Exhibit 10.2
LEASE AGREEMENT
THIS LEASE, made as of the 26th day of March, 1997, by and between
Bloomtex Associates, a New Jersey limited partnership having an office at 000
Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter "Landlord"), and ALFACELL
Corporation, a Delaware corporation having an office at 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter "Tenant"):
W I T N E S S E T H:
1. PREMISES.
Landlord hereby demises and leases unto Tenant, and Tenant
hereby takes and hires from Landlord, upon the terms and conditions hereinafter
set forth, those portions of that certain office/laboratory building (the
"Building") located at 000 Xxxxxxxxxx Xxxxxx in the Town of Bloomfield, County
of Essex, State of New Jersey, more particularly delineated as the crosshatched
areas on Exhibit A attached hereto and made a part hereof (hereinafter the
"Premises"). Tenant acknowledges that it is leasing the Premises in its AS IS
condition on the date hereof.
Tenant shall have the non-exclusive right to utilize the
parking areas of the Building for parking, as well as the non-exclusive use of
the driveway connected thereto, for its employees, agents, invitees and
licensees. In the event that the parking areas available for non-exclusive use
by Tenant are reduced, restricted, or relocated due to a taking by eminent
domain or similar proceeding, there shall be no liability on the part of the
Landlord for such reduction, restriction, or relocation and this Lease shall not
be affected, except as otherwise provided in Section 12 below.
2. TERM.
The term of this lease shall be five (5) years, commencing
January 1, 1997 (hereinafter the "Commencement Date") and terminating on
December 31, 2001 (hereinafter the "Expiration Date").
This lease shall automatically be renewed an additional period of five
(5) years on the same terms and conditions unless either party gives at least
nine (9) months written notice prior to its expiration of their intention not to
renew same. The "Basic Rent" for said renewal shall be calculated by applying a
cost of living (COLA) adjustment. The COLA shall be equal to the difference
between the Consumer price index for January 2002 and January 1997 for Northern
New Jersey applied to the final years "Basic Rent" Annual COLA adjustments shall
be applied to each succeeding year of said five year option.
3. BASIC RENT.
The Tenant shall pay to the Landlord at the Landlord's present
mailing address set forth above (or at such other place as the Landlord may
designate in writing from time to time), without offset or deduction, on the
Commencement Date and, thereafter, monthly in advance on the first day of each
and every calendar month during the Lease Term (except as set forth in
subsections 3.1(a), 3.1(b),and 3.1(c) below), a sum equal to the following
(hereinafter referred to as the "Basic Rent"):
3.1(a) Commencing on the Commencement Date to December 31,
1998, Tenant shall pay Landlord annually the sum of $96,775 payable in equal
monthly installments each in the amount of Eight Thousand Sixty Four and 83/100
Dollars ($8,064.83); and
3.1(b) Commencing on January 1, 1999 to December 31, 1999,
Tenant shall pay Landlord annually the sum of $115,594 payable in equal monthly
installments each in the amount of Nine Thousand Six Hundred Thirty Two and
83/100 Dollars ($9,632.83); and
3.1(c) Commencing on January 1, 2000 to December 31, 2001,
Tenant shall pay Landlord annually the sum of $136,000 payable in equal monthly
installments each in the amount of Eleven Thousand Three Hundred Thirty Three
and 33/100 Dollars ($11,333.33).
In addition to the "Basic Rent" Tenant shall pay to the
Landlord Tenant's proportionate share (based on the square footage of the
Premises and the square footage of the Building) of any increase in real estate
taxes on Building over the base tax year of calendar 1996. Landlord shall submit
a statement to Tenant calculating said increase. Payment shall be made by Tenant
within thirty (30) days of receipt of said statement. Notwithstanding the
foregoing, if less than 95% of the Building (or the property which is the basis
for computing real estate taxes) was occupied during all or part of calendar
year 1996, real estate taxes for calendar year 1996 shall be deemed increased to
equal the real estate taxes that would have been payable if the Building (or
such property) had been 95% occupied throughout calendar year 1996 and the
vacant space had been leased at fair market rental.
Landlord is responsible for payment of all costs necessary to
supply the Premises with electricity, water, gas, heating and air conditioning
as provided in Section 6 below and all real estate taxes assessed against the
building of which the Premises forms a part (the "Building").
4. USE OF PREMISES.
Tenant shall use and occupy the Premises throughout the term
hereof solely for office purposes or any other legal purpose. It is understood
and agreed, however, that Tenant shall not engage in heavy manufacturing in the
Premises.
