LEASE AGREEMENT
THIS
LEASE AGREEMENT is made this 31st day of January, 2006 between Addison Park,
Ltd. / The Xxxxx Family Living Trust as Landlord, (“Landlord), and the Tenant
named below,
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Tenant:
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ULURU,
Inc.
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Premises:
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That
portion of the Building, containing approximately 8,923 rentable
square
feet, as determined by Landlord, as shown on Exhibit A.
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Building:
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Addison
Park Place
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0000
Xxxx Xxx Xxxxx
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Xxxxxxx,
XX 00000
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Tenant’s
Proportionate
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Share
of Building:
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24.53%
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Lease
Term:
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Eighty-four
(84) months
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Commencement
Date:
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April
1, 2006
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Initial
Monthly Base Rent:
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$6,989.68
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For
months 1-60 and $7,435.83 for months 61- 84.
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Initial
Estimated Monthly
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Operating
Expense Payments:
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1.
Common Area Charges: $
922.04
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(See
Paragraph 6)
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2.
Taxes: $1,018.71
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3.
Insurance: $
104.10
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Initial
Estimated Monthly
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Operating
Expense Payments:
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$2,044.85
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Initial
Monthly Base Rent and
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$9,034.53
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Operating
Expense Payments:
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Security
Deposit:
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$18,069.06
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Addenda:
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Exhibit
“A”- Floor Plan
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1.
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Granting
Clause. In
consideration of the obligation of Tenant to pay rent as herein
provided
and in consideration of the other terms, covenants, and conditions
hereof,
Landlord leases to Tenant, and Tenant takes from Landlord, the
Premises,
to have and to hold for the Lease Term, subject to the terms, covenants
and conditions of this Lease.
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2.
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Acceptance
of Premises. Tenant
shall accept the Premises in its condition as of the Commencement
Date
subject to the improvements which shall be made per paragraph 40
and all-
applicable laws, ordinances, regulations, covenants and restrictions.
Landlord has made no representation or warranty as to the suitability
of
the Premises for the conduct of Tenant’s business, and Tenant waives any
implied warranty that the Premises are suitable for Tenant’s intended
purposes. Except as provided in Paragraph 10, in no event shall
Landlord
have any obligation for any defects in the Premises or any limitation
on
its use.
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3.
Use. The
Premises shall be used only for the purpose of executive offices and
pharmaceutical research and for such other lawful purpose as may be incidental
thereto. Tenant shall not conduct or give notice of any auction, liquidation,
or
going out of business sale on the Premises. Tenant will use the Premises
in a
careful, safe and proper manner and will not commit waste, overload the floor
or
structure of the Premises or subject the Premises to use that would damage
the
Premise. Tenant shall not in it’s reasonable control permit any objectionable or
unpleasant odors, smoke, dust, gas, noise, or vibrations to emanate from
the
Premises, or take any other action that would constitute a nuisance or would
disturb, unreasonably interfere with, or endanger Landlord or any tenants
of the
Project. Outside storage, including without limitation, storage of trucks
and
other vehicles, is prohibited without Landlord’s prior written consent. Landlord
warrants it has received no notice from any government authority that the
Premises are not in compliance with the Americans With Disabilities Act and
Landlord shall maintain the exterior of the Premises in compliance with the
ADA.
Tenant, at its sole expense, shall use and Occupy the interior of the Premises
in compliance with all laws, including, without limitation, the Americans
With
Disabilities Act, orders, judgments, ordinances, regulations, codes, directives,
permits, licenses, covenants and restrictions now or hereafter applicable
to the
Premises (collectively, “Legal Requirements”). The Premises shall not be used as
a place of public accommodation under the Americans with Disabilities Act
or
similar state statutes or local ordinances or any regulations promulgated
thereunder, all as may be amended from time to time. Tenant shall, at its
expense, make any alterations or modifications, within or without the Premises
that are required by Legal Requirements related to Tenant’s use or occupation of
the Premises. Tenant will not use or permit the Premises to be used for any
purpose or in any manner that would void Tenant’s or Landlord’s insurance or
increase the insurance risk. If any increase in the cost of any insurance
on the
Premises or the Project is caused by Tenant’s use or occupation of the Premises,
or because Tenant vacates the Premises prior to the expiration of its Lease,
then Tenant shall pay the amount of such increase to Landlord. Any occupation
of
the Premises by Tenant prior to the Commencement Date shall be subject to
all
obligations of Tenant under this Lease.
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4.
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Base
Rent. Tenant shall pay Base Rent in the amount set forth above.
The first
month’s Base Rent, the Security Deposit, and the first monthly installment
of estimated Operating Expenses (as hereafter defined) shall be
due and
payable on the date hereof, and Tenant promises to pay to Landlord
in
advance, without demand, deduction or set-off, monthly installments
of
Base Rent on or before the first day of each calendar month succeeding
the
Commencement Date. Payments of Base Rent for any fractional calendar
month
shall be prorated. All payments required to be made by Tenant to
Landlord
hereunder shall be payable at such address as Landlord may specify
from
time to time by written notice delivered in accordance herewith.
The
obligation of Tenant to pay Base Rent and other sums to Landlord
and the
obligations of Landlord under this Lease are independent obligations.
Tenant shall have no right at any time to xxxxx, reduce, or set-off
any
rent due hereunder except as may be expressly provided in this
Lease. If
Tenant is delinquent in any monthly installment of Base Rent or
of
estimated Operating Expenses for more than ten (10) days, Tenant
shall pay
to Landlord on demand a late charge equal to ten percent (10%)
of such
delinquent sum. The provision for such late charge shall be in
addition to
all of Landlord’s other rights and remedies hereunder or at law and shall
not be construed as a penalty.
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5.
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Security
Deposit. The Security Deposit shall be held by Landlord as security
for
the performance of Tenant’s obligations under this Lease. The Security
Deposit is not an advance rental deposit or a measure of Landlord’s
damages in case of Tenant’s default. Upon each occurrence of an Event of
Default (hereinafter defined), Landlord may use all or part of
the
Security Deposit to pay delinquent payments due under this Lease,
and the
cost of any damage, injury, expense or liability caused by such
Event of
Default, without prejudice to any other remedy provided herein
or provided
by law. Tenant shall pay Landlord on demand the amount that will
restore
the Security Deposit to its original amount. Landlord’s obligation
respecting the Security Deposit is that of a debtor, not a trustee;
no
interest shall accrue thereon. The Security Deposit shall be the
property
of Landlord, but shall be paid to Tenant when Tenant’s obligations under
this Lease have been completely fulfilled. Landlord shall be released
from
any obligation with respect to the Security Deposit upon transfer
of this
Lease and the Premises to a person or entity assuming Landlord’s
obligations under this Paragraph 5.
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6.
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Operating
Expense Payments. During each month of the Lease Term, on the same
date
that Base Rent is due, Tenant shall pay Landlord an amount equal
to 1/12
of the annual cost, as estimated by Landlord from time to time,
of
Tenant’s Proportionate Share (hereinafter defined) of Operating Expenses
for the Project. Payments thereof for any fractional calendar month
shall
be prorated. The term “Operating Expenses” means all costs and expenses
incurred by Landlord with respect to the ownership, maintenance,
and
operation of the Project including, but not limited to, costs of:
Taxes
(hereinafter defined) and fees payable to tax consultants and attorneys
for consultation and contesting taxes; insurance; utilities for
the common
area of the Project; maintenance, repair and replacement of all
portions
of the Project, including without limitation, paving and parking
areas,
roads, roofs, alleys, and driveways, mowing, landscaping, exterior
painting, utility lines, common area lighting, electrical systems
and
other mechanical and building systems; amounts paid to contractors
and
subcontractors for work or services performed in connection with
any of
the foregoing; property management fees and reasonable administrative
costs, security services, if any; litter collection, sweeping and
removal;
and additions or alterations made by Landlord to the Project or
the
Building in order to comply with Legal Requirements (other than
those
expressly required herein to be made by Tenant) or that are appropriate
to
the continued operation of the Project or the Building as a Office
Tech
facility in the market area, provided that the cost of additions
or
alterations that are required to be capitalized for federal income
tax
purposes shall be amortized on a straight line basis over a period
equal
to the useful life thereof for federal income tax purposes. Operating
Expenses do not include debt service under mortgages or ground
rent under
ground leases, costs of restoration to the extent of net insurance
proceeds received by Landlord with respect thereto, leasing commissions,
or the costs of renovating space for
tenants.
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If
Tenant’s total payments of Operating Expenses for any year are less than
Tenant’s Proportionate Share of actual Operating Expenses for such year, then
Tenant shall pay the difference to Landlord within 30 days after demand,
and if
more, then Landlord shall retain such excess and credit it against Tenant’s next
payments. For purposes of calculating Tenant’s Proportionate Share of Operating
Expenses, a year shall mean a calendar year except the First year, which
shall
begin on the Commencement Date, and the last year, which shall end on the
expiration of this Lease. With respect to Operating Expenses which Landlord
allocates to the entire Project, Tenant’s “Proportionate Share” shall be the
percentage set forth on the first page of this Lease as Tenant’s Proportionate
Share of the Project as reasonably adjusted by Landlord in the future for
changes in the physical size of the Premises or the Project; and, with respect
to Operating Expenses which Landlord allocates only to the Building, Tenant’s
“Proportionate Share” shall be the percentage set forth on the first page of
this Lease as Tenant’s Proportionate Share of the Building as reasonably
adjusted by Landlord in the future for changes in the physical size of the
Premises or the Building. Landlord may equitably increase Tenant’s Proportionate
Share for any item of expense or cost reimbursable by Tenant that relates
to a
repair, replacement, or service that benefits only the Premises or only a
portion of the Project or Building that includes the Premises or that varies
with occupancy or use. The estimated Operating Expenses for the Premises
set
forth
on
the first page of this Lease are only estimates, and actual expenses may
differ
based on present and future years’ operational experience.
