LEASE By and between AMERICAN INTEGRATED BIOLOGICS, INC., as Landlord And ARBIOS TECHNOLOGIES, INC., as Tenant Dated: April 1, 2005
EXHIBIT
10.2
By
and
between
AMERICAN
INTEGRATED BIOLOGICS, INC.,
as
Landlord
And
XXXXXX
TECHNOLOGIES, INC.,
as
Tenant
Dated:
April 1, 2005
INDEX
|
ARTICLE
1
|
BASIC
LEASE PROVISIONS
|
|
Section
1.01
|
Introduction
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|
Section
1.02
|
Basic
Data and Definitions
|
|
Section
1.03
|
Exhibits
|
|
ARTICLE
2
|
PREMISES,
APPURTENANT RIGHTS, TERM AND RENT
|
|
Section
2.01
|
Demise
of Premises
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|
Section
2.02
|
Acceptance
of Premises
|
|
Section
2.03
|
Permits
|
|
Section
2.04
|
Appurtenant
Rights
|
|
Section
2.05
|
Term
|
|
Section
2.06
|
Extension
Right
|
|
ARTICLE
3
|
CONSTRUCTION
OF THE PREMISES; LEASE COMMENCEMENT DATE
|
|
Section
3.01
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Landlord’s
Work
|
|
Section
3.02
|
Condition
of Premises
|
|
Section
3.03
|
Tenant’s
Work
|
|
ARTICLE
4
|
RENT
|
|
Section
4.01
|
Base
Rent
|
|
Section
4.02
|
Common
Areas Operation and Cost
|
|
Section
4.03
|
Real
Estate Taxes
|
|
Section
4.04
|
Due
Date of Additional Payments
|
|
Section
4.05
|
Taxes
on Tenant’s Equipment
|
|
ARTICLE
5
|
USE
OF PREMISES
|
|
Section
5.01
|
Permitted
Uses
|
|
ARTICLE
6
|
MAINTENANCE,
REPAIR AND ALTERATIONS
|
|
Section
6.01
|
Maintenance
and Repair
|
|
Section
6.02
|
Alterations
by Tenant
|
|
ARTICLE
7
|
ASSIGNMENT
AND SUBLETTING
|
|
Section
7.01
|
Assignment
and Subletting
|
|
ARTICLE
8
|
INDEMNITY
AND INSURANCE
|
|
Section
8.01
|
Landlord’s
Indemnity
|
|
Section
8.02
|
Tenant’s
Indemnity
|
|
Section
8.03
|
Environmental
Indemnity
|
|
Section
8.04
|
Landlord’s
Insurance
|
|
Section
8.05
|
Tenant’s
Insurance
|
|
Section
8.06
|
Waiver
of Subrogation
|
|
Section
8.07
|
Tenant’s
Equipment and other Personal Property at Tenant’s Risk;
Insurance
|
|
ARTICLE
9
|
UTILITY
SERVICES AND UTILITIES
|
|
Section
9.01
|
Services
and Utilities to be Furnished by Landlord
|
|
Section
9.02
|
Interruption
and Delays
|
|
ARTICLE
10
|
LANDLORD’S
ACCESS TO PREMISES
|
|
Section
10.01
|
Right
of Entry
|
|
ARTICLE
11
|
CASUALTY
AND EMINENT DOMAIN
|
|
Section
11.01
|
Casualty
and Eminent Domain
|
|
Section
11.02
|
Award
|
|
ARTICLE
12
|
DEFAULT
|
|
Section
12.01
|
Default
|
|
ARTICLE
13
|
SUBORDINATION
AND ATTORNMENT
|
|
Section
13.01
|
Subordination
and Attornment
|
|
ARTICLE
14
|
TENANT’S
COVENANTS
|
|
Section
14.01
|
Tenant’s
Covenants during the Term and such further time as Tenant occupies
any
part of the Premises
|
|
ARTICLE
15
|
MISCELLANEOUS
|
|
Section
15.01
|
Hazardous
Materials
|
|
Section
15.02
|
Landlord’s
Authority and Status
|
|
Section
15.03
|
Tenant’s
Authority and Status
|
|
Section
15.04
|
Relationship
of the Parties
|
|
Section
15.05
|
Notices
|
3
|
Section
15.06
|
Estoppel
Certificates
|
|
Section
15.07
|
Force
Majeure
|
|
Section
15.08
|
Quiet
Enjoyment
|
|
Section
15.09
|
Holding
Over; Surrender
|
|
Section
15.10
|
Landlord’s
Failure to Enforce
|
|
Section
15.11
|
Partial
Invalidity
|
|
Section
15.12
|
Interpretation
|
|
Section
15.13
|
Litigation
Expenses
|
|
Section
15.14
|
Binding
on Successors and Assigns
|
|
Section
15.15
|
Self-Help
|
|
Section
15.16
|
Fees
and Expenses; Late Charges; Interest
|
|
Section
15.17
|
Landlord’s
Liability
|
|
Section
15.18
|
Captions
|
|
Section
15.19
|
Entire
Agreement
|
|
Section
15.20
|
Brokerage
|
|
Section
15.21
|
Confidentiality
|
|
Section
15.22
|
Submission
Not an Option
|
|
Section
15.23
|
Acceptance
of Partial Payments of Rent; Delivery of Keys
|
|
Section
15.24
|
Cumulative
Remedies
|
|
Section
15.25
|
Notice
of Memorandum of Lease Suitable for Recording
|
|
Section
15.26
|
Security
Deposit
|
|
Section
15.27
|
Signage
|
|
Section
15.28
|
Related
Services
|
|
EXHIBIT
A
|
DESCRIPTION
OF LOT
|
|
EXHBIIT
A-1
|
PLAN
SHOWING THE PREMISES IN THE BUILDING
|
|
EXHIBIT
B
|
BASE
RENT
|
|
EXHIBIT
C
|
INITIAL
RULES, REGULATIONS AND DIRECTIVES
|
|
EXHIBIT
D
|
LANDLORD’S
WORK
|
|
EXHIBIT
E
|
TENANT’S
WORK
|
4
SPACE
LEASE
This
Lease, by and between Landlord and Tenant (as hereinafter defined), relates
to
space in the swine building (the “Building”) located at 0000 Xx. 000, Xxxxxxxxx,
Xxxxxxxxxxx. The Building is located on a parcel of land (the “Lot”) which is
more particularly described in Exhibit
A
attached
hereto. The term “Property” shall mean the Lot and all improvements located
thereon from time to time, including the Building.
Landlord
and Tenant hereby covenant and agree with each other as follows:
ARTICLE
1
BASIC
LEASE PROVISIONS
|
Section
1.01 Introduction
|
|
|
Section
1.02 Basic
Data and Definitions
|
|
|
Lease
Date:
|
April
1, 2005
|
|
Landlord:
|
American
Integrated Biologics, Inc., a Delaware corporation
|
|
Tenant:
|
Xxxxxx
Technologies, Inc., a Delaware corporation
|
|
Premises:
|
The
approximately (40’ x 42') 1680 rentable square feet in the Building, which
is located as shown on Exhibit
A-1.
Together with all appurtenances, rights, interests, easements
and
privileges appertaining thereto.
|
|
Premises
|
|
|
Rentable
Area:
|
1680
square feet
|
|
Building
|
|
|
Rentable
Area:
|
1680
square feet
|
|
Tenant’s
Proportionate
|
|
|
Share:
|
100%
|
|
Term:
|
Two
(2) years commencing on the Lease Commencement Date and expiring
on the
Expiration Date, unless sooner terminated pursuant to the terms
of this
Lease, or extended pursuant to the Extension Rights.
|
5
|
Lease
|
|
|
Commencement
Date:
|
The
date on which Landlord delivers possession of the Premises
to Tenant
pursuant to Article 3 hereof. The Landlord shall deliver
possession of the
Premises to Tenant upon the mutual execution of this
Lease.
|
|
Rent
|
|
|
Commencement
Date:
|
The
Lease Commencement Date.
|
|
Expiration
Date:
|
The
last day of the calendar month in which the day preceding
the second (2nd)
anniversary of the Lease Commencement Date occurs.
|
|
Extension
Right:
|
Three
(3) three year options to extend.
|
|
Base
Rent:
|
See
Exhibit
B.
|
|
Permitted
Uses:
|
Housing,
breeding, and conducting surgery on swine, including the
harvesting of
organs for use in humans.
|
|
|
|
|
Parking:
|
Tenant
shall be entitled to the use of 8 unassigned, unreserved
spaces within the
parking lot serving the Premises without paying any additional
Rent.
Tenant's parking shall not be reserved and shall be limited
to vehicles no
larger than standard size automobiles or pickup utility vehicles.
Tenant
shall not cause large trucks or other large vehicles to be
parked within
the Premises except in accordance with the rules, regulations
and
directories set forth in Exhibit C hereto as such may be
amended from time
to time. Vehicles shall be parked only in designated spaces
and not in
driveways or other locations not specifically designated
for
parking.
|
|
Security
Deposit:
|
Two
(2) month’s Base Rent equal to Twenty-Four Thousand Eighteen and 00/100
Dollars ($24,018.00).
|
| Landlord’s
Representative:
|
Xxxxxxx
X. Xxxxxxxx, Ph.D.
00
Xxxxxxxx Xxxxxx
Xxxx
Xxxxxxxxx, XX 00000
|
|
Tenant’s
Representative
and Notice Address:
|
Xxxxx
Xxxxxxx, MBA
Xxxxxx
Technologies, Inc.
0000
Xxxxxxx Xxxxxxxxx
Xxxxx
000
Xxx
Xxxxxxx, XX 00000
|
6
| Broker: |
None
|
| Section 1.03 Exhibits | |
| The following Exhibits are attached to this Lease and incorporated as a part hereof. | |
|
Exhibit
A
|
Description of Lot |
|
Exhibit
A-1
|
Plan showing the Building |
|
Exhibit
B
|
Base Rent |
|
Exhibit
C
|
Initial Rules, Regulations and Directives |
|
Exhibit
D
|
Landlord’s Work |
|
Exhibit
E
|
Tenant’s Work |
ARTICLE
2
PREMISES,
APPURTENANT RIGHTS, TERM AND RENT
Section
2.01 Demise
of Premises
Landlord
for and in consideration of the rent and all other charges and payments
hereinafter reserved and payable by Tenant and of the covenants, agreements
and
understandings to be observed and performed by Tenant, does hereby demise
and
lease to Tenant, and Tenant does hereby hire and take from Landlord the
Premises, upon and subject to the covenants, agreements and conditions set
forth
herein.
Tenant
personnel shall be allowed access to the Premises 24 hours per day, seven
days
per week, subject to rules, regulations and directives set forth in Exhibit
C,
as they
may be amended in writing by Landlord for the better functioning of the
Property, and in a non-discriminatory manner, and in a way that does not
adversely affect Tenant’s use of the Premises.
Section
2.02 Acceptance
of Premises
Tenant
hereby acknowledges and agrees that Landlord is not performing, and shall
have
no obligation to perform, any work within the Premises, including, without
limitation, any work related to bringing the Premises into compliance with
all
FDA rules, regulations, requirements and guidelines related to the housing
of
swine for purposes of harvesting organs for use in humans except to the extent,
if any, set forth in Section 3.01. Tenant further acknowledges and agrees
that
it accepts the Premises "AS-IS, WHERE-IS AND WITH ALL FAULTS" except as
specifically set forth in this Lease. Notwithstanding anything to the contrary
in the Lease, on the Commencement Date, Landlord shall deliver the Premises
to
Tenant clean and free of debris and represents and warrants to Tenant that
the
existing structure (including without limitation the roof, foundations, exterior
walls), and all building systems (including without limitation, the plumbing,
electrical, ventilating, air conditioning, heating, and loading doors, if
any)
shall be (a) in good operating condition and free of any leakage; (b) in
compliance with all applicable laws as required for the issuance by the
Woodstock, Connecticut Department of Building Inspections of a Certificate
of
Use and Occupancy for an agricultural barn; (c) in compliance with USDA
regulations pertaining to the housing and breeding of swine; and (d) free
of all
Hazardous Material, except for fuel for the generator, if any.
7
Section
2.03 Permits
Tenant
shall be responsible, at its sole cost and expense, for obtaining and
maintaining throughout the Term all permits and approvals necessary for Tenant's
use of and operation within the Premises.
