LEASE AGREEMENT
THIS
LEASE AGREEMENT
("Lease"), made and entered into effective September, 2003, by and between CHANTILAS
PROPERTIES, LLC, an
Ohio limited liability Lessee qualified as a foreign limited liability Lessee
in the State of Massachusetts (the "Lessor"), and ADVANCED
PROCESS TECHNOLOGIES INC.,
a Massachusetts corporation (the "Lessee") that is wholly owned by INTEGRATED
PHARMACEUTICALS, INC.,
an Idaho corporation (the "Parent").
W
I T N E S S E T H:
WHEREAS,
Lessor is the owner of the 38,000 square foot building situated on approximately
11.72 acres of land located at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxxxx, as more particularly described on the attached Exhibit
"A"
(the "Property"). Lessor desires to lease the Property to Lessee for use by
Lessee as an office and manufacturing facility for the operation of Lessee's
biopharmaceutical business ("Lessee's Business");
WHEREAS,
attached hereto as Exhibit
"B"
is a Site Plan depicting the land and building comprising the Property which
Lessor will lease to Lessee pursuant to this Lease;
WHEREAS,
the Property which Lessor is leasing to Lessee pursuant to this Lease is hereinafter
referred to as the "Property" or the "Premises";
WHEREAS,
Lessee desires to enter into a lease with Lessor for the Premises, and Lessee
desires to enter into a lease with Lessor for the Premises, all in accordance
with the terms and conditions of this Lease; and
WHEREAS,
Parent has agreed to issue common stock to the Lessee in order to permit it
to meet its obligations hereunder.
NOW,
THEREFORE,
in consideration of the premises and the mutual agreements and covenants hereinafter
set forth and intending to be legally bound hereby, Lessor and Lessee hereby
agree as follows:
1. Demised
Premises.
All of the recitals to this Lease set forth above are hereby incorporated
into the body of this Lease by reference and form an integral part hereof.
In consideration of the rents to be paid by Lessee, and the covenants, terms
and conditions to be kept and performed by Lessee and Lessor as provided herein,
Lessor does hereby agree to lease the Premises to Lessee and Lessee does hereby
agree to lease the Premises from Lessor.
2. Use
of Premises.
Lessee will use the Premises for purposes of operating Lessee's Business,
and Lessee will not use the Premises for any other purposes without Lessor’s
prior written consent, which consent may be withheld in the Lessor’s
sole discretion. Lessee shall use the Premises only in a safe and lawful manner,
in compliance with all applicable laws and regulations, and in accordance
with the terms and conditions of this Lease.
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3. Term;
Purchase Obligation.
(a) This
Lease shall be for a term of five (5) years, commencing on the "Commencement
Date", as defined in this Section 3(a), and terminating five (5) years thereafter
(the "Term"). Lessee shall purchase the Property from Lessor upon expiration
of the Term as specified in Section 3(b). In addition, prior to expiration
of the Term, Lessee shall have the option to purchase the Property pursuant
to clause (b) below commencing either (i) three (3) years from the Commencement
Date or (ii) two (2) years from the Commencement Date in the event the Parent
properly completes and files a shelf registration statement with the Securities
and Exchange Commission ("SEC") which registers the sale of all of the common
stock paid to Lessor by Lessee under this Lease through the date of such registration
(such that the shares in Parent transferred to Lessor by Lessee are no longer
restricted). Lessor and Lessee agree that the Commencement Date shall be the
date Lessor closes on the purchase of the Property from ChemDesign Corporation.
(b) Upon expiration of the Term, Lessor and Lessee acknowledge that Lessee shall purchase the Property from Lessor. Lessee may accelerate this purchase pursuant to clause (a) above. The purchase price for the Property shall be equal to the price paid by Lessor for the acquisition of the Property ($1,050,000), plus all title, environmental, survey, legal, engineering and other soft-costs expenses incurred by Lessor in connection with Lessor's acquisition of the Property, as documented and agreed to by Lessor and Lessee within fifteen (15) days after the Commencement Date (collectively, "Lessor's Acquisition Cost"). The purchase price for the Property (the "Purchase Price") for purposes of this Section 3(b) shall be equal to the Lessor’s Acquisition Cost with the Purchase Price to be increased every twelve (12) months after the Commencement Date, on a cumulative basis, by ten percent (10%). Thus, assuming the Lessor’s Acquisition Cost is $1,100,000, the Purchase Price for the first twelve (12) months following the Commencement Date shall be $1,100,000, shall increase to $1,210,000 for the second twelve (12) months after the Commencement Date, and shall increase to $1,331,000 for the third twelve (12) months after the Commencement Date of this Lease, with such sum continuing to increase by 10% every 12-months thereafter. Lessee shall not receive any credit against the Purchase Price for rent paid during the term of this Lease. At the closing on Lessee's purchase of the Property from Lessor upon termination of the Term of this Lease (or upon Lessee’s earlier exercise of its option), Lessor shall convey title to the Property to Lessee by Limited Warranty Deed, free, clear and unencumbered, subject to (i) real estate taxes then due or thereafter due and payable; (ii) all agreements, easements, restrictions and other matters currently of record or matters created by Lessor after the date hereof which are consented to by Lessee; (iii) all zoning and building codes and regulations; and (iv) all matters which would be disclosed by an accurate survey of the Property. The Lessee shall pay the Purchase Price for the Property, as calculated above, by certified check, cashier’s check, or wire transfer of immediately available funds. Lessee acknowledges that it will purchase the Property from Lessor in "As-Is, Where-Is" condition, without any representation or warranty by Lessor, it being understood and agreed that Lessee has had a full and complete opportunity to inspect the Property and will be in occupancy thereof. Lessor will be responsible for payment of any transfer tax or conveyance fee due on the sale of the Property, and Lessee shall be responsible for any title insurance required by Lessee. All other closing costs or expenses incurred by Lessor and Lessee shall be allocated as is customary in real estate transactions in Massachusetts, with each party being responsible for its own attorneys’ fee. Lessor shall have the right to specifically enforce Lessee's obligation to purchase the Property from Lessor upon conclusion of the Term, even if Lessee is then in default under the terms of this Lease, in addition to all other remedies available to Lessor at law or in equity.
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(c) Lessee
shall continuously occupy the Premises during the Term of this Lease, and
Lessee shall operate, occupy and manage the Property in a first class manner,
in compliance with all applicable laws and regulations.
4. Construction
of Improvements to Property.
(a) Lessor
acknowledges that Lessee will be completing certain renovations and improvements
to Property and installing certain manufacturing equipment in the building
pursuant to plans submitted to Lessor for prior review and approval, with
such approval not to be unreasonably withheld or delayed (the "Lessee's Improvements").
Lessee covenants and agrees to construct Lessee's Improvements at Lessee's
sole cost and expense, and to complete the installation of Lessee's Improvements
at the Property in compliance with all applicable zoning, building and other
applicable laws and regulations. Lessee shall promptly pay all contractors
and suppliers who perform any work on the Property in connection with completing
Lessee's Improvements or any other work at the Property authorized by Lessee,
and Lessee shall indemnify, defend and hold Lessor and the Property harmless
from any claims, liabilities, liens or expenses arising out of any work completed
at the Property by or on behalf of Lessee. Lessor acknowledges that Lessee
will be obtaining certain funding from the Commonwealth of Massachusetts and
commercial lenders to finance the cost for constructing Lessee's Improvements.