7. Utilities.
Tenant
shall pay for all water, gas, electricity, heat, light, power, telephone,
sewer,
refuse, and other utilities and services used on the Premises, all maintenance
charges for utilities, and any storm sewer charges or other similar charges
for
utilities imposed by any governmental entity or utility provider, together
with
any taxes, penalties, surcharges or the like on these services pertaining
to
Tenant’s use of the Premises. . Tenant shall pay its share of all charges for
jointly metered utilities based upon consumption, as reasonably determined
by
Landlord. No interruption or failure of utilities shall result in the
termination of this Lease or the abatement of rent. If water and sewer are
master metered, Tenant shall pay it’s proportionate share of the actual cost of
the Building’s water/sewer charges in addition to its operating expense
payments.
8.
Taxes.
Landlord shall pay all taxes, assessments and governmental charges (collectively
referred to as Taxes”) that accrue against the Project during the Lease Term,
which shall be included as part of the Operating Expenses charged to Tenant.
Landlord may contest by appropriate legal proceedings the amount, validity,
or
application of any taxes or liens thereof. All capital levies or other taxes
assessed or imposed on Landlord upon the rents payable to Landlord under
this
Lease and any franchise tax, any excise, transaction, sales or privilege
tax,
assessment, levy or charge measured by or based, in whole or in part, upon
such
rents from the Premises and/or the Project or any portion thereof shall be
paid
by Tenant to Landlord monthly in estimated installments or upon demand, at
the
option of Landlord, as additional rent; provided, however, in no event shall
Tenant be liable for any net income taxes imposed on Landlord unless such
net
income taxes are in substitution for any Taxes payable hereunder. If any
such
tax or excise is levied or assessed directly against Tenant, then Tenant
shall
be responsible for and shall pay the same at such times and in such manner
as
the taxing authority shall require. Tenant shall be liable for all taxes
levied
or assessed against any personal property or fixtures placed in the Premises,
whether levied or assessed against Landlord or Tenant.
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Insurance.
Landlord shall maintain all risk property insurance covering the
full
replacement cost of the Building. Landlord may, but is not obligated
to,
maintain such other insurance and additional coverages as it may
deem
necessary, including, but not limited to, commercial liability of
such
insurance allocable to the Project or Building will be determined
by
Landlord based upon the insurer’s cost calculations). Tenant shall also
reimburse Landlord for any increased premiums or additional insurance
as a
result of Tenant’s use of the Premises.
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Tenant,
at its expense, shall maintain during the Lease Term: all risk property
insurance covering the full replacement cost of all property and improvements
installed or placed in the Premises by Tenant at Tenant’s expense; worker’s
compensation insurance with no less than the minimum limits required by law;
employer’s liability insurance with such limits as required by law; and
commercial liability insurance, with a minimum limit of $1,000,000 per
occurrence and a minimum umbrella limit of $1,000,000, for a total minimum
combined general liability and umbrella limit of $2,000,000 for property
damage,
personal injuries, or deaths of persons occurring in or about the Premises.
Landlord may from time to time require reasonable increases in any such limits.
The commercial liability policies shall name Landlord as an additional insured,
insure on an occurrence and not a claims-made basis, be issued by insurance
companies which are reasonably acceptable to Landlord, not be cancelable
unless
thirty (30) days’ prior written notice shall have been given to Landlord,
contain a hostile fire endorsement and a contractual liability endorsement
and
provide primary coverage to Landlord (any policy issued to Landlord providing
duplicate or similar coverage shall be deemed excess over Tenant’s policies).
Such policies or certificates thereof shall be delivered to Landlord by Tenant
upon commencement of the Lease Term and upon each renewal of said
insurance.
The
all
risk property insurance obtained by Landlord and Tenant shall include a waiver
of subrogation by the insurers and all rights based upon an assignment from
its
insured, against Landlord or Tenant, their officers, directors, employees,
managers, agents, invitees and contractors, in connection with any loss or
damage thereby insured against. Neither party nor its officers, directors,
employees, managers, agents, invitees or contractors shall be liable to the
other for loss or damage caused by any risk coverable by all risk property
insurance, and each party waives any claims against the other party, and
its
officers, directors, employees, managers, agents, invitees and contractors
for
such loss or damage. The failure of a party to insure its property shall
not
void this waiver. Landlord and its agents, employees and contractors shall
not
be liable for, and Tenant hereby waives all claims against such parties for,
business interruption and losses occasioned thereby sustained by Tenant or
any
person claiming through Tenant resulting from any accident or occurrence
in or
upon the Premises or the Project from any cause whatsoever, excluding without
limitation, damage caused in whole or in part, directly or indirectly, by
the
negligence of Landlord or its agents, employees or contractors.
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10.
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Landlord’s
Repairs.
Landlord shall maintain, at its expense, the structural soundness
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the
foundation and exterior walls of the Building, reasonable wear and tear and
uninsured losses and damages caused by Tenant, its agents and contractors
excluded. The term “walls” as used in this Paragraph 10 shall not include
windows, glass or plate glass, doors or overhead doors, special store fronts,
dock bumpers, dock plates or levelers, or office entries. Tenant shall promptly
give Landlord written notice of any repair required by Landlord pursuant
to this
Paragraph 10, after which Landlord shall have a reasonable opportunity to
repair. Landlord shall maintain the rubber seals around the
windows.
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11.
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Tenant’s
Repairs. Landlord, at Tenant’s expense as provided in Paragraph 6, shall
maintain in good repair and condition the parking areas, roof and
the
common areas of the Building, including, but not limited to driveways,
alleys, landscape and grounds surrounding the Premises. Subject
to
Landlord’s obligation in Paragraph 10 and subject to Paragraphs 9 and 15,
Tenant, at its expense, shall repair, replace and maintain in good
condition all portions of the Premises and all areas, improvements
and
systems exclusively serving the Premises including, without limitation,
dock and loading areas, truck doors, plumbing, water and sewer
lines up to
points of common connection, entries, doors, ceilings, broken windows,
interior walls, and the interior side of demising walls, and heating,
ventilation and air conditioning systems. Such repair and replacements
include capital expenditures and repairs whose benefit may extend
beyond
the Term. Heating, ventilation and air conditioning systems and
other
mechanical and building systems serving the Premises shall be maintained
at Tenant’s expense. Landlord’s HVAC contractor shall perform the
quarterly filter changes and annual coil cleaning at Tenant’s expense,
subject to competitive pricing. Subject to Paragraphs 9 and 15,
Tenant
shall bear the full cost of any repair or replacement to any part
of the
Building or Project that results from damage caused by Tenant,
its agents,
contractors, or invitees and any repair that benefits only the
Premises.
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12.
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Tenant-Made
Alterations and Trade Fixtures. Any alterations, additions, or
improvements made by or on behalf of Tenant to the Premises (“Tenant-Made
Alterations”) shall be subject to Landlord’s prior written consent. Tenant
shall cause, at its expense, all Tenant-Made Alterations to comply
with
insurance requirements and with Legal Requirements and shall construct
at
its expense any alteration or modification required by Legal Requirements
as a result of any Tenant-Made Alterations. All Tenant Made Alterations
shall be constructed in a good and workmanlike manner by contractors
reasonably acceptable to Landlord and only good grades of materials
shall
be used. All plans and specifications for any Tenant-Made Alterations
shall be submitted to Landlord for its approval. Landlord may monitor
construction of the Tenant-Made Alterations. . Landlord’s right to review
plans and specifications and to monitor construction shall be solely
for
its own benefit, and Landlord shall have no duty to see that such
plans
and specifications or construction comply with applicable laws,
codes,
rules and regulations. Tenant shall provide Landlord with the identities
and mailing addresses of all persons performing work or supplying
materials, prior to beginning such construction, and Landlord may
post on
and about the Premises notices of non-responsibility pursuant to
applicable law. Tenant shall furnish security or make other arrangements
satisfactory to Landlord to assure payment for the completion of
all work
free and clear of liens and shall provide certificates of insurance
for
worker’s compensation and other coverage in amounts and from an insurance
company satisfactory to Landlord protecting Landlord against liability
for
personal injury or property damage during construction. Upon completion
of
any Tenant-Made Alterations, Tenant shall deliver to Landlord sworn
statements setting forth the names of all contractors and subcontractors
who did work on the Tenant-Made Alterations and final lien waivers
from
all such contractors and subcontractors. Upon surrender of the
Premises,
all Tenant-Made Alterations and any leasehold improvements constructed
by
Landlord or Tenant shall remain on the Premises as Landlord’s property,
except to the extent Landlord requires removal at Tenant’s expense of any
such items or Landlord and Tenant have otherwise agreed in writing
in
connection with Landlord’s consent to any Tenant-Made Alterations. Tenant
shall repair any damage caused by such removal.
