
|
As
per Township code.
|
||||
12.
LABORATORY EQUIPMENT & FURNISHINGS: As shown on Exhibit A-1 Floor
Plan
|
15
Xenomics
July
7, 2004
EXHIBIT
C
ENVIRONMENTAL
MATTERS
I.
|
SIC
|
||
Tenant
warrants and represents to the Landlord that the Standard Industrial
Classification (“SIC”)
major group number, as defined in the most recent issue of the
SIC Manual
issued by the Federal Office of Management and Budget, for Tenant’s
operations at the Demised Premises is _____. Prior to any proposed
changes
of such SIC Number, Tenant will notify Landlord.
|
|||
II.
|
ISRA
|
||
1.
|
Tenant
shall not operate any business at the Demised Premises which shall
have an
SIC which is subject to the Industrial Site Recovery Act, N.J.S.A.
13:1K-6
et
seq. and
the regulations promulgated thereunder (hereinafter referred to
as
“ISRA”),
nor shall Tenant change its use to any other use subject to ISRA
without
Landlord’s prior written consent, which may be withheld in Landlord’s sole
discrection.
|
||
2.
|
Notwithstanding
any provision of ISRA to the contrary, if Tenant is operating an
“Industrial
Establishment”,
as that term is defined in ISRA, Tenant shall, at Tenant's own
expense,
comply with ISRA and the regulations promulgated thereunder. In
such event
Tenant shall, at Tenant's own expense make all submissions to,
provide all
information to, and comply with all requirements of the State of
New
Jersey, Department of Environmental Protection (hereinafter referred
to as
the “NJDEP”).
At
no expense to Landlord, Tenant shall promptly provide all documents,
studies, surveys, correspondence and other information requested
by
Landlord relating to or in furtherance of ISRA
compliance.
|
||
3.
|
Tenant's
obligations under this Exhibit C shall arise if there is any closing,
termination or transferring of operations of an industrial establishment
subject to ISRA. At no expense to Landlord, Tenant shall promptly
provide
all information requested by Landlord for preparation of non-applicability
affidavits and shall promptly furnish such affidavits when requested
by
Landlord.
|
||
4.
|
Tenant
shall indemnify, defend and save harmless Landlord from all fines,
fees
(including reasonable attorney's fees), suits procedures, claims,
and
actions of any kind arising out of Tenant's failure to provide
all
information, make all submissions, and take all actions required
under
ISRA or by the NJDEP.
|
||
5.
|
Tenant's
obligations and liabilities under this Section of Exhibit C shall
continue
so long as Landlord remains responsible for compliance with ISRA.
Tenant's
failure to abide by the terms of this Section shall be restrained
by
injunction and such other relief as afforded by law.
|
||
III.
|
HAZARDOUS
SUBSTANCES
|
||
1.
|
As
used herein, Hazardous
Substances
shall be defined as
|
||
a.
|
any
“hazardous chemical”, “hazardous substances”, “hazardous waste”, “toxic
substances, pollutants or contaminants” or similar term as defined in the
Comprehensive Environmental Response, Compensation, and Liability
Act of
1980 (“CERCLA”),
42 U.S.C.A. 9601 et seq.,
ISRA, the New Jersey Spill Compensation and Control Act (the “Spill
Act”),
as amended, N.J.S.A. 58:10-23. 1lb et
seq.
(Regulations N.J.A.C. 7:1E-1.1 et
seq.),
the Solid Waste Management Act, N.J.S.A. 13:1E-1 et
seq.
(Regulations N.J.A.C. 7:26-1 et
seq.),
the Resource Conservation and Recovery Act (“RCRA”),
42 U.S.C.A. 6901 et
seq.,
any rules or regulations promulgated thereunder or in any other
Environmental Law, as defined in this Lease; or
|
||
b.
|
any
substances which are or could be detrimental to the Demised Premises,
the
Property, the environment, human health or safety; or
|
||
c.
|
any
substance the presence of which could cause liability at common
law; or
|
||
d.
|
any
substance that may not be deemed to be a hazardous substance in
its virgin
state prior to use by the Tenant but may thereafter be deemed to
be a
hazardous substance.
|
||
2.