Section
2.04 Appurtenant
Rights
Tenant
shall have the right to use, in common with Landlord and others entitled,
subject to reasonable rules from time to time made by Landlord of which Tenant
is given written notice, the initial such rules being set forth in Exhibit
C,
the
parking areas, walkways, landscaped areas, driveways, and sidewalks (the
“Common
Areas”). Tenant shall have no rights to store any fixtures, equipment, goods,
effects or personal property in the Common Areas and Tenant agrees not to
obstruct the Common Areas in any manner.
The
Premises and the rights appurtenant thereto are subject, however, to the
following rights, which are expressly excepted and reserved by Landlord:
(a) the
right to enter into, upon and across any portion of the Premises, at reasonable
times and upon reasonable notice (except in the case of an emergency), solely
for the purpose of exercising any right reserved to Landlord hereunder or
to
complete Landlord’s Work as described in Exhibit
D.
Any
such entry shall be made in a way that minimizes interference to Tenant’s
business and does not violate any requirements of FDA or otherwise affect
Tenant’s ability to use the Premises for the Permitted Uses, as such
requirements are set forth below, and as may be modified by written notice
from
Tenant to Landlord in order to comply with requirements of the FDA or USDA
or
other applicable law, provided that in no event shall such requirements be
modified to standards less stringent than those of the USDA (the “Entry
Safeguards”).
Notwithstanding
any right of entry that Landlord has pursuant to this Lease or at law, Landlord
agrees to comply with the Entry Safeguards, except in the case of emergency,
which for the purposes of this paragraph shall mean imminent threat to the
safety of persons or animals or to the destruction of property.
Tenant
shall put at each of the three (3) entrances to the Building signage restricting
access to individuals who have not had contact with any cloven hoofed animals
within the prior seventy-two (72) hours. In addition, Tenant shall maintain
a
sign-in log for all visitors entering the Building wherein each such visitor
shall be required to verify that he has not had contact with any cloven hoofed
animal within such prescribed time period.
8
Section
2.05 Term
Subject
to the conditions herein stated, Tenant shall hold the Premises for the Term,
unless sooner terminated as provided herein, or extended pursuant to the
Extension Rights.
Landlord
and Tenant agree to execute a supplemental agreement confirming the actual
Lease
Commencement Date and Expiration Date of the Term, once the actual Lease
Commencement Date has been determined.
Section
2.06 Extension
Right
So
long
as there exists no Default of Tenant (as defined in Section 12.01) on the
first
day of the Extended Term (as defined below), this Lease is still in full
force
and effect, and Tenant shall not have sublet, assigned or otherwise transferred
all or any portion of its interest under this Lease (except in the event
of a
“Permitted Transfer”, as defined in Section 7.01), Tenant shall have the right
to extend the term of this Lease for three (3) additional period(s) (the
“Extended
Term(s)”)
of
three (3) years each. The Extended Term shall commence on the day succeeding
the
expiration of the Original Term (or the immediately preceding Extended Term)
and
shall end on the day immediately preceding the 3rd
anniversary of the commencement of such Extended Term. All of the terms,
covenants and provisions of this Lease shall apply to any Extended Term except
that (i) the Base Rent for the Extended Term shall be the greater of (a)
the
product of (1) the Base Rent on the day preceding the commencement of such
Extended Term without giving effect to any abatements, set-offs or concessions
then in effect (the “Initial
Rent”)
times
(2) a fraction, the denominator of which shall be the Index (as hereinafter
defined) for the nearest month prior to the Rent Commencement Date, and the
numerator of which shall be the Index for the nearest month prior to the
commencement of such Extended Term, or (b) the Initial Rent; and (ii) Tenant
shall have no further right to extend the term of this Lease beyond the Extended
Term(s) hereinabove provided. If Tenant shall elect to exercise the aforesaid
option, it shall do so by giving Landlord notice in writing of its intention
to
do so not later than six (6) months, nor sooner than one (1) year, prior
to the
expiration of the Original Term of this Lease, or the immediately preceding
Extended Term, as applicable, it being agreed that time is of the essence
with
respect to the giving of any such notice. If Tenant fails to give any such
notice to Landlord, this Lease shall automatically terminate at the end of
the
Original Term, and Tenant shall have no further option to extend the term
of
this Lease, it being agreed that time is of the essence with respect to the
giving of any such notice. If Tenant gives such notice, the extension of
this
Lease shall be automatically effected without the execution of any additional
documents.
“Index”,
as
used in this Section 2.06, shall mean the Consumer Price Index for All Urban
Consumer (CPT-V) All City Average, 1982-84=100, All Items 1982-1984=100.
The
Index is presently published by the Bureau of Labor Statistics of the United
States Department of Labor. In the event publication of the Index ceases,
the
computation of the annual rent due from Tenant during each year of the term
with
respect to which the Index is to be applied shall be computed upon the basis
of
whatever index published by the United States Department of Labor at that
time
is most nearly comparable as a measure of general changes in price levels
for
Connecticut.
9
ARTICLE
3
CONSTRUCTION
OF THE PREMISES; LEASE COMMENCEMENT DATE
Section
3.01 Landlord’s
Work
On
a
reasonably prompt basis, following the Lease Commencement Date, Landlord
shall
complete the work described in Exhibit
D
in
accordance with the plans, specifications and agreements and on the terms,
conditions and provisions set forth in Exhibit
D
(“Landlord’s Work”).
All
of
Landlord's work shall (a) at all times comply with all laws, rules, orders,
ordinances, directions, regulations and requirements of all governmental
authorities, agencies, offices, departments, bureaus and boards having
jurisdiction thereof and of the applicable insurance rating bureau, (b) be
performed in good and first class workmanlike manner and in accordance with
the
plans and specifications set forth in Exhibit
D.
Section
3.02 Condition
of Premises
EXCEPT
AS
PROVIDED IN THIS LEASE, INCLUDING THE EXHIBITS HERETO, THE PREMISES ARE LEASED
TO TENANT "AS IS" AND "WHERE IS" AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTY
WHATSOEVER, INCLUDING ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS
FOR INTENDED USE. Tenant acknowledges that it has inspected the Premises
and has
found the same to be satisfactory; provided, however, that nothing set forth
herein negates Landlord’s obligation to perform Landlord’s Work on the terms set
forth in this Lease and Exhibit
D.
The
term
“Lease Commencement Date” with respect to the Premises shall be the date that
Tenant takes possession of the Premises.
Section
3.03 Tenant’s
Work
Tenant
may enter into occupancy of the Premises immediately after execution of this
Lease, and prior to the completion of Landlord’s Work. If there is any work to
be performed by Tenant (“Tenant’s Work”), Tenant shall coordinate that work with
Landlord’s Work, and each party shall make reasonable efforts to not interfere
with the work of the other party. Tenant’s Work set forth in Exhibit
E
hereto
has been approved by Landlord. Tenant’s Work not set forth in Exhibit
E
shall
require the written approval of Landlord prior to the commencement of such
work,
which approval shall not be unreasonably withheld or delayed.
10
All
of
Tenant's Work and the installation of equipment shall: (a) at all times comply
with all laws, rules, orders, ordinances, directions, regulations and
requirements of all governmental authorities, agencies, offices, departments,
bureaus and boards having jurisdiction thereof and of the applicable insurance
rating bureau; (b) be performed in compliance therewith and with the plans
and
specifications previously reasonably approved by Landlord and in good and
first
class workmanlike manner; (c) be performed in such manner as not to impose
any
additional expense upon Landlord in the construction, maintenance or operation
of the Building, or, if additional expense is incurred by Landlord as a result
of the construction of the addition to the Building, such additional expense
shall be paid by Tenant to Landlord twenty-five percent (25%) at construction
commencement, fifty percent (50%) at the half-way point of such construction,
and twenty-five percent (25%) within thirty (30) days after substantial
completion; (d) be coordinated with any work being performed by Landlord
and in
such manner as to maintain harmonious labor relations and not cause any work
stoppage or damage to the Building or interfere with Building construction
or
operation; and (e) be performed by contractors or workers first reasonably
approved by Landlord.
With
respect to all Tenant’s Work, Tenant further agrees as follows: Tenant’s Work
shall commence only after all required municipal and other governmental permits
and authorizations have been obtained (the Landlord agrees to join in any
application and/or proceedings therefor and reasonably cooperate with Tenant),
at Tenant’s expense whenever necessary, and all such work shall be done in
compliance with any applicable building and zoning laws and with all applicable
other laws, ordinances, regulations and requirements of all federal including
the Americans With Disabilities Act (“ADA”), state and municipal agencies, and
in accordance with any applicable requirements and policies issued by any
insurer of Tenant with respect to the amount and type of insurance to be
carried
with respect to Tenant’s Work; that Tenant’s Work shall be prosecuted with
reasonable dispatch to completion; that at all times when Tenant’s Work is in
progress, Tenant shall maintain or cause to be maintained adequate worker’s
compensation insurance as required by law for those employed in connection
therewith and commercial general liability or builder’s risk insurance (for
mutual benefit of Tenant and Landlord) in coverages reasonably approved by
Landlord.
Tenant
shall not permit any mechanics’ liens, or similar liens, to remain upon the
Premises for labor and materials furnished to Tenant or claimed to have been
furnished to Tenant in connection with Tenant’s Work of any character performed
or claimed to have been performed at the direction of Tenant, and shall cause
any such lien to be released of record or sufficiently bonded off within
thirty
(30) days without cost to Landlord. To that end, Tenant shall, upon completion
of Tenant’s Work, certify to Landlord upon written request that all contractors,
subcontractors and other independent contractors have been paid in full,
except
as to those contractors, subcontractors and other independent contractors
with
whom Tenant has a bona fide dispute. In the event Tenant has a bona fide
dispute
with any such contractor, subcontractor or independent contractor, Tenant
shall
notify Landlord of the identity of such contractor and the amount of the
bona
fide dispute, but Tenant shall not be relieved of its obligation not to permit
any mechanics’ liens, or similar liens, to remain upon the Premises and to cause
any such lien to be released of record or sufficiently bonded within thirty
(30)
days, all as set forth in this Section 3.03.
11
ARTICLE
4
RENT
Section
4.01 Base
Rent
Base
Rent
shall be paid to the Landlord via wire transfer to Landlord to such account
as
Landlord shall notify Tenant from time to time, at the rate specified in
Exhibit
B,
beginning on the Rent Commencement Date, and thereafter on the first
(1st)
of each
month. In addition, at the time of execution of this Lease, Tenant shall
pay to
Landlord the first month’s Base Rent.
Section
4.02 Common
Areas Operation and Cost
a. Terms
used herein are defined as follows:
(i)
"Operating Expenses for the Building" means the cost of operation of the
Building other than those items paid directly by Tenant and shall exclude
items
of expense referred to in Section 4.03 hereof. Tenant shall be responsible
for
contracting for and paying directly all ordinary and routine operating expenses
incurred in connection with the interior of the Premises, including maintenance
and repair of all interior portions of the Premises, including ceiling, interior
walls, windows, doors, and building systems, appliances, and fixtures;
janitorial services; utilities; service contracts for building systems and
equipment; security, in the event Tenant engages such service for the Building;
and premiums for liability insurance and personal property insurance. Operating
Expenses for the Building to be paid by Landlord include maintenance and
repair
of the exterior walls, foundation, roof, floor slabs (except that Tenant
shall
be responsible for maintaining the poured epoxy coating), and the exterior
property, including the parking area (including clearing and snowplowing),
premiums for real property insurance for the Premises, and security, in the
event Landlord engages such service for the Property. The Operating Expenses
for
the Building include compensation and all fringe benefits, worker’s compensation
insurance premiums and payroll taxes paid to, for or with respect to persons
engaged in performing the duties to be performed by Landlord hereunder
(allocated based on percentage of time devoted to the Premises compared to
other
duties performed for Landlord) or payments under service contracts for any
of
such services with independent contractors or subsidiaries or affiliates
of
Landlord, provided that the contracts with affiliates of Landlord for the
performance of such services shall be competitive with similar contracts
and
transactions with unaffiliated entities for the performance of such
services.