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Tenant shall promptly comply with all laws, ordinances, rules,
regulations, requirements and directives of the Federal, State and Municipal
Governments or Public Authorities and of all their departments, bureaus and
subdivisions, applicable to and affecting the said Premises, their use and
occupancy, for the correction, prevention and abatement of violations in, upon
or connected with the said Premises, during the term hereof; and shall promptly
comply with all orders, regulations, requirements and directives of the Board of
Fire Underwriters or similar authority and of any insurance companies which have
issued or are about to issue policies of insurance covering the said Premises
and its contents, for the prevention of fire or other casualty, damage or
injury, at the Tenant's own cost and expense. Notwithstanding the foregoing,
Tenant shall have no obligation to perform any structural alterations to the
Premises unless the need for same arises from Tenant's specific manner of use
(as opposed to general office and/or laboratory use) of the Premises. Anything
to the contrary herein notwithstanding, Landlord shall comply with all such
requirements for site conformance, except if nonconformance is due to an act or
omission of Tenant. Tenant may contest any legal requirement and may defer
compliance with such legal requirement provided that such deferral does not
create a lien against the Premises or impose any criminal liability against
Landlord.
5. REPAIRS AND MAINTENANCE.
5.1(a) By Landlord. Landlord has agreed at Landlord's expense,
upon signing of this lease, to hire a contractor to clean the airway ducts and
air conditioning unit of Premises. From and after the Commencement Date,
Landlord shall keep the exterior walls, foundations and roof of the Building
waterproof, shall be responsible for the maintenance and repair in good and
proper working order of the roof of the Building, the structural and exterior
portions of the Building, and the electrical, plumbing, air conditioning and
heating systems of the Building, except for repairs or maintenance occasioned by
the negligence of Tenant, its agents, employees or invitees, which shall be the
responsibility of Tenant. Landlord shall ensure that the heating and air
conditioning systems provide sufficient and reasonable heat and air conditioning
to the Premises. In addition, Landlord shall keep and maintain in good and clean
condition all of the parking areas and keep such areas well lighted and free of
ice and snow. In the event Landlord fails to perform work on its part to be
performed hereunder, Tenant shall serve upon Landlord written notice thereof,
given in the manner as provided in this Lease. If Landlord fails to perform such
work within ten (10) days thereafter, Tenant may, at its option, undertake such
work and shall deduct the actual cost thereof to Tenant from the next monthly
installment or installments, as the case may be, of rent as shall be payable by
Tenant.
5.1(b) By Tenant. Except as provided in paragraph A above, Tenant shall be
responsible for all maintenance, cleaning and repair of the Premises.
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6. SERVICES TO BE PROVIDED BY LANDLORD.
During Normal Business Hours, Landlord will supply to the
Premises reasonable and sufficient heat, ventilation and air conditioning.
Tenant agrees to keep peripheral windows closed at all times and to cooperate
with Landlord and observe all reasonable regulations which Landlord may
prescribe for the proper functioning and protection of the heating, ventilation
and air conditioning system. For and during that portion of each lease year
between October 15 and May 15, Landlord shall provide heat to the PREMISES as
climatic conditions shall require, and for and during the portion of each lease
year between May 16 and October 14, Landlord shall provide air conditioning to
the PREMISES as climatic conditions shall require. For the purposes of this
Lease, "Normal Business Hours" shall mean the period between 8 A.M. and 6 P.M.
on Monday through Friday, and between 8 A.M. and 1 P.M. on Saturday, of each
week, excluding days which are designated as legal holidays in the State of New
Jersey. In the event that Tenant occupies the PREMISES at any time other than
during Normal Business Hours and Tenant requests heating or air conditioning
during such hours, Landlord shall provide such services to Tenant and, Tenant
shall pay to Landlord additional rent for the Landlord's actual out of pocket
costs for such services provided during other than Normal Business Hours.
Landlord shall at no cost or expense to Tenant, provide to the Premises (a)
electric current in such quantities as Tenant shall require, (b) water for
drinking, lavatory and cooking purposes, (c) gas as shall be required by Tenant.
7. INSURANCE.
Tenant shall, at Tenant's sole cost and expense, maintain for
the mutual benefit of Landlord and Tenant, general public liability insurance
against claims for bodily injury or death or property damage occurring upon, in
or about the Premises, such insurance to afford protection to the limit of not
less than One Million Dollars ($1,000,000) combined single limit for bodily
injury and property damage.
Upon execution of this Lease, and thereafter no less than
fifteen (15) days prior to the expiration date of the policy theretofore
furnished pursuant to this section, an original of the policy or certificate of
insurance shall be delivered by Tenant to Landlord. Such policy, and all
renewals thereof, shall name Landlord and Tenant as insurers, and shall provide
that such policy shall not be canceled without 30-day prior written notice to
Landlord.