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Tenant,
at its own cost and expense and without Landlord’s prior approval, may erect
such shelves, bins, machinery and trade fixtures (collectively “Trade Fixtures”)
in the ordinary course of its business provided that such items do not alter
the
basic character of the Premises, do not overload or damage the Premises,
and may
be removed without injury to the Premises, and the construction, erection,
and
installation thereof complies with all Legal Requirements and with Landlord’s
requirements set forth above. Tenant shall remove its Trade Fixtures the
termination of the Lease and shall repair any damage caused by such
removal.
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13.
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Signs.
Tenant
shall not make any changes to the exterior of the Premises, install
any
exterior lights, decorations, balloons, flags, pennants, banners,
or
painting, or erect or install any signs, windows or door lettering,
placards, decorations, or advertising media of any type which can
be
viewed from the exterior of the Premises, without Landlord’s prior written
consent. Upon surrender or vacation of the Premises, Tenant shall
have
removed all signs and repair, paint, and/or replace the building
facia
surface to which its signs are attached. Tenant shall obtain all
applicable governmental permits and approvals for sign and exterior
treatments. All signs, decorations, advertising media, blinds,
draperies
and other window treatment or bars or other security installations
visible
front outside the Premises shall be subject to Landlord’s approval and
conform in all respects to Landlord’s
requirements.
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14.
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Parking.
Tenant shall be entitled to park in common with other tenants of
the
Project in those areas designated for nonreserved parking. Landlord
may
allocate parking spaces between Tenant and other tenants in the
Project if
Landlord determines that such parking facilities are becoming
crowded.
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15.
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Restoration.
If
at any time during the Lease Term the Premises are damaged by a
fire or
other casualty, Landlord shall notify Tenant within sixty (60)
days after
such damage as to the amount of time Landlord reasonably estimates
it will
take to restore the Premises. If the restoration time is estimated
to
exceed six (6) months, either Landlord or Tenant may elect to terminate
this Lease upon notice to the other party given no later than 30
days
after Landlord’s notice. If neither party elects to terminate this Lease
or if Landlord estimates that restoration will xxxx 0 months or
less,
then, subject to receipt of sufficient insurance proceeds, Landlord
shall
promptly restore the Premises excluding the improvements installed
by
Tenant or by Landlord and paid by Tenant, subject to delays arising
from
the collection of insurance proceeds or from Force Majeure events.
Tenant
at Tenant’s expense shall promptly perform, subject to delays arising from
the collection of insurance proceeds, or from Force Majeure events,
all
repairs or restoration not required to be done by Landlord and
shall
promptly re-enter the Premises and commence doing business in accordance
with this Lease. Notwithstanding the foregoing, either party may
terminate
this Lease if the Premises are damaged during the last year of
the Lease
Term and Landlord reasonably estimates that it will take more than
one
month to repair such damage. The cost of Landlord’s insurance deductible
shall be considered an Operating Expense in accordance with paragraph
6 of
this Lease. If the damage involves the premises of other tenants,
Tenant
shall pay the portion of the deductible that the cost of the restoration
of the Premises. bears to the total cost of restoration, as determined
by
Landlord. Base Rent and Operating Expenses shall be abated for
the period
of repair and restoration in the proportion which the area of the
Premises, if any, which is not usable by Tenant bears to the total
area of
the Premises. Such abatement shall be the sole remedy of Tenant,
and
except as provided herein, Tenant waives any right to terminate
the Lease
by reason of damage or casualty
loss.
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16.
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Condemnation.
If
any part of the Premises or the Project should be taken for any
public or
quasi-public use under governmental law, ordinance, or regulation,
or by
right of eminent domain, or by private purchase in lieu thereof
(a
“Taking” or “Taken”), and the Taking would prevent or materially interfere
with Tenant’s use of the Premises or in Landlord’s judgment would
materially interfere with or impair its ownership or operation
of the
Project, then upon written notice by Landlord this Lease shall
terminate
and Base Rent shall be apportioned as of said date. If part of
the
Premises shall be Taken, and this lease is not terminated as provided
above, the Base Rent payable hereunder during the unexpired Lease
Term
shall be reduced to such extent as may be fair and reasonable under
the
circumstances. In the event of any such Taking, Landlord shall
be entitled
to receive the entire price or award from any such Taking without
any
payment to Tenant, and Tenant hereby assigns to Landlord Tenant’s
interest, if any, in such award. Tenant shall have the right to
make a
separate claim against the condemning authority (but not Landlord)
for
such compensation as may be separately awarded or recoverable by
Tenant
for Tenant improvements, moving expenses and damage to Tenant’s Trade
Fixtures, if a separate award for such items is made to
Tenant.
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17.
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Assignment
and Subletting.
Without Landlord’s prior written consent, Tenant shall not assign this
Lease or sublease the Premises or any part thereof or mortgage,
pledge, or
hypothecate its leasehold interest or grant any concession or license
within the Premises and any attempt to do any of the foregoing
shall be
void and of no effect. For purposes of this paragraph, a transfer
of the
ownership interests controlling Tenant shall be deemed an assignment
of
this Lease unless such ownership interests are publicly traded.
Notwithstanding the above, Tenant may assign or sublet the Premises,
or
any part thereof~ to any entity controlling Tenant, controlled
by Tenant
or under common control with Tenant (a “Tenant Affiliate”), without the
prior written consent of Landlord. Tenant shall reimburse Landlord
for all
of Landlord’s reasonable out-of-pocket expenses in connection with any
assignment or sublease. Upon Landlord’s receipt of Tenant’s written notice
of a desire to assign or sublet the Premises, or any part thereof
(other
than to a Tenant Affiliate), Landlord may, by giving written notice
to
Tenant within 30 days after receipt of Tenant’s notice, terminate this
Lease with respect to the space described in Tenant’s notice, as of the
date specified in Tenant’s notice for the commencement of the proposed
assignment or sublease.
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Notwithstanding
any assignment or subletting, Tenant and any guarantor or surety of Tenant’s
obligations under this Lease shall at all times remain fully responsible
and
liable for the payment of the rent and for compliance with all of Tenant’s other
obligations under this Lease (regardless of whether Landlord’s approval has been
obtained for any such assignments or sublettings). In the event that the
rent
due and payable by a sublessee or assignee (on a combination of the rental
payable under such sublease or assignment plus any bonus or other consideration
therefor or incident thereto) exceeds the rental payable under this Lease,
then
Tenant shall be bound and obligated to pay Landlord as additional rent hereunder
all such excess rental and other excess consideration within 10 days following
receipt thereof by Tenant.
If
this
Lease be assigned or if the Premises be subleased (whether in whole or in
part)
or in the event of the mortgage, pledge, or hypothecation of Tenant’s leasehold
interest or grant of any concession or license within the Premises or if
the
Premises be occupied in whole or in part by anyone other than Tenant, then
upon
a default by Tenant hereunder Landlord may collect rent from the assignee,
sublessee, mortgagee, pledgee, party to whom the leasehold interest was
hypothecated, concessionee or licensee or other occupant and, except to the
extent set forth in the preceding paragraph, apply the amount collected to
the
next rent payable hereunder; and all such rentals collected by Tenant shall
be
held in trust for Landlord and immediately forwarded to Landlord. No such
transaction or collection of rent or application thereof by Landlord, however,
shall be deemed a waiver of these provisions or a release of Tenant from
the
further performance by Tenant of its covenants, duties, or obligations
hereunder.
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18.
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Indemnification.
Except for the gross negligence of Landlord, its agents, employees
or
contractors, and to the extent permitted by law, Tenant agrees
to
indemnify, defend and hold harmless Landlord, and Landlord’s agents,
employees and contractors, from and against any and all losses,
liabilities, damages, costs and expenses (including attorneys’ fees)
resulting from claims by third parties for injuries to any person
and
damage to or theft or misappropriation or loss of property occurring
in or
about the Project and arising from the use and occupancy of the
Premises
or from any activity, work, or thing done, permitted or suffered
by Tenant
in or about the Premises or due to any other act or omission of
Tenant,
its subtenants, assignees, invitees, employees, contractors and
agents.
The furnishing of insurance required hereunder shall not be deemed
to
limit Tenant’s obligations under of this Paragraph
18.
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19.
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Inspection
and Access.
Landlord and its agents, representatives, and contractors may enter
the
Premises during business hours or at anytime in the event of an
emergency,
to inspect the Premises and to make such repairs as may be required
or
permitted pursuant to this Lease and for any other business purpose.
Landlord and Landlord’s representatives may enter the Premises during
business hours for the purpose of showing the Premises to prospective
purchasers and, during the last year of the Lease Term, to prospective
tenants. Landlord may erect a suitable sign on the Premises stating
the
Premises are available to let or that the Project is available
for sale.
Landlord may grant easements, make public dedications, designate
common
areas and create restrictions on or about the Premises, provided
that no
such easement, dedications designation or restriction materially
interferes with Tenant’s use or occupancy of the Premises. At Landlord’s
request, Tenant shall execute such instruments as may be necessary
for
such easements, dedications or
restrictions.
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20.
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Quiet
Enjoyment.
If
Tenant shall perform all of the covenants and agreements herein
required
to be performed by Tenant, Tenant shall, subject to the terms of
this
Lease, at all times during the lease Term, have peaceful and quiet
enjoyment of the Premises against any person claiming by, through
or under
Landlord.
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21.
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Surrender.
Upon termination of the Lease Term or earlier termination of Tenant’s
right of possession, Tenant shall surrender the Premises to Landlord
in
the same condition as received, broom clean, ordinary wear and
tear and
casualty loss and condemnation covered by Paragraphs 15 and 16
excepted.