Lessor consents to Lessee granting a security interest and lien on Lessee's
Improvements, so long as any such security interest or lien does not attach
to the Property. Lessor shall not be required to consent to any mortgage or
deed of trust against the Property. Lessee covenants and agrees to complete
construction of Lessee's Improvements on or before December 31, 2004. Lessor
and Lessee acknowledge that Lessee will also be obtaining the sum of $185,000
from ChemDesign Corporation to fund a portion of the cost for Lessee to complete
Lessee's Improvements; Lessee agrees to apply all monies received from ChemDesign
Corporation toward Lessee's Improvements.
(b) Lessee
acknowledges and agrees that it has had a full and complete opportunity to
inspect the Property and the condition thereof, and that Lessee is leasing
the Property from Lessor in "As-Is, Where-Is" condition, without any representation
or warranty from Lessor, and that Lessor is not obligated to make any repairs
or other improvements to the Premises. The taking of possession of the Premises
by Lessee shall be conclusive evidence as against Lessee that the Premises
were in good order and satisfactory condition when Lessee took possession.
No promise of Lessor to alter, remodel or improve the Premises and no representation
reflecting the condition of the Premises have been made by Lessor to Lessee.
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5. Rent.
All rent, delivery of stock certificates and/or other payments due Lessor
under this Lease shall be paid or delivered to Lessor at 0000 Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxx 00000, or at such other place as Lessor may designate from
time to time in writing to Lessee. All Rent under this Lease shall be paid
by Parent on behalf of the Lessee or Lessee to Lessor in monthly installments
in advance of the first day of each calendar month during the Term of this
Lease, without demand, deduction or setoff other than as expressly agreed
between the parties. The first installment of Rent shall be paid on or before
the Commencement Date unless Lessor is unable to provide Lessee with the exact
amount of Base Rent due for the first month of the Term, in which case the
Base Rent for the first month of the Terms shall be due or before the third
(3d) business day after the Lessor provides the Lessee with the final figure
for the amount of the Base Rent. Any monthly installment of Base Rent which
is not received by Lessor by the 10th
day of the month in which due shall be subject to a late fee of five percent
(5%) which shall be immediately due and payable, in addition to the other
remedies of Lessor under this Lease.
The
"Base Rent" for each year of the Term shall be determined as follows. The
amount of the Base Rent for the first 12-month term of this Lease shall be
equal to twelve percent (12%) of Lessor's Acquisition Cost, as defined in
Section 3(b) of this Lease, divided by 12 to arrive at the monthly Base Rent
amount. The Base Rent for each succeeding 12 months of the term shall be 3%
greater than the Base Rent for the prior 12 month period. For the first thirty-six
(36) months of this Lease following the Commencement Date, Monthly Base Rent
shall be paid to Lessor by Parent on behalf of the Lessee by the Parent issuing
authorized restricted shares of the common stock of Parent (the "Shares")
to Lessor on a monthly basis, on or before the first day of the month, with
the number of shares delivered to Lessee to be equal in value to the monthly
Base Rent amount. For valuation purposes, Lessor, Lessee and Parent acknowledge
and agree that each Share issued by Parent to Lessor shall be valued at $1.00
per share, even if the market value of the Shares is greater than or less
than $1.00 per share. The Shares issued and delivered to Lessor on a monthly
basis for payment of Base Rent shall be issued and transferred pursuant to
an exemption from the registration requirements of the Federal Securities
Act of 1933. The certificates for the Shares which are issued to Lessor on
a monthly basis shall list Lessor as the owner of the stock certificates on
the face thereof and the issuance thereof shall be recorded on the books of
the Parent on a monthly basis. Such Shares, while subject to restrictions
set forth in Section 26, shall otherwise be free, clear and unencumbered.
Commencing with the Base Rent due on the thirty-seventh (37th)
month of this Lease, Parent shall pay, on behalf of theLessee, Lessor monthly
Base Rent by issuing its shares to Lessor for one-half of the amount of the
Base Rent (with the shares to be valued at $1.00 per share, irrespective of
the current market value of the Shares), and the balance of monthly Base Rent
shall be paid in cash. If Parent fails to issue stock certificates to Lessor
for the monthly payment of Base Rent as specified above, Lessor, in addition
to its rights and remedies under this Lease, shall have a legal claim against
Lessee (and Parent) for the transfer and delivery of number of Shares that
are required to be delivered to Lessor for payment of Base Rent during the
entire term of this Lease.
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In
the event that any of the representations and warranties provided by the Lessor
in Section 26 are not correct, and as a result either the Lessee or the Parent
receives a reasonable opinion of counsel that the issuance of stock to the
Lessor by the Parent in connection with Lessee’s obligation to make rent
payments hereunder would violate federal or state securities laws, then the
parties agree that the Lessee may pay the Monthly Base Rent in cash instead
of in Shares.
6. Additional
Rent.
(a) In
addition to the Base Rent as provided above, Lessee shall directly pay when
due, as "Additional Rent," all utility services for the Premises; all real
estate taxes, assessments and charges (or appropriate pro rata portion thereof
where a taxing body’s fiscal period does not coincide with the Term of
this Lease or any extension thereof) separately assessed for the Premises
by applicable governmental authorities, subject to Lessee’s good faith
right to contest such imposition at Lessee’s sole expense; all risks
casualty and liability insurance premiums for the Premises and the Lessee's
Business protecting both the interests of Lessor, Lessee and Lessor’s
mortgagee, with the form, content and amount of such coverages specified in
this Lease; expenses for management, maintenance, repair and replacement of
the Premises, parking lot, driveways, signs, landscaping and all other improvements
on the Premises, whether interior or external, structural or non-structural,
ordinary or extraordinary; all common area charges and other expenses which
Lessor is obligated to pay under the Lease; and all other costs and expenses
associated with the Premises and Lessee's Business.
(b) It
is the intention of Lessor and Lessee that this Lease be a triple-net or carefree
lease to Lessor, and Lessor is not responsible for providing any services
or paying for any expenses in connection with the Premises and Lessee's Business.
Failure to any extent of Lessee to obtain any service or maintenance, or any
cessation of utilities or services due to any cause, shall not render Lessor
liable in any respect for damages to either person or property, nor be construed
as an eviction of Lessee, nor work an abatement of rent, nor relieve Lessee
of any of its obligations, except if the result of any willful or negligent
act or omission of Lessor.
(c) The
Base Rent and Additional Rent and all other sums which Lessee agrees to pay
under this Lease, and all interest which may accrue thereon in the event of
Lessee’s failure to pay any such amounts, together with all damages,
costs and expenses which Lessor may reasonably incur by reason of Lessee’s
default, monetary or non-monetary, shall collectively be referred to as "Rent."
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7. Use
and Repair of Premises by Lessee.
(a) Lessee
will take good care of the Premises and will use the Premises only for the
purposes specified in this Lease. Lessee shall comply with all laws, regulations
and orders of any governmental authority applicable to or having jurisdiction
over the Premises.