In the event that Tenant fails to take out, pay for, maintain
or deliver the insurance policy required herein, then Landlord may, but shall
not be obligated to, take such action as it deems necessary to effect such
insurance, and the total cost thereof, together with interest at 8% per annum,
shall be payable to Landlord on demand, or at the option of Landlord may be
added to any installment of Rent then due or thereafter to become due, and
Tenant covenants to pay same, as additional rent.
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8. ALTERATIONS.
No alterations, additions or improvements shall be made, and
no climate regulating, air conditioning, cooling, heating or sprinkler systems,
television or radio antennas or heavy equipment shall be installed in or
attached to the Premises without the prior written consent of the Landlord, such
consent not to be unreasonably withheld or delayed. Tenant is not obligated to
request or obtain Landlord's consent to make decorations or nonstructural
alterations.
All of the aforesaid maintenance and repairs shall be of
quality or class substantially equal to the original work or construction and in
conformity with all fire and casualty insurance rating services and according to
all applicable building codes and regulations. Tenant agrees that at all times
during the Term it shall maintain at its sole cost and expense the sprinkler
systems and lines at the Premises in working order. Tenant acknowledges that
throughout the Term Landlord shall keep in force and Tenant shall pay for a
service contract with a reputable service company for a quarterly inspection and
examination of the sprinkler systems and lines at the Premises and shall also
allow inspections and examinations to be conducted at any time upon the request
of any and all insurance companies which provide or may provide insurance with
regard to the Premises. Subject to Tenant's rights set forth at termination
clause, Tenant agrees to comply at its sole cost and expense with all
requirements of the insurance company or companies conducting such inspections
and examinations of the sprinkler system and lines at the Premises.
Not later than the last day of the term, Tenant shall, at
Tenant's expense, remove all Tenant's personal property and those improvements
made by Tenant which have not become the property of Landlord, including, but
not limited to trade fixtures, moveable paneling and the like; repair all injury
done by or in connection with the installation or removal of said property and
improvements; and surrender the Premises in as good condition as they were at
the beginning of the term, excepting reasonable wear and tear, repairs required
to be performed by Landlord and damage by fire, the elements, casualty, or other
cause not due to the misuse or neglect by Tenant, Tenant's agents, servants, or
visitors. All other property of Tenant remaining on the Premises after the last
day of the term or earlier termination of this Lease shall be conclusively
deemed abandoned and may be removed by Landlord, and Tenant shall reimburse
Landlord for the cost of such removal. Landlord may have any such property
stored at Tenant's risk and expense.
In the event that any mechanics' lien is filed against the
premises as a result of alterations, additions or improvements made by the
Tenant, the Landlord, at its option, after thirty (30) days notice to the
Tenant, may pay the said lien, without inquiring into the validity thereof, and
the Tenant shall forthwith reimburse the Landlord the total expense incurred by
the Landlord in discharging the said lien, as additional rent hereunder.
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9. INSPECTION.
The Landlord, or its agents, shall have the right to enter the
Premises upon not less than twenty-four (24) hours notice to Tenant at
reasonable hours to examine the same, or to make such repairs, additions or
alterations as it shall deem necessary for the safety, preservation or
restoration of the improvements, or for the safety or convenience of the
occupants thereof or to exhibit the same to prospective tenants, purchasers and
mortgagees provided the Landlord indemnify Tenant, its directors, officers,
employees and agents and their respective heirs, successors and assigns from and
against all liability and expense, including reasonable attorney's fees, from
claims for bodily injury, property damage or otherwise alleged to arise out of
such entry. In no event shall the Landlord be liable for any interruption of the
Tenants's business as a result of the making of any such repair, replacement or
addition that is necessary, provided that Landlord uses its best efforts to
minimize interference with Tenant's use and enjoyment of the Premises.
10. INDEMNIFICATION.
The Landlord shall not be responsible for the loss of or
damage to property, or injury to persons, occurring in or about the Premises, by
reason of any existing or future condition, defect, matter or thing in said
Premises or the property of which the Premises are a part, or for the act,
omissions or negligence of other persons or tenants in and about the said
property, unless caused by Landlord's breach of its obligations under this Lease
or the negligence or willful wrongful act of Landlord or its agents, employees
or contractors. Tenant agrees to indemnify and save Landlord harmless from all
claims and liability for losses of or damage to property, or injuries to persons
occurring in the Premises, unless caused by the negligence or willful wrongful
act of Landlord or its agents, employees or contractors or Landlord's breach of
its obligations under this Lease. In case any action or proceeding be brought
against the Landlord by reason of any such claim, the Tenant, upon notice from
the Landlord, shall resist and defend such action or proceeding. Landlord agrees
to indemnify and save Tenant harmless from all claims and liability for losses
of or damage to property or injuries to persons (a) occurring in the Building
but outside the Premises or in the parking areas unless caused by the negligence
of Tenant, (b) arising from Landlord's breach of its obligations under this
Lease, (c) arising from the negligence or willful misconduct of Landlord or its
agents, employees or contractors or (d) arising out of the failure of any
present or past tenant to comply with all applicable laws. The provisions of
this Section 10 shall survive the expiration or earlier termination of the Term.