Any Trade Fixtures, Tenant-Made Alterations and property not so
removed by
Tenant as permitted or required herein shall be deemed abandoned
and may
be stored, removed, and disposed of by Landlord at Tenant’s expense, and
Tenant waives all claims against Landlord for any damages resulting
from
Landlord’s retention and disposition of such property. All obligations of
Tenant hereunder not fully performed as of the termination of the
Lease
Term shall survive the termination of the Lease Term, including
without
limitation, indemnity obligations, payment obligations with respect
to
Operating Expenses and obligations concerning the condition and
repair of
the Premises.
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22.Holding
Over.
If
Tenant retains possession of the Premises after the termination of the Lease
Term, unless otherwise agreed in writing, such possession shall be subject
to
immediate termination by Landlord at any time, and all of the other terms
and
provisions of this Lease (excluding any expansion or renewal option or other
similar right or option) shall be applicable during such holdover period,
except
that Tenant shall pay Landlord from time to time, upon demand, as Base Rent
for
the holdover period, an amount equal to double the Base Rent in effect on
the
termination date, computed on a monthly basis for each month or part thereof
during such holding over. All other payments shall continue under the terms
of
this Lease. In addition, Tenant shall be liable for all damages incurred
by
Landlord as a result of such holding over. No holding over by Tenant, whether
with or without consent of Landlord, shall operate to extend this Lease except
as otherwise expressly provided, and this Paragraph 22 shall not be construed
as
consent for Tenant to retain possession of the Premises.
00.Xxxxxx
of Default.
Each of
the following events shall be an event of default (“Event of Default”) by Tenant
under this Lease:
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(i)
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Tenant
shall fail to pay any installment of Base Rent or any other payment
required herein when due, and such failure shall continue for a
period of
five (5) days from the date such payment was
due.
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(ii)
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Tenant
or any guarantor or surety of Tenant’s obligations hereunder shall (A)
make a general assignment for the benefit of creditors; (B) commence
any
case, proceeding or other action seeking to have an order for relief
entered on its behalf as a debtor or to adjudicate it a bankrupt
or
insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar
official
for it or for all or of any substantial part of its property (collectively
a “proceeding for relief”); (C) become the subject of any proceeding for
relief which is not dismissed within sixty (60) days of its filing
or
entry; or (D) die or suffer a legal disability (if Tenant, guarantor,
or
surety is an individual) or be dissolved or otherwise fail to maintain
its
legal existence (if Tenant, guarantor or surety is a corporation,
partnership or other entity).
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(iii)
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Any
insurance required to be maintained by Tenant pursuant to this
Lease shall
be canceled or terminated or shall expire or shall be reduced or
materially changed, except, in each case, as permitted in this
Lease.
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(iv)
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Tenant
shall holdover in the Premises after the expiration of the Lease
without
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having
entered into a new Lease.
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(v)
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Tenant
shall attempt or there shall occur any assignment, subleasing or
other
transfer of Tenant’s interest in or with respect to this Lease except as
otherwise permitted in this Lease.
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(vi)
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Tenant
shall fail to discharge any lien placed upon the Premises in violation
of
this Lease within sixty (60) days after any such lien or encumbrance
is
filed against the Premises.
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| (vii) |
Tenant
shall fail to comply with any provision of this Lease other than
those
specifically referred to in this Paragraph 23, and except as otherwise
expressly provided herein, such default shall continue for more than
thirty (30) days after Landlord shall have given Tenant written notice
of
such default.
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(viii)
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Tenant
shall disturb other Tenants in the Project by making loud noise
or
allowing Tenant’s guest to violate the common area of the Project by
defecating or urinating.
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(viiii)
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Tenant
shall fail to control the noise generated from the space to such
an extent
that it interrupts the rights of adjoining tenants to the peaceful
possession of their premises.
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24.
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Landlord’s
Remedies.
Upon each occurrence of an Event of Default and so long as such
Event of
Default shall be continuing, Landlord may at any time thereafter
at its
election: terminate this Lease or Tenant’s right of possession, (but
Tenant shall remain liable as hereinafter provided) and/or pursue
any
other remedies at law or in equity. Upon the termination of this
Lease or
termination of Tenant’s right of possession, it shall be lawful for
Landlord, without formal demand or notice of any kind, to re-enter
the
Premises by summary dispossession proceedings or any other action
or
proceeding authorized by law and to remove Tenant and all persons
and
property therefrom. If Landlord re-enters the Premises, Landlord
shall
have the right to keep in place and use, or sell all of Tenant’s
furniture, fixtures and equipment at the Premises, subject to any
existing
superior or properly filed UCC statement
lien.
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If
Landlord terminates this Lease, Landlord may recover from Tenant the sum
of: all
Base Rent and all other amounts accrued hereunder to the date of such
termination; the cost of reletting the whole or any part of the Premises,
including without limitation brokerage fees and/or leasing commissions incurred
by Landlord, and costs of removing and storing Tenant’s or any other occupant’s
property, repairing, , or otherwise putting the Premises into the same condition
as originally received following completion of the tenant improvements ,
and all
reasonable expenses incurred by Landlord in pursuing its remedies, including
reasonable attorneys’ fees and court costs; and the excess of the then present
value of the Base Rent and other amounts payable by Tenant under this Lease
as
would otherwise have been required to be paid by Tenant to Landlord during
the
period following the termination of this Lease measured from the date of
such
termination to the expiration date stated in this Lease, over the present
value
of any net amounts which Tenant establishes Landlord can reasonably expect
to
recover by reletting the Premises for such period, taking into consideration
the
availability of acceptable tenants and other market conditions affecting
leasing. Such present values shall be calculated at a discount rate equal
to the
90-day U.S. Treasury xxxx rate at the date of such termination.
If
Landlord terminates Tenant’s right of possession (but not this Lease), Landlord
may, but shall be under no obligation to, relet the Premises for the account
of
Tenant for such rent and upon such terms as shall be satisfactory to Landlord
without thereby releasing Tenant from any liability hereunder and without
demand
or notice of any kind to Tenant. For the purpose of such reletting Landlord
is
authorized to make any repairs, in or to the Premises as Landlord deems
reasonably necessary If the Premises are not relet, then Tenant shall pay
to
Landlord as damages a sum equal to the amount of the rental reserved in this
Lease for such period or periods, plus the cost of recovering possession
of the
Premises (including attorneys’ fees and costs of suit), the unpaid Base Rent and
other amounts accrued hereunder at the time of repossession, and the costs
incurred in any attempt by Landlord to relet the Premises. If the Premises
are
relet and a sufficient sum shall not be realized from such reletting [after
first deducting therefrom, for retention by Landlord, the unpaid Base Rent
and
other amounts accrued hereunder at the time of reletting, the cost of recovering
possession (including attorneys’ fees and costs of suit), all of the costs and
expense of repairs, the expense of such reletting (including without limitation
brokerage fees and leasing commissions) and the cost of collection of the
rent
accruing therefrom] to satisfy the rent provided for in this Lease to be
paid,
then Tenant shall immediately satisfy and pay any such deficiency. Any such
payments due Landlord shall be made upon demand therefor from time to time
and
Tenant agrees that Landlord may file suit to recover any sums falling due
from
time to time. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect in writing to terminate this Lease for such
previous breach.
Exercise
by Landlord of any one or more remedies hereunder granted or otherwise available
shall not be deemed to be an acceptance of surrender of the Premises and/or
a
termination of this Lease by Landlord, whether by agreement or by operation
of
law, it being understood that such surrender and/or termination can be effected
only by the written agreement of Landlord and Tenant. Any law, usage, or
custom
to the contrary notwithstanding, Landlord shall have the right at all times
to
enforce the provisions of this Lease in strict accordance with the terms
hereof;
and the failure of Landlord at any time to enforce its rights under this
Lease
strictly in accordance with same shall not be construed as having created
a
custom in any way or manner contrary to the specific terms, provisions, and
covenants of this Lease or as having modified the same. Tenant and Landlord
further agree that forbearance or waiver by Landlord to enforce its rights
pursuant to this Lease or at law or in equity, shall not be a waiver of
Landlord’s right to enforce one or more of its rights in connection with any
subsequent default. A receipt by Landlord of rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver
of
such breach, and no waiver by Landlord of any provision of this lease shall
be
deemed to have been made unless expressed in writing and signed by Landlord.
To
the greatest extent permitted by law, Tenant requires the service of notice
of
Landlord’s intention to re-enter as provided for in any statute, or to institute
legal proceedings to that end, and also waives all right of redemption in
case
Tenant shall be dispossessed by a judgment or by warrant of any court or
judge.
The terms “enter,” “re-enter,” “entry” or “re-entry,” as used in this Lease, are
not restricted to their technical legal meanings. Any reletting of the Premises
shall be on such terms and conditions as Landlord in its sole discretion
may
determine including without limitation a term different than the remaining
Lease
Term, rental concessions, repair of the Premises, lease of less than the
entire
Premises to any tenant and leasing any or all other portions of the Project
before reletting the Premises). Landlord shall not be liable, nor shall Tenant’s
obligations hereunder be diminished because of Landlord’s failure to relet the
Premises or collect rent due in respect of such reletting.