(b) Lessee
shall be responsible, at its expense, for all maintenance, repairs and replacements
of the Premises including, without limitation, maintenance, repair, and/or
replacement of the following items: the interior and exterior of the building
and related components; the roof and gutter systems; the electrical, plumbing,
and heating and air conditioning equipment and systems servicing the Property;
the parking lot and parking lot lights; landscaping, entrance drives and sidewalks;
any stormwater detention areas and stormwater improvements not maintained
by governmental authorities; interior and exterior signs; snow removal and
groundskeeping; and for the maintenance and repair of all furniture, equipment
and fixtures owned or installed by Lessee. Lessee agrees to maintain such
improvements in a first class state of condition and repair.
8. Alterations.
Lessee shall, at its expense, after construction of the Lessee's Improvements,
be entitled to make alterations, repairs, additions, improvements, replacements,
or other changes to the Premises, or attach or affix thereto, or build therein,
any article. Lessee shall be required to obtain Lessor’s prior written
consent for any interior or exterior alteration over the Threshold Amount
(as hereinafter defined), with such consent not to be unreasonably withheld.
Lessor’s prior consent shall not be required for any interior or exterior
changes that are non-structural in nature (provided that the interior or exterior
changes cost less than the Threshold Amount). For purposes of this Lease,
the "Threshold Amount" shall be $30,000 per renovation project. Lessee covenants
and agrees to complete all such alterations, repairs, additions, improvements,
replacements or other changes to the Premises in a good and workmanlike manner
and in compliance with all applicable building codes and other laws and regulations.
Lessee shall indemnify and hold Lessor harmless from all costs, damages and
expenses of any nature whatsoever associated with such work, and Lessee shall
not allow any lien to be placed against the Premises.
9. Damage
to Personal Property.
All equipment, fixtures, inventory and personal property belonging to Lessee
or to any other person, located in or about the Premises, shall be there at
the sole risk of the Lessee or such other person, and neither the Lessor nor
the Lessor’s employees or agents shall be liable for the theft or misappropriation
thereof, nor for any damage or injury thereto, nor for any damage or injury
to said Lessee or to other persons or to other property, caused by water,
snow, frost, steam, heat or cold, dampness, falling plaster, sewers or sewage,
gas odors, noise, the bursting or leaking of pipes, plumbing, electrical wiring
and equipment and fixtures of all kinds, or by any act or neglect of occupants
of the Property or by any other person, or caused in any other manner whatsoever,
except if caused by the negligent or intentional or willful act of Lessor,
its employees or agents. Lessee shall be responsible for obtaining its own
insurance on Lessee’s equipment, fixtures and other personal property,
in addition to the casualty and liability insurance on the Premises and Lessee's
Business which Lessee is obligated to obtain for the benefit of Lessor and
Lessee pursuant to this Lease.
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10. Indemnity
by Lessee.
Lessee shall and does hereby indemnify Lessor, and Lessor’s members,
officers, employees and agents, and save them harmless and, at Lessor’s
option, will defend Lessor, and Lessor’s members, officers, employees
and agents, from and against any and all claims, actions, damages, liabilities,
causes of action, and expenses, including reasonable attorney’s and other
professional fees, in connection with loss of life, personal injury and/or
damage to property arising from or out of the occupancy or use by Lessee of
the Premises or any part thereof to the extent, occasioned by any act or omission
of Lessee, its employees, agents, officers or invitees.
11. Holding
Over.
Should the Lessee remain in possession of the Premises after the date of the
expiration of the Term with the consent of the Lessor, then, unless a new
agreement in writing shall have been entered into between the parties hereto,
the Lessee shall be a tenant from month to month, and such tenancy shall be
otherwise subject to all the covenants and conditions of this Lease, except
that the Rent shall be as follows. The holdover Base Rent shall not exceed
150% of the monthly Base Rent in effect upon expiration of the Lease, and
Lessee shall continue to be obligated to pay Additional Rent as provided in
this Lease during the holdover period. The foregoing provisions on any hold
over tenancy shall not, in any event, modify, amend, affect or constitute
a waiver of Lessee's obligation to purchase the Property from Lessor upon
expiration of the Term as specified in Section 3(b) of this Lease.
12. Assignment
and Subletting.
Lessee shall not assign this Lease in whole or in part nor sublease all or
a portion of the Premises without first obtaining Lessor’s prior written
consent, which consent may not be unreasonably withheld by Lessor. A merger,
transfer of shares or interests by the present owners of Lessee, or any other
corporate or limited liability company reorganization shall be deemed an assignment
of this Lease which shall require the consent of Lessor, with such consent
not to be unreasonably withheld. In evaluating whether to consent to a requested
assignment or sublease, the Lessor shall look at the financial strength, operating
experience and other factors which would affect the ability of the proposed
assignee to operate Lessee's Business at the Property. In no event shall Lessee
be relieved or released of its primary liability and obligation under the
terms of this Lease, unless agreed to in writing by Lessor. Lessor’s
consent to any one assignment or subletting shall not be deemed to be a consent
to any other or future assignment or subletting. Any assignment or subletting
without Lessor’s prior consent shall be null and void. Lessor shall be
deemed reasonable in refusing to consent to any assignment of the Lease or
sublease of Property if the Guarantors identified in Section 25 of this Lease
do not agree to execute an amendment to their Unconditional Guaranty confirming
that the Unconditional Guaranty shall remain in effect following such sublease
or assignment.
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13. Eminent
Domain.
(a) If
the whole or any material part of the Premises, including the buildings and/or
other improvements, are taken by any public authority under the power of eminent
domain, or in the event of a conveyance by Lessor in lieu of the exercise
of the power of eminent domain by such public authority, such that Lessee
cannot continue to operate its business from the Premises, then the Term of
this Lease shall cease as of the date possession thereof shall be taken by
such public authority and the rent and other charges shall be paid up to that
day, with a proportionate refund by Lessor of any such rent and other charges
as may have been paid in advance. If only a part or portion of the Premises
is taken which would not prevent Lessee from operating its business at the
Premises, as reasonably determined by Lessor, then Lessee shall repair, rebuild
or restore any improvements on the Premises, with the proceeds from the condemnation
award (which Lessor hereby agrees to assign to Lessee for such purpose), to
a condition acceptable to Lessee for its business. The determination of whether
Lessee can continue to operate its business from the Premises after an eminent
domain event shall be determined by the Lessor in Lessor's reasonable judgment.
(b) The
amount awarded or paid for any total or partial taking under the power of
eminent domain shall belong to and be the property of Lessor, if such amount
is awarded as compensation for the fee of the Premises (including the building
and related improvements paid for by Lessor) or as damage to the residue;
provided, however, that if there is a partial taking which does not prevent
Lessee from operating its business on the Premises, Lessor agrees to assign
such reasonable portion of the award to Lessee to be used by Lessee to repair,
rebuild or restore any improvements on the Premises taken as a result of such
appropriate action. Lessor and Lessee are entitled to participate in the negotiations
with the condemning authority, and Lessee shall be entitled to proceed with
direct negotiations with the condemning authority with respect to any damage
or taking of improvements constructed on the Premises by or on behalf of Lessee,
and to Lessee’s fixtures, equipment, personal property and/or for moving
expenses, and any such amounts separately awarded for such items of equipment
and personal property owned by Lessee shall belong to Lessee.