11. CASUALTY LOSSES.
11.1 In the event of destruction of the Premises or the
building containing the Premises by fire, explosion, the elements, other
casualty or otherwise during the term hereby created and as a result thereof
should the Premises or access thereto be so badly injured that the same cannot
be repaired within one hundred twenty (120) days from the happening of such
injury, then and in such a case the term hereby created shall, at the option of
the Tenant
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or Landlord to be exercised within 30 days of the injury, cease and become null
and void from the date of such damage or destruction, and the Tenant shall
immediately surrender Premises and all the Tenant's interest therein to the
Landlord, and shall pay rent only to the time of destruction, in which event the
Landlord may re-enter and repossess the premises thus discharged from this Lease
and may remove all parties therefrom. Should the Premises be rendered
untenantable and unfit for occupancy, but yet be repairable within one hundred
twenty (120) days from the happening of said injury, the Landlord shall enter
and repair the same with reasonable speed, and rent shall xxxxx and shall not
accrue after said injury or while repairs are being made, but shall recommence
immediately after said repairs shall be completed. But if the Premises shall be
so slightly injured as not to be rendered untenantable and unfit for occupancy,
then the Landlord agrees to repair the same with reasonable promptness and in
that case the rent accrued and accruing shall not cease. The Tenant shall
immediately notify the Landlord in case of fire or other damage to the Premises.
In the event of partial destruction, Landlord must notify Tenant within thirty
(30) days of its intent to rebuild or not, and if there is no notification,
Tenant shall have the right to cancel this Lease.
11.2 Each party hereto waives any and every claim which arises
or may arise in its favor and against the other party hereto during the term of
this Lease or any renewal or extension thereof for any and all loss of or damage
to any of its property located within or upon, or constituting a part of the
premises leased to Tenant hereunder, which loss or damage is covered by valid
and collectible fire and extended coverage insurance policies, to the extent
such that loss or damage is recoverable under said insurance policies. Said
mutual waivers shall be in addition to and not in limitation or derogation of,
any other waiver or release contained in this Lease with respect to and loss of,
or damage to, property of the parties hereto. Inasmuch as the above mutual
waivers precluded the assignment of any aforesaid claim by way of subrogation
(or otherwise) to an insurance company (or any other person), each party hereto
hereby agrees immediately to give each insurance company which has issued to its
policies of fire and extended coverage insurance, written notice of the terms of
said mutual waivers, and to have said insurance policies properly endorsed, if
necessary, to prevent the invalidation of said insurance coverages by reason of
said waivers.
12. TAKING BY EMINENT DOMAIN.
If all or any part of the Premises shall be taken by public or
quasi-public authority under any power of eminent domain or condemnation, this
Lease, at the option of the Landlord or Tenant, shall forthwith terminate and
the Tenant shall have no claim or interest in or to any award of damages for
such taking, provided this clause shall not prevent the Tenant from making a
claim on its own behalf separate and apart from any claims of the Landlord. If
there is a taking but neither party terminates this Lease, then Landlord shall
make all repairs necessitated by such taking, rent shall be equitably reduced
and the Lease shall otherwise continue in force and effect.
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13. LANDLORD'S REMEDIES; DEFAULT PROVISIONS.
13.1 It is further agreed that if at any time during the term
of this Lease the Tenant shall make any assignment for the benefit of creditors,
or be decreed insolvent or bankrupt according to law, or if a receiver shall be
appointed for the Tenant, then the Landlord may, at its option, terminate this
lease, exercise of such option to be evidenced by notice to that effect of the
liquidation of the property of the Tenant or the Tenant's estate, but such
termination shall not release or discharge any payment of rent payable hereunder
and then accrued, or any liability then accrued by reason of any agreement or
covenant herein contained on the part of the Tenant, or the Tenant's legal
representatives.
13.2 If Tenant (i) defaults in any payment of Rent or any
other amounts due hereunder, following not less than ten (10) days notice of
default or (ii) defaults in the performance of any of the other covenants and
conditions hereof following not less than thirty (30) days notice or default and
the opportunity to cure (provided, however, that if the matter of the default is
such that it cannot be cured within thirty (30) days, Tenant shall have a
reasonable period of time within which to cure such default beyond such 30 day
period) then this Lease shall, at the option of Landlord, terminate and Tenant's
right to possession of the Premises shall cease.