25. Tenant’s
Remedies/Limitation of Liability. Landlord
shall not be in default hereunder unless Landlord fails to perform any of
its
obligations hereunder within thirty (30) days after written notice from Tenant
specifying such failure (unless such performance will, due to the nature
of the
obligation, require a period of time in excess of thirty (30) days, then
after
such period of time as is reasonably necessary). All obligations of Landlord
hereunder shall be construed as covenants, not conditions, and, except as
may be
otherwise expressly provided in this Lease, Tenant may not terminate this
Lease
for breach of Landlord’s obligations hereunder. All obligations of Landlord
under this Lease will be binding upon Landlord only during the period of
its
ownership of the Premises and not thereafter. The term “Landlord” in this Lease
shall mean only the owner, for the time being of the Premises, and in the
event
of the transfer by such owner of its interest in the Premises, such owner
shall
thereupon be released and discharged from all obligations of Landlord thereafter
accruing, but such obligations shall be binding during the Lease Term upon
each
new owner for the duration of such owner’s ownership. Any liability of Landlord
under this Lease shall be limited solely to its interest in the Project,
and in
no event shall any personal liability be asserted against Landlord in connection
with this Lease nor shall any recourse be had to any other property or assets
of
Landlord.
26.
Waiver
of Jury Trial.
TENANT
AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE
IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE,
BETWEEN
LANDLORD AND TENANT ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT,
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED HERETO
27. Subordination.
This
lease and Tenant’s interest and rights hereunder are and shall be subject and
subordinate at all times to the lien of any first mortgage, now existing
or
hereafter created on or against the Project or the Premises, and all amendments,
restatements, renewals, modifications, consolidations, refinancing, assignments
and extensions thereof, without the necessity of any further instrument or
act
on the part of Tenant. Tenant agrees, at the election of the holder of any
such
mortgage, to attorn to any such holder. Tenant agrees upon demand to execute,
acknowledge and deliver such instruments, confirming such subordination and
such
instruments of attornment as shall be requested by any such holder. Tenant
hereby appoints Landlord attorney in fact for Tenant irrevocably (such power
of
attorney being coupled with an interest) to execute, acknowledge and deliver
any
such instrument and instruments for and in the name of the Tenant and to
cause
any such instrument to be recorded. Notwithstanding the foregoing, any such
holder may at any time subordinate its mortgage to this Lease, without Tenant’s
consent, by notice in writing to Tenant, and thereupon this Lease shall be
deemed prior to such mortgage without regard to their respective dates of
execution, delivery or recording and in that event such holder shall have
the
same rights with respect to this Lease as though this Lease had been executed
prior to the execution, delivery and recording of such mortgage and had been
assigned to such holder. The term “mortgage” whenever used in this Lease shall
be deemed to include deeds of trust, security assignments and any other
encumbrances, and any reference to the “holder” of a mortgage shall be deemed to
include the beneficiary under a deed of trust.
28. Mechanic’s
Liens. Tenant
has no express or implied authority to create or place any lien or encumbrance
of any kind upon, or in any manner to bind the interest of Landlord or Tenant
in, the Premises or to charge the rentals payable hereunder for any claim
in
favor of any person dealing with Tenant, including those who may furnish
materials or perform labor for any construction or repairs. Tenant covenants
and
agrees that it will pay or cause to be paid all sums legally due and payable
by
it on account of any labor performed or materials furnished in connection
with
any work performed on the Premises and that it will save and hold Landlord
harmless from all loss, cost or expense based on or arising out of asserted
claims or liens against the leasehold estate or against the interest of Landlord
in the Premises or under this Lease. Tenant shall give Landlord immediate
written notice of the placing of any lien or encumbrance against the Premises
and cause such lien or encumbrance to be discharged within sixty (60) days
of
the filing or recording thereof; provided, however, Tenant may contest such
liens or encumbrances as long as such contest prevents foreclosure of the
lien
or encumbrance and Tenant causes such lien or encumbrance to be bonded or
insured over in a manner satisfactory to Landlord within such sixty (60)
day
period.
29. Estoppel
Certificate. Tenant
agrees, from time to time, within ten (10) days after request of Landlord,
to
execute and deliver to Landlord, or Landlord’s designee, any estoppel
certificate requested by Landlord, stating that this Lease is in full force
and
effect, the date to which rent has been paid, that Landlord is not in default
hereunder (or specifying in detail the nature of Landlord’s default), the
termination date of this Lease and such other matters pertaining to this
Lease
as may be requested by Landlord. Tenant’s obligation to furnish each estoppel
certificate in a timely fashion is a material inducement for Landlord’s
execution of this Lease. No cure or grace period provided in this Lease shall
apply to Tenant’s obligations to timely deliver an estoppel certificate. Tenant
hereby irrevocably appoints Landlord as its attorney in fact to execute on
its
behalf and in its name any such estoppel certificate if Tenant fails to execute
and deliver the estoppel certificate within ten (10) days after Landlord’s
written request thereof.
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30.
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Environmental
Requirements.
Except for Hazardous Material contained in products used by Tenant
in it’s
normal course of business or materials used in de minimis quantities
for
ordinary cleaning and office purposes, Tenant shall not permit
or cause
any party to bring any Hazardous Material upon the Premises or
transport,
store, use, generate, manufacture or release any Hazardous Material
in or
about the Premises without Landlord’s prior written consent. Tenant, at
its sole cost and expense, shall operate its business in the Premises
in
strict compliance with all Environmental Requirements and shall
remediate
in a manner satisfactory to Landlord any Hazardous Materials released
on
or from the Project by Tenant, its agents, employees, contractors,
subtenants or invitees. Tenant shall complete and certify to disclosure
statements as requested by Landlord from time to time relating
to Tenant’s
transportation, storage, use, generation, manufacture or release
of
Hazardous Materials on the Premises. The term “Environmental Requirements”
means all applicable present and future statutes, regulations,
ordinances,
rules, codes, judgments, orders or other similar enactments of
any
governmental authority or agency regulating or relating to health,
safety,
or environmental conditions on, under, or about the Premises or
the
environment, including without limitation, the following: the
Comprehensive Environmental Response, Compensation and Liability
Act; the
Resource Conservation and Recovery Act; and all state and local
counterparts thereto, and any regulations or policies promulgated
or
issued thereunder. The term ‘Hazardous Materials” means and includes any
substance, material, waste, pollutant, or containment listed or
defined as
hazardous or toxic, under any Environmental Requirements, asbestos
and
petroleum, including crude oil or any fraction thereof; natural
gas
liquids, liquefied natural gas, or synthetic gas usable for fuel
(or
mixtures of natural gas and such synthetic gas). As defined in
Environmental requirements, Tenant is and shall be deemed to be
the
“operator” of Tenant’s “facility” and the “owner” of all Hazardous
Materials brought on the Premises by Tenant, its agents, employees,
contractors or invitees, and the wastes, by-products, or residues
generated, resulting, or produced
therefrom.
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Tenant
shall indemnify, defend, and hold Landlord harmless from and against any
and all
losses (including, without limitation, diminution in value of the Premises
or
the Project and loss of rental income from the Project), claims, demands,
actions, suits, damages (including, without limitation, punitive damages),
expenses (including, without limitation, remediation, removal, repair,
corrective action, or cleanup expenses), and costs (including, without
limitation, actual attorneys’ fees, consultant fees or expert fees and
including, without limitation, removal or management of any asbestos brought
into the property or disturbed in breach of the requirements of this Paragraph
30, regardless of whether such removal or management is required by law)
which
are brought or recoverable against, or suffered or incurred by Landlord as
a
result of any release of Hazardous Materials for which Tenant is obligated
to
remediate as provided above or any other breach of the requirements under
this
Paragraph 30 by Tenant, its agents, employees, contractors, subtenants,
assignees or invitees, regardless of whether Tenant had knowledge of such
noncompliance. The obligations of Tenant under this Paragraph 30 shall survive
any
termination
of this Lease.
Landlord,
during normal business hours shall have access to, and a right to perform
inspections and tests of; the Premises to determine Tenant’s compliance with
Environmental Requirements, its obligations under this Paragraph 30, or the
environmental condition of the Premises. Access shall be granted to Landlord
upon Landlord’s prior notice to Tenant and at such times so as to minimize, so
far as may be reasonable under the circumstances, any disturbance to Tenant’s
operations. Such inspections and tests shall be conducted at Landlord’s expense,
unless such inspections or tests reveal that Tenant has not complied with
any
Environmental Requirement, in which case Tenant shall reimburse Landlord
for the
reasonable cost of such inspection and tests. Landlord’s receipt of or
satisfaction with any environmental assessment in no way waives any rights
that
Landlord holds against Tenant.
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31.
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Rules
and Regulations. Tenant shall, at all times during the Lease Term
and any
extension thereof; comply with all reasonable rules and regulations
at any
time or from time to time established by Landlord covering use
of the
Premises and the Project. The current rules and regulations are
attached
hereto. in the event of any conflict between said rules and regulations
and other provisions of this Lease, the other terms and provisions
of this
Lease shall control. Landlord shall not have any liability or obligation
for the breach of any rules or regulations by other tenants in
the
Project, except to enforce the provisions of the other Tenants
lease.
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32.
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Security
Service.
Tenant acknowledges and agrees that, while Landlord may patrol
the
Project, Landlord is not providing any security services with respect
to
the Premises and that Landlord shall not be liable to Tenant for,
and
Tenant waives any claim against Landlord with respect to, any loss
by
theft or any other damage suffered or incurred by Tenant in connection
with any unauthorized entry into the Premises or any other breach
of
security with respect to the Premises. Tenant may, at its sole
cost and
expense, install a security alarm system in the
Premises.
