Exhibit 10.28
LEASE AGREEMENT
THIS LEASE AGREEMENT ("LEASE") is made this 19th day of March,
2003, by and between Landlord and Tenant.
In consideration of the mutual covenants contained in this
Lease, the Parties agree as follows:
ARTICLE 1. PARTICULAR DEFINED TERMS
As used in this Lease, the following terms shall have the
following meanings:
1.1 The Basic Rent, during the term of this Lease, shall be as follows:
A. Office (Units 109, 110 and 209) total rental area 15,084 square feet.
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(1) From the Commencement Date through the expiration date of the
fifth year of the last of the rental units delivered to Tenant:
$12.00 per square foot/absolutely net per month, payable in
advance, on the first (1st) day of each month of the term hereof.
(2) From the expiration date of the fifth year of the last of the
rental units delivered to Tenant and five years thence: $13.20
per square foot/absolutely net per month, payable in advance, on
the first (1st) day of each month of the term hereof.
B. Lab (Unit 210) total rental area 3,535 square feet.
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(1) From the Commencement Date through the expiration date of the
fifth year of the last of the rental units delivered to Tenant:
$12.00 per square foot/absolutely net per month, payable in
advance, on the first (1st) day of each month of the term hereof.
(2) From the expiration date of the fifth year of the last of the
rental units delivered to Tenant and five years thence: $13.20
per square foot/absolutely net per month, payable in advance, on
the first (1st) day of each month of the term hereof.
C. Warehouse (Units 116, 117) total rental area 13,186 square feet
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(1) From the Commencement Date through the expiration date of the
fifth year of the last of the rental units delivered to Tenant:
$8.25 per square foot/absolutely net per month, payable in
advance, on the first (1st) day of each month of the term hereof.
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(2) From the expiration date of the fifth year of the last of the
rental units delivered to Tenant and five years thence: $9.08 per
square foot/absolutely net per month, payable in advance, on the
first (1st) day of each month of the term hereof.
1.2 "Commencement Date" means the date on which the term of
this Lease shall commence. The Commencement Date for each area defined in
Section 1.1 above shall be 30 days after the Completion Date.
1.3 "Completion Date" means the date on which all of the
Tenant's Space is ready for occupancy for Tenant's intended use and a permanent
certificate of occupancy has been issued.
1.4 "Termination Date" means the date which is ten (10) years
after the Commencement Date of the last area as delivered to Tenant under
Section 1.1 above.
1.5 "Lease Term" means a period of time of ten (10) years
beginning on the Commencement Date and ending on the Termination Date.
1.6 "Monthly Common Area Cost Installment" means the sum of
$2.25 per square foot per month, initially, or such other amount as Landlord
reasonably may from time to time fix during the Lease Term by serving written
notice on Tenant of change of such amount. (This sum is an estimate only and may
be revised when final costs are established for insurance, snow plowing and the
like).
1.7 "Monthly Tax Installment" means the sum of $_______ per
quarter, initially, or such other amount as the Landlord may from time to time
fix during the Lease Term by serving written notice on Tenant of change of such
amount. (To be established after completion of the Leasehold Premises. An
estimated amount will be collected and paid until such time as the actual tax
due the Township of Raritan is established.)
1.8 "Permitted Uses" means specifically general office use,
laboratory and research facility, warehouse and light manufacturing, such uses
to be consistent with the principal permitted uses in the I-2 Zone, pursuant to
the Land Development Ordinances of the Township of Raritan.
1.9. "Leasehold Premises" means Xxxxxxxx X, 00 Xxxxxxxxxxxx
Xxxx, Xxxxxxx Xxxxxxxx, Xxx Xxxxxx, in the Xxxxxx Business Park.
1.10 "Tenant's Space" means a portion of the Leasehold
Premises, as indicated by the highlighted areas of the floor plan attached to
this Lease and marked as "Exhibit A", containing a gross rentable area, pursuant
to As Built drawings, of 31,805 square feet.
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1.11 "Landlord" means XXXXXX BUSINESS PARK, II, L.L.C., a New
Jersey limited liability company.
1.12 "Tenant" means NOVADEL PHARMA INC., a New Jersey
corporation, its affiliates, successors and permitted assigns.
1.13 "Tenant's Notice Address" means the Leasehold Premises
after the Commencement Date; and, before the Commencement Date, 00 Xx. 00,
Xxxxxxxxxx, XX 00000..