14. Fire
and Casualty.
In the event the Premises or the improvements constructed thereon are totally
or partially destroyed or damaged by fire, earthquake, flood, windstorm or
other casualty, Lessee shall repair and/or rebuild the improvements and/or
building on the Premises with the proceeds of insurance and Lessee’s
own funds, and shall restore the Premises to as good a condition as existed
prior to such damage or destruction. The insurance proceeds required to be
maintained by Lessee pursuant to this Lease shall be used for such purposes,
and Lessee shall expend its own funds to replace any of Lessee's Improvements
and any other equipment, fixtures, and personal property not covered by such
proceeds of insurance. This Lease shall not terminate upon any such casualty
or damage, and Base Rent and Additional Rent shall not be abated during the
term of such reconstruction, and Lessee shall continue to timely pay Base
Rent and Additional Rent.
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15. Default
by Lessee.
Each of the following shall be deemed a default by Lessee (an "Event of Default"):
(a) If
Lessee, or Parent on behalf of the Lessee, defaults in the payment of any
installment of Rent or other sum to be paid by Lessee, or Parent on behalf
of the Lessee, hereunder when due and fails to cure such default within ten
(10) days after receiving written notice from Lessor (provided that Lessor
will not be obligated to provide more than two such notices in any calendar
year, and after providing such notices in any calendar year, Lessor shall
not thereafter be obligated to provide further notices to Lessee in such calendar
year for a default in the payment of Rent).
(b) If
Lessee defaults in the performance of any of Lessee’s other covenants,
agreements or obligations contained in this Lease, and such default shall
not have been cured within thirty (30) days after Lessor shall have given
Lessee notice specifying such default; provided, that such 30-day period shall
be extended for such additional period of time reasonably necessary for Lessee
to cure such default (with such additional period not to exceed 30 days) if
such default is not capable of being cured within thirty (30) days so long
as Lessee proceeds with due diligence to cure such default;
(c) If
a voluntary or involuntary petition is filed by or against Lessee or any guarantor
of this Lease under any bankruptcy law (including a petition for reorganization,
extension of payment, composition or adjustment of liabilities) which is not
dismissed within ninety (90) days and, in connection with such bankruptcy
proceeding, there is another Event of Default which is not cured by Lessee
within the time periods permitted by this Lease;
(d) If
a receiver should be appointed for Lessee or any guarantor of this Lease or
if Lessee or any guarantor of this Lease should make any assignment for the
benefit of creditors; or
(e) If
Lessee defaults in the performance of any of its agreements providing funding
for Lessee's Improvements, or if Lessee defaults in the performance of its
obligations under the Gluconate Patent Rights Agreement dated August 24, 2001
by and between Lessee and NEC Partnership, and Lessee fails to cure any such
default within the time permitted by any such agreements.
Upon
the occurrence of any Event of Default by Lessee (and following expiration
of all applicable cure periods as specified in this Section 15), Lessor may,
at Lessor’s election, whether or not Lessor terminates this Lease, enter
into the Premises and repossess the same through exercise of the legal remedies
applicable in the jurisdiction where the Premises are situated. In the event
of any Event of Default, and the failure of Lessee to cure the default within
ten (10) days after receiving another written notice from Lessor in addition
to any written notice which Lessor is otherwise obligated to provide Lessee
in this Section, Lessor shall also have the right to accelerate and declare
all Rent due hereunder to be immediately due and payable. Any such actions
by Lessor shall not prejudice Lessor’s rights against Lessee for all
past due rent, for breach of any term or condition of this Lease, or any other
cost or expense resulting from such breach on the part of Lessee.
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In
case of such default and entry by Lessor, Lessor may, without terminating
the Lease, relet the Premises for the remainder of the Term to any tenant
and may recover from Lessee any deficiency between the amount so obtained
and the rent herein provided, and such reletting shall not be considered an
acceptance of or a surrender of the Premises by Lessee. Upon the occurrence
of any Event of Default, Lessor may elect to terminate the Lease by written
notice to Lessee.
The
rights and remedies of Lessor set forth in this Lease shall be cumulative
and exclusive of any other right or remedy at law or in equity, and Lessor
shall be entitled to collect from Lessee the reasonable attorneys’ fees
and costs of collection incurred by Lessor in pursuing its remedies under
this Lease upon occurrence of an Event of Default.
16. Default
by Lessor.
The following shall be deemed a default by Lessor: Lessor fails to perform
obligations required of Lessor within a reasonable time, but in no event later
than thirty (30) days after written notice by Lessee to Lessor and to the
holder of any mortgage or deed of trust covering the Premises whose name and
address shall have previously been furnished to Lessee, in writing specifying
the nature of Lessor’s asserted failure to perform such obligations;
provided, however, that if the nature of Lessor’s obligation is such
that more than thirty (30) days are required for performance, then Lessor
shall not be in default if Lessor commences performance within such thirty
(30) day period and thereafter diligently prosecutes the same to completion.
The holder of any deed of trust or mortgage encumbering the Premises (collectively
"Mortgagee") shall also have a reasonable period of time after the foregoing
written notice during which it shall have the right but not obligation to
cure the asserted default of Lessor.
17. Waiver.
No waiver of any of the covenants or agreements contained in the Lease or
any breach thereof shall be (a) effective unless in writing or (b) taken to
constitute a waiver of any other or subsequent breach of such covenants and
agreements or to justify or authorize the non-observance at any other time
of the same or of any other covenants or agreements.
18. Signage.
Lessee shall be permitted to erect at its cost and expense at various locations
on the Premises such signs or signage as shall be permitted under applicable
building and zoning codes. Lessee shall obtain, at its sole cost and expense,
any required permits prior to erecting any signs on the Premises or the building.
19. Casualty
and Liability Insurance.
Lessee shall obtain and keep in full force and effect at all times during
the Term of this Lease, at Lessee’s sole cost and expense, the following
insurance policies issued by companies rated A or A Plus by A.M. Best:
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(a) Fire
and extended "all risk" coverage insurance (without flood insurance because
it is a once in 500 years zone unless flood insurance is required by the Lessor’s
lender and it is available), in an amount not less than the full insurable
value of all buildings, structures and other improvements on the Premises,
together with business interruption and rent loss coverage for a period up
to twelve months and containing all customary coverages and endorsements and
such other coverages reasonably requested by Lessor. For purposes hereof,
the term "insurable value" shall mean the replacement cost of the improvements
as determined from time to time by Lessee’s insurance agent, subject
to approval by Lessor and Lessor's lender. Such policy or policies shall insure
both Lessor and Lessee, and shall contain a standard "loss payable clause"
providing for payment of the proceeds to Lessor, Lessee and any mortgagees
of Lessor, as their interests may appear.
(b) Public
liability insurance with limits of not less than $1,000,000.00 for personal
injury, death or property damage occurring upon, in or about the Premises
per occurrence, and an excess liability policy affording additional insurance
coverage with limits of at least $2,000,000.00, naming Lessor as an additional
insured thereunder.
(c) All
such policies shall contain provision for not less than thirty (30) days advance
written notice to Lessor in the event of a cancellation or modification. Prior
to the commencement of this Lease, Lessee shall furnish Lessor with copies
of such policies or certificates evidencing that such insurance is in full
force and effect.