|
As
used herein, Release
of Hazardous Substances by Tenant
shall be defined as the spill, release, discharge or leak of any
Hazardous
Substances
|
||
a.
|
onto
the Demised Premises from the date Tenant first took possession
of the
Demised Premises until the date Tenant has completely vacated the
Demised
Premises; or
|
||
b.
|
onto
the Property at any time resulting from Tenant’s intentional or
unintentional act or omission.
|
||
3.
|
Tenant
agrees not to generate, store, manufacture, refine, transport,
treat,
dispose of or otherwise permit to be present on or about the Demised
Premises and/or the Property any Hazardous Substances
|
16
without
the prior express written consent of
the Landlord, and the parties acknowledge that
no such consent has been given as of the date hereof except that
the
Landlord hereby expressly consents to Tenant’s use and/or storage of any
and all of the Hazardous Substances set forth in the Tenancy Review,
provided, however, that the quantities thereof shall be limited
to the
amounts set forth in the Tenancy Review. In the event that the
Landlord
has given its consent and to the extent that Tenant may be permitted
under
applicable law to use the Demised Premises for the generating,
manufacturing, refining, transporting, treating, storing, handling,
disposing, transferring or processing of Hazardous Substances,
Tenant
shall insure that said use shall be conducted at all times strictly
in
accordance with Environmental Laws.
|
||
4.
|
Tenant
will not cause or permit any Release of Hazardous Substances by
Tenant. In
the event of any Release of Hazardous Substances by Tenant, Tenant
shall
promptly make the proper notifications and conduct the necessary
sampling
and cleanup and remediate such release in accordance with Environmental
Laws, to the satisfaction of the Landlord.
|
|
5.
|
Should
the NJDEP or any other agency with jurisdiction under any Environmental
Laws determine that any investigation or remediation be undertaken
because
of any Release of Hazardous Substances by Tenant, then Tenant shall,
at
Tenant’s own expense, conduct the investigation and remediation including,
but not limited to, the preparation and submission of any documents
and
financial assurances that may be required by such agency. Tenant
shall not
be liable for the cost of that portion of the remediation which
is solely
related to Hazardous Substances existing on the Demised Premises
prior to
the date Tenant first took possession of the Demised
Premises.
|
|
6.
|
Tenant's
obligations and liabilities under this Section of Exhibit C shall
continue
so long as Landlord remains responsible for any Release of Hazardous
Substances by Tenant at the Demised Premises. Tenant's failure
to abide by
the terms of this Section shall be restrained by injunction and
such other
relief as afforded by law.
|
|
IV.
|
AIR,
WATER AND GROUND POLLUTION
|
|
1.
|
Tenant
shall not install any underground or aboveground storage tanks
at or on
the Demised Premises or the Property without Landlord’s written consent,
which may be withheld in Landlord’s sole discretion.
|
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2.
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Tenant
expressly covenants and agrees to indemnify, defend and save the
Landlord
harmless against any claims, damages, liability, costs, penalties,
or
fines including, without limitation, reasonable attorneys’ fees, which the
Landlord may suffer as a result of air, water, ground or toxic
waste
pollution (hereinafter referred to as “Pollution”)
caused by the Tenant in its use of the Demised Premises. The Tenant
covenants and agrees to notify the Landlord immediately of any
claim or
notice served upon it with respect to any such claim that the Tenant
is
causing Pollution; and the Tenant, in any event, shall take immediate
steps to halt, remedy or cure any Pollution caused by the Tenant
in its
use of the Demised Premises. The foregoing covenant of indemnification
shall survive the termination of this Lease in connection with
any
obligation of the Tenant hereunder.
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V.
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INSPECTION
AND DOCUMENTATION
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1.
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At
any time upon request of Landlord, Tenant must give Landlord and
its
representatives access to the Demised Premises during normal business
hours to permit them to inspect the Demised Premises, inspect any
documents pertaining to Tenant’s compliance with Environmental Laws, or
perform any work in order to determine that the Demised Premises
and its
use by Tenant is in compliance with Environmental Laws, all at
Tenant’s
expense, payable as Additional Rent.
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2.