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33.
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Force
Majeure.
Landlord shall not be held responsible for delays in the performance
of
Its obligations hereunder when caused by strikes, lockouts, labor
disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefor, governmental restrictions, governmental
regulations, governmental controls, delay in issuance of permits,
enemy or
hostile governmental action, civil commotion, fire or other casualty,
and
other causes beyond the reasonable control of Landlord (“Force
Majeure”).
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34.
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Entire
Agreement.
This Lease constitutes the complete agreement of Landlord and Tenant
with
respect to the subject matter hereof. No representations, inducements,
promises or agreements, oral or written, have been made by Landlord
or
Tenant, or anyone acting on behalf of Landlord or Tenant, which
are not
contained herein, and any prior agreements, promises, negotiations,
or
representations are superseded by this Lease. This Lease may not
be
amended except by an instrument in writing signed by both parties
hereto.
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35.
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Severability.
If
any clause or provision of this Lease is illegal, invalid or unenforceable
under present or future laws, then and in that event, it is the
intention
of the parties hereto that the remainder of this Lease shall not
be
affected thereby. It is also the intention of the parties to this
Lease
that in lieu of each clause or provision of this Lease that is
illegal,
invalid or unenforceable, there be added, as a part of this Lease,
a
clause or provision as similar in terms to such illegal, invalid
or
unenforceable clause or provision as may be possible and be legal,
valid
and enforceable.
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36.
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Brokers.
Tenant represents and warrants that it has dealt with no broker,
agent or
other person in connection with this transaction and that no broker,
agent
or other person brought about this transaction, other than the
broker, if
any, set forth on the first page of this Lease, and Tenant agrees
to
indemnify and hold Landlord harmless from and against any claims
by any
other broker, agent or other person claiming a commission or other
form of
compensation by virtue of having dealt with Tenant with regard
to this
leasing transaction.
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37.
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Miscellaneous.
(a) Any payments or charges due from Tenant to Landlord hereunder
shall be
considered “rent” for all purposes of this
Lease.
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(b)
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If
and when included within the term “Tenant,” as used in this instrument,
there is more than one person, firm or corporation, each shall
be jointly
and severally liable for the obligations of
Tenant.
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(c)
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All
notices required or permitted to be given under this Lease shall
be in
writing and shall be sent by registered or certified mail, return
receipt
requested, or by a reputable national overnight courier service,
postage
prepaid, or by hand delivery addressed to the parties at the addresses
below. Either party may by notice given aforesaid change its address
for
all subsequent notices. Except where otherwise expressly provided
to the
contrary, notice shall be deemed given upon
delivery.
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Tenant: ULURU,
Inc.
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Landlord: Addison
Park Place. do
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0000
Xxxxxxx Xxxxx
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Xxxxxxxxx
Xxxxxxxxxx Xx.
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Xxxxxxx,
XX 00000
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0000
XXX Xxxxxxx, Xxxxx 000
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Tel
(000) 000-0000
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(d)
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Except
as otherwise expressly provided in this Lease or as otherwise required
by
law, Landlord retains the right to withhold any consent or approval
which
shall not be unreasonably
withheld..
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(e)
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At
Landlord’s request from time to time Tenant shall furnish Landlord with
true and complete copies of its most recent annual and quarterly
financial
statements prepared by Tenant r Tenant’s accountants and any other
financial information or summaries that Tenant typically provides
to its
lenders or shareholders.
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(f)
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Neither
this Lease nor a memorandum of lease shall be filed by or on behalf
of
Tenant in any public record unless required by law. Landlord may
prepare
and file and upon request by Landlord, Tenant will execute a memorandum
of
lease.
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(g)
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The
normal rule of construction to the effect that any ambiguities
are to be
resolved against the drafting party shall not be employed in the
interpretation of this Lease or any exhibits or amendments
hereto.
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(h)
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The
submission by Landlord to Tenant of this Lease shall have no binding
force
or
|
effect,
shall not constitute an option for the leasing of the Premises, nor confer
any
right or impose any obligations upon either party until execution of this
Lease
by both parties.
|
(i)
|
Words
of any gender used in this Lease shall be held and construed to
include
any other gender, and words in the singular number shall be held
to
include the plural, unless the context otherwise requires. The
captions
inserted in this Lease are for convenience only and in no way define,
limit or otherwise describe the scope or intent of this Lease,
or any
provision hereof, or in any way affect the interpretation of this
Lease.
|
|
(j)
|
Any
amount not paid by Tenant within ten (10) days after its due date
in
accordance with the terms of this Lease shall bear interest from
such due
date until paid in full at the lesser of the highest rate permitted
by
applicable law or fifteen percent (15%) per year. It is expressly
the
intent of Landlord and Tenant at all times to comply with applicable
law
governing the maximum rate or amount of any interest payable on
or in
connection with this Lease. If applicable law is ever judicially
interpreted so as to render usurious any interest called for under
this
Lease, or contracted for, charged, taken, reserved, or received
with
respect to this lease, then it is Landlord’s and Tenant’s express intent
that all excess amounts theretofore collected by Landlord be credited
on
the applicable obligation (or, if the obligation has been or would
thereby
be paid in full, refunded to Tenant), and the provisions of this
Lease
immediately shall be deemed reformed and the amounts thereafter
collectible hereunder reduced, without the necessity of the execution
of
any new document, so as to comply with the applicable law, but
so as to
permit the recovery of the fullest amount otherwise called for
hereunder.
|
|
(k)
|
Construction
and interpretation of this Lease shall be governed by the laws
of the
State Texas, excluding any principles of conflicts of
laws.
|
|
(l)
|
Time
is of the essence as to the performance of Tenant’s obligations under this
Lease.
|
|
(m)
|
All
exhibits and addenda attached hereto are hereby incorporated into
this
Lease and made a part hereof. In the event of any conflict between
such
exhibits or addenda and the terms of his Lease, such exhibits or
addenda
shall control.
|
|
38.
|
|
| 39. |
Limitation
of Liability of Trustees, Shareholders, and Officers of Addison Park,
LTD.
And Xxxxxxxxx Investment Corporation. Any obligation or liability
whatsoever of Landlord and Xxxxxxxxx Investment Corporation, a Texas
corporation, as its sole general partner, which may arise at any
time
under this Lease or any obligation or liability which may be incurred
by
it pursuant to any other instrument, transaction, or undertaking
contemplated hereby shall not be personally binding upon, nor shall
resort
for the enforcement thereof be had to the property of, its trustees,
directors, shareholders, officers, employees or agents, regardless
of
whether such obligation or liability is in the nature of contract,
tort,
or otherwise.
|
| 40. |
Tenant
Improvements. Tenant accepts the premises in their “as is” condition other
than Landlord shall modify the space per the attached exhibit. The
construction cost is estimated at $188,755.00, which is attached
hereto
and made a part of this lease. Tenant shall contribute $50,000.00
to the
construction cost and Landlord shall contribute the balance. If Tenant
changes the scope of the work, then Tenant shall be responsible for
the
additional costs. Landlord shall janitorially clean the space and
replace
any damaged or missing ceiling tiles. Landlord shall service the
HVAC
equipment and put in good
|
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and
year
|
TENANT:
|
LANDLORD:
|
|
|
|
|
ULURU
Inc.
|
Addison
Park, Ltd. /
|
|
|
|
|
The
Xxxxx Family Living Trust
|
|
|
|
|
|
By: /s/
Xxxxx X. Xxxx
|
By: /s/
Xxxxxxx X. Xxxxxxxxx
|
|
|
|
|
Title: President
and CEO
|
Title:
President
/ Xxxxxxxxx Investment
|
|
|
Corporation
/ General Partner
|
|
|
|
|
Address:
0000 Xxxxxxx Xxxxx
|
Address:
0000 XXX, Xxxxx 000
|
|
Xxxxxxx,
XX 00000
|
Xxxxxx,
XX 00000
|
Rules
and Regulations
| 1. |
The
sidewalk, entries, and driveways of the Project shall not be obstructed
by
Tenant, or its agents, or used by them for any purpose other than
ingress
and egress to and from the Premises.
|
| 2. |
Tenant
shall not place any objects, including antennas, outdoor furniture,
etc.,
in the parking areas, landscaped areas or other areas outside of
its
Premises, or on the roof of the Project. Landlord agrees to allow
Tenant
to place a satellite dish on the roof of the Premises provided such
dish
is not visible from the public street and provided Tenant, at Tenant’s
expense uses Landlord’s approved roofing contractor for such installation
so as to not void Landlord’s existing roof
warranty.
|
| 3. |
Except
for seeing-eye dogs, no animals shall he allowed in the offices,
halls, or
corridors in the Project.
|
| 4. |
Tenant
shall not disturb the occupants of the Project or adjoining buildings
by
the use of any radio or musical instrument or by the making of loud
or
improper noises.
|
| 5. |
If
Tenant desires telegraphic, telephonic or other electric connections
in
the Premises, Landlord or its agent will direct the electrician as
to
where and how the wires may be introduced: and, without such direction,
no
boring or cutting of wires will be permitted. Any such installation
or
connection shall be made at Tenant’s
expense.
|
| 6. |
Tenant
shall not install or operate any steam or gas engine or boiler, or
other
mechanical apparatus in the Premises, except as specifically approved
in
the Lease. The use of oil, gas or inflammable liquids for heating,
lighting or any other purpose is expressly prohibited. Explosives
or other
articles deemed extra hazardous shall not be brought into the Project.