13.3(a) DEFICIENCY. In any case where the Landlord has
recovered (or has a right pursuant to the terms of this Lease to recover)
possession of the Premises by reason of the Tenant's default and Landlord's
termination of this Lease, the Landlord may, at the Landlord's option, occupy
the Premises or cause the Premises to be redecorated, altered, divided,
consolidated with other adjoining Premises, or otherwise change or prepare for
reletting, and may relet the premises or any part thereof as agent of the Tenant
or otherwise, for a term or terms to expire prior to, at the same time as, or
subsequent to, the original expiration date of the Term of this Lease, at the
Landlord's option, and receive the rent therefor. Rent so received shall be
applied first to the payment of such expenses as Landlord may have incurred in
connection with the recovery of possession, redecorating, altering, dividing,
consolidating with other adjoining Premises, or otherwise changing or preparing
for reletting, and the reletting, including brokerage and reasonable attorneys'
fees, and then to the payment of damages in amounts equal to the rent hereunder
and to the costs and expenses of performance of the other covenants of the
Tenant as herein provided. The Tenant agrees, in any such case, whether or not
the Landlord has relet, to pay to the Landlord damages equal to the Basic and
Additional Rent and other sums herein agreed to be paid by the Tenant, less the
net proceeds of the reletting, if any, as ascertained from time to time; and the
same shall be payable by the Tenant at the time and in the manner specified in
Section 3, above. The Tenant shall not be entitled to any surplus accruing as a
result of any such reletting. In reletting the Premises as aforesaid, the
Landlord may grant rent concessions, and the Tenant shall not be credited
therewith. No such reletting shall constitute a surrender and acceptance or be
deemed evidence thereof.
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13.3(b) Tenant hereby waives all rights of redemption to which
the Tenant might be entitled by any law now or hereafter in force.
13.3(c) Landlord's remedies hereunder are in addition to any
remedy allowed by law. Tenant agrees to pay, as Additional Rent, all reasonable
attorneys' fees and disbursements, and other expenses incurred by the Landlord
in enforcing any of the obligations under this Lease, this covenant to survive
the expiration or sooner termination of this Lease. Tenant shall have a similar
right of collection in the event Tenant shall incur any such expenses to enforce
any of the obligations contained in this Lease on the part of the Landlord to
perform.
13.4 RIGHT TO CURE TENANT'S BREACH. If the Tenant breaches any
covenant or condition of this Lease, the Lessor may, on reasonable notice to the
Tenant (except that no notice need be given in case of emergency), cure such
breach at the expense of the Tenant and the reasonable amount of all expenses,
including attorneys' fees and expenses, incurred by the Landlord in so doing
(whether paid by the Landlord or not) shall be deemed Additional Rent payable on
demand. In no way whatsoever shall the Landlord be obligated to effect such
cure.
14. NOTICES.
All notices, demands and requests which may or are required to
be given by either party to the other shall be in writing. All notices, demands
and requests by Landlord to Tenant shall be deemed properly made or given if
mailed postage prepaid, registered or certified mail, return receipt requested,
or sent by overnight courier or hand delivered addressed to Tenant at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, or at such other place as Tenant may
from time to time designate in a written notice to Landlord. All notices,
demands and requests by Tenant to Landlord shall be deemed to have been properly
given if and when sent by United States registered or certified mail, postage
prepaid, return receipt requested, or sent by overnight courier or hand
delivered addressed to Landlord at Bloomtex Corporation, 000 Xxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, Attn: Corporate Secretary, or at such other place
as Landlord may from time to time designate in a written notice to Tenant. All
notices shall be deemed given when received or when delivery is refused.
15. CERTIFICATE BY TENANT.
Tenant agrees at any time and from time to time upon not less
than fifteen (15) days, notice by Landlord to execute, acknowledge and deliver
to Landlord, at Landlord's expense, a statement or statements (to the extent
true) in writing certifying (I) that this Lease is unmodified and in full force
and effect; (ii) that it sets forth the entire agreement between the Landlord
and Tenant; (iii) that to the extent best of Tenant's knowledge the landlord is
not in default under any of the terms hereof and has performed all of its
obligations pursuant hereto; (iv) that to the extent best of Tenant's knowledge
there are no existing offsets or defenses against the enforcement of any of the
terms, covenants, or conditions hereof upon the
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part of the Tenant to be performed; and (v) as to the dates to which the Rent
has been paid in advance, if any, it being intended that any such statement
delivered pursuant to this Section may be relied upon by any prospective
purchaser or mortgagee of the fee of the Premises or of Landlord's interest
therein, or any assignee or any such mortgagee.