(d) It
is expressly agreed that with respect to damage from fire or other casualty
or events, the risks of which are insurable under standard insurance policies
and the foregoing insurance requirements, and with respect to property damage
insurance carried by Lessor and/or Lessee, or either of them ("Insureds"),
no insurer of the Insureds against such risks of damage to the Premises and/or
any improvements thereon or with respect to property damage shall have a right
of subrogation against the Insureds, or their respective officers, employees,
agents or invitees. In addition, the Insureds hereby waive any and all rights
of subrogation against the other party arising out of or in any way connected
with this Lease or the Premises, to the extent the claim is covered by the
insurance coverages Lessee is required to maintain pursuant to this Section 19.
The Insureds agree to obtain waiver of subrogation clauses from their respective
insurance carriers with respect to any insurance pertaining to the Premises
or required by this Lease.
20. Quiet
Enjoyment.
Lessor covenants and agrees with Lessee that Lessee, upon paying the rents
and performing the terms and conditions of this Lease on Lessee’s part
to be performed, shall lawfully, peaceably and quietly hold, occupy and enjoy
the Premises during the Term hereof.
21. Notices.
Any notice required or permitted to be given under this Lease shall be deemed
given when personally delivered or deposited in the United States Mail, certified
or registered mail, postage prepaid, and addressed as follows:
| -11- | ||
|
|
||
| To Lessor: | Chantilas Properties, LLC | |
| 0000 Xxxxxxxxxx Xxxx | ||
| Xxxxxxxxxx, Xxxx 00000 | ||
| With a copy to: | Xxxxxx X. Xxx, Esq. | |
| Katz, Teller, Xxxxx & Xxxx | ||
| 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxxxxxx, Xxxx 00000 | ||
| To Lessee: | Integrated Pharmaceuticals, Inc. | |
| 000 Xxxxxxxxx Xxxxx | ||
| Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000 | ||
| With a copy to: | Xxxxxx Xxxxx, Esq. | |
| Xxxxxxxx & Sunstein, LLP | ||
| 000 Xxxxxx Xxxxxx | ||
| Xxxxxx, Xxxxxxxxxxxxx 00000-0000 |
or
to such other address as either of the parties hereto may from time to time
advise the other party in writing.
22. Environmental Requirements. Lessee shall not use all or any portion of the Premises for the Generation, Treatment, Storage, Disposal, or Release, as such terms are defined under applicable Environmental Laws (as defined below), of any pollutants, dangerous substances, toxic substances, hazardous wastes, hazardous materials, or hazardous substances as defined in or pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as amended, the Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq., as amended, or any and all other environmental, health, or safety-related federal, state or local law, ordinance, rule, or regulation (hereinafter referred to as "Environmental Laws"), and the foregoing shall include, without limitation, asbestos, oil, petroleum products and distillates, and PCBs (any or all of which are hereinafter referred to as "Hazardous Materials"). Lessee shall not Generate, Dispose or Release any Hazardous Materials at or from the Premises except as specifically permitted by applicable Environmental Laws, and specifically may not discharge any Hazardous Materials in any public sewer or any drain and/or drainpipe leading or connected thereto, except as expressly permitted by such Environmental Laws. Lessee specifically agrees to indemnify and hold Lessor, and Lessor’s successors, permitted assigns, employees and agents, harmless from any and all claims, liabilities, costs or expenses arising out of such Generation, Treatment, Storage, Disposal, or Release of Hazardous Materials by Lessee, its shareholders, officers, employees or agents, including reasonable attorneys’ and consultants’ fees and any costs of all necessary clean up activities occasioned by Lessee’s actions, whether discovered during the Term hereof or after termination of this Lease. The provisions of this Section shall be in addition to any other obligations and liabilities Lessee may have to Lessor at law or equity and shall survive the termination of this Lease. Lessee acknowledges that Lessor has furnished to Lessee the environmental site assessment for the Property which Lessor obtained upon purchase of the Property, and Lessee has had a full and complete opportunity to conduct any other
| -12- | ||
|
|
||
environmental
site assessments of the Property desired by Lessee. Accordingly, Lessee
takes occupancy of the Premises (and title to the Premises, when purchased
by Lessee in accordance with Section 3(b) of this Lease) subject to all
environmental matters including, without limitation, any Hazardous Materials
that may be situated on, underneath or adjacent to the Property. Lessor
agrees that Lessee is permitted to use necessary amounts of Hazardous Materials
in the ordinary course of operating Lessee's Business, provided that Lessee
shall Generate, Store and Dispose of such materials in compliance with all
applicable Environmental Laws.
23. Estoppel
Certificates. This
Lease shall be subject and subordinate to each Mortgage, Deed of Trust, Ground
Lease, or other similar instrument of encumbrance now or hereafter covering
any or all of the Premises (and each renewal, modification, consolidation,
replacement or extension thereof, each of which is herein referred to as a
"Mortgage"), all automatically and without the necessity of any action by
any party hereto. Lessee shall promptly at the request of Lessor, or the holder
of any Mortgage (herein referred to as a "Mortgagee"), execute, acknowledge
and deliver such further instrument or instruments evidencing such subordination
as Lessor or such Mortgagee deems necessary or desirable and, at such Mortgagee’s
request, attorning to such Mortgagee, provided that such Mortgagee agrees
with Lessee that such Mortgagee will, in the event of a foreclosure of any
such Mortgage or any deed-in-lieu of foreclosure, recognize the rights of
Lessee under this Lease and take no action to disturb Lessee’s use or
occupancy of the Premises, except upon the occurrence of an Event of Default
by Lessee which is not cured in accordance with the terms of this Lease.
Lessee
shall from time to time, within ten (10) days after being requested to do
so by Lessor or any Mortgagee, execute, acknowledge and deliver to Lessor
(or, at Lessor’s request, to any existing or prospective purchaser, transferee,
assignee or Mortgagee of any or all of the Premises, any interest therein
or any of Lessor’s rights under this Lease), an instrument certifying
(i) that this Lease is unmodified and in full force and effect (or if there
has been any modification thereof, that it is in full force and effect as
so modified stating therein the nature of such modification); (ii) as to the
dates to which Base Rent, Additional Rent and other charges arising hereunder
have been paid; (iii) as to the amount of any prepaid rent or any credit due
to Lessee hereunder; (iv) that Lessee has accepted possession of the Premises
and the Commencement Date; (v) as to whether Lessor or the Lessee is then
in default in performing any of its obligations hereunder (and, if so, specifying
the nature of each such default); and (vi) as to any other fact or condition
reasonably requested by Lessor or such other addressee; and acknowledging
and agreeing that any statement contained in such Certificate may be relied
upon by Lessor and any other such addressee.