Landlord grants Tenant the right to place a gas powered generator
behind
the Premises, which shall be installed at Tenant’s expense at a location
acceptable to Landlord and shall be screened from view with a wood
privacy
fence.
|
| 7. |
Parking
any type of recreational vehicles is specifically prohibited on or
about
the Project. Except for the overnight parking of operative vehicles,
no
vehicle of any type shall be stored in the parking areas at any time.
In
the event that a vehicle is disabled, it shall be removed within
48 hours.
There shall be no “For Sale” or other advertising signs on or about any
parked vehicle. All vehicles shall be parked in the designated parking
areas in conformity with all signs and other markings. All parking
will be
open parking, and no reserved parking, numbering or lettering of
individual spaces will be permitted except as specified by
Landlord.
|
| 8. |
Tenant
shall maintain the Premises free from rodents, insects and other
pests.
|
| 9. |
Landlord
reserves the right to exclude or expel from the Project any person
who, in
the judgment of Landlord, is intoxicated or under the influence of
liquor
or drugs or who shall in any manner do any act in violation of the
Rules
and Regulations of the Project.
|
| 10. |
Tenant
shall not cause any unnecessary labor by reason of Tenant’s carelessness
or indifference in the preservation of good order and cleanliness.
Landlord shall not be responsible to Tenant for any loss of property
on
the Premises, however occurring, or for any damage done to the effects
of
Tenant by the janitors or any other employee or person. except due
to the
gross negligence of Landlord.
|
| 11. |
Tenant
shall give Landlord prompt notice of any defects in the water, lawn
sprinkler, sewage, gas pipes, electrical lights and fixtures, hearing
apparatus, or any other service equipment affecting the
Premises.
|
| 12. |
Tenant
shall not permit storage outside the Premises, including without
limitation, outside storage of trucks and other vehicles, or dumping
of
waste or refuse or permit any harmful materials to be placed in any
drainage system or sanitary system in or about the
Premises.
|
| 13. |
All
moveable trash receptacles provided by the trash disposal firm for
the
Premises must be kept in the trash enclosure areas, if any, provided
for
that purpose.
|
| 14. |
No
auction, public or private, will be permitted on the Premises or
the
Project.
|
| 15. |
No
awnings shall be placed over the windows in the Premises except with
the
prior written consent of Landlord.
|
| 16. |
The
Premises shall not be used for lodging, sleeping or cooking or for
any
immoral or illegal purposes or for any purpose other than that specified
in the Lease. No gaming devices shall be operated in the
Premises.
|
| 17. |
Tenant
shall ascertain from Landlord the maximum amount of electrical current
which can safely be used in the Premises, taking into account the
capacity
of the electrical wiring in the Project and the Premises and the
needs of
other tenants, and shall not use more than such safe capacity. Landlord’s
consent to the installation of electric equipment shall not relieve
Tenant
from the obligation not to use more electricity than such safe
capacity.
|
| 18. |
Tenant
assumes full responsibility for protecting the Premises from theft,
robbery and pilferage.
|
| 19. |
Tenant
shall not install or operate on the Premises any machinery or mechanical
devices of a nature not directly related to Tenant’s ordinary use of the
Premises and shall keep all such machinery free of vibration, noise
and
air waves which may be transmitted beyond the
Premises.
|
15-Dec-05
|
OAKMONT
CONSTRUCTION, INC.
4460
BELTWAY
ATTN:
XX. XXXX XXXXX
|
||||
|
SCOPE
OF WORK PER DRAWING
|
||||
|
DEMOLITION
|
||||
|
XXXXX
|
XX
|
269
|
$
9.00
|
$
2,421.00
|
|
REPAIR
WALLS WHERE DEMO WALL INTERSECTED, TAPE, BED
|
EACH
|
8
|
$
55.00
|
$
440.00
|
|
DUMPSTER
EXPENSE
|
EACH
|
5
|
$
300.00
|
$
1,500.00
|
|
NEW
WALL CONSTRUCTION
|
||||
|
NEW
INTERIOR PARTITIONS X 9’HT
|
LF
|
405
|
$23.00
|
$9,315.00
|
|
NEW
DECK XXXXX
|
XX
|
48
|
$
58.00
|
$
2,784.00
|
|
NEW
LOW XXXXX
|
XX
|
115
|
$
27.00
|
$
3,105.00
|
|
PATCH
HOLES IN PARTITIONS
|
$
242.00
|
|||
|
MULLION
WALL CAPS
|
EACH
|
6
|
$
75.00
|
$
450.00
|
|
CUT
OPENINGS
|
LF
|
1
|
$
75.00
|
$
75.00
|
|
|
||||
|
WALL
FINISHES
|
||||
|
TAPE,
BED AND SAND NEW WALLS
|
SF
|
9,270
|
$
0.39
|
$
3,615.30
|
|
|
||||
|
FRAMES
AND DOORS
|
||||
|
NEW
7’ SOLID CORE PREFINISHED BIRCH DOORS
|
EACH
|
10
|
$
400.00
|
$
4,000.00
|
|
REMOVE
AND RELOCATE EXISTING DOORS
|
EACH
|
7
|
$
145.00
|
$
1,015.00
|
|
NEW
ADA DOOR LEVERS
|
ECAH
|
7
|
$
45.00
|
$
315.00
|
|
PAINTING
DOORS AND FRAMES
|
EACH
|
7
|
$
85.00
|
$
595.00
|
|
CEILINGS
|
||||
|
ACOUSTICAL
CEILINGS
|
SF
|
3,626F
|
$
2.00
|
$
7,252.00
|
|
REPAIR
CEILINGS DUE TO HVAC ELECTRICAL WORK
|
SF
|
1,216
|
$
1.50
|
$
1,824.00
|
|
RESTROOM
ACCESSORIES
|
||||
|
TOTAL
ACCESSORIES
|
$
1,300.00
|
|||
|
TOILET
PARTITIONS
|
LF
|
44
|
$
65.00
|
$
2,860.00
|
|
CABINETS
|
||||
|
RESTROOM
VANITY CABINETS W I ADA PANELS
|
EACH
|
2
|
$
425.00
|
$
850.00
|
|
GLAZING
|
||||
|
WINDOW
IN WALL
|
EACH
|
2
|
$
587.00
|
$
1,174.00
|
|
WINDOWS
NEXT TO DOORS
|
EACH
4
|
4
|
$
387.00
|
$
1,548.00
|
|
|
||||
|
ELECTRICAL
SYSTEMS
|
$
37,226.00
|
|||
|
|
||||
|
PLUMBING
SYSTEMS
|
$
21,050.00
|
|||
|
SAW
CUTTING AND REMOVAL OF CONCRETE FOR DRAIN CONNECTION
|
LF
|
61
|
$
10.00
|
$
610.00
|
|
POUR
CONCRETE LEAVE OUT FOR PLUMBING
|
LF
|
61
|
$
15.00
|
$
915.00
|
|
|
||||
|
GAS
LINES
|
$
345.00
|
|||
|
GAS
TEST / DOES NOT INCLUDE REPAIRING ANY LINES
|
||||
|
NO
GAS NOTED TO EQUIPMENT NEEDS
|
||||
|
|
||||
|
HVAC
SYSTEMS
|
$
12,600.00
|
|||
|
FOR
PROPER ZONING REQUIRED ADD 3-TON UNIT
|
$
4,150.00
|
|||
|
|
||||
|
GENERAL
REQUIREMENTS
|
||||
|
CLEAN
UP AND HAUL TRASH AT NEW CONSTRUCTION
|
$
435.00
|
|||
|
FIRE
EXTINGUISHERS PER FIRE DEPT REGULATIONS
|
$
225.00
|
|||
|
CITY
PERMIT AND INSPECTION FEES
|
$
956.00
|
|||
|
SCALED
DRAWINGS, COPIES OF DRAWINGS FOR CITY PERMIT APPLICATION
|
$
550.00
|
|||
|
OAKMONT
FEE
|
8%
|
$
10,059.38
|
||
|
|
||||
|
STATE
SALES TAX
|
7.75%
|
$
10,524.63
|
||
|
|
||||
|
TOTAL
ESTIMATE BEFORE PAINT AND FLOORING
|
$
146,326.31
|
|||
|
PAINT
|
$
8,000.00
|
|||
|
FLOORING
|
$
10,900.00
|
|||
|
TOTAL
ESTIMATE
|
$
165,226.31
|
|||
|
OWNER
EXPENSE
|
||||
|
REPAIR
HVAC SYSTEMS IF REQUIRED
|
||||
|
ROOFING
REPAIRS
|
||||
|
REPAIR
EXISTING PLUMBING IF REQUIRED
|
||||
|
TASS
INSPECTIONS
|
||||
|
FINAL
CLEAN
|
||||
|
TENANT
EXPENSES
|
||||
|
CERTIFICATE
OF OCCUPANCY
|
||||
|
SECURITY
SYSTEMS
|
||||
|
DATA
AND PHONE SYSTEMS
|
||||
|
FIRE
ALARM SYSTEM
|
||||
|
XXXXX
XXXXXXX 000-000-0000
|
||||
|
OAKMONT
CONSTRUCTION, INC.