For
purposes of the preceding definition, the Operating Expenses for the Building
shall specifically include the cost (amortized with interest using generally
accepted accounting principles) of any capital improvement (including, without
limitation any equipment installed as a fixture) made by Landlord for the
purpose of (a) reducing other operating costs; or (b) complying with any
governmental requirement (including, without limitation, any law, ordinance,
code, regulation or bylaw) which shall first become applicable to the Building
after the date of this Lease.
(ii)
The
"Operating Statement" shall mean a statement rendered to Tenant by Landlord
within one hundred twenty (120) days, or as soon thereafter as reasonably
possible, after the end of each calendar year during the Term and not later
than
one hundred twenty (120) days after the end of the Term. The Operating Statement
shall be in reasonable detail, certified by Landlord's Representative, and
show
the amount of the Operating Expenses for the Building for the preceding calendar
year, or fraction thereof, as the case may be.
12
b. Tenant
shall pay in advance, as additional rent, on the same day payments of Base
Rent
are due, one twelfth of the annual amount which Landlord estimates will be
Tenant's Proportionate Share of the Operating Expenses for the Building for
the
current year, which amounts may be adjusted by Landlord from time to time
as it
deems appropriate.
c. Within
thirty (30) days after the date of Tenant's receipt of the Operating Statement,
Tenant shall pay to Landlord, as additional rent, Tenant's Proportionate
Share
of the Operating Expenses for the Building, less any amounts previously paid
by
Tenant pursuant to paragraph (b) above. In the event the actual amounts due
for
the period encompassed by the Operating Statement are less than the estimated
amounts theretofore paid by Tenant with respect to such period, Tenant shall
receive a credit for the excess amounts paid, which credit may be applied
against any amounts that become payable by Tenant next thereafter coming
due. If
the Term expires prior to the determination by Landlord and payment by Tenant
of
any amounts due hereunder, Tenant's obligation to pay such amounts for any
portion of the Term shall survive such expiration, provided the Landlord
shall
not render an invoice to Tenant for such amounts later than one year after
such
expiration.
d. Landlord
agrees to keep books and records showing Operating Expenses for the Building
in
accordance with a system of accounts and accounting practices consistently
maintained.
Section
4.03 Real
Estate Taxes
a. Terms
used herein are defined as follows:
(i)
"Tax
Year" means the twelve-month period beginning July 1 each year during the
Term,
or if the appropriate governmental tax fiscal period shall begin on any date
other than July 1, such other date.
(ii) "Landlord's
Tax Expenses" with respect to any Tax Year means the aggregate Real Estate
Taxes
for the Building with respect to that Tax Year, reduced by any abatements
actually received with respect to that Tax Year.
(iii) "Real
Estate Taxes for the Building" means all taxes and special assessments of
every
kind and nature assessed by any governmental authority on the Building and
the
portion of the Lot on the Building is situated which Landlord shall become
obligated to pay because of or in connection with the ownership, leasing
and
operation of the Building and reasonable expenses of any proceedings for
abatement of taxes. The amount of special taxes or special assessments to
be
included shall be limited to the amount of the installment (plus any interest,
other than penalty interest, payable thereon) of such special tax or special
assessment required to be paid during the year in respect of which such taxes
are being determined. There shall be excluded from such taxes all income,
estate, succession, inheritance and transfer taxes; provided, however, that
if
at any time during the Term the present system of ad valorem tax of real
property shall be changed so that in lieu of the whole or any part of the
ad
valorem tax on real property, there shall be assessed on Landlord a capital
levy
or other tax on the gross rents received with respect to the Building, or
a
federal, state, county, municipal, or other local income, franchise, excise
or
similar tax, assessment, levy or charge (distinct from any now in effect)
measured by or based, in whole or in part, upon any such gross rents, then
any
and all of such taxes shall be included within the term "Real Estate Taxes"
but
only to the extent that the same would be payable if the Building were the
only
property of Landlord.
13
(iv) The
“Tax
Statement" shall mean a statement rendered to Tenant by Landlord within sixty
(60) days or as soon thereafter as reasonably possible after receipt of the
real
estate tax bills for the fiscal year during the Term and within ninety (90)
days
or as soon thereafter as reasonably possible after expiration of the Term.
The
Tax Statement shall be in reasonable detail and certified by a representative
of
Landlord showing for the respective fiscal year or fraction thereof, as the
case
may be, Real Estate Taxes for the Building, and shall include copies of
receipted tax bills where the payment was due thirty (30) days or more prior
to
the date of the Tax Statement.
b. Tenant
shall pay to Landlord as additional rent any increase in Real Estate Taxes
for
the Building or Property over those for the Tax Year beginning on
July 1, 2004, which increase is based upon Tenant’s Permitted Uses of
the Building (“Tenant’s Use Tax Increase”). In the event of a Tenant’s Use Tax
Increase, Tenant shall pay in advance on the same day payments of Base Rent
are
due, one-twelfth of the annual amount which Landlord reasonably estimates
will
be the Tenant’s Use Tax Increase for the then current Tax Year, which amounts
may be adjusted by Landlord from time to time as it deems
appropriate.
c. In
the
event of a Tenant’s Use Tax Increase, within thirty (30) days after the date of
delivery of the Tax Statement, Tenant shall pay to Landlord Tenant’s Use Tax
Increase, less any amounts previously paid by Tenant pursuant to paragraph
(b)
above. In the event the actual amounts due for the period encompassed by
the Tax
Statement are less than the estimated amounts theretofore paid by Tenant
with
respect to such period, Tenant shall receive a credit for the excess amounts
paid, which credit may be applied against any amounts that become payable
by
Tenant next thereafter coming due. Appropriate prorations shall be made for
those periods at the beginning or end of the Term, which is less than a full
Tax
Year.
Section
4.04 Due
Date of Additional Payments
Except
as
otherwise specifically provided herein, any sum, amount, item or charge to
be
paid by Tenant to Landlord under this Article 4, shall be paid within thirty
(30) days after the date on which Landlord notifies Tenant of the amount
payable, without offset, deduction or abatement.
14
Section
4.05 Taxes
on Tenant's Equipment
Tenant
shall pay all taxes on or attributable to Tenant's equipment, including without
limitation Tenant’s Supplemental Equipment, whether characterized as taxes on
personal property or otherwise. In addition if the tax assessor includes
said
equipment as real property improvements in determining the assessed value
of the
Building, then Tenant shall pay the real estate taxes attributable to the
value
of said equipment throughout the Term within thirty (30) days after being
billed
therefor by Landlord.
ARTICLE
5
USE
OF PREMISES
Section
5.01 Permitted
Uses
Tenant
shall have the right to use and occupy the Premises for the Permitted Uses
for
the Term.
ARTICLE
6
MAINTENANCE,
REPAIR AND ALTERATIONS
Section
6.01 Maintenance
and Repair
Except
for the obligations of Tenant as set forth below, Landlord shall make such
repairs and perform such maintenance and cleaning to the roof, exterior walls
and floor slabs as may be necessary to keep them in serviceable condition,
the
cost of which shall be charged in accordance with Article 4. Tenant, at its
cost
and expense, shall keep and maintain the interior of the Premises (including
doors) and the heating, air conditioning, lighting, interior plumbing, and
electrical systems within the Premises in good order, condition and repair,
provided, that Tenant shall not be obligated to make any repairs necessitated
by
damage from fire, flood, the elements or any other casualty, or damage from
the
negligence or willful misconduct of Landlord or its employees, agents or
contractors, or failure of Landlord to perform its obligations hereunder.
Tenant
shall hire its own cleaning contractor at its expense. Upon the termination
of
this Lease, Tenant shall surrender the Premises to Landlord in good order,
condition and repair, except for (a) reasonable wear and tear; and (b) damage
from fire, flood, the elements or any other casualty, or damage from the
negligence or willful misconduct of Landlord or its employees, agents or
contractors, or failure of Landlord to perform its obligations hereunder.
Tenant
shall not be obligated to remove any fixed alterations or improvements made
to
the Premises by Landlord or Tenant during the Term; provided, however, that
Tenant shall remove its movable personal property, trade fixtures, and
equipment.
Section
6.02 Alterations
by Tenant
Tenant,
at its expense, during the Term may make such nonstructural alterations to
the
interior of the Premises as it deems appropriate; provided, that all such
alterations shall be completed in a good and workmanlike manner and shall
not
impair the structural soundness of the Premises. Tenant shall make no
alterations or additions whatsoever to the exterior of the Premises and no
structural changes whatsoever within the Premises without the prior written
consent of Landlord, which consent shall be in Landlord’s sole
discretion.
15
ARTICLE
7
ASSIGNMENT
AND SUBLETTING
Section
7.01 Assignment
and Subletting.
No
portion of the Premises or of Tenant's interest in this Lease shall be acquired
by any other person or entity, whether by sale, assignment, mortgage, sublease,
transfer, operation of law, or act of Tenant, without Landlord's prior written
consent, except as provided in Section 7.02 below. Landlord shall have the
right
to grant or withhold its consent as provided in Section 7.03 below. Any
attempted transfer without consent shall be void and shall constitute a
non-curable breach of this Lease. If at any time while this Lease is in effect,
Tenant is a corporation (excluding a corporation the outstanding voting stock
of
which is listed on a recognized securities exchange), a trust (whether or
not
having shares of beneficial interest), a partnership or association, or
otherwise not a natural person, and there shall occur any transfer (by one
or
more transfers) of a controlling portion of or controlling interest in the
stock, partnership, membership, or beneficial interest, or other evidences
of
equity interests or voting interest of Tenant, such change in identity shall
also constitute an assignment for the purposes of this Section 7. The foregoing
prohibition against assignment and subletting shall include voluntary and
involuntary assignment and subletting, and assignment and subletting by
operation of law, including corporate mergers or consolidations, and (if
Tenant
is a corporation, excluding a corporation with the outstanding voting stock
of
which is listed on a recognized securities exchange, or other entity) shall
include assignment of the controlling interest in the Tenant, except that
transfers of stock of Tenant (or other equity interest(s) tantamount to an
equity interest) to members (who are not under a legal disability so as to
prevent such member from performing the transferor’s obligations) of the
immediate families of the substantial owners of Tenant shall be permitted
if
they occur either (a) by inter vivos transfer if the transferor gives fourteen
(14) days prior written notice to Landlord of the proposed transfer including
with the notice true copies of all documents that will evidence the transfer,
the name, address, and family relationship of the proposed transferee, and
information in such detail as Landlord may request about the transferee’s
creditworthiness and business experience or (b) by the terms of the duly
probated will of the transferor. Any attempted assignment and subletting
in
violation of any of the provisions of this Lease shall be void. Notwithstanding
the foregoing, any merger or consolidation of Xxxxxx Systems, Inc., a Nevada
corporation, with its wholly owned subsidiary, Xxxxxx Technologies, Inc.,
a
Delaware corporation, shall not require Landlord’s consent pursuant to this
Article 7.
Section
7.02 No
Release of Tenant.
No
assignment or transfer shall release Tenant or change Tenant's primary liability
to pay the rent and to perform all other obligations of Tenant under this
Lease.
Landlord's acceptance of rent from any other person shall not be a waiver
of any
provision of this Article 7. Consent to one transfer shall not be deemed
a
consent to any subsequent transfer or a waiver of the obligation to obtain
consent on subsequent occasions. If Tenant's assignee or transferee shall
default under this Lease, Landlord may proceed directly against Tenant without
pursuing remedies against the assignee or transferee. Landlord may consent
to
subsequent assignments or modifications of this Lease by Tenant's transferee
without notifying Tenant or obtaining its consent, and such action shall
not
release Tenant from any of its obligations or liabilities under this Lease
as so
assigned or modified.
16
Section
7.03 Landlord's
Consent.
(1) Provided
Tenant is not then in default under any of the terms, covenants and conditions
of this Lease beyond any applicable cure period provided herein, and if Tenant
shall have a bona fide intention to assign this Lease or to sublet the Premises
(no partial lease assignments or subleases shall be permitted), Tenant shall
first submit in writing to Landlord (i) the name, address, current business
and
financial condition/credit information of the proposed assignee or subtenant,
(ii) a copy of the proposed assignment or sublease, (iii) satisfactory
information and documentation as to the nature and character of the business
of
the proposed assignee or subtenant, (iv) financial details of the proposed
transaction (e.g., the term and rent and security deposit payable under any
proposed assignment or sublease), and (v) any other information Landlord
reasonably deems relevant.