16. SUBORDINATION.
Landlord represents and warrants that on the date hereof there
are no mortgages affecting or encumbering the Premises. This Lease shall be
subject and subordinate to all mortgages which may hereafter affect the
Premises, Landlord's interest therein, or the real property of which the
Premises form a part, and to all renewals, modifications, consolidations,
replacements and extensions thereof, provided and on the express condition that
the holder of such mortgage executes and delivers to Tenant a subordination and
nondisturbance agreement which provides that the mortgagee will not disturb this
Lease or Tenant's rights in the Premises provided that Tenant is not in default
hereunder beyond the expiration of the applicable grace period and which is
otherwise reasonably satisfactory to Tenant. This Section shall be
self-operative and no further instrument of subordination shall be required by
any mortgagee. In confirmation of such subordination, Tenant shall execute
promptly any certificate that Landlord may request. Tenant hereby irrevocably
constitutes and appoints Landlord the Tenant's attorney-in-fact to execute any
such certificate or certificates for and on behalf of the Tenant.
17. ASSIGNMENT AND SUBLETTING.
The Tenant shall not transfer or assign the Tenant's interest
in and to the Premises, or sublet the Premises or any portion thereof, without
first procuring the written consent of the Landlord, which consent shall not be
unreasonably withheld or delayed; and any attempted transfer, assignment or
subletting without such written consent shall be void and confer no rights upon
any third person. No such assignment or subletting shall relieve Tenant of any
obligations herein. The consent by Landlord to any transfer, assignment or
subletting shall not be deemed a waiver on the part of the Landlord of any
requirement of consent to any future transfer, assignment or subletting. If
Landlord does not respond to Tenant's request to consent to an assignment or
subletting within 20 days, Landlord shall be deemed to have consented thereto.
Notwithstanding the foregoing, Tenant may, without Landlord's consent, assign
this Lease or sublet all or any part of the Premises to any corporation or other
legal entity controlled by, which controls or which is under common control with
Tenant where control shall mean ownership of 50% or more of the beneficial
interests in the entity in question.
18. BROKER.
Tenant represents and warrants that it has not dealt with any
broker in connection with this Lease, and was not shown the Premises by any
broker.
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19. SIGNS.
Tenant may place any signs of any kind whatsoever, upon, in or
about the Premises or any part thereof, of a design and structure and in or at
such places as may be permitted by law. All such signs shall be removed by
Tenant prior to the expiration of the Term. In case Landlord shall deem it
necessary to remove any such signs in order to paint or make any repairs,
alterations or improvements in or upon the Premises or any part thereof, such
signs may be removed, but shall be replaced at Landlord's expense when the said
repairs, alterations, or improvements shall have been completed. Any signs shall
at all times conform with all municipal ordinances or other laws and regulations
applicable thereto at Tenant's expense, and Tenant shall obtain any required
permits or licenses for the installation of such signs at Tenant's expense.
20. ENVIRONMENTAL MATTERS.
20.1 Tenant's Standard Individual Classification ("SIC") Number is 8731.
Tenant shall promptly notify Landlord if the SIC Number becomes inapplicable or
if another SIC Number becomes applicable.
20.2 ISRA COMPLIANCE. Tenant shall, at Tenant's sole expense,
comply with the New Jersey Industrial Site Recovery Act and the regulations
promulgated thereunder (referred to as "ISRA") as same relate to Tenant's
occupancy of the Premises, as well as any other environmental law, rule, or
regulation affecting or affected by Tenant's use and occupancy of the Premises
to the extent same arises from Tenant's acts. Tenant shall, at Tenant's own
expense, make all submissions to, provide all information to, and comply with
all the requirements of, the Bureau of Industrial Site Evaluation (the "Bureau")
of the New Jersey Department of Environmental Protection and Energy ("NJDEP")
which arise due to Tenant's acts. Should the Bureau or any other division of
NJDEP, pursuant to any other environmental law, rule, or regulation, determine
that a cleanup plan be prepared and that a cleanup be undertaken because of any
spills or discharge of hazardous substances or wastes at the Premises which
occur during the term of this Lease and were caused by Tenant or its agents or
contractors, then Tenant shall, at Tenant's own expenses prepare and submit the
required plans and financial assurances, and carry out the approved plans.