1.14 "Tenant's Share" means a fraction, the numerator of which
is the gross floor area of the Tenant's Space, and the denominator of which is
the gross floor area of all rentable space in the Leasehold Premises, based on
exterior dimensions (excluding any part of the Leasehold Premises used as a
common area or common facility). The Tenant's Share is computed and fixed as of
the date of this Lease as 40.7% (31,805/78060). Upon any bona fide change in the
total rentable space in the Leasehold Premises, Landlord may, at Landlord's
option, reasonably calculate and fix an adjusted fraction as the Tenant's Share
and said adjusted fraction shall be effective for all purposes under this Lease
as the Tenant's Share when Landlord serves notice thereof on Tenant.
1.15 Intentionally omitted.
1.16 This provision reserved.
1.17 "Security Deposit" means the sum equal to 12 month's rent
subject to adjustment from time to time pursuant to Article 17.
ARTICLE 2. STANDARD DEFINED TERMS
As used in this Lease, the following terms shall have the
following meanings:
2.1 "Additional Rent" means all amounts which Tenant is
obligated to pay Landlord, pursuant to paragraph 4.3 in Article 4 of this Lease
or any other amounts which become due, by virtue of the Lease Agreement.
2.2 "Common Area Costs" means the Landlord's reasonable gross
costs of operating and maintaining the common areas and facilities of the
Leasehold Premises, whether paid to third parties or to persons or entities
controlled by or under common control with Landlord; if payments are made to
persons or entities related to, controlled by or under common control of
Landlord or persons related to Landlord's principals, such costs may not be in
excess of what would have been charged by an unrelated party. Common Areas are
all portions of the Leasehold Premises, except those areas which are leased to
Tenants, or intended by
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Landlord to be leased to Tenants or to be occupied by Landlord. Common Areas
include, but are not limited to, the parking areas owned, leased or otherwise
provided by the Landlord at the Leasehold Premises, the public conveniences of
the Leasehold Premises, and all other areas of the Leasehold Premises
constructed, purchased or leased by Landlord which are intended by Landlord to
be used in common by the Tenants of the Leasehold Premises or their customers,
now and at any time during the Lease Term. Landlord's gross costs of operating
and maintaining the Common Areas of the Leasehold Premises include, but are not
limited to, all costs and expenses of operating, repairing, lighting, cleaning,
painting, striping, policing and security (including the cost of uniforms and
equipment), all employment taxes, insurance, including liability insurance for
personal injury, death and property damage, insurance against fire, extended
coverage, theft or other casualties, xxxxxxx'x' compensation insurance covering
personnel, fidelity bonds for personnel, plate glass insurance for glass
exclusively serving the area in which the common facilities are from time to
time located; removal of snow, ice, and debris;; costs and expenses of
inspecting, machinery and equipment used in the operation and maintenance of the
common facilities and personal property taxes and comparable other charges
incurred in connection with such equipment; costs and expenses of maintaining
flowers, shrubbery and planters; management fees paid to the Leasehold Premises'
manager and/or management company, with such fees not to exceed fees paid for
comparable services in similar buildings in the area; clerical, bookkeeping and
accounting fees, office supplies and equipment; sanitary and exterminating; the
costs of maintaining and repairing exterior walls where necessary; maintenance
and repair of drain pipes, electric, gas, water lines and sewer mains leading to
and from the leased areas in the Leasehold Premises; costs and expenses,
including engineering, architectural and other expert fees, and legal fees, in
connection with all operations of common areas, including but not limited to
costs of defense of claims for damages not covered by liability insurance
security, maintenance, energy costs to heat ventilate and air condition areas in
which the common facilities are, from time to time, located. Such costs and
expenses shall not include insurance or depreciation.
2.3 "Consumer Price Index" means the Consumer Price Index
(1982-1984=100) for all Urban Consumers (New York, New York-Northeastern New
Jersey), published by the Bureau of Labor Statistics, United States Department
of Labor, or successor or substitute index appropriately adjusted. In the event
that the Consumer Price Index (or successor or a substitute index) is not
available, a reliable governmental or other non-partisan publication evaluating
the information theretofore used in determining the Consumer Price Index shall
selected by Landlord.
2.4 This provision reserved.
2.5 "Monetary Default" means the failure of Tenant to pay Rent
within Five (5) days after such payment is due.
2.6 "Non-Monetary Default" means any one of the omissions by
Tenant specified in Article 5 of this Lease.
2.7 "Parties" means Landlord and Tenant.
2.8 "Rent" means Basic Rent and Additional Rent and any other
amount which becomes due by virtue of this Lease Agreement.