(2) Tenant
shall pay to Landlord, upon demand, as additional rent, Landlord's reasonable
legal expenses in connection with any request made by Tenant for consent
to
assignment or subletting.
(3) Where
Landlord's consent is required under this Article 7, Landlord shall have
a
period of fifteen (15) days following Tenant's submissions under (1) above
to
either consent to the proposed assignment or to reasonably withhold its consent.
(4) Landlord
shall not withhold its consent to any proposed assignment or subletting except
for one or both of the following reasons:
(a)
The
proposed use is different from the use permitted under this Lease.
(b)
The
proposed assignee or subtenant is not creditworthy in Landlord’s reasonable
judgment.
In
the
event that Tenant shall claim that Landlord has unreasonably withheld or
delayed
its consent under this Article 7, Tenant shall have a right to compel expedited
arbitration of the matter in dispute, or to obtain specific performance or
injunction.
(6) Upon
receiving Landlord's written consent to a proposed assignment or subletting,
a
duly executed copy of the assignment or sublease shall be delivered to Landlord
within fifteen (15) days after execution thereof. Any sublease shall provide
that the subtenant shall comply with all applicable terms and conditions
of this
Lease to be performed by Tenant hereunder, including, without limitation,
an
explicit agreement by the subtenant that, for the balance of the Term, the
subtenant shall maintain Tenant’s biosecurity standards then in effect at the
Premises and as required by the terms of this Lease. Any assignment of Lease
shall contain an assumption by the assignee of all of the terms, covenants
and
conditions of this Lease to be performed by Tenant hereunder. No assignment
or
subletting shall release Tenant from any of its obligations under this Lease,
and Tenant shall remain primarily liable under this Lease.
17
(7) Any
permitted assignee or subtenant shall have the right to assign or sublet
or
otherwise convey its interest in this Lease subject, however, to these
provisions.
ARTICLE
8
INDEMNITY
AND INSURANCE
Section
8.01 Landlord’s
Indemnity
Landlord
agrees to indemnify, defend (with counsel reasonably satisfactory to Tenant),
pay for and hold Tenant and its affiliates and the agents, servants, employees,
officers, directors, partners, shareholders, members, managers, trustees
and
beneficiaries of any of them harmless from and against all costs, losses,
demands, liabilities and expenses, including reasonable attorneys’ fees,
expenses and court costs, assessed against or incurred by any of them by
reason
of any act done or omitted to be done by Landlord or those claiming by, through
or under Landlord, including but not limited to Landlord's agents, servants,
employees, contractors, tenants or invitees, in connection with the Premises,
the Building or the Common Areas, or arising from Landlord’s failure to fulfill
its agreements, obligations and covenants contained in this Lease, or from
a
breach of any of Landlord’s representations set forth in this Lease, except any
loss, cost, liability or expense to the extent resulting from Tenant's
negligence, willful act, or failure to fulfill its obligations, covenants
and
agreements contained in this Lease.
Section
8.02 Tenant’s
Indemnity
Tenant
agrees to indemnify, defend (with counsel reasonably satisfactory to Landlord),
pay for and hold Landlord and its affiliates and the agents, servants,
employees, officers, directors, partners, shareholders, members, managers,
trustees and beneficiaries of any of them harmless from and against all costs,
losses, demands, liabilities and expenses, including reasonable attorneys’ fees,
expenses and court costs, assessed against or incurred by any of them by
reason
of any act done or omitted to be done by Tenant or those claiming by, through
or
under Tenant, including but not limited to Tenant's agents, servants, employees,
contractors, subtenants or invitees, in connection with the Premises, or
arising
from Tenant’s failure to fulfill its agreements, obligations and covenants
contained in this Lease, or from a breach of any of Tenant’s representations set
forth in this Lease, except any loss, cost, liability or expense to the extent
resulting from Landlord's negligence, willful act or failure to fulfill its
obligations, covenants and agreements contained in this Lease.
18
Section
8.03 Environmental
Indemnity
(a) There
is
no Hazardous Material in, under, or about the Premises (other than fuel for
the
generator, if any). Landlord shall not cause any Hazardous Material to be
brought, kept, or used in or about the Property by it in violation of any
local,
state, or federal law. Landlord agrees to indemnify, defend (with counsel
reasonably satisfactory to Tenant), pay for and hold Tenant and its affiliates
and the agents, servants, employees, officers, directors, partners,
shareholders, members, managers, trustees and beneficiaries of any of them,
harmless from and against any and all actions, petitions, orders, claims
or
demands made, brought or instituted by any and all private parties and/or
any
and all public or quasi-public agencies or authorities, together with any
and
all reasonable expenses (including reasonable attorneys’ fees, expenses and
court costs), costs, losses, demands, liabilities or penalties assessed against
or incurred by any of them, arising out of or in any way connected with (i)
the
presence of any Hazardous Material on, under, or about the Premises (unless
brought onto the Premises by Landlord or any of Landlord’s agents, employees, or
contractors); (ii) any storage, release, spill, disposal or use of any Hazardous
Material on, under, or about the Property, or breach of Environmental Laws
(as
hereinafter defined) resulting from Landlord’s (specifically including,
contractor, agent, representative, servant, employee, tenant, invitee, officer,
director, partner, trustee or beneficiary) conduct at or from the Property,
or
the Common Areas, except to the extent resulting from the negligence or willful
acts of Tenant, or its agents, employees or contractors; or (iii) any breach
or
violation of the representations, warranties, covenants and agreements contained
in this Lease by Landlord, or any of its agents, servants, employees, tenants,
invitees or contractors.
(b) Tenant
shall not cause any Hazardous Material to be brought, kept, or used in or
about
the Property by it in violation of any local, state, or federal law. Tenant
agrees to indemnify, defend (with counsel reasonably satisfactory to Landlord),
pay for and hold Landlord and its affiliates and the agents, servants,
employees, officers, directors, partners, shareholders, members, managers,
trustees and beneficiaries of any of them, harmless from and against any
and all
actions, petitions, orders, claims or demands made, brought or instituted
by any
and all private parties and/or any and all public or quasi-public agencies
or
authorities, together with any and all reasonable expenses (including reasonable
attorneys’ fees, expenses and court costs), costs, losses, demands, liabilities
or penalties assessed against or incurred by any of them, arising out of
or in
any way connected with (i) the presence of any Hazardous Material on, under,
or
about the Premises unless brought onto the Premises by Tenant or any of Tenant’s
agents, employees, or contractors; (ii) any storage, release, spill, disposal,
or use of any Hazardous Material in violation of Environmental Laws, or breach
of Environmental Laws resulting from Tenant’s (specifically including,
contractor, agent, representative, servant, employee invitee, officer or
director) conduct of its operations at or use or occupancy of the Premises,
except to the extent resulting from the negligence or willful acts of Landlord
or its agents, employees or contractors or from any conditions existing on
the
Lease Commencement Date; or (iii) any breach or violation of the
representations, warranties, covenants and agreements contained in this Lease
by
Tenant, or any of its agents, servants, employees, subtenants, invitees or
contractors. Landlord acknowledges and agrees that Tenant’s Permitted Use shall
include the use of medical supplies, medical waste (including blood),
pharmaceuticals, animal waste, animal parts, animal carcasses, agricultural
products and waste, and other related materials that may be classified as
Hazardous Material. In addition, Tenant shall maintain a supply of fuel for
use
in the backup generator. Landlord hereby consents to Tenant’s storage, use, and
disposal of such items in compliance with all applicable laws.
19
(c) For
purposes of this Lease, the term “Hazardous Material” shall mean and include
asbestos, lead-based paint, any oils, petroleum products and any other toxic
or
hazardous waste materials and substances which are defined, determined or
identified as such in any applicable federal, state or local Environmental
Laws,
or in any judicial or administrative interpretation of Environmental Laws.
“Environmental Laws” shall mean any and all federal, state and local statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees or other
governmental requirements or restrictions relating to the environment or
to
emissions, discharges or releases of pollutants, contaminants, petroleum
or
petroleum products, chemicals, toxic or hazardous substances or wastes into
the
environment, including, without limitation, ambient air, surface water, ground
water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals, toxic
or
hazardous substances or wastes or the cleanup or other remediation
thereof.
(d) If
the
presence of any Hazardous Material on the Property caused or permitted by
either
party results in any contamination of the Property such party shall promptly
take all actions at its sole expense as are necessary to comply with all
applicable law.
The
provisions of the foregoing sections of this Article 8 shall survive any
termination, cancellation, assignment or transfer of this Lease by Landlord
or
Tenant.
Section
8.04 Landlord’s
Insurance
Landlord
shall keep the Building insured against loss or damage by fire, lightning,
windstorm, hail, explosion, riot and civil commotion, damage from aircraft
and
vehicles, vandalism, malicious mischief and smoke damage and such other hazards
as are included in a standard form all risk policy, as from time to time
available, for the full replacement cost, with agreed value
endorsement.
Landlord
shall maintain commercial general liability insurance against claims for
bodily
or personal injury, death and damage to personal property occurring in or
on the
Common Areas with a combined single limit of $2,000,000 for bodily or personal
injury, death and property damage for each occurrence and $10,000,000 general
aggregate.
20
Section
8.05 Tenant’s
Insurance
On
or
before the Lease Commencement Date and throughout the Term, Tenant, at its
sole
cost and expense, shall obtain and keep in force for the benefit of Landlord
and
Tenant, a commercial general liability broad form insurance policy or policies
written on an occurrence basis (a) naming Landlord as an additional insured
and
protecting Landlord against any liability occasioned by an occurrence in,
on or
about the Premises and caused by an act or omission of Tenant or its agents,
employees or contractors, and (b) containing a contractual liability endorsement
covering the matters set forth in this Article 8. Such insurance policy shall
be
in such amounts, limits and types of insurance as Landlord may reasonably
require from time to time, but no more often than every two (2) years. As
of the
date of this Lease, Landlord requires limits of liability of not less than
the
following amounts: Three Million ($3,000,000) Dollars combined single limit
for
bodily or personal injury, death and property damage, and Three Million
($3,000,000) Dollars general aggregate. Each insurance policy shall contain
a
clause that such policy and the coverage evidenced thereby shall be primary
with
respect to any policies carried by Landlord, and that any coverage carried
by
Landlord shall be excess insurance. The insurance policy required by this
Article 8 may be furnished by Tenant under a blanket policy carried by Tenant,
provided that such blanket policy shall (a) contain an endorsement that names
Landlord as an additional insured, (b) specifically reference the Premises
and
(c) guarantees the limits of liability required by this Article 8. Prior
to
Tenant's use and occupancy of the Premises, Tenant shall furnish Landlord
with a
certificate of insurance prepared by Tenant's insurer using XXXXX Form 27
certifying that such insurance policy has been issued, and evidencing the
amount, limits and types of insurance required by this Article 8, together
with,
upon request of Landlord, a copy of the insurance policy. The certificate(s)
shall contain an endorsement that the insurer will not cancel or refuse to
renew
such insurance policy, or change in any material way the nature or extent
of the
coverage provided without first giving Landlord thirty (30) days' prior written
notice of any such cancellation, refusal to renew or material change. In
the
event Tenant fails to obtain, maintain and/or pay for the insurance required
under this Article 8, Landlord shall have the right, but not the obligation,
at
any time and from time to time, following notice, to obtain such insurance
and/or pay the premiums therefor for the account of Tenant. In the event
Landlord obtains such insurance and/or pays the premiums therefor, Tenant
shall
immediately, upon demand of Landlord, reimburse Landlord for all sums so
paid by
Landlord together with interest thereon and any costs or expenses incurred
by
Landlord in connection therewith, including reasonable attorneys' fees. Tenant's
failure to provide and keep in force the aforementioned insurance shall be
regarded as a material default hereunder entitling Landlord to exercise any
or
all remedies available to Landlord under this Lease, at law or in
equity.
On
or
before the Commencement Date and throughout the Term, Tenant, at its sole
cost
and expense, shall obtain and keep in force worker's compensation insurance
in
statutory amounts covering all of Tenant's employees engaged at the Premises,
and shall provide certificates of such insurance to Landlord upon
request.