24. Miscellaneous.
(a) This
Lease and other written agreements between Lessor (and/or its affiliates,
shareholders or members) and Lessee constitutes the entire understanding between
the parties and supersedes all prior agreements, oral or written. No waiver,
modification, or addition to this Lease shall be valid unless in writing and
signed by both Lessor and Lessee.
| -13- | ||
|
|
||
(b) This
Lease and the covenants and conditions herein contained shall inure to the
benefit of and be binding upon Lessor and Lessee and their respective successors
and permitted assigns. Lessor shall have the right to assign this Lease, without
Lessee’s consent, to any purchaser of the Premises, provided that the
assignee of this Lease assumes all obligations of Lessor accruing under this
Lease on and after the date of the assignment, and provided further that the
assignee is then an "accredited investor" as that term is defined in SEC Regulation
D; and executes a subscription agreement for the Parent’s Shares in a
form that is customary for Regulation D offerings; and provides adequate opportunity
for Lessee to make any necessary or convenient state or federal securities
law filings in connection with the issuance of the Shares stock as payment
of rent under this Lease.
(c) The
sections, captions and headings in this Lease are for convenience of reference
only and in no way shall be used to construe or modify the provisions set
forth in this Lease.
(d) Neither
Lessor nor Lessee shall record this Lease. Lessor and Lessee hereby agree
that, upon the request of the other party, each will execute, acknowledge
and deliver a short form or memorandum of this Lease in recordable form. Fees
for the preparation and recording of any such memorandum of this Lease shall
be paid by the party requesting execution of the same. In the event of termination
of this Lease, within thirty (30) days after written request from Lessor,
Lessee agrees to execute, acknowledge and deliver to Lessor an agreement removing
any such memorandum of this Lease from record.
(e) Lessor
and Lessee each represent and warrant to each other that there are no brokerage
commissions or finder’s fees incurred on their behalf in connection with
the negotiation and execution of this Lease, and each agrees to indemnify
the other against, and hold it harmless from, all liability arising from any
such claim.
(f) If
any term or provision of this Lease, or the application thereof for any person
or circumstance, shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and enforced to the fullest extent permitted by law.
(g) This
Lease and the rights and obligations of the parties hereto shall be construed
in accordance with the laws of the State of Ohio.
(h) Whenever
the consent of Lessor or Lessee is required under this Lease, each party agrees
that such consent will not be unreasonably withheld, conditioned or delayed,
and will not involve any additional cost to or concession by the other party,
provided in any event that such consent may be withheld or conditioned as
permitted by the terms of this Lease.
| -14- | ||
|
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||
(i) Lessor
represents to Lessee that Lessor has the full right, power and authority to
execute and deliver this Lease without obtaining any consent or approvals
from, or taking any other action with respect to any third parties, and that
this Lease when executed and delivered by all parties will constitute the
valid and binding agreement of Lessor, enforceable against Lessor in accordance
with its terms.
(j) Lessee
represents to Lessor that Lessee has the full right, power and authority to
execute and deliver this Lease without obtaining any consent or approvals
from, or taking any other action with respect to any third parties, and that
this Lease when executed and delivered by all parties will constitute the
valid and binding agreement of Lessee, enforceable against Lessee in accordance
with its terms.
(k) Lessor
reserves the right to enter upon the Premises at all reasonable times, on
not less than 96 hours’ advance notice to Lessee, to inspect the same
and to show the Premises to prospective purchasers, mortgagees and tenants
and for any other lawful purposes. Lessee agrees to allow Lessor such access
thereto for said purposes, provided that no such inspection shall unreasonably
interfere with Lessee’s normal business operation.
(l) This
Lease may be signed in counterparts, each of which shall be an original but
both of which taken together shall constitute one and the same agreement.
25. Guaranty.
Lessee acknowledges that Lessor would not have entered into this Lease on
the date hereof without the personal guarantee of the payment and performance
of Lessee’s obligations under this Lease by Xxxxxxx Xxxxxxxxxx, Xxxx
Xxxxxx Xxxxxxxxxx, Xxxxxx X. Xxxxxxx, the Parent and NEC Partnership, a partnership
between Xxxxxxx Xxxxxxxxxx, Xxxx Xxxxxx Chatterjee and Xxxxxx X. Xxxxxxx (collectively,
the "Guarantors"). The Unconditional Guaranty of this Lease by the Guarantors
for the benefit of Lessor is attached to this Lease as Exhibit
C
and is incorporated into this Lease by reference and forms an integral part
hereof. The Guarantors have executed and delivered the Unconditional Guarantee
attached hereto as Exhibit C on the date Lessor has executed and delivered
this Lease to Lessee.
The
parties hereby have caused this agreement to be executed on the dates set
forth in the notary clauses below, with the Lease to be effective as of the
date first above written.
26. Securities
Law Matters.
(a) Nonregistration.
Lessor understands that the Shares are being offered and sold under an exemption
from registration provided for sections 4(2) and/or 4(6) of the Securities
Act of 1933 and/or in Regulation "D" under the Securities Act of 1933 (the
"Act") and similar exemptions from the provisions of applicable state securities
or "Blue Sky" laws. Lessor understands that this transaction has not been
scrutinized by the United States Securities and Exchange Commission or by
any administrative agency charged with the administration of the securities
laws of any state. All documents, records and books pertaining to this investment
have been made available to Lessor and Lessor's representatives.
| -15- | ||
|
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||
(b) Citizenship,
Residence, Etc.
Lessor is a limited liability company all of whose members (i) are citizens
of the United States, and at least 21 years of age, and (ii) are bona fide
residents and domiciliaries (not a temporary or transient resident) of the
State of Ohio, and have no present intention of becoming a resident of any
other state or jurisdiction.
(c) Understanding
of Risks. The
Lessor and each of its members understands that the Parent has limited financial
and operating history, and that investment in the Parent involves substantial
risks. Lessor
understands and has fully considered, for purposes of this investment, the
risks of the investment, restrictions on transferability of the Securities,
and the stock issuable in conjunction with and upon conversion thereof, including
but not limited to the following risks:
(i) The
Parent is dependent upon its key personnel and the loss of management in the
early stages of the business could have a significant detrimental impact on
the Parent’s ability to achieve its projected revenue targets. The success
of the Parent may also be dependent upon the Parent’s ability to locate
and hire qualified staff.
(ii) The
Parent is operating but has only limited revenues from delivery of services.
There can be no assurances that products the Parent intends to develop will
perform to the level anticipated.
(iii) Projected
operating budgets are based on predictions developed from no operating experience
and are not based on actual selling experience. There is significant risk
that actual results will differ substantially from any projections and market
research. The pro forma financials developed by the Parent are based on information
collected, and scenarios and assumptions developed by the Parent. The pro
forma is merely the Parent’s expectations for future events and, therefore,
subject to unforeseen and unpredictable matters. Management makes no assurances
related to performance by the Parent. In all likelihood, the actual revenues
and expenses of the Parent will vary from those upon which the projections
are based. Since events may not occur as assumed, the actual results achieved
by the Parent may vary materially and substantially from the projected results.
The Parent gives no assurances that it will achieve the results set forth
in the projections.
(iv) The
Parent will need additional funds, in the future, to sustain operations. There
can be no assurance than any such additional funds will be available, if and
when needed or, if available, on terms appropriate for or acceptable to the
Parent and its shareholders. Insufficient funds could cause the Parent to
fail, require it to change its business plan, or delay or curtail its operations.
| -16- | ||
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(v) The
Parent is subject to the uncertainty of additional investments, cash flow,
adverse changes in business or market conditions and other factors which are
beyond the control of the Parent, to meet the ongoing operating expenses.