20.3 LANDLORD'S ISRA COMPLIANCE. In the event that Landlord
shall have to comply with ISRA by reason of Landlord's actions or the actions of
any prior or existing tenant of the building, Tenant shall, at no cost or
expense to Tenant, promptly provide all information requested by Landlord for
Landlord's preparation of nonapplicability affidavits or a Negative Declaration
and Landlord shall, at its own cost and expense comply with ISRA. Tenant shall
indemnify, defend, and save harmless Landlord from all fines, suits, procedures,
claims, and actions of any kind arising out of or in any way connected with any
spills or discharges of hazardous substances or wastes at the Premises which
occur during the term of this Lease and were caused by Tenant or its agents or
contractors, and from all fines, suits, procedures, claims, and actions of any
kind arising out of Tenant's failure to provide all
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information, make all submissions and take all actions required by the Bureau or
any other divisions of NJDEP which arise due to Tenant's acts. Tenant's
obligations and liabilities under this paragraph shall continue so long as
Landlord remains responsible for any spills or discharges of hazardous
substances or wastes at the Premises which occur during the term of this Lease
and were caused by Tenant or its agents or contractors. Tenant's failure to
abide by the terms of this paragraph shall be restrainable by injunction. Tenant
shall have no responsibility to obtain a "Negative Declaration" or "Letter of
Non-Applicability" from the NJDEP in connection with a sale or other disposition
of the real estate by Landlord or an interest in the Landlord or a change in the
tenancy of or ownership of any other tenant, but Tenant agrees to cooperate with
Landlord at no cost, expense or liability to Tenant in Landlord's effort to
obtain same.
20.4 Tenant covenants that the Premises shall not be used to
generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce, process or in any manner deal with Extraordinary Hazardous
Materials in violation of applicable laws. Tenant shall comply with and ensure
compliance by all Occupants with, all applicable Federal, State and local laws,
ordinances, rules and regulations with respect to any Extraordinary Hazardous
Materials and Hazardous Materials (hereinafter defined), and shall keep the
Premises free and clear of any liens imposed pursuant to such laws, ordinances,
rules and regulations. In the event that Tenant receives any notice or advice
from any governmental authority, or from any Occupant, with regard to Hazardous
Materials or Extraordinary Hazardous Materials on, from or affecting the
Premises in violation of applicable laws, Tenant shall immediately notify
Landlord. Tenant shall conduct and complete at Tenant's sole cost and expense
all investigations, studies, sampling and testing, and all remedial, removal and
other actions necessary to clean up and remove all Hazardous Materials or
Extraordinary Hazardous Materials (other than any Hazardous Materials or
Extraordinary Hazardous Materials introduced by a person other than the Tenant
or an Occupant) on, from or affecting the Premises in accordance with all
applicable Federal, State and local laws, ordinances, rules, regulations and
policies. The term "Hazardous Materials" as used in this Lease shall include,
gasoline, petroleum products, explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, polychlorinated
biphenyls, or related similar materials, asbestos or any material containing
asbestos, or any other substance or material as may be defined as a hazardous or
toxic substance by any Federal, State or local governmental law, ordinance, rule
or regulation, including (without limitation) the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ss.1801, et seq.), the Comprehensive
Environmental Response, Compensation and Liability Act, as amended (42 U.S.C.
ss.9601 et seq.) ("CERCLA"), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. ss.6901, et seq.), the Federal Water Pollution Control Act
(33 U.S.C. ss.1251, et seq.), the Clean Air Act (42 U.S.C. ss.7401, et seq.),
the Industrial Site Recovery Act which is the successor to the Environmental
Cleanup Responsibility Act, as amended (N.J.S.A. 13:1K-6 et seq.) ("ECRA") and
the New Jersey Spill Compensation and Control Act, as amended (N.J.S.A.
58:10-23.11b et seq.) and the rules and regulations adopted and publications
promulgated pursuant thereto; and, the term "Extraordinary Hazardous Materials"
shall have the meaning given to such term in the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"), Public Law Xx.
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00-000, 000 Xxxx. 0000) and/or all such materials as are or may be listed on and
described by the NJDEP's list of extremely hazardous substances (all the
foregoing laws, rules and regulations, hereafter referred to as the
"Environmental Laws"). The obligations and liabilities of Tenant under this
Section shall survive any termination, expiration or permitted assignment of
this Lease. The term "Occupant" as used in this Lease shall mean the Tenant or
an agent, permitted sublessee, licensee, customer or invitee of Tenant.
20.5 In the event of Tenant's failure to comply in full with
the provisions of this section, Landlord may, at its option, perform any and all
of Tenant's obligations as aforesaid, and all costs and expenses incurred by
Landlord in exercise of this self-help right shall be deemed to be Additional
Rent payable on demand.
20.6 Tenant shall indemnify, defend and hold harmless the
Landlord and each mortgagee of the Premises from and against any and all
liabilities, damages, suits, fines, claims, losses, judgments, causes of action,
costs and expenses (including reasonable fees and expenses of counsel) of any
kind which may be incurred by the Landlord or any such mortgagee or threatened
against the Landlord or such mortgagee, arising out of or in any way connected
with (a) any breach by Tenant of the undertakings set forth in this Section, (b)
any spills or discharges of Hazardous Materials and/or Extraordinary Hazardous
Materials at the Premises by Tenant, Tenant's agents, servants, and the like, or
any Occupant, and (c) any violation by Tenant of ISRA, including but not limited
to failure to provide all information, make all submissions and take all actions
required by the NJDEP. Tenant's agreement to indemnify shall survive the
permitted assignment, expiration or sooner termination of this Lease.