Section
8.06 Waiver
of Subrogation
(a) Landlord
discharges and releases Tenant, to the extent of the Landlord’s insurance
coverage, but only with respect to loss and damage occurring during such
time as
Landlord’s policies of insurance shall contain an operative clause or
endorsement providing that such discharge or release shall not affect the
policy
or the right of the Landlord to recover thereunder, even if such loss or
damage
may have been brought about by the fault or neglect of Tenant, its agents
or
employees, for or on account of any and all claims and liabilities arising
out
of any loss or damage during the Term to any property of the Landlord caused
by
(i) fire and such risks as are customarily covered under an all risk policy,
and
(ii) such other risks as are covered by insurance which the Landlord may
desire
to procure. Landlord shall take commercially reasonable steps to obtain
insurance with such operative clause or endorsement (i.e., the waiver of
subrogation).
21
(b) Tenant
discharges and releases Landlord, to the extent of Tenant’s insurance coverage,
but only with respect to loss and damage occurring during such time as the
Tenant’s policies of insurance shall contain an operative clause or endorsement
providing that such discharge or release shall not affect the policy or the
right of the Tenant to recover thereunder, even if such loss or damage may
have
been brought about by the fault or neglect of Landlord, its agents or employees,
for or on account of any and all claims and liabilities arising out of any
loss
or damage during the Term to any property of Tenant caused by (i) fire and
such
other risks as are customarily covered under an all risk policy, and (ii)
such
other risks as are covered by insurance which Tenant may desire or be obligated
to procure. Tenant shall take commercially reasonable steps to obtain insurance
with such operative clause or endorsement (ie, the waiver of
subrogation).
Section
8.07 Tenant's
Equipment and other Personal Property at Tenant's Risk;
Insurance
All
of
the equipment and property of every kind, nature and description of Tenant
and
all persons claiming by, through or under Tenant which, during the term of
this
Lease or any occupancy of the Premises by Tenant or anyone claiming under
Tenant, may be in the Premises or elsewhere in the Building or on the Property
shall be at the sole risk and hazard of Tenant, and if the whole or any part
thereof shall be destroyed or damaged by fire, electrical failure, explosion,
water or otherwise, or by the leakage or bursting of water pipes, steam pipes,
or other pipes, by theft or from any other cause, no part of said loss or
damage
shall be charged to or be borne by Landlord, except that Landlord shall in
no
event be released, indemnified or held harmless or exonerated for loss or
damage
due to Landlord's gross negligence or willful misconduct.
Tenant
shall, at its expense, maintain throughout the Term property insurance including
standard fire and extended coverage insurance, vandalism and malicious mischief
endorsements, and "all-risks" coverage upon all equipment and property owned
by
Tenant and located in the Building, in the full replacement cost
thereof.
Tenant
shall provide certificates of insurance in form satisfactory to Landlord
before
the Commencement Date, and shall provide certificates evidencing renewal
at
least thirty (30) days before the expiration of any such policy. All policies
shall contain an endorsement requiring at least thirty (30) days' prior written
notice to Landlord prior to any material change, reduction, cancellation
or
other termination.
22
ARTICLE
9
UTILITY
SERVICES AND UTILITIES
Section
9.01 Services
and Utilities to be Furnished by Landlord
Commencing
on the Lease Commencement Date:
(a)
Landlord
shall furnish electrical services to the Premises, the cost of which shall
be
payable by Tenant.
(b) Landlord
shall provide the maintenance and repair services described in Section 6.01
hereof.
(c) Landlord
will arrange for contract carcass and tissue disposal, if requested by Tenant,
the cost of which shall be payable by Tenant. In any event, biosecurity with
respect to such disposal shall be maintained by Tenant at all times.
(d) All
other
utilities, including but not limited to any fuel, gas, septic pump-outs and
associated waste disposal costs, shall be payable by the Tenant.
Section
9.02 Interruptions
and Delays
Landlord
shall not be liable to Tenant for any compensation or reduction of rent by
reason of inconvenience or annoyance or for loss of business arising from
the
necessity of Landlord or its agents' entering the Premises for any of the
purposes authorized in this Lease, or for repairing the Premises or any portion
of the Building, however the necessity may occur. In case power or any other
service is interrupted, or in case Landlord is prevented or delayed from
providing access to the Premises in making any repairs, alterations or
improvements, or furnishing any services or performing any other obligation
to
be performed on Landlord's part, Landlord shall not be liable to Tenant
therefor, nor, except as expressly otherwise provided below, shall Tenant
be
entitled to any abatement or reduction of rent by reason thereof, nor shall
the
same give rise to a claim in Tenant's favor that such failure constitutes
actual
or constructive, total or partial, eviction from the Premises. Notwithstanding
the above, if any services are interrupted for three consecutive days and
are
directly related to the gross or willful negligence of Landlord, rent payable
hereunder shall xxxxx from the first day of interruption until services are
restored.
Landlord
reserves the right to stop any service or utility system when necessary by
reason of accident or emergency, or until necessary repairs have been completed;
provided, however, that in each instance of stoppage Landlord shall exercise
reasonable diligence to eliminate the cause thereof. Except in case of emergency
repairs, Landlord will give Tenant reasonable advance notice of any contemplated
stoppage and will use reasonable efforts to avoid unnecessary inconvenience
to
Tenant by reason thereof. Landlord also reserves the right to institute such
policies, programs and measures as may be required to comply with applicable
laws, codes, rules, regulations, policies or standards; provided, however,
that
Landlord shall make reasonable efforts to comply with such laws in a manner
that
does not adversely affect Tenant’s use of the Premises for the Permitted Uses.
23
ARTICLE
10
LANDLORD’S
ACCESS TO PREMISES
Section
10.01 Right
of Entry
Landlord
and its agents after reasonable notice (which may be oral), except in the
case
of an emergency, as defined in Section 2.04 of this Lease, when no notice
shall
be required, shall have the right, in accordance with the Entry Safeguards,
to
enter and examine the Premises during normal business hours and, if Landlord
shall so elect and at Landlord’s sole cost, to make any installations,
alterations, repairs or replacements Landlord may deem necessary, provided
that
they (i) are made with first class materials and workmanship; and (ii) do
not
unreasonably interfere with Tenant's use of the Premises and are in compliance
with all applicable laws, including FDA requirements related to the Permitted
Uses. Except in the case of an emergency, as defined in Section 2.04 of this
Lease, Landlord and its agents shall be accompanied by a Tenant escort, which
Tenant shall provide with reasonable promptness following Landlord's request
therefor. Landlord shall at all times maintain keys to all locks on doors
or
gates to the Premises. Tenant shall not change any locks without Landlord's
approval and a violation of this provision shall constitute a material default
by Tenant.
ARTICLE
11
CASUALTY
AND EMINENT DOMAIN
Section
11.01 Casualty
and Eminent Domain
In
case
during the Term all or any substantial part of the Premises or the Building
are
damaged materially by fire or other casualty or are taken by eminent domain,
this Lease shall terminate at Landlord's election, by notice given to Tenant
within ninety (90) days after the date of casualty or taking, specifying
the
effective date of termination. The effective date of termination specified
by
Landlord shall not be less than fifteen (15) nor more than thirty (30) days
after the date of notice of such termination. If this lease is so terminated,
all rent shall xxxxx from the date the Tenant ceased using the Premises.
Unless
terminated pursuant to the foregoing provisions, this Lease shall remain
in full
force and effect following any such damage or taking subject, however, to
the
following provisions. If the Premises are rendered unfit for use and occupation
and this Lease is not so terminated, Landlord shall use due diligence (following
the expiration of the period in which Landlord may terminate this Lease pursuant
to the foregoing provisions of this Section) to put the Premises, or in case
of
a taking what may remain thereof, (excluding Tenant's equipment and any other
installations or improvements made by Tenant in the Premises or elsewhere
in the
Building) into proper condition for use and occupancy, subject to zoning
and
building codes and other laws, rules and regulations then in effect. A just
proportion of the rent and other charges to Tenant hereunder according to
the
nature and extent of the injury shall be abated from the date of such casualty
or taking until the Premises shall have been put by Landlord in such condition
(but if the remaining Premises are not usable for the Permitted Uses, then
the
entire rent shall xxxxx); and in case of a taking which permanently reduces
the
area of the Premises, a just proportion of the Base Rent and additional rent
shall be abated for the remainder of the Term. Notwithstanding anything to
the
contrary, if the Premises are not restored within180 days after the casualty,
then Tenant may terminate this Lease upon thirty (30) days’ prior written
notice, if the Premises are not restored within such 30 day period. In the
event
of a taking, if the portion of the Premises remaining after the taking is
not
sufficient to allow for the Permitted Uses, in Tenant’s reasonable judgment,
then Tenant may terminate this Lease upon thirty (30) days’ prior written
notice.
24
Section
11.02 Award
Landlord
reserves to itself any and all rights to receive awards made for damages
to the
Premises or the Property and the leasehold hereby created, or any one or
more of
them, accruing by reason of exercise of eminent domain or by reason of anything
lawfully done in pursuance of public or other authority. Tenant hereby releases
and assigns to Landlord all Tenant's rights to such awards, and covenants
to
deliver such further assignments and assurances thereof as Landlord may from
to
time request. Tenant hereby irrevocably designates and appoints Landlord
as its
attorney-in-fact to execute and deliver in Tenant's name and on its behalf
all
such further assignments thereof. Nothing contained herein shall be deemed
to
preclude Tenant from obtaining, or to give Landlord any interest in, any
separate award to Tenant for loss or damage to Tenant's removable equipment
or
personal property or Tenant's relocation costs.
ARTICLE
12
DEFAULT
Section
12.01 Default
If
any
default by Tenant continues after notice, except in the case of Base Rent
or
additional rent in which case Landlord is not obligated to send a five-day
notice more than two (2) times in any twelve (12) month period, for more
than
thirty (30) days, or in any other case for more than thirty (30) days and
such
additional time, if any, as is reasonably necessary to cure the default if
the
default is of such a nature that it cannot reasonably be cured in thirty
(30)
days; or if Tenant makes any trust mortgage or assignment for the benefit
of
creditors; or if Tenant proposes any composition, arrangement, reorganization
or
recapitalization with creditors; or if Tenant's leasehold hereunder is taken
on
execution or other process of law or is attached or subjected to any other
voluntary encumbrance; or if a receiver, trustee, custodian, liquidator or
similar agent is appointed with respect to Tenant, or if any such person
or a
mortgagee, secured party or other creditor takes possession of the Premises
or
of any substantial part of the property of Tenant and, in either case, if
such
appointment or taking of possession is not terminated within thirty (30)
days
after it first occurs; or if a petition is filed by or with consent of Tenant
under -any federal or state law concerning bankruptcy, insolvency,
reorganization, arrangement or relief from creditors; or if a petition is
filed
against Tenant under any federal or state law concerning bankruptcy, insolvency,
reorganization, arrangement, or relief from creditors, and such petition
is not
dismissed within thirty (30) days thereafter, or if Tenant dissolves or is
dissolved or liquidated or adopts any plan or commences any proceeding, the
result of which is intended to include dissolution or liquidation (each of
the
above, as well as Tenant’s failure to faithfully perform any agreement, term,
covenant, or condition of this Lease after any applicable notice and cure
period, constitute an “Event of Default”); then in any such case, whether or not
the Term shall have begun, Landlord may immediately or at any time while
such
Event of Default exists, and without further notice, and without prejudice
to
any remedies which might otherwise be used, re-enter and take complete
possession of the Premises, terminate this Lease by notice to Tenant, specifying
a date on which this Lease shall terminate and this Lease shall come to an
end
on the date specified therein as fully and completely as if such date were
the
date herein originally fixed for the expiration of the Term, to remove Tenant’s
effects, and Tenant shall then quit and surrender the Premises to Landlord,
but
Tenant shall remain liable as hereinafter provided.
25
In
the
event that this Lease is terminated on account of an Event of Default, Tenant
covenants to pay forthwith to Landlord, as compensation, the excess of the
total
Base Rent and other sums owed hereunder reserved for the residue of the Term
over the fair market rental value of the Premises for said residue of the
Term.