(vi) No
assurance can be given that holders of the Parent’s Shares will realize
a return on their investment. As a result of the uncertainty and risks associated
the Parent’s operations, Lessor may lose its entire investments in the
Parent’s securities.
(vii) The
Parent will be competing in a field traditionally characterized by rapidly
changing technology. There can be no assurance that the Parent and the services
it intends to provide will not be rendered obsolete or superfluous by advances
in biotechnology. If new technology becomes available, competitors and future
competitors of the Parent might be able to offer like products and services
at lower rates, and/or with capabilities superior to the Parent’s products
and service, with adverse effects upon the Parent.
(viii) The
Parent’s competitors and future competitors will, or are likely to have,
greater financial resources and access to capital than the Parent.
(ix) The
Parent has obtained a patent to protect the products it intends to manufacture
and market. There can be no assurance that stronger, better financed and established
competitors will not be able to freely utilize the Parent’s business
practices, techniques and materials to compete with the Parent.
There
is only a nominal public market for the Shares, and there can be no assurance
that any active or substantial public market for the Securities will develop.
It may not be possible for Lessor to liquidate this investment.
(d) Ability
to Bear Risk and Afford Loss.
Lessor
is able (i) to bear the economic risk of this investment for an indefinite
period, and (ii) to afford a complete loss of the investment.
(e) Independent
Investigation and Advice.
Lessor, in making the decision to accept the Common Stock as payment for the
rent due hereunder, has relied solely upon its independent investigations
and the advice of its representatives and advisors. Lessor and any such advisors
have been given the opportunity to ask questions of, and to receive answers
from, persons acting on behalf of the Parent concerning the Parent and the
terms and conditions of this offering, and to obtain any additional information,
to the extent such persons possess such information or can acquire it without
unreasonable effort or expense, necessary to verify the accuracy of the information
set forth in the Disclosure Documents.
(f) Investment
Intent.
Lessor is acquiring the Common Stock subscribed for hereunder in good faith
and solely for Lessor's own personal account, for investment purposes only,
and not with a view to or for the resale, distribution, subdivision or fractionalization
thereof. Lessor has no contract, undertaking, understanding, Agreement or
arrangement, formal or informal, with any person to sell, transfer or pledge
to any person the Shares or any part thereof, and Lessor has no present plans
to enter into any such contract, undertaking, Agreement or arrangement. Lessor
understands the legal consequences of the foregoing representations and warranties
to mean that Lessor must bear the economic risk of the investment for an indefinite
period of time because the Shares have not been and will not be registered
under applicable securities laws, and, therefore, cannot be sold unless they
are subsequently registered under such laws or an exemption from such registration
is available.
| -17- | ||
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(g) Reliance
by Parent.
Lessor understands that the Parent is relying on the truth and accuracy of
the representations, declarations and warranties made in this Agreement in
offering the Shares to Lessor without having first registered the same under
the Act.
(h) Legend
on Certificates.
Lessor consents to the placement of a legend on the certificate(s) for the
Shares issued in conjunction herewith in substantially the following form:
THIS
STOCK HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE
TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE HOLDER WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION SATISFACTORY TO THE ISSUER
OF COUNSEL SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY SUCH TRANSFER
SHALL NOT BE IN VIOLATION OF THE ACT.
(i) Accredited
Investor.
Lessor is an entity that has been formed for the purpose of acquiring the
Property being
leased hereunder and entering into this Lease. Consequently Lessor represents
that each member of Lessor is an "Accredited Investor" as such term is defined
in Regulation D promulgated by the Securities and Exchange Commission specifically,
Lessor’s members qualify under the category or categories of "Accredited
Investor" indicated below (LESSOR MUST INDICATE THE APPLICABLE CATEGORY OR
CATEGORIES BY INITIALING IN THE SPACE(S) PROVIDED):
(initial)
(ii)
Each
member of Lessor is a natural person and has an individual net worth, or a
joint net worth with such member’s spouse (if any), at this time in excess
of $1 million;
(initial)
(iii)
Each
member of Lessor is a natural person and has had an individual income in excess
of $200,000 in each of 2001 and 2002, or joint income with his or her spouse
(if any) in excess of $300,000 in each of those years, and has a reasonable
expectation of reaching the same income level in 2003.
| -18- | ||
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The
foregoing representations and warranties and undertakings are made by Lessor
with the intent that the Parent rely on then in determining Lessor's suitability
as a Lessor of the Securities hereunder, and are true and accurate as of the
date of this Subscription Agreement and as of the date, of issuance of the
Securities, and shall survive such issuance. If, in any respect, such representations
and warranties shall not be true and accurate prior to the issuance of the
Securities to Lessor, Lessor shall give immediate written notice of such fact
to the Parent, specifying which representations and warranties are not true
and accurate and in what respects they are not accurate.
(j) Issuance
of Shares by Parent; Reasonable Efforts to Become an SEC Reporting Company.
Parent hereby agrees to issue Shares to Lessor as required hereunder. Parent
further agrees to use reasonable efforts to register its common stock (including
all Shares issued to Lessor pursuant to this Lease) under Section 12 of the
Securities and Exchange Act of 1934 by filing a Form 10 with the SEC within
one (1) year of the Commencement Date. Parent further acknowledges that the
Lease of the Property by Lessor to Lessee is valuable and important to Lessee’s
business and to Parent, and that Parent will be benefited by Lessee entering
into this Lease. Accordingly, Parent acknowledges that there is valid and
sufficient consideration for the issuance of the Shares to Lessor pursuant
to this Lease, and for the Unconditional Guaranty of this Lease that will
be executed and delivered by Parent to Lessor.
[The
remainder of this page left blank intentionally]
| -19- | ||
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| LESSOR: | ||
| CHANTILAS PROPERTIES, LLC, an Ohio limited liability company qualified as a foreign limited liability company in the Commonwealth of Massachusetts | ||
| By: | /s/ Xxxxx Chantilas | |
| Xxxxx Chantilas, Authorized Member | ||
| LESSEE: | ||
| ADVANCED PROCESS | ||
| TECHNOLOGIES, INC., | ||
| a Massachusetts corporation | ||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |
| Xxxxxxx Xxxxxxxxxx, President | ||
| PARENT (for purposes of sections 5 and 26 only) | ||
INTEGRATED
PHARMACEUTICALS, INC. |
||
| an Idaho corporation | ||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |
| Xxxxxxx Xxxxxxxxxx, President | ||
| -00- | ||
|
|
||
| XXXXX XX XXXXXXXX | ) | |
| ) | SS: | |
| COUNTY OF OHIO | ) |
The
foregoing instrument was acknowledged before me this ____ day of ________________,
2003, by Xxxxx Chantilas, Manager of CHANTILAS
PROPERTIES, LLC,
an Ohio limited liability Lessee qualified as a foreign limited liability
Lessee in the Commonwealth of Massachusetts, on behalf of said Lessee.
| Notary Public |
| STATE OF MASSACHUSETTS | ) | |
| ) | SS: | |
| COUNTY OF SUFFOLK | ) |
The
foregoing instrument was acknowledged before me this _____ day of _________________,
2003, by Xxxxxxx Xxxxxxxxxx, President of ADVANCED
PROCESS TECHNOLOGIES, INC., a
Massachusetts corporation, on behalf of said corporation.
| Notary Public |
| STATE OF MASSACHUSETTS | ) | |
| ) | SS: | |
COUNTY
OF SUFFOLK
|
) | |
The
foregoing instrument was acknowledged before me this _____ day of _________________,
2003, by Xxxxxxx Xxxxxxxxxx, President of INTEGRATED
PHARMACEUTICALS, INC., an
Idaho corporation, on behalf of said corporation.
| Notary Public |
This
instrument prepared by:
Xxxxxx X. Xxx, Esq.