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2.9 "Rental Year" means any calendar year, from January
through December, all or any part of which falls within the Lease Term.
2.10 "Security Deposit" means the equivalent of twelve (12)
months' Basic Rent, subject to adjustment from time to time pursuant to Article
17.
2.11 "Taxes" means all real estate taxes which are levied or
assessed by the lawful taxing authorities against the land, buildings, fixtures
and improvements of the Leasehold Premises, including all municipal and county
taxes, special and general, ordinary and extraordinary, assessments, water and
sewer rents, charges for public utilities, excises, levies, license and permit
fees and other government charges which shall be imposed upon or become due and
payable or become lien upon the Leasehold Premises or any part of the Leasehold
Premises, including the sidewalks and streets adjacent to the Leasehold
Premises, by any federal, state, municipal, or other governmental or public
authority under existing law or practice or under any future law or practice.
The terms "Taxes" also means the cost of any contest or appeal, including
attorney's fees and related costs, pursued by Landlord to reduce any tax or any
assessment on which any tax or other charge referred to in this paragraph is
based. Taxes also means any sales or other tax imposed in connection with the
leasing or rental of the land, buildings, fixtures and improvements of the
Leasehold Premises.
2.12 "Tenant's Share of Common Area Costs" means the amount of
Common Area Costs for any Rental Year, or portion thereof, multiplied by the
Tenant's share.
2.13 "Tenant's Share of Taxes" means the amount of Taxes for
any Rental Year, or portion thereof, multiplied by the Tenant's share.
ARTICLE 3. DEMISE AND TERM
3.1 Landlord hereby leases the Tenant's Space to Tenant for
the Lease Term, and Tenant hereby rents the Tenant's Space from Landlord for the
Lease Term. In the event that one or more portions of the Tenant's Space become
ready for occupancy prior to the Completion Date, Tenant may take possession of
any or all of such portions and upon Tenant taking such possession Rent shall
begin to accrue, based upon the square footage of such portions of the Tenant's
Space so occupied by Tenant. Such occupancy by Tenant shall be subject to all of
the terms and conditions of this Lease; however, the term of this Lease shall
not be deemed to have commenced until the Commencement Date.
3.2 If Tenant is permitted access to the premises prior to the
Commencement Date for the purpose of installing fixtures or any other purpose
permitted by Landlord, such early entry will be at Tenant's sole risk and
subject to all the terms and provisions of this Lease as though the Commencement
Date has occurred, except for the payment of monthly Basic Rent and monthly
Common Area Cost Installment and Real Estate Tax Installment amounts which will
commence on the Commencement Date. Tenant, its agents or employees will not
interfere with or delay Landlord's completion of construction of the
improvements, if any, and all rights of Tenant under this provision will be
subject to the requirements of all applicable building codes
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and zoning requirements. Landlord has the right to impose such additional
conditions on Tenant's early entry as Landlord, in its sole and reasonable
discretion, deems appropriate, and will further have the right to require that
Tenant execute an early entry agreement, containing such conditions, prior to
tenant's early entry.
ARTICLE 3A. OPTION TO EXTEND TERM OF LEASE
3A.1 Tenant shall have two (2) respective options to extend
the Lease Term from and including the day next following the last day of the
Lease Term for successive extensions periods of five (5) years each. Each such
period is referred to in this Lease as an "Extension Period". If Tenant elects
to exercise any or all of the options to extend the term of the Lease for an
Extension Period, the option shall be exercised in the following manner: not
less than three (3) calendar months before the first Extension Period and six
(6) calendar months before the second Extension Period, and not more than twelve
(12) calendar months next prior to the first day of the Extension Period for
which Tenant desires to exercise its option to extend the Lease Term, Tenant
shall serve written notice on Landlord that Tenant thereby exercises the option
to extend the Lease Term. Any attempt to exercise the option to extend the Lease
Term which is not strictly in compliance with the procedure and during the time
periods set forth in Article 3A shall be ineffective and void. The Tenant's
right to exercise the foregoing options to extend the Lease Term is subject to
the following conditions: (A) Tenant shall have exercised each and all of its
options to extend the Lease for each prior Extension Period, if any; (B) Tenant
shall be in actual occupancy of the Tenant's Space; and (C) Tenant shall not be
in default under this Lease. If Tenant is in default under this Lease at the
time Tenant attempts to exercise any option to extend the Lease Term, such
attempt to exercise the option to extend the Lease Term shall be ineffective and
void and any subsequent cure of the Tenant's default under this Lease shall not
have the effect of making such attempted exercise of the option to extend the
Lease Term effective.