Tenant further covenants as an additional and cumulative obligation after
this
Lease has been terminated to pay punctually to Landlord all the sums and
perform
all the obligations which Tenant covenants in this Lease to pay and to perform
in the same manner and to the same extent and at the same time as if this
Lease
had not been terminated. In calculating the amounts to be paid by Tenant
under
the next preceding sentence, Tenant shall be credited with any amount paid
to
Landlord as compensation as provided in the first sentence of this paragraph
and
also with the net proceeds of any rent obtained by Landlord by reletting
the
Premises, after deducting all of Landlord's expenses in connection with such
reletting, including, without limitation, all repossession costs, brokerage
commissions, reasonable fees for legal services and expenses of preparing
the
Premises for such reletting, it being agreed by Tenant that Landlord may
(a)
relet the Premises or any part or parts thereof for a term or terms which
may,
at Landlord's option, be equal to or less than or exceed the period which
would
otherwise have constituted the balance of the Term and may grant such
concessions and free rent as Landlord in its sole judgment considers advisable
or necessary to relet the same and (b) make such alterations and repairs
in the
Premises as Landlord in its sole judgment considers advisable or necessary
to
relet the same, and no action of Landlord in accordance with the foregoing
or
failure to relet shall operate or be construed to release or reduce Tenant's
liability as aforesaid.
Following
a termination of this Lease for default of Tenant, Landlord shall use
commercially reasonable efforts to mitigate its damages.
In
lieu
of any other damages or indemnity and in lieu of full recovery by Landlord
of
all sums payable under all the foregoing provisions of this Section, Landlord
may by written notice to Tenant, at any time after this Lease is terminated
as a
result of an Event of Default, and before such full recovery, elect to recover,
and Tenant shall thereupon pay, as liquidated damages, an amount equal to
the
aggregate of the Base Rent and all additional sums payable by Tenant under
this
Lease accrued under this Lease for the lesser of the twelve (12) months ended
next prior to such termination or the date of termination under this
Lease.
26
Nothing contained in this Lease shall limit or prejudice the right of Landlord to prove for and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, the damages are to be proved, whether or not the amount be greater, equal to, or less than the amount of the loss or damages referred to above.
ARTICLE
13
SUBORDINATION
AND ATTORNMENT
Section
13.01 Subordination
and Attornment
This
Lease shall be subject and subordinate to the rights of the holders of any
mortgage, deed of trust or indenture or the Landlord under any ground lease
now
or hereinafter placed on the Property (hereinafter "mortgagee") and to each
advance made or hereafter to be made thereunder, and to all renewals,
supplements, modifications, increases, consolidations, replacements and
extensions thereof and all substitutions therefor, provided that the mortgagee
enters into a non-disturbance agreement, reasonably satisfactory to Tenant
and
such mortgagee, pursuant to which the mortgagee agrees to recognize this
Lease
and all of Tenant's rights hereunder, provided further, however, that the
mortgagee, or any purchaser at a foreclosure sale or otherwise (collectively,
“Successor Landlord”) shall not be:
(a) liable
for any act or omission of a prior landlord (including the mortgagor); or
(b) subject
to any offset or defenses which the Tenant might have against any prior landlord
(including the mortgagor); or
(c) bound
by
any rent or additional rent which the Tenant might have paid in advance to
any
prior landlord (including the mortgagor) for any period beyond the month
in
which foreclosure or sale occurs; or
(d) bound
by
any agreement or modification of this Lease made without the consent of the
mortgagee; or
(e) personally
liable under this Lease, and the mortgagee's liability under the Lease shall
be
limited to the ownership interest of the mortgagee in the Property;
or
(f) liable
for any fact or circumstance, or condition to the extent existing or arising
prior to the mortgagee’s (or such purchaser’s) succession to the interest of the
Landlord under this Lease and such mortgagee or such purchaser, further,
shall not
be
liable except during that period of time, if any, in which such mortgagee
or
purchaser and Tenant are in privity of estate.
Notwithstanding
anything to the contrary contained in this Lease, Landlord shall obtain not
later than thirty (30) days following the execution of this Lease, a non
disturbance and attornment agreement for Tenant’s benefit in a form reasonably
acceptable to Tenant (“Non Disturbance Agreement”) from its existing mortgagee,
if any, of the Property. As a condition precedent to Tenant being required
to
subordinate its interest in this Lease to any future mortgage covering the
Property, Landlord shall obtain for Tenant’s benefit a Non Disturbance
Agreement.
27
In
the
event that any mortgagee, or its successor in title, shall succeed to the
interest of Landlord, then, Tenant shall and does hereby agree to attorn
to such
mortgagee or successor and to recognize such mortgagee or successor as its
landlord. Any claim by Tenant under this Lease against the mortgagee or such
successor shall be satisfied solely out of the mortgagee's or such successor's
interest in the Property and Tenant shall not seek recovery against or out
of
any other assets of mortgagee or such successor.
This
Section 13.01 shall be self-operative, but Tenant agrees to execute and deliver
promptly any appropriate certificates or instruments reasonably requested
by
Landlord or any mortgagee to carry out the subordination and attornment
agreements contained in this Section 13.01.
ARTICLE
14
TENANT’S
COVENANTS
Section
14.01 Tenant’s
Covenants during the Term and such further time as Tenant occupies any part
of
the Premises
Tenant
covenants and agrees as follows:
a. Payments.
To
pay
the Base Rent, additional rent, all charges for utility services rendered
to the
Premises, and all other charges and payments required hereunder by Tenant
when
due.
b. Tenant's
Repairs, Other Tenants, etc.
At its
sole risk, cost and expense: (i) to comply with all reasonable rules,
regulations and directives issued by Landlord from time to time in writing
with
respect to the access, occupancy, use and operation of the Premises, the
initial
such rules, regulations and directives being set forth in Exhibit
C
provided
that any future rules shall not interfere with Tenant’s use of the Premises for
the Permitted Uses; (ii) to maintain the Premises and Tenant's equipment
in good
order, repair and condition; (iii) to promptly repair and/or replace any
and all
damage caused by Tenant, its employees, agents or contractors to the Premises;
(iv) to comply with the requirements of all applicable federal, state, local
and
municipal authorities; and (v) not to disrupt, adversely affect or interfere
with providers of services in the Building, or Landlord's, any tenants',
occupants', invitees' and visitors' access to, use, occupancy and enjoyment
of
their respective premises on the Lot, as the case may be.
c. Use.
Not to
use or devote the Premises or any part thereof for any purpose other than
the
Permitted Uses, nor use or permit any use thereof which is disorderly, improper,
or which will in any manner materially interfere with the rights of other
tenants, create a nuisance (provided, however, that the Permitted Uses shall
not
be considered a nuisance unless so obligated by a Court of competent
jurisdiction), or which is contrary to law or ordinance; not to injure or
deface
the Premises, the Building or the Property or make or permit any waste with
respect thereto; and not to dump, flush, or in any way introduce any hazardous
or toxic substance into the sewage or other waste disposal system serving
the
Premises or the Building.
28
ARTICLE
15
MISCELLANEOUS
Section
15.01 Hazardous
Material
Tenant
shall remove, clean-up and remedy any Hazardous Material on the Property,
or any
threat of release of Hazardous Material on the Property to the extent caused
by
Tenant and required by Environmental Laws, and Tenant shall be obligated
to
continue to pay the Base Rent and other sums due under this Lease until such
removal, clean-up or remedy is completed in accordance with Environmental
Laws,
whether or not the Term of this Lease shall terminate or expire. Tenant hereby
grants Landlord the right to inspect the Premises throughout the Term of
this
Lease (at reasonable times and with reasonable notice and in accordance with
the
Entry Safeguards, except in the event of an emergency as defined in Section
2.04
hereof, and with minimal interference to Tenant’s business) to determine that
Tenant is in compliance with Environmental Laws, and Tenant agrees to provide
Landlord with all information necessary to ascertain that Tenant is in
compliance with Environmental Laws.
Any
release or threat of release of any Hazardous Material on the Property caused
by
Tenant or arising from the action or inaction of Tenant, its employees,
invitees, contractors, or agents, any breach by Tenant of its obligations
under
this Article, or any violation by Tenant of the provisions of Environmental
Laws
shall constitute a default by Tenant under this Lease. In the event of such
a
default, notwithstanding any contrary provision contained herein, following
Tenant’s failure to cure following receipt of written notice from Landlord,
Landlord shall have the additional right, but not the obligation, to take
any
action or perform any act required of Tenant to such extent and in such manner
as Landlord deems appropriate, including paying necessary costs, fees and
reasonable attorneys' fees. The making of any such payment or the performing
of
any such act by Landlord shall not waive or release Tenant from its obligations
and agreements hereunder. All amounts so paid by Landlord shall be immediately
due and payable by Tenant to Landlord on demand, with interest thereon as
provided in this Article.
Landlord,
in addition and not in limitation of its rights in the preceding paragraph,
shall have the right to enforce Tenant's obligations under this Section by
taking legal action seeking, without limitation, injunctive relief.
The
provisions of this Section shall survive the expiration or termination of
this
Lease
29
Section
15.02 Landlord’s
Authority and Status
Landlord
hereby represents and warrants that: (a) Landlord is a duly-qualified
corporation in good standing in Delaware as of the date hereof; (b) all future
forms, reports, and/or other documents or fees necessary to comply with all
laws
applicable to Landlord’s corporate status will be filed or paid when due; (c)
the undersigned executing this Lease on behalf of the Landlord is duly elected
and a qualified officer of Landlord; and (d) Landlord has been authorized
to
enter into this Lease pursuant to a duly adopted resolution of its Board
of
Directors.
Section
15.03 Tenant’s
Authority and Status
Tenant
hereby represents and warrants that: (a) Tenant is a duly-qualified corporation
in good standing in the State of Delaware as the date hereof; (b) all future
forms, reports, and/or other documents or fees necessary to comply with all
laws
applicable to Tenant’s legal status will be filed or paid when due; (c) the
undersigned executing this Lease on behalf of the Tenant is duly elected
and a
qualified representative of Tenant; and (d) within sixty (60) days of the
date
of this Lease, Tenant will provide Landlord with a duly adopted resolution
of
its Board of Directors ratifying and confirming the undersigned’s execution of
this Lease.
Section
15.04 Relationship
of the Parties
Nothing
contained in this Lease shall be deemed or construed, either by the parties
hereto or by any third person, to create the relationship of principal and
agent, of partnership, of joint venture, of trustee and beneficiary, or of
any
association between Landlord and Tenant. Neither the Landlord’s or Tenant’s
obligations with respect to the Common Areas, nor any other term or provision
of
this Lease, shall be deemed to create any relationship between the parties
hereto other than that of landlord and tenant.
Section
15.05 Notices
a. Whenever
under the terms of this Lease a written notice is required, or whenever a
written notice of communication is sent, the same will be accomplished by
Registered or Certified Mail, Return Receipt requested or by Federal Express
or
similar overnight mail, postage prepaid, addressed to the parties at the
address
set forth in Article 1, or to a different address if notice of such different
address is sent in accordance with the terms hereof, and, if intended for
Landlord, with a copy to Xxxxxxx X. Xxxxxxxx, Esq., Bowditch & Xxxxx, LLP,
000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 and, if intended for Tenant,
with a copy to Xxxxxx Xxxxx, Esquire, Xxxx & Xxxxx, 0000 Xxxxxxx Xxxx Xxxx,
00xx
Xxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000. Notice will be deemed given upon receipt or
refusal to accept delivery.
b. Tenant
hereby authorizes Landlord to rely, in connection with design, installation,
operations, repairs and maintenance, upon approval and other actions taken
by
Tenant's Representative, or any person hereafter designated in substitution
by
notice given to Landlord pursuant to paragraph (a) above. Landlord shall
be
entitled to disregard conflicting instructions or information received from
other persons purporting to act on behalf of Tenant.
30
Section
15.06 Estoppel
Certificates
Landlord
and Tenant will, without charge, at any time and from time to time, within
ten
(10) business days after request by the other party, by written instrument
duly
executed and acknowledged and in recordable form, certify:
|
(a)
|
That
this Lease is unmodified and in full force and effect, (or, if
there has
been a modification, that the same is in full force and effect
as modified
and stating the modification);
|
|
(b)
|
The
dates, if any, to which the rent and other charges hereunder have
been
paid in advance;
|
|
(c)
|
Whether,
to the knowledge of the other party, the requesting party is in
default in
the performance of any covenant, condition or agreement on its
part to be
performed and the nature of its default, if any;
and
|
|
(d)
|
As
to such other pertinent factual information as either party may
reasonably
request.
|
Section
15.07 Force
Majeure
If
either
party shall be delayed or prevented from the performance of any act required
hereunder by reason of acts of God, strikes, lockouts, labor troubles, inability
to procure materials, restrictive governmental laws or regulations or other
cause without fault and beyond the control of the party obligated to perform
(financial inability excepted), performance of such act shall be excused
and
extended for a period equivalent to the period of such delay; provided, however,
except as may be expressly provided elsewhere in this Lease, nothing contained
herein shall excuse Tenant from the prompt payment of any rent or other payments
required hereunder.