|
|||||
|
4460
BELTWAY
|
|||||
|
|
|||||
|
ATTN:
XX. XXXX XXXXX
|
|||||
|
|
|||||
|
SCOPE
OF WORK PER DRAWING
|
|||||
|
|
|||||
|
|
|||||
|
ELECTRICAL
REQUIREMENTS
|
|||||
|
|
|||||
|
INSTALL
LIGHT SWITCHES
|
EACH
|
38
|
$68.00
|
$
|
2,564.00
|
|
|
|
|
|||
|
DUPLEX
OUTLETS
|
EACH
|
66
|
$66.00
|
$
|
5,984.00
|
|
DEDICATED
OUTLETS
|
EACH
|
23
|
$145.00
|
$
|
3,335.00
|
|
220V
RECEPTACLES
|
EACH
|
6
|
$220.00
|
$
|
1,760.00
|
|
|
|
|
|||
|
HOOK
UP BATH EXHAUST FANS
|
EACH
|
4
|
$102.00
|
$
|
408.00
|
|
|
|
|
|||
|
UPGRADE
125A ELECTRICAL SERVICES TO 200 AMP
|
EACH
|
2
|
$4,700.00
|
$
|
9400.00
|
|
RECONNECT
POWER ( NEW DISCONNECTS)
|
$
|
660.00
|
|||
|
LABOR
FOR EQUIPMENT HOOK UP
|
$
|
4950.00
|
|||
|
|
|||||
|
EXIT
LIGHTS
|
EACH
|
6
|
$145.00
|
$
|
870.00
|
|
EMERGENCY
LIGHTING
|
EACH
|
8
|
$125.00
|
$
|
1000.00
|
|
|
|
||||
|
T-8
2’ X 4 PRISMATIC LIGHT FIXTURES
|
EACH
|
44
|
$110.00
|
$
|
4,840.00
|
|
8’
STRIP WAREHOUSE LIGHTS
|
EACH
|
6
|
$135.00
|
$
|
810.00
|
|
|
|||||
|
POWER
FOR 3 TON UNIT
|
$
|
625.00
|
|||
|
|
|||||
|
TOTAL
ESTIMATE
|
|
$
|
37,226.00
|
||
|
Xxxx
St. Xxxx
|
December
9, 2005
|
||
|
Major
Equipment Electrical Needs
|
|||
|
|
|||
|
1. Zeta
Potential System-Malvern
|
5A
|
120V
|
|
|
2. HPLC
System Waters
|
5A
|
120V
|
|
|
3. Waters
Computer
|
2x
|
5A
|
120V
|
|
4. HPLC
system HP
|
2x
|
5A
|
120V
|
|
5. HP
Computer
|
2x
|
5A
|
120V
|
|
6. Lyophilizer
600 SL
|
2x
|
5A
|
120V
|
|
7. Lyophilizer
research
|
12A
|
220V
|
|
|
8. MicroscopeNikon
|
2x
|
5A
|
120V
|
|
9. Spray
Dryer
|
12A
|
220V
|
|
|
10. UV
Visible Xxxx
|
3x
|
5A
|
120V
|
|
11. Centrifuge
GS-15R
|
12A
|
220V
|
|
|
12. Centrifuge
z360K 1
|
16A
|
120V
|
|
|
13. Centrifuge
z360K 2
|
16A
|
120V
|
|
|
14. Laminar
Flow Hood I
|
19A
|
120V
|
|
|
15. Laminar
Flow Hood 2
|
19A
|
120V
|
|
|
16. Fume
Hoods
|
4x
|
Blower
systems
|
|
|
17. Fume
Hoods
|
4x
|
19A
|
120V
|
|
18. Humidity
oven
|
1A
|
120V
|
|
|
19. Humidity
ovens-stability
|
2x
|
15A
|
120V
|
|
20. Water
purifier
|
10A
|
120V
|
|
|
21. GCMS
System
|
5A
|
120V
|
|
|
22. GCMS
Computer
|
5A
|
120V
|
|
|
23. Forced
Air oven
|
2X
|
15A
|
120V
|
|
24. Dishwasher
|
3X
|
20A
|
220V
|
|
25. -80
C freezer
|
10A
|
220V
|
|
|
26. Environmental
Chamber
|
23A
|
120V
|
|
Then
regularly spaced wall outlets and small appliance outlets on lab benches.
For
stirring
apparatus, pH meters, pumps and other small appliances.
|
5-OCT-05
|
||||
|
OAKMONT
CONSTRUCTION INC.
|
||||
|
0000
XXXXXXX XXXXX
|
||||
|
ATTN:
MR. XXXX XXXXXX / XXXX TKARP
|
||||
|
SCOPE
OF WORK
|
||||
|
DEMOLITION
|
||||
|
XXXXX
|
XX
|
56
|
$
9.00
|
$504.00
|
|
REPAIR
WALLS WHERE DEMO WALL INTERSECTED, TAPE BED
|
EACH
|
5
|
$
55.00
|
$
275.00
|
|
REPAIR
CEILINGS At DEMO WALLS CEILINGS
|
SF
|
672
|
$1.00
|
$672.00
|
|
DUMPSTER
EXPENSE
|
EACH
|
1
|
$
300.00
|
$
300.00
|
|
|
||||
|
NEW
WALLCONSTRUCTION
|
||||
|
NEW
INTERIOR PARTITIONS X 9 HT
|
LF
|
225
|
$
21.00
|
$
4,725.00
|
|
PARTITION
WINDOW MULLION CAPS
|
EACH
|
2
|
$
75.00
|
$
150.00
|
|
PATCH
HOLES IN PARTITIONS
|
$
65.00
|
|||
|
CLOSE
DOOR OPENINGS IN PARTITIONS, TAPEBED
|
EACH
|
3
|
$
145.00
|
$
435.00
|
|
CUT
DOOR OPENINGS IN PARTITIONS
|
EACH
|
2
|
$
75.00
|
$
150.00
|
|
WALL
FINISHES
|
||||
|
TAPE,
BED AND SAND NEW PARTITIONS
|
SF
|
4,050
|
$
0.39
|
$
1,579.50
|
|
FRAMES
AND DOORS
|
||||
|
NEW
DOORS
|
EACH
|
8
|
$
310.00
|
$
2,480.00
|
|
REMOVE
AND RELOCATE EXISTING DOORS
|
EACH
|
4
|
$
145.00
|
$
580.00
|
|
PAINTING
DOORS AND FRAMES
|
EACH
|
8
|
$
85.00
|
$
680.00
|
|
CEILINGS
|
||||
|
REPAIR
CEILINGS DUE TO HVAC .ELECTRICAL WORK
|
SF
|
700
|
$
1.00
|
$
700.00
|
|
ELECTRICAL
SYSTEMS
|
$
4,782.00
|
|||
|
HVAC
SYSTEMS
|
$
950.00
|
|||
|
RELOCATE
SUPPLY GRILLS
|
||||
|
RELOCATE
RETURN AIR GRILLS
|
||||
|
RELOCATE
THERMOSTATS
|
||||
|
GENERAL
REQUIREMENTS
|
||||
|
CLEAN
UP AND HAUL TRASH AT NEW CONSTRUCTION
|
$
325.00
|
|||
|
CITY
PERMIT REQUIRED
|
$
867.00
|
|||
|
OAKMONT
FEE
|
8%
|
$
1,617.56
|
||
|
STATE
SALES TAX
|
7.75%
|
$
1,692.37
|
||
|
|
||||
|
TOTAL
ESTIMATE
|
$
23,529.43
|
|||
|
|
||||
|
OPTION:
|
||||
|
INSTALL
GLASS SJDELITES NEXT TO DOORS (2’ WIDE X DOOR HT”.)
|
EACH
|
1
|
$
375.00
|
$
375.00
|
|
OWNER
EXPENSES
|
||||
|
FINAL
CLEAN
|
||||
|
REPLACE
DAMAGED CEILING BOARD
|
||||
|
REPAIR
HVAC SYSTEMS IF REQUIRED
|
||||
|
WINDOW
BLINDS IF REQUIRED
|
||||
|
REPLACE
FIXTURE LAMPS AND BALLAST
|
||||
|
TENANT
EXPENSES
|
||||
|
CERTIFICATE
OF OCCUPANCY
|
||||
|
PLUMBING
APPLIANCES
|
||||
|
SECURITY
SYSTEMS
|
||||
|
DATA
AND PHONE SYSTEMS
|
||||
|
FIRE
EXTINGUISHERS PER FIRE DEPT REGULATIONS
|
||||
Xxxxx
Xxxxxxx 000-000-0000
|
OAKMONT
CONSTRUCTION, INC.
|
||||
|
0000
XXXXXXX XXXXX
|
||||
|
ATTN:
MR. XXXX XXXXXX / XXXX XXXXX
|
||||
|
ELECTRICAL
REQUIREMENTS
|
||||
|
DEMO
ELECTRICAL
|
$
324.00
|
|||
|
INSTALL
LIGHT SWITCHES
|
EACH
|
26
|
$
68.00
|
$
1,768.00
|
|
DUPLEX
OUTLETS
|
EACH
|
20
|
$
68.00
|
$
1,360.00
|
|
EXIT
LIGHTS
|
EACH
|
2
|
$
145.00
|
$
290.00
|
|
DEDICATED
OUTLETS
|
EACH
|
2
|
$
145.00
|
$
290.00
|
|
RELOCATE
EXISTING LIGHT FIXTURES
|
EACH
|
10
|
$
75.00
|
$
750.00
|
|
TOTAL
ESTIMATE
|
$
4,782.00
|
|||