Katz,
Teller, Xxxxx & Xxxx
000
Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx,
Xxxx 00000-0000
Telephone
(000) 000-0000
| -21- | ||
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EXHIBIT
A and B
[Legal
Description and Site Plan for Authority Drive Property]
|
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EXHIBIT
C
UNCONDITIONAL
GUARANTY
In
order to induce the Lessor to enter into this Lease, each of the undersigned
(each a "Guarantor"), jointly and severally, absolutely and unconditionally
guarantees to the Lessor: (a) the full and prompt payment of all amounts due
and payable under the Lease by the Lessee (including, without limitation,
Lessee's obligation to purchase the Property upon expiration of the Term of
the Lease); (b) the full and prompt payment of all expenses and charges, including
court costs, consultants’ fees and attorneys’ fees, paid or incurred
by the Lessor in realizing any of the payments hereby guaranteed or incurred
in enforcing this Guaranty; and (c) the performance of any and all obligations
of the Lessee under the Lease.
The
obligations of each Guarantor under this Guaranty shall be joint and several,
absolute and unconditional, irrespective of the validity, regularity or enforceability
of any of the provisions of the Lease or any circumstances which might otherwise
constitute a legal or equitable discharge or defense of any Guarantor.
Upon
the occurrence of a default under the Lease, and the failure of Lessee to
cure the default within the time periods permitted by the Lease, the Lessor
may, in its sole discretion, proceed first and directly against any Guarantor
under this Guaranty without proceeding against or exhausting any other remedies
which the Lessor may have under the Lease and without resorting to any other
security held by the Lessor.
The
Lessor shall, in its discretion and without the necessity of obtaining the
consent of or giving notice to any Guarantor, have the right to:
(k) Deal
in any manner with the Lessee including, but not limited to, the right to
grant any indulgence or forbearance of the Lease and to waive the compliance
with of any of the terms and provisions of the Lease;
(l) Effect
any release, compromise or settlement with respect to the Lease negotiated
between Lessor and Lessee (provided that the Guarantors shall be entitled
to the benefit of any such release, compromise or settlement); or
(m) Accept
partial payment or payments of or extend the time for payment of any amount
due or to become due under the Lease or this Guaranty.
Irrespective
of the Lessor’s taking or refraining from taking any of the above actions
or any or the actions referred to in the Lease or this Guaranty, the obligations
of each Guarantor under this Guaranty shall remain in full force and effect
and shall not be affected, modified, or impaired in any manner.
Each
Guarantor agrees that his consent shall not be required for any renewal or
exercise of any option by the Lessee under the Lease and that any such act
by the Lessee shall not cancel this Guaranty in any way unless agreed to in
writing by the Lessor and each Guarantor.
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All
terms, provisions and agreements contained in this Guaranty shall inure to
the benefit of and be enforceable by the Lessor, its successors and assigns,
and shall be binding upon each Guarantor, his estate, executors, administrators,
assigns and personal representatives
Each
Guarantor hereby irrevocably waives all legal and equitable rights to recover
from Lessee for any sums paid by any Guarantor under the terms of this Guaranty,
including without limitation, all rights of subrogation and all other rights
that would result in any Guarantor being deemed a creditor of the Lessee under
the Federal bankruptcy Code or any other law.
It
is specifically understood that any modification, limitation or discharge
of the obligations of the Lessee under the Lease by virtue of any bankruptcy,
reorganization or similar proceeding for relief of debtors under federal or
state law shall not affect, modify, limit or discharge the liability of any
Guarantor whatsoever and this Guaranty shall remain and continue in full force
and effect and will be enforceable against each Guarantor to the same extend
and with the same force and effect as if any such proceedings had not been
instituted.
This
Guaranty shall be in effect from the date hereof and shall terminate upon
expiration of the Term of this Lease after Lessee completes its obligation
to purchase the Property from Lessor at the end of the Term of the Lease;
provided, however, that this Guaranty shall remain in effect with respect
to an Event of Default existing on or prior to the expiration date of this
Guaranty if identified in a written notice delivered to any Guarantor at the
address listed after his signature on or prior to the expiration date of this
Guaranty.
This
Guaranty and the rights and obligations of the parties hereto shall be governed
exclusively by and construed in accordance with the laws of the State of Ohio.
| 2 | ||
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||
Each
Guarantor hereto has caused this Guaranty to be signed this _____ day of ____________________,
2003.
| GUARANTORS: | ||
| Xxxxxxx Xxxxxxxxxx | ||
| Xxxx Xxxxxx Chatterjee | ||
| Xxxxxx Xxxxxxx | ||
| INTEGRATED PHARMACEUTICALS, INC. | ||
| By: | ||
| Its: | ||
| NEC PARTNERSHIP | ||
| By: | ||
| Xxxxxxx Xxxxxxxxxx, Partner | ||
| Notice Address for Guarantors: | ||
| 3 | ||
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| STATE OF MASSACHUSETTS | ) | |
| ) | SS: | |
COUNTY
OF Suffolk |
) |
The
foregoing instrument was acknowledged before me this _____ day of __________________,
2003, by Xxxxxxx Xxxxxxxxxx,
Guarantor of the foregoing Lease.
| Notary Public |
| STATE OF MASSACHUSETTS | ) | |
| ) | SS: | |
COUNTY
OF Suffolk |
) |
The
foregoing instrument was acknowledged before me this _____ day of __________________,
2003, by Xxxx Xxxxxx Chatterjee,
Guarantor of the foregoing Lease.
| Notary Public |
| STATE OF MASSACHUSETTS | ) | |
| ) | SS: | |
COUNTY
OF Suffolk |
) |
The
foregoing instrument was acknowledged before me this _____ day of __________________,
2003, by Xxxxxx Xxxxxxx, Guarantor of the foregoing Lease.
| Notary Public |
| 4 | ||
|
|
||
| STATE OF MASSACHUSETTS | ) | |
| ) | SS: | |
COUNTY
OF SUFFOLK |
) |
The
foregoing instrument was acknowledged before me this _____ day of _________________,
2003, by Xxxxxxx Xxxxxxxxxx, President of INTEGRATED
PHARMACEUTICALS, INC., an
Idaho corporation, on behalf of said corporation.
| Notary Public |
| STATE OF MASSACHUSETTS | ) | |
| ) | SS: | |
COUNTY
OF SUFFOLK |
) |
The
foregoing instrument was acknowledged before me this _____ day of _________________,
2003, by Xxxxxxx Xxxxxxxxxx, a partner of NEC PARTNERSHIP, on behalf of said
partnership.
| Notary Public |
This
instrument prepared by:
Xxxxxx
X. Xxx, Esq.
Katz,
Teller, Xxxxx & Xxxx
000
X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx,
Xxxx 00000
(000)
000-0000
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