Section
15.08 Quiet
Enjoyment
Landlord
covenants, warrants and agrees that as long as there is no Event of Default
by
Tenant, Tenant shall peaceably and quietly have, hold, and enjoy the Premises
for the Term without molestation or disturbance by Landlord, and anyone claiming
by, through or under Landlord.
Section
15.09 Holding
Over; Surrender
a. If
Tenant
shall hold over in the Premises after the end of the Term, Tenant shall be
liable to Landlord for all damages, direct and indirect, for such holding
over
from and after the expiration of the Term. In addition, and without requirement
of notice, Tenant's occupancy of the Premises shall be at a per diem rate
equal
to one and one-half (1 1/2) times the Base Rent and additional rent payable
by
Tenant during the last twelve (12) full calendar months of the Term, divided
by
360 payable for each day of holdover. Nothing in this Section shall be deemed
to
alter, amend or modify any terms of this Lease. The payments to and acceptance
by Landlord of the amount set forth in this paragraph shall not be construed
as
the creation or renewal of any rights of Tenant in or to the Premises including,
without limitation, the creation or acknowledgment of a month to month tenancy
in the Premises.
31
b. On
the
date upon which the Term shall expire and come to an end, whether pursuant
to
any of the provisions of this Lease or by operation of law, Tenant, at Tenant's
sole cost and expense, shall (i) quit and surrender the Premises to Landlord,
in
good order and condition, ordinary wear, tear and casualty excepted (provided,
however, any casualty is not caused by Tenant or Tenant's agents', employees',
invitees' or contractors' negligent, willful or wrongful acts or omissions),
and
(ii) remove all of Tenant's equipment, Tenant's personal property and all
other
movable property and effects of Tenant and all persons claiming through or
under
Tenant from the Premises and the Building, and (iii) repair all damage to
the
Premises or the Building occasioned by such removal. Tenant shall not be
required to remove any affixed alterations or improvements, whether made
or
installed by Landlord or Tenant. Landlord shall have the right to retain
any
property and effects which shall remain in the Premises or the Building after
the expiration, or sooner termination, of the Term, except for any back-up
generator paid for and installed by Tenant, if any, unless Tenant fails to
remove such generator within thirty (30) days after the expiration; or sooner
termination of the Term, in which case such generator shall become the property
of Landlord.
Section
15.10 Landlord's
Failure to Enforce
The
failure of Landlord to seek redress for violation of, or to insist upon strict
performance of, any covenant or condition of this Lease, or with respect
to such
failure of Landlord to enforce any of the rules and regulations, whether
heretofore or hereafter adopted by Landlord, shall not be deemed a waiver
of
such violation nor prevent a subsequent act which would have originally
constituted a
violation, from having all the force and effect of an original violation,
nor
shall the failure of Landlord to enforce any of said rules and regulations
against any other tenant of the Building be deemed a waiver of any such rule
or
regulation. The receipt by Landlord of Base Rent or additional rent with
knowledge of the breach of any covenant of this Lease shall not be deemed
a
waiver of such breach. No provision of this Lease shall be deemed to have
been
waived by Landlord, or by Tenant, unless such waiver be in writing signed
by the
party to be charged. No consent or waiver, express or implied, by Landlord
or
Tenant, to or of any breach of any agreement or duty shall be construed as
a
waiver or consent to or of any other breach of the same or any other agreement
or duty.
Section
15.11 Partial
Invalidity
If
any
term, covenant, condition, or provision of this Lease, or the application
thereof to any person or circumstances is, at any time or to any extent,
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 this
Lease
is held invalid or unenforceable, will not be affected thereby, and each
term,
covenant, condition, and provision of this Lease will be valid and be enforced
to the fullest extent permitted by law.
32
Section
15.12 Interpretation
This
Lease will be interpreted and enforced in accordance with the laws of The
State
of Connecticut. Whenever the contents of any provision require it, the singular
number will be deemed to include the plural number, a pronoun in one gender
includes and applies to other genders as well, and the neuter gender includes
the masculine and the feminine.
Section
15.13 Litigation
Expenses
If
at any
time after the date hereof, either Landlord or Tenant shall institute any
action
or proceeding against the other relating to the provisions of this Lease,
or any
default hereunder, the unsuccessful party in such action or proceeding, after
all appeals, shall reimburse the prevailing party for all reasonable fees,
costs
and expenses (including, without limitation, reasonable attorneys’ fees)
incurred therein by such prevailing party (including fees, costs, and expenses
as such prevailing party may incur on any appeal from such action or
proceeding). All such fees, costs and expenses shall be recoverable as items
of
cost without the necessity of any cross action by the successful party. The
provisions of this Section shall survive the expiration or earlier termination
of this Lease.
Section
15.14 Binding
on Successors and Assigns
Except
as
otherwise provided in this Lease, all covenants, agreements, provisions,
and
conditions of this Lease will be binding on and inure to the parties hereto
and
their respective personal representatives, successors, and assigns.
Section
15.15 Self-Help
If
at any
time there is an uncured Event of Default in the performance of any obligation
by Tenant under this Lease, Landlord shall have the immediate right, but
shall
not be obligated, to enter upon the Premises in accordance with the Entry
Safeguards as set forth in Section 2.04 hereof, and to perform such obligation,
notwithstanding the fact that no specific provision for such substituted
performance by Landlord is made in this Lease with respect to such Event
of
Default. In performing such obligation, Landlord may make any payment of
money
or perform any other act. All sums so paid by Landlord together with interest
at
an annual rate equal to the rate specified in this Article 15 and all necessary
incidental costs and expenses in connection with the performance of any such
act
by Landlord, shall be payable by Tenant to Landlord within ten (10) days
following notice to Tenant. Landlord may exercise the foregoing rights without
waiving any other of its rights or releasing Tenant from any of its obligations
under this Lease.
Notwithstanding
anything to the contrary contained in this Lease, if Landlord shall fail
to
perform any of the terms, provisions, covenants or conditions to be performed
or
complied with by Landlord pursuant to this Lease after expiration of a 30
day
notice period, then Tenant may, at Tenant's option, without any obligation
to do
so, after delivery of an additional 5 day written notice to Landlord, perform
any such term, provision, covenant, or condition. If Tenant so performs any
of
Landlord's obligations hereunder, and all necessary incidental costs and
expenses in connection with the performance of any such act by Tenant shall
be
payable by Landlord within thirty (30) days after notice to Landlord, including
interest thereon at the interest rate specified in this Article 15.
33
Section
15.16 Fees
and Expenses; Late Charges; Interest
a. Tenant
shall pay to Landlord, within thirty (30) days' next following rendition
by
Landlord to Tenant of bills or statements therefor: (i) sums equal to all
expenditures made and monetary obligations incurred by Landlord in connection
with the remedying by Landlord of any default of Tenant, and (ii) sums equal
to
all expenditures made and obligations incurred in collecting or attempting
to
collect the Base Rent or any other sum of money accruing under this Lease
or in
enforcing or attempting to enforce any rights of Landlord under this Lease
or
pursuant to law. Such expenditures made or monetary obligations incurred
shall
include, without limitation, reasonable attorneys’ fees whether the attorney or
attorneys are employees of Landlord or otherwise. Tenant’s obligations under
this Section shall survive the expiration or sooner termination of this Lease.
b. If
Tenant
shall fail to make payment in full of any installment of the Base Rent or
any
other sum of money accruing hereunder within five (5) days after receipt
of
notice of nonpayment, Landlord’s having no obligation to send such notice more
than two (2) times in any twelve (12) month period, Tenant shall pay to
Landlord, in addition to such installment of the Base Rent or any other sum
of
money accruing hereunder, a late charge of fifteen percent (15%) per annum
of
the sum due (hereinafter referred to as the "Late Charge"). Tenant agrees
that
the Late Charge is fair and reasonable, complies with all legal requirements
and
constitutes an agreement between Landlord and Tenant as to the estimated
compensation for costs and administrative expenses incurred by Landlord due
to
the late payment of the Base Rent or any other sum of money accruing under
this
Lease. Tenant further agrees that the Late Charge assessed pursuant to this
Lease is not interest, and the Late Charge assessed does not constitute a
lender
or borrower/creditor relationship between Landlord and Tenant. Notwithstanding
anything contained in this Lease to the contrary, in addition to paying the
Late
Charge to Landlord as hereinabove specified, Tenant shall pay to Landlord
within
thirty (30) days after demand therefor, a sum equal to the Interest Rate
(as
hereinafter defined) applied to the amount of the Base Rent or any other
sum of
money accruing under this Lease computed from the date such payment was due
to
and including the date of payment, if not paid within five (5) days after
receipt of notice of nonpayment. As used in this Lease, the term “Interest Rate"
shall mean a rate per annum equal to the lesser of (a) twelve (12%) percent
or
(b) the maximum applicable lawful rate then in effect, if any.
Section
15.17 Limitations
on Liability
EXCEPT
FOR OBLIGATIONS ARISING IN CONNECTION WITH ANY INDEMNITY BY LANDLORD OR TENANT
SET FORTH HEREIN, OR IN THE EVENT OF WILLFUL MISCONDUCT, NEITHER PARTY SHALL
BE
LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFIT OR REVENUE, NOR FOR ANY
CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ON ACCOUNT
OF
ANY DEFAULT OR FAILURE BY A PARTY IN PERFORMING ANY OBLIGATION HEREUNDER.
Tenant
shall look solely to Landlord’s estate and interest in the Property, including
rental proceeds, insurance proceeds, and condemnation proceeds, for the
satisfaction of any right of Tenant for the collection of a judgment or other
judicial process requiring the payment of money by Landlord, and no other
property or assets of Landlord, Landlord’s shareholders, officers, directors or
affiliates shall be subject to levy, lien, execution, attachment, or other
enforcement procedure for the satisfaction of Tenant’s rights and remedies under
or with respect to this Lease, the relationship of Landlord and Tenant hereunder
or under law, or Tenant’s use of the Premises or any other liability of Landlord
to Tenant. No landlord hereunder shall be liable under this Lease except
for
breaches of such landlord’s obligations occurring while such landlord was a
holder of an interest in the Property.
34
Section
15.18 Captions
The
captions of the paragraphs of this Lease are solely for convenience and will
not
be deemed a part of this Lease for the purpose of construing the meaning
thereof, or for any other purpose.
Section
15.19 Entire
Agreement
This
Lease contains the entire agreement of the parties hereto with respect to
the
letting and hiring of the Premises described above and this Lease may not
be
amended, modified, released, or discharged in whole or in part, except by
an
instrument in writing signed by the parties hereto, their respective successors
or assigns.
Section
15.20 Brokerage
Landlord
and Tenant each represent that they have not dealt with any brokers in
connection with this transaction and each agrees to indemnify the other against
any loss, cost, liability or expenses incurred by the other on account of
such
representation being false.