20.7 Landlord shall indemnify, defend and hold harmless the
Tenant from and against all liabilities, damages, suits, fines, claims, losses,
judgments, causes of action, costs and expenses (including reasonable fees and
expenses of counsel) of any kind which may be incurred by Tenant or threatened
against Tenant arising out of or in any way connected with any Hazardous
Materials or Extraordinary Hazardous Materials located in the Building or any
parking area on the date hereof and any action to remediate or remove same
unless same was created by or introduced into the Building or any parking area
by Tenant or its agents, employees or contractors.
21. MISCELLANEOUS.
21.1 Tenant shall not record this Lease or any short-form
Memorandum thereof. Any such recordation by Tenant in violation of this
prohibition shall be a default hereunder and Landlord, among Landlord's rights
upon default, may execute and record in Tenant's name, place, and stead, an
instrument adequate and sufficient to discharge such document from the public
records, and for such purposes, Tenant hereby grants an irrevocable power of
attorney to Landlord.
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21.2 This Lease constitutes the entire agreement of the
parties and may not be changed or modified orally, but only by a written
agreement signed by Landlord and Tenant.
21.3 This Lease shall be binding on Landlord and Tenant and
their respective heirs, successors, administrators and assigns.
21.4 The rights of Landlord and Tenant hereunder are
cumulative, and no waiver or failure to enforce the same by either shall prevent
the subsequent enforcement of such rights.
21.5 The captions herein contained are for convenience only,
and do not constitute part of this Lease.
21.6 This Lease shall be governed by the laws of the State of New Jersey.
21.7 The remedies of Landlord and Tenant specified herein
shall be in addition to those available to them at law or equity.
21.8 Landlord agrees to deliver to Tenant a permanent
certificate of occupancy for the Premises within 60 days after the Commencement
Date.
21.9 Wherever the consent of the Landlord is required in this
Lease, said consent shall not be unreasonably withheld or delayed.
21.10 If any of the provisions of the Lease, or the
application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Lease shall be valid and enforceable to the
fullest extent allowed by law.
21.11 Notwithstanding anything to the contrary provided in
this Lease, it is specifically understood and agreed (such agreement being a
primary consideration for the execution of this Lease by the Landlord) that
there shall be absolutely no personal liability on the part of the Landlord, its
successors, assigns, officers, directors, principals, constituent partners (or
their heirs, successors and/or assigns), or any ground Landlord or mortgagee in
possession, with respect to any of the terms, covenants or conditions of this
Lease, and that the Tenant shall look solely to the equity (if any) of the
Landlord in the Premises for the satisfaction of each and every remedy of the
Tenant in the event of any breach by the Landlord of any of the terms, covenants
and conditions of this Lease to be performed by the Landlord, such exculpation
of liability to be absolute and without any exceptions whatsoever.
21.12 Tenant represents and warrants to Landlord that this
Lease is valid, enforceable and binding upon Tenant, that no consent(s) are
necessary to render this Lease
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valid, enforceable and binding against Tenant and that the person whose
signature is set forth below is authorized to execute and deliver this Lease on
behalf of Tenant (a true copy of Tenant's corporate resolutions are attached
hereto which authorize this transaction).
21.13 If the Premises or any material portion thereof are
rendered unusable in whole or in part for a period of ten (10) consecutive days
for any reason, other than by the making of repairs necessitated by misuse or
neglect by the Tenant or any agent, customer, invitee or licensee of the Tenant,
there shall be an appropriate abatement of Basic Rent from and after such tenth
day and continuing for the period of such unusability. In no event shall the
Tenant be entitled to terminate this Lease by claiming a constructive eviction
from the Premises unless the Tenant shall first have notified the Landlord in
writing of the condition or conditions giving rise thereto and, if the
complaints be justified, unless the Landlord shall have failed within a
reasonable time after receipt of such notice to remedy, or commence and proceed
with due diligence to remedy, such condition or conditions.
21.14 Landlord covenants that so long as Tenant is not in
default hereunder which default remains uncured beyond the expiration of the
applicable grace period, Tenant shall have the right to peaceably and quietly
have, hold and enjoy the Premises subject to the terms of this Lease.
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed by their duly authorized representatives, as of the date of this Lease
identified in Section 1 hereof.
LANDLORD:
WITNESS: BLOOMTEX ASSOCIATES
By /s/XXXXX X. XXXXXXXXXX
----------------------------
XXXXX X. XXXXXXXXXX, GENERAL PARTNER
TENANT:
ATTEST: ALFACELL CORPORATION
By /s/KUSLIMA SHOGEN
------------------------
KUSLIMA SHOGEN, C.E.O.