3A.2 The Basic Rent to be paid for each month during the First
Extension Period shall be increased in proportion to the percentage increase of
the Consumer Price Index during the last five years of the initial Lease Term.
For this purpose, the Consumer Price Index for the month in which the sixth
anniversary of the Commencement Date falls shall be used as the Base Month. In
order to determine the Basic Rent for the First Extension Period, the percentage
increase in the Consumer Price Index from the Base Month to the second month
prior to the month in which the First Extension Period commences shall be
multiplied by the Basic Rent for the sixth through tenth years of the Lease Term
and the result shall be added to such Basic Rent to determine the Basic Rent for
the First Extension Period.. In no event shall the Basic Rent for the First
Extension Period be decreased below the Basic Rent payable at the end of the
initial Lease Term.
3A.3 The Basic Rent to be paid for each month during the
Second Extension Period shall be increased in proportion to the percentage
increase of the Consumer Price Index during the First Extension Period. For this
purpose, the Consumer Price Index for the month in which the First Extension
Period commences shall be used as the Base Month. In order to determine the
Basic Rent for the Second Extension Period, the percentage increase in the
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Consumer Price Index from the Base Month to the second month prior to the month
in which the Second Extension Period commences shall be multiplied by the Basic
Rent for the First Extension Period and the result shall be added to such Basic
Rent to determine the Basic Rent for the Second Extension Period.. In no event
shall the Basic Rent for the Second Extension Period be decreased below the
Basic Rent payable at the end of the First Extension Period.
ARTICLE 4. RENT
4.1 Tenant shall pay to the Landlord, when due, the Basic Rent
and Additional Rent, without any prior demand by Landlord for such payment.
Tenant acknowledges and agrees that Tenant's obligation to pay Rent to Landlord
is an independent covenant under this Lease and shall not be subject to any set
off or deduction of any kind or for any reason.
4.2 Tenant shall pay to the Landlord the Basic Rent in monthly
installments in advance, on or before the first day of each calendar month
during the Lease Term. If the Commencement Date falls on any date other than the
first day of a calendar month, the Basic Rent for the initial calendar month
shall be reduced, pro rata, based on the number of days of such month which are
included within the Lease Term and such adjusted initial installment of Basic
Rent shall be paid by Tenant to Landlord on the Commencement Date.
4.3.1 If Tenant fails to pay to Landlord any monthly
installment of Basic Rent or Additional Rent under subparagraph 4.3.2 of this
Lease within ten days after such payment becomes due, Tenant shall pay to
Landlord, as Additional Rent (a) the sum of $50.00, or (b) an amount equal to
$10.00 multiplied by the number of days after the due date until such payment is
received by Landlord, or (c) 10 percent of the past due installment of Rent,
whichever is greater. If any payment of Rent is tendered by Tenant to Landlord
more than 10 days after the payment is due and such payment does not include the
Additional Rent specified in this subparagraph 4.3.1., then Landlord may, at
Landlord's option, (i) refuse to accept such partial payment, or (ii) accept
such partial payment on account, thereby fully reserving Landlord's right to
demand payment of such Additional Rent at any time within 2 years after the date
of Landlord's acceptance of such partial payment and fully reserving all of
Landlord's rights under this Lease with respect to a default by Tenant if Tenant
subsequently fails to pay to Landlord such Additional Rent upon demand by
Landlord made within 2 years after the date of Landlord's acceptance of such
partial payment. Tenant acknowledges and agrees that Landlord's acceptance of
such partial payment shall not be deemed to be a waiver by Landlord of Tenant's
obligation to pay such Additional Rent upon demand by Landlord made at any time
within 2 years after Landlord accepts such partial payment, unless Landlord
specifically notifies Tenant in writing that Landlord has waived such obligation
on the part of the Tenant.
4.3.2 Tenant shall pay to the Landlord, Tenant's Share of
Common Area costs and Tenant's Share of Taxes for each Rental Year as follows:
(A) Tenant shall pay Landlord the Monthly Common Area Cost Installment, the
Monthly Tax Installment and the Monthly Sewer Cost Installment in advance, on or
before the first day of each calendar month during the Lease Term. The Monthly
Common Area Cost Installment payments and the Monthly Tax Installment payments
shall be applied by Landlord, on account, to Tenant's obligation to pay the
Tenant's
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Share of Common Area Costs and the Tenant's Share of Taxes, respectively. If the
Commencement Date falls on any date other than the first day of a calendar
month, the Monthly Common Area Cost Installment and the Monthly Tax Installment
for the initial calendar month shall be reduced, pro rata, based on the number
of days of such month which are included within the Lease Term and such adjusted
initial Monthly Common Area Cost Installment and Monthly Tax Installment shall
be paid by Tenant to Landlord on the Commencement Date. (B) Within 3 months
after the end of each Rental Year, Landlord shall send to Tenant a statement
setting forth the adjustment to Tenant's Share of Common Area Costs and the
adjustment to Tenant's Share of Taxes for such Rental Year which remains unpaid
after credit is allowed for the total of the Monthly Common Area Cost
Installment payments and the Monthly Tax Installment payments made by Tenant and
received by Landlord with respect to said Rental year.
4.3.2.a Tenant's share of real estate taxes shall be
calculated by Landlord establishing the total real estate tax assessed against
the property designated Block 16, Lot 16.09 on the current tax map for the
Township of Raritan, Hunterdon County, New Jersey. Landlord will calculate the
amount due on account of the real estate taxes by multiplying the total taxes
billed by the Township of Raritan on the property by Tenant's share.
4.3.2.b Tenant hereby covenants and agrees that, in addition
to the monthly rental set forth herein above, the Tenant will pay its equitable
share of the sewer usage charge assessed against the property. Tenant
acknowledge that the method used to calculate the sewer charge may change and
that said charge may be based upon meter reading(s) or some other equitable
method of calculation. Regardless of the method used to calculate the sewer
charge payable by the Landlord for the Property, Tenant will pay its
proportionate share thereof. The Tenant's proportionate share shall be
determined in the same manner as set forth in Article 4.3.2.a unless another
equitable method is determined initially, the sewer usage charge shall be based
on "Tenant's Share."
4.3.3 Unless provided for elsewhere in this Lease, whenever
Tenant requests Landlord to take any action or give any consent, required or
permitted under this Lease, Tenant will reimburse Landlord for all of Landlord's
reasonable third party costs incurred in reviewing the proposed action or
consent, including, without limitation, attorney's engineers' architects',
accountants' and other professional fees, as Additional Rent, within ten (10)
days after Landlord's delivery to Tenant of a statement of such costs with such
obligation to be capped at $250.00. Tenant will be obligated to make such
reimbursement without regard to whether Landlord consents to any such proposed
action. Payment by Tenant to Landlord of the amount set forth in said statement
shall be due 20 days after said statement is served on Tenant. Tenant and
Landlord acknowledge and agree that Tenant's obligation to pay the amount set
forth in said statement shall be a continuing obligation and shall survive the
expiration of the Lease Term and re-leasing of the Tenant's Space to another
party.
ARTICLE 5. RIGHT OF FIRST REFUSAL
In the event any additional space becomes available for lease
within Leasehold Premises or Building II of the Leasehold Premises or in
premises that may be constructed by
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Landlord (or another entity owned in whole or in part by Xxxx and/or Xxxxx
Xxxxxx) on lands contiguous to the Leasehold Premises and situated to the west
thereof (collectively, the "Additional Premises"), or if Landlord determines to
sell the Leasehold Premises, Tenant shall have a right of first refusal to lease
space in the Additional Premises, or to purchase the Leasehold Premises if it is
to be put up for sale, upon the terms and conditions set forth below.
A. Prior to leasing all or any part of the Additional
Premises, or selling the Leasehold Premises, to any other person or entity,
Landlord shall first offer the same to Tenant by written notice which shall
describe (a) the additional space available, including the type of space and any
minimum amount that must be leased, (b) the rent per square foot, (c) the
proposed lease term, and (d) all other material financial terms and conditions,
or in the case of a sale the price and terms on which it is to be offered for
sale. Except as otherwise described in Landlord's written notice, the Lease for
the additional space shall be in form and substance substantially similar to
this Lease, subject to such amendments as are necessary to reflect the financial
terms and conditions set forth in Landlord's notice. The written notice shall be
delivered to Tenant by certified mail, return receipt requested.
B. In order to exercise the right, (a) in the case of a lease,
Tenant shall deliver to Landlord written notice of Tenant's intention to lease
the additional space, which notice shall specify the square footage and type of
space to be leased; Tenant's notice shall be accompanied by a check in the
amount of one months rent for the Additional Premises to be held by Landlord in
partial payment of the security deposit for the additional space; or (b) in the
case of a sale a written notice of Tenant's intention to purchase the Lease
Premises on the terms offered, together with an xxxxxxx money deposit in the
amount of $25,000 to be applied towards the deposit on the contract ultimately
to be signed.
C. The notices required by this Article 5 shall be deemed to
be delivered on the day of hand delivery or on the second day following the date
of mailing.
D. If Tenant does not deliver to Landlord the notice required
by subparagraph (B) within 20 days after delivery by Landlord of the notice
specified in subparagraph (A) above, or if Tenant fails to execute a lease
agreement for the additional space, or a contract to purchase the Leasehold
Premises, as appropriate, within 60 days following delivery of Tenant's notice,
Tenant shall be deemed to have waived all rights under this Article 5 and
Landlord shall be free to lease the Additional Premises, or sell the Leasehold
Premises, as appropriate, on the same or substantially similar terms and
conditions to such other person or persons as Landlord may elect. Landlord shall
only be obligated one time to the Tenant, as to the right of first refusal for
said space, for any particular space. Should Tenant elect not to execute a lease
agreement or contract to purchase for said space, Tenant's right of first
refusal shall expire and be of no further force and effect, and any sums
previously paid by Tenant to Landlord pursuant to sub-paragraph B, above, shall
forthwith be returned to Tenant..
ARTICLE 6. ACTS OF DEFAULT BY TENANT
Tenant shall be in default under this Lease if:
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6.1 Tenant fails to perform any covenant under this Lease,
other than the covenant to pay Rent, within ten (10) days after Landlord serves
on Tenant a notice which specifies Tenant's failure to perform such covenant and
demands that Tenant cure the failure to perform such covenant. (If Tenant
cannot, despite Tenant's efforts and diligence, perform such covenant within ten
(10) days after Landlord serves such notice on Tenant, and Tenant so notifies
Landlord within said ten (10) day period, Tenant shall have such additional time
to perform such covenant as may be reasonable necessary, provided that Tenant
proceeds with diligence and uses its best efforts to cure the Tenant's failure
to perform such covenant. If Tenant fails to notify Landlord within said ten
(10) day period that Tenant cannot perform such covenant, Tenant shall be
conclusively deemed to have waived its right to have additional time in which to
cure its failure to perform such covenant.)
6.2 Tenant shall be in default under this Lease if Tenant
fails to replenish the Security Deposit in accordance with Article 17 of this
Lease within ten (10) days after Landlord served notice on Tenant demanding such
payment.
6.3 Tenant admits in writing its inability to pay its debts as
they mature.
6.4 Tenant makes an assignment for the benefit of creditors or
takes any other similar action for the protection or benefit of creditors.
6.5 Tenant files a voluntary petition in bankruptcy or is
adjudicated bankrupt or insolvent.
6.6 Tenant files any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under present or future applicable federal, state or other
statute or law relative to bankruptcy, insolvency or other relief for debtors.
6.7 A petition is filed against Tenant under the
reorganization provisions of the bankruptcy laws of the United States and Tenant
fails to have such petition discharged within thirty (30) days after the filing
thereof.
6.8 At any time during the Lease Term after Landlord has
notified Tenant that Tenant has habitually made late payment of Rent, Tenant
fails to pay any installment of Rent within five (5) days after such installment
is due. (Tenant shall be conclusively deemed to have made habitual late payment
of Rent if monthly installments of Rent are not received within five (5) days
after the due date for (a) any three (3) consecutive months, or (b) any four (4)
months, whether consecutive or non consecutive, in any twelve (12) month period.
If Tenant falls into habitually late status, and thereafter pays rent timely for
12 consecutive months, Tenant should be deemed to be out of that status.
ARTICLE 7. This provision reserved.
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ARTICLE 8. COMPLIANCE WITH ENVIRONMENTAL LAWS
8.1 Tenant expressly covenants and agrees to comply fully with
the provisions of the New Jersey Industrial Site Recovery Act (N.J.S.A. 13:1K-6,
et seq.) and its regulations, before termination of the Lease (to the extent
compliance is required because of Tenant's use or occupancy) or at any time that
any action of the Tenant triggers the applicability of ISRA because of its
occupancy or acts. In particular, the Tenant agrees that it shall comply with
the provisions of ISRA in the event of any "closing, terminating or
transferring" of Tenant's operations, as defined by and in accordance with the
regulations. If evidence of such compliance is not delivered to the Landlord
before surrender of the Tenant's Space by the Tenant to the Landlord, it is
understood and agreed that the Tenant shall be liable to pay to the Landlord an
amount equal to two times the monthly Base Rent then in effect, together with
all applicable monthly Additional