Section
15.21 Confidentiality
Each
party acknowledges that in the course of the performance of this Lease it
may
have access to privileged and proprietary information claimed to be unique,
secret, and confidential, and which constitutes the exclusive property and
trade
secrets of the other ("Proprietary Information"). Whether or not this
information is presented in documents marked with a restrictive notice or
otherwise tangibly designated as proprietary or otherwise identified in writing
or orally as being Proprietary Information, each party agrees that any
information that is (i) is used in a business; (ii) is not
generally
known to the public or to persons who can obtain economic value from its
disclosure; and (iii) is subject to efforts to maintain its secrecy
or
confidentiality shall be deemed to be Proprietary Information. Proprietary
Information shall include, but is not limited to trade secrets, inventions,
processes, procedures, reports, results, analyses, know-how, formulas, computer
software, names of suppliers, medical information, information related to
research and development, experiments, and data related thereto; business
plans
and analyses; and financial data, in whatever form or medium, including by
computer or observation. Each party agrees to maintain the confidentiality
of
the Proprietary Information and to use the same degree of care as it uses
with
regard to its own proprietary information to prevent the disclosure, publication
or unauthorized use of the Proprietary Information. Neither party may duplicate,
copy, or use Proprietary Information of the other party. Either party shall
be
excused from these nondisclosure provisions if the Proprietary Information
received from the other party has been, or is subsequently, made public by
the
other party, is independently developed by such party, disclosed pursuant
to
order by a court or government agency, or if the other party gives its express,
prior written consent to the disclosure of the Proprietary Information. The
parties agree that the restrictions contained in this Section 15.21 are
reasonably necessary to protect the legitimate business interests of each
party,
and that any violation of these restrictions could result in irreparable
injury
for which damages will not be an adequate remedy. Each party therefore
acknowledges that, without limiting its rights to seek damages and other
compensation, if any such restrictions are violated, the non-breaching party
shall be entitled to preliminary and injunctive relief against the breaching
party, without the need to prove damages and without the need to post a bond
or
other security. The non-breaching party shall also be entitled to an equitable
accounting of earnings, profits, and other benefits arising from such violation.
The terms of this Section 15.21 shall survive the termination of this
Lease.
35
Section
15.22 Submission
Not an Option
The
submission of this Lease, or a summary of some or all of its provisions for
examination, does not constitute a reservation of or option for the Premises
or
an offer to lease, and it is not effective as a lease or otherwise until
the
execution by and delivery to both Landlord and Tenant.
Section
15.23 Acceptance
of Partial Payments of Rent; Delivery of Keys
No
acceptance by Landlord of a lesser sum than the Base Rent and additional
rent
then due shall be deemed to be other than on account of the earliest installment
of such rent due, nor shall any endorsement or statement on any check or
any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to
Landlord's right to recover the balance of such installment or pursue any
other
remedy in this Lease provided. The delivery of keys to any employee of Landlord
or to Landlord’s agent or any employee thereof shall not operate as a
termination or this Lease or surrender of the Premises.
Section
15.24 Cumulative
Remedies
The
specific remedies to which Landlord may resort under the terms of this Lease
are
cumulative and are not intended to be exclusive of any other remedies or
means
of redress to which it may be lawfully entitled in case of any breach or
threatened breach by Tenant of any provisions of this Lease. In addition
to
other remedies provided in this Lease, either party shall be entitled to
the
restraint by injunction of the violation or attempted or threatened violation
of
any of the covenants, conditions or provisions of this Lease, or to a decree
compelling specific performance of any such covenants, conditions or
provisions.
Section
15.25 Notice
or Memorandum of Lease Suitable for Recording
The
parties agree that they will promptly execute and deliver a Notice of Lease
duly
acknowledged and in recordable form setting forth, among other things, the
names
and addresses of the parties, a reference to this Lease and its date, a
description of the Premises, the Lease Commencement Date and Expiration Date
and
such other information as either party may reasonably request and such other
facts as may be required by the laws of The State of Connecticut to give
appropriate notice pursuant to the recording acts. The Notice or Memorandum
of
Lease may be recorded by either Landlord or Tenant.
36
Section
15.26 Security
Deposit
Landlord
acknowledges receipt of the Security Deposit from Tenant as security for
the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this Lease. The Security Deposit will be held by Landlord as
security and without any obligation to segregate the Security Deposit from
any
other funds held by Landlord or to accrue interest thereon for the benefit
of
Tenant, except as otherwise required by applicable law. In the event of an
Event
of Default by Tenant occurs hereunder, Landlord may use, apply or retain
the
whole or any part of the Security Deposit so deposited to the extent required
for payment of any Base Rent or any other sum as to which Tenant is in default,
or to reimburse Landlord for any sum which Landlord may expend or may be
required to expend by reason of such event of default, including but not
limited
to any damage or deficiency accrued before or after summary proceedings or
other
re-entry by Landlord. It is agreed that Landlord shall always have the right
to
apply the Security Deposit, or any part thereof, as aforesaid, without prejudice
to any other remedy or remedies which Landlord may have, or Landlord may
pursue
any other such remedy or remedies in lieu of applying the Security Deposit
or
any part thereof. If Landlord shall apply the Security Deposit or any part
thereof, as aforesaid, Tenant shall, upon demand, pay to Landlord the amount
so
applied to restore the Security Deposit to the amount set forth in Section
1.02.
If there is no uncured Event of Default at the termination of the Lease,
the
Security Deposit shall be returned to the Tenant after the date fixed as
the end
of the Term and after delivery of entire possession of the Premises to Landlord.
In the event of a sale or other transfer of the Property, Landlord shall
transfer the Security Deposit to the purchaser or transferee and Landlord
shall
thereupon be released by Tenant from all liability for the return of the
Security Deposit; and Tenant agrees to look to the new owner solely for the
return of said Security Deposit. The holder of any mortgage upon property
of
which the Premises are a part or of any ground lease that is superior to
this
Lease shall never be responsible to Tenant for the Security Deposit or its
application or return unless the Security Deposit shall actually have been
received in hand by such holder. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the Security Deposit
and
that neither Landlord nor it successors or assigns shall be bound by any
such
assignment, encumbrance, attempted assignment or attempted
encumbrance.
37
Section
15.27 Signage
Landlord
agrees that Tenant shall have the right to install a sign on the front exterior
of the Building for its corporate identification, all subject to Landlord’s
prior approval which shall not be unreasonably withheld, such signs to be
erected in accordance with all applicable laws, codes and
regulations.
Section
15.28 Related
Services
a. All
animal procedures including isolation quarantine, treatment and surgeries
involving the swine herd will be submitted to Landlord’s confidential IACUC for
review and approval. Any changes to the approved protocols need to be reported
to Landlord’s IACUC on the appropriate forms. IACUC facility inspections will be
conducted twice a year. Landlord also requests notice of animal receiving.
b. Tenant
understands that Landlord will be housing other animals on Bellwether Farm,
including swine and other species. Any related disease concerns must be reported
within 24 hours by and to both parties.
c. Employees
working inside the swine facility will be Tenant’s employees. However, they will
adhere to Landlord’s rules and regulations.
38
IN
WITNESS WHEREOF,
Landlord and Tenant have executed this Lease as an instrument under seal
effective as of the day and year first above written.
|
Landlord
|
Tenant | ||
|
AMERICAN INTEGRATED BIOLOGICS, INC.
|
XXXXXX TECHNOLOGIES, INC. | ||
| By: | By: | ||
|
|
|
||
| Name: Title: |
Name: Title: |
39
EXHIBIT
A
(Description
of Lot)
40
EXHIBIT
A-1
(Plan
showing the Building)
41
EXHIBIT
B
(Base
Rent)
|
YEAR
|
ORIGINAL
TERM
ANNUAL
RENT
|
MONTHLY
PAYMENTS
|
|
1
|
$144,108.00
|
$12,009.00
|
|
2
|
$144,108.00
|
$12,009.00
|
42
EXHIBIT
C
Initial
Rules, Regulations and Directives
Tenant
shall faithfully comply with the following Rules, Regulations and Directives.
Landlord shall enforce such Rules, Regulations and Directives in a
non-discriminatory manner. However, Landlord shall not be responsible to
Tenant
for the nonperformance of any of said Rules, Regulations and Directives by
or
otherwise with respect to the acts or omissions of any other tenants or
occupants of the Property. Landlord will, however, use commercially reasonable
efforts to enforce these rules in a uniform manner. In the event of any conflict
between the Rules and Regulations and Directives and the other provisions
of
this Lease, the latter shall control.
1. Tenant
shall not alter any lock or install any new or additional locks or bolts
on any
doors or windows of the Premises without Landlord's prior written consent;
provided, however, Tenant, at its own expense, may install its own non-standard
security device of which Tenant shall provide Landlord with a key or code
for
access to the Premises. Upon the termination of this Lease, Tenant shall
return
to Landlord all keys to areas of the Building then held by Tenant. Tenant
shall
pay to Landlord the cost of lock changes or repairs required by Tenant and
replacing lost keys or of changing the lock(s) opened by such lost key if
Landlord deems it necessary.
2. Tenant,
its employees and agents must be sure that the doors to the Building are
securely closed and locked when leaving after the normal business hours for
the
Building. Landlord may refuse to admit to or may expel from the Property
any
person who does not have proper identification or previously arranged access
pass, or who, in Landlord’s judgment, is under the influence of liquor or drugs
or who violates any of these Rules and Regulations. Landlord will furnish
passes
to persons for whom Tenant requests same in writing. Tenant shall be responsible
for all persons for whom Tenant requests passes and shall be liable to Landlord
for all acts of such persons. The Landlord and its agents shall not be liable
for damages for any error in admitting or excluding any person. Landlord
reserves the right to prevent access to the Property during any invasion,
riot
or other commotion by any means it deems appropriate for the safety and
protection of life and property.
3. Landlord
may require that equipment and other heavy objects stand on supports of such
thickness, design and where designated in the Premises that it deems necessary
to properly distribute the weight or prevent any noise, vibration or annoyance.
Landlord will not be responsible for loss of or damage to any such equipment
or
property in any case. Tenant shall not overload the floor of the Premises.
Any
damage to any part of the Building, its contents, occupants or visitors by
moving or maintaining any such equipment or other property shall be the sole
responsibility and expense of Tenant.
4. The
requirements of Tenant will be attended to only upon application at the
management office for the Property or at such office location designated
by
Landlord. Employees of Landlord shall not perform any work or do anything
outside their regular duties unless under special instructions from
Landlord.
43
5. No
sign,
advertisement, notice or handbill shall be exhibited, distributed, painted
or
affixed by Tenant on any part of the Property without Landlord's prior written
consent. Tenant shall not disturb, solicit, peddle, or canvass any occupant
of
the Property and shall cooperate with Landlord and its agents to prevent
same.
6. The
restroom fixtures shall not be used for any purpose other than that for which
they were constructed, and no foreign substance shall be thrown therein.
The
expense of any stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant who, or whose employee, agent, visitor or licensee
was responsible.
7. Tenant
shall neither engage in any activity or store any items or materials except
those permitted as a "Permitted Use" under this Lease, or unreasonably interfere
with other tenants. Tenant shall provide material safety data sheets for
any
Hazardous Material used or kept on the Premises.
8. Tenant
shall comply with all safety, fire protection and evacuation procedures and
regulations established by Landlord or any governmental agency.
9. Any
persons employed by Tenant to do janitorial work shall be subject to the
prior
written approval of Landlord, and while in the Building and outside of the
Premises, shall be subject to and under the control and direction of the
Building Manager and Tenant shall be responsible for all acts of such
persons.
10. Tenant
shall not, without Landlord's prior written consent: attach any awnings or
other
projection to the outside walls of the Building; attach any curtains, blinds,
shades or screens in any window or door of the Premises, or otherwise sunscreen
any window in the Building. Tenant shall be responsible for any damage to
windows of the Premises and shall promptly repair any such damage at Tenant's
sole cost and expense.
11. Tenant
agrees that Landlord has no obligation to provide guard service or other
security measures for the benefit of the Premises or the Property. Tenant
hereby
assumes all responsibility for the protection of Tenant and its agents,
employees, contractors, invitees and guests, and the property thereof, from
acts
of third parties, including keeping doors locked and other means of entry
to the
Premises closed. Tenant further assumes the risk that any safety and security
devices, services and programs, whether or not provided by Landlord, may
not be
effective, or may malfunction or be circumvented by an unauthorized third
party,
and Tenant shall, in addition to its other insurance obligations under this
Lease, obtain its own insurance coverage to the extent Tenant desires protection
against losses related to such occurrences. Tenant shall cooperate in any
Landlord required safety or security program.
44
Landlord
may, at any time, change, rescind or add to any of these Rules and Regulations,
as in Landlord's judgment may be necessary, provided, such changes do not
interfere with Tenant's use and enjoyment of the Premises. Tenant shall not
be
required to abide by such Rules and Regulations until Tenant has notice of
or
receives a copy thereof. Tenant shall be deemed to have read these Rules
and
Regulations and to have agreed to abide by them as a condition of its occupancy
of the Premises.
45
EXHIBIT
D
(Landlord’s
Work)
EXHIBIT
E
(Tenant’s
Work)