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Tenant
shall promptly provide to Landlord a copy of any summons, citation,
directive, order, claim, notice of litigation, investigation, proceeding,
judgment, letter or other communication, written or oral, actual
or
threatened, from the NJDEP, the U.S. Environmental Protection Agency
or
other federal, state or local agency or authority or any other
entity or
any individual, concerning any act or omission by Tenant resulting
in or
which may result in the releasing of Hazardous Substances into
the waters
or onto the lands of the State of New Jersey or into waters outside
of the
jurisdiction of the State of New Jersey or into the “Environment”
as defined in CERCLA. Written notice to Landlord shall also be
made upon
the imposition of any liens on any real property, personal property,
or
revenues of the Tenant, including but not limited to the Tenant's
interest
in a premises or any of the Tenant's property located thereupon,
pursuant
to the Spill Act or any Environmental Laws, governmental actions,
orders
or permits or any knowledge after due inquiry or investigation
of any
facts which could give rise to any of the above.
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3.
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In
addition to the above, the Tenant’s notifications to the Landlord shall
include but be not limited to all documentation and correspondence
provided to the 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;
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4.
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Tenant
shall promptly supply the Landlord with all reports and notices
made by
Tenant pursuant to the Spill Act, the regulations provided thereunder,
and
the Hazardous Substances Discharge Reports and Notices Act, N.J.S.A
13:1K-15 et
seq.,
and the regulations promulgated thereunder .
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5.
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Tenant
shall promptly provide Landlord with a copy of any permit obtained
for the
Demised Premises pursuant to any Environmental
Law.
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VI.
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CONTINUING
OBLIGATIONS AND INDEMNITY
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1.
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Notwithstanding
the expiration or earlier termination of this Lease, if at any
time during
Tenant’s occupancy of the Demised Premises, Tenant has operated an
Industrial Establishment, as that term is defined in ISRA, then
Tenant
shall have a continuing obligation to pay to Landlord the amount
established under this Lease as Rent plus the difference between
such Rent
and the fair market rental value of the Demised Premises, if greater
than
the established Rent, for the period after expiration or earlier
termination of this Lease until such time as the Tenant obtains
and
delivers to the Landlord a Negative Declaration or No Further Action
Letter as defined in ISRA, or such other proof, reasonably satisfactory
to
the Landlord, that the Tenant has complied with ISRA.
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2.
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Notwithstanding
the expiration or earlier termination of this Lease, if there exists
a
violation of Environmental Laws at the Demised Premises which did
not
exist prior to the date Tenant first took possession of the Demised
Premises or if Tenant has failed to fulfill its obligations under
this
Exhibit C, Tenant shall have a continuing obligation to pay to
Landlord
the amount established as Rent under this Lease plus the difference
between such Rent and the fair market rental value of the Demised
Premises, if greater than the established Rent, for the period
after
expiration or earlier termination of this Lease until the applicable
governmental entities confirm, in writing, that the violation of
Environmental Laws has been cured and that Tenant has fulfilled
its
obligation under Environmental Laws and under this Exhibit
C.
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3.
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If
a lien shall be filed against the Demised Premises arising in whole
or in
part out of (i) any Release of Hazardous Substances by Tenant,
or (ii) the
violation of Environmental Laws by Tenant, then Tenant shall pay
the claim
and remove the lien from the Demised Premises within thirty (30)
days from
the date Tenant is given notice of the lien or within such shorter
period
of time as may be required if the United States, the State of New
Jersey,
or any agency or subdivision of either such entity has commenced
steps to
cause the Demised Premises or the Property to be sold pursuant
to the
lien. Tenant shall not be responsible for any portion of the lien
which is
related to a spill, release, leak or discharge of Hazardous Substances
which occurred prior to the date Tenant first took possession of
the
Demised Premises.
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4.
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Tenant
shall indemnify and
hold harmless the Landlord and each mortgagee of the Property from
and
against any and all liabilities, damages, claims, losses, judgments,
causes of action, costs and expenses (including the reasonable
fees and
expenses of counsel) which may be incurred by the Landlord or any
such
mortgagee relating to or arising out of the Tenant's generation,
storage,
manufacturing, refining, transportation, treatment, disposal, or
other
presence of Hazardous Substances on or about the Demised Premises
and/or
the Property or any Release of Hazardous Substances by Tenant or
the
Tenant's failure to comply with the provisions of this Exhibit
C.
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18