COMMERCIAL LEASE
Exhibit 10.9
THIS LEASE is made on the 1st day of December , 2003.
The Landlord hereby agrees to lease to the Tenant, and the Tenant hereby agrees to hire and take from the Landlord, the Leased Premises described below pursuant to the terms and conditions specified herein:
LANDLORD: Union Square, L.P. | TENANT(S): PROTALEX, Inc. | |||||
Address:
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X.X. Xxx 00 | Address: | 000 Xxxxxx X. X., Xxxxx 00 | |||
Xxx Xxxx, XX 00000 | Xxxxxxxxxxx, XX 00000 | |||||
Telephone:
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(000)000-0000 | Telephone: | 000-000-0000 | |||
Facsimile:
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(000)000-0000 | Facsimile: | 000-000-0000 |
1. Leased Premises. The Leased Premises are those premises described as: Building: “A” Building
Address:
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000 Xxxxx Xxxxxx Xxxxx | |
Xxx Xxxx, XX 00000 |
Gross Floor Area of Leased Premises: 3,795 square feet, pursuant to attached plan.
A. | The term of the Lease (“Initial Term”) shall be for a period of Three (3) years, unless sooner terminated or extended, as hereinafter provided, and shall commence on the 9th day of January , 2004 (“Commencement Date”) and end on the 28th day of February , 2007 (“Expiration Date”). | |||
B. | Commencement Date of the Initial Term is determined by allowing sixty working days for build-out of the Leased Premises, from the date Landlord receives a building permit for the Leased Premises. (See Paragraph 9 below, Delivery of Possession.) | |||
C. | If Tenant remains in possession of the Leased Premises with the written consent of the Landlord after the lease Expiration Date stated above (without exercising, if applicable, an option to extend) this Lease will be converted to a month-to-month Lease and each party shall have the right to terminate the Lease by giving at least one month’s prior written notice to the other party. | |||
D. | The period commencing on the day the tenancy begins, and ending on the last day of the twelfth month next succeeding the commencement of the Initial Term of this Lease, shall constitute the first lease year as used herein, and each successive period of twelve months shall constitute a lease year. |
A. | Such option must be exercised, if at all, by written notice from Tenant to Landlord given at least six (6) months prior to the expiration of the then current Term; | |||
B. | At the time of exercising each option, and at the commencement of each extension period, this Lease shall be in full force and effect and there shall exist no Event of Default by Tenant; and | |||
C. | In the event the foregoing option is effectively exercised, all the terms and conditions contained in this Lease shall continue to apply during any extension period. |
A. | The Tenant agrees to pay the ANNUAL BASE RENT of Ninety-One Thousand, Eighty Dollars ($91,080.00) payable in equal installments of $7,590.00 in advance on the first day of each and every calendar month during the Initial Term of this Lease without deduction or demand. (Note: See Paragraph 6, Additional Rent, below) | |||
B. | Rent shall be payable to Landlord’s address above. | |||
C. | Rent shall increase 5% per year during the Initial Term. Rent for years one and two of the optional extension period of this Lease shall increase at 2.5% per year. | |||
D. | Tenant shall pay a “late charge” of ten percent (10%) each month on a cumulative basis of any installment of Rent (or any such charge as may be considered Additional Rent under this Lease) when paid more than ten (10) days after the due date. | |||
E. | Tenant shall pay $50.00 for any checks returned by the bank for insufficient funds. |
A. | All sums of money required to be paid by Tenant under this Lease (except for Base Rent), whether or not the same are designated “Additional Rent”, shall be owed by Tenant to Landlord as rent. Base Rent and Additional Rent shall be referred to sometimes as Rent. | |||
B. | Electric utilities for year one shall be charged for at a rate of $2.00 per square foot ($632.50 per month). | |||
Utilities for subsequent years of the Term, or any extension period thereof, shall be based on Tenant’s pro-rata share of the average monthly electric xxxx from year one of the Lease Term. In the event Tenant, and the tenant for the adjacent space at 000 Xxxxx Xxxxxx Drive, agree upon terms to divide proportionate shares of the actual monthly metered electric utility xxxx for the entire 6,164 square foot space, this Additional Rent shall terminate and the electric utility xxxx shall be agreed upon and paid for by the two tenant parties. If this agreement for pro rata payment between the two tenant parties terminates, then Tenant shall resume payment as designated above, beginning with year two. |
7. Common Area Maintenance Rent. Tenant shall be required to pay to Landlord Additional Rent for maintenance of common areas, which shall include cleaning of common hallways, washing the interior and exterior of windows, common area utilities, trash removal, snow removal, landscape maintenance and any other maintenance expenses that are of a general nature. The annual amount of Common Area Maintenance Rent for the first year of this Lease term is $2.00 per square foot of gross floor area. The monthly amount of Common Area Maintenance Rent for the Leased Premises for year one is $632.50.
11. Condition of Leased Premises; Maintenance and Repair: At the time of delivery of possession, the Leased Premises shall be in good order and repair and in the condition described in the Specifications for Union Square attached hereto as Exhibit B. The Tenant agrees to take good care of and maintain the Leased Premises in good condition through the term of the lease.
Subject to the provisions of this Lease, Tenant shall make and pay the costs of all repairs and maintenance of all interior painting; repairs and maintenance of approved signs; and repairs and replacements of all floor coverings, lighting, and other fixtures and equipment inside the Leased Premises, and repair and restoration of all damaged plate glass in the Leased Premises unless such repairs are required due to the neglect of Landlord. Landlord will maintain the HVAC system at its sole cost, unless any repairs are a result of the Tenant’s negligence, in which case, Tenant shall pay as Additional Rent, the cost of any such repairs. In the event Tenant’s fit-out to the previously existing space layout require HVAC adjustment, any such adjustments shall be at Tenant’s expense.
Electric Tenant (see 6 B. above) Water/Sewer Tenant
Trash Landlord Cleaning (interior) Tenant Telephone Tenant
13. Compliance with Laws and Regulations. Tenant, at its expense, shall promptly comply with all federal, state, and municipal laws, orders, and regulations, and with all lawful directives of public officers, which impose any duty upon it or Landlord with respect to the Leased Premises. Tenant at its expense, shall obtain all required licenses or permits for the conduct of its business within the terms of this Lease, or for the making of repairs, alterations, improvements, or additions to the Leased Premises after delivery of possession. Landlord, when necessary, will join with the Tenant in applying for all such permits or licenses.
association. Tenant shall on demand reimburse the Landlord, and all other tenants, the full amount of any increase in insurance premiums caused by the Tenant’s use of the premises. | |||
B. | By Tenant. Tenant shall, at its expense, during the term hereof, maintain and deliver to Landlord, upon request, public liability and property damage and plate glass insurance policies with respect to the Leased Premises. Such policies shall name the Landlord and Tenant as insured, and have limits of at least $1,000,000.00 for injury or death to any one person and $1,000,000.00 for any one accident, and with respect to damage to property and with full coverage for plate glass. Such policies shall be in whatever form and with such insurance companies as are reasonably satisfactory to Landlord, and shall name the Landlord as additional insured, and shall provide for at least ten days prior notice to Landlord of cancellation. |
20. Default. Each of the following shall constitute an Event of Default (“Event of Default”):
bankruptcy, reorganization, insolvency or other proceeding for the relief of financially distressed debtors with respect to Tenant, or a receiver, liquidator, custodian or trustee being appointed for Tenant or a substantial part of Tenant’s assets and, if any of the same occur involuntarily, the same is not dismissed or discharged within thirty (30) days; or the entry of an order or relief against Tenant under Title II of the United States Code entitled “Bankruptcy”; or Tenant taking any action to effect, or which indicates Tenant’s or acquiescence in, any of the foregoing. |
22. Additional Remedies of Landlord.
A. | In the event of any Event of Default, re-entry, termination and/or dispossession by summary proceedings or otherwise, in addition to, and not in lieu of, all other remedies which Landlord has under this Lease, at law or in equity; (1) the Base Rent, Common Area Maintenance Rent and all Additional Rent shall become due thereupon and be paid up to the time of such re-entry, dispossession and/or expiration; and (2) Landlord may relet the Leased Premises or any part of parts thereof, either in the name of Landlord or otherwise for a term of rental which may at Landlord’s option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease, and at such rental or rentals and upon such other terms and conditions as Landlord, in its sole discretion, may deem advisable. Landlord may make such alterations and repairs as Landlord deems necessary in order to relet the Leased Premises upon each such reletting all rentals received by Landlord from such reletting shall be applied, first, to the payment of any costs and expenses of such reletting, including brokerage fees, attorneys’ fees and costs of such alterations and repairs; second, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. If such rents received from such reletting during any month are less than that to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No such reentry or taking possession of the Leased Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. | |||
B. | Landlord shall have the election, in place and instead of holding Tenant so liable, to recover against Tenant, as |
liquidated damages for loss of the bargain and not as a penalty, a sum equal to the monthly amount of Base Rent and all Additional Rent multiplied by the number of months and fractional months which would have constituted the balance of the term (or such lesser time period specified by Landlord), together with costs and reasonable attorney’s fees. Actions to collect amounts due by Tenant may be brought from time to time, on one or more occasions, without the necessity of Landlord’s waiting until the expiration of the Lease term. | ||||
D. | Tenant hereby expressly waives the service of notice of intention to re-enter or to institute legal proceedings granted by or under any present or future laws in the event of Tenant being evicted or disposed for any cause, or in any event of Landlord obtaining possession of the Leased Premises by reason of the violation by Tenant of any of the covenants and conditions of this Lease or otherwise. The words “re-enter” and “re-entry” as used in this Lease are not restricted to their technical legal meaning. |
23. CONFESSION OF JUDGMENT. (THIS CLAUSE SHALL APPLY PROVIDED TENANT’S
DEFAULT IS NOT DUE TO LANDLORD’S FAILURE TO PERFORM | ||||
UNDER THE TERMS OF THE LEASE.) IF THE BASE RENT, ADDITIONAL RENT AND/OR OTHER CHARGES HEREBY RESERVED AS RENT SHALL REMAIN UNPAID FOR A PERIOD OF TEN (10) DAYS AFTER THE DAY WHEN THE SAME SHOULD BE PAID IN ACCORDANCE WITH THE TERMS OF THIS LEASE, OR IF THE TENANT DEFAULTS OR BREACHES ANY OF THE TERMS, CONDITIONS OR COVENANTS OF THIS LEASE, AND FAILS TO CURE SUCH DEFAULT OR BREACH WITHIN THE APPLICABLE PERIOD OF TIME, PROVIDED PRIOR WRITTEN NOTICE IS PROVIDED TO THE TENANT, THE TENANT HEREBY GRANTS THE FOLLOWING WARRANT OF ATTORNEY: TENANT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY, CLERK OF COURT OR ATTORNEY OF ANY COURT OF RECORD, TO APPEAR FOR THE TENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR SUCH RENT AND/OR CHARGES AND TO CONFESS AND ENTER JUDGMENT AGAINST THE TENANT AND IN FAVOR OF LANDLORD, ITS SUCCESSORS OR ASSIGNS, FOR ALL OF ANY PART OF THE BASE RENT OR ADDITIONAL RENT SPECIFIED IN THIS LEASE AND THEN UNPAID INCLUDING, AT THE OPTION OF LANDLORD, THE RENT FOR THE ENTIRE UNEXPIRED BALANCE OF THE TERM OF THIS LEASE, AND/OR OTHER CHARGES, COSTS AND EXPENSES RESERVED AS RENT OR AGREED TO BE PAID BY THE TENANT AND FOR INTEREST AND COSTS TOGETHER WITH REASONABLE ATTORNEY’S FEES. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, AND JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF THE SAID RENT AND/OR CHARGES RESERVED AS RENT SHALL FALL DUE OR BE IN ARREARS. THIS PROVISION SHALL BE ENFORCEABLE ONLY PURSUANT TO LEGAL AUTHORITY EXISTING AT THE TIME OF SUCH CONFESSION AND SHALL OTHERWISE NOT INVALIDATE THE REMAINING TERMS AND CONDITIONS OF THIS LEASE AGREEMENT. TENANT RELEASES AND AGREES TO RELEASE LANDLORD, AND ANY AFOREMENTIONED ATTORNEY, FROM ALL ERRORS AND DEFECTS WHATSOEVER OF A PROCEDURAL NATURE IN ENTERING SUCH JUDGMENT OR IN CAUSING SUCH WRIT OR PROCESS TO BE ISSUED OR IN ANY PROCEEDING THEREON OR CONCERNING THE SAME. | ||||
Tenant initials |
24. Care and Operation of Premises.
A. | The Leased Premises, including Tenant’s windows and signs, shall be kept neat, clean and in good repair and order by Tenant at Tenant’s expense. Tenant shall store all of Tenant’s trash, garbage, and other refuse in suitable receptacles within the Leased Premises and shall be responsible for the removal and disposition of refuse from the Leased Premises to proper container areas provided by Landlord. | |||
B. | Tenant shall not cause or permit any unusual or objectionable noises or odors to emanate from the Leased Premises, or permit the playing or making of any music, sound or advertising matter which can be heard outside of the Leased Premises. Tenant agrees that no noxious fumes or hazardous wastes or chemicals will be used on or emitted from the Leased Premises in the daily conduct of the Tenant’s business. | |||
C. | Tenant shall not obstruct, encumber or use for any purposes, |
other than ingress or egress to and from the Leased Premises, the sidewalks in front of or abutting any part of the Leased Premises or the entrances or vestibules thereof and no selling shall be conducted or products displayed by Tenant anywhere within the Union Square Condominium outside the Leased Premises unless the same shall be expressly permitted by this Lease. |
27. Common Areas.
A. | Landlord reserves the right to make changes, additions, alterations or improvements in or to the common areas of the Building; provided, however that there shall thereby be caused no unreasonable obstruction of Tenant’s right of access to the Leased Premises, or any unreasonable interference with Tenant’s use of the Leased Premises, or any reduction in the minimum required size of such common areas. | |||
B. | Tenant will at its expense, keep the areas immediately in front of its doors free of debris, et cetera. |
28. Rules and Regulations. Tenant, and its servants, employees, agents, licensees and concessionaires shall observe faithfully and comply with such reasonable rules and regulations existing for the property or those which may be from time to time adopted by the Landlord governing the use of the common areas. The Landlord reserves the right from time to time to make reasonable changes in such rules and regulations and to make reasonable changes, additions, alterations or improvements in or to such common areas. Tenant further agrees that it is bound by all of the covenants, terms, conditions, requirements and rules and regulations in the Declaration of Condominium, Bylaws, and Rules and Regulations of Union Square Condominium.
such Mortgagee, a written statement: (a) ratifying this Lease; (b) confirming the commencement and expiration dates of the term of this lease; (c) certifying that Tenant is in occupancy of the Leased Premises, and that the Lease is in full force and effect and has not been modified, assigned, supplemented or amended except by such writings as shall be stated; (d) certifying that all conditions and agreements under this Lease to be satisfied or performed by Landlord have been satisfied and performed except as shall be stated; (e) certifying that Landlord is not in default under the Lease and thereafter no defenses or offsets against the enforcement of this Lease by Landlord, or stating the defaults and/or defenses claim by Tenant; (f) reciting the amount of advance rent, if any, paid by Tenant and the date to which such rent has been paid; (g) reciting the amount of Security Deposited held by Landlord, if any, and (h) any other information which Landlord or the Mortgagee shall reasonably require.
37. Lease Documents. In addition to the Commercial Lease, the following are attached to the Lease and are hereby incorporated in and made part of the Lease as though fully set forth at length in the Lease: Exhibit A (Building Plan), Exhibit B (Specifications for Union Square) and Exhibit C (Declaration of Condominium Use Restrictions) and are collectively referred to as the “Lease Agreement” or “Lease”.
LANDLORD: | |||
UNION SQUARE, LIMITED PARTNERSHIP | |||
Xxxxxx X.
Xxxxxxxxxxx |
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Witness
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By: | Xxxxxx X. Xxxxxxx, Partner | |
TENANT: | |||
PROTALEX, INC. | |||
Xxxxxx Xxxx |
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Witness
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By: | Xxxxxx Xxxx, President, CEO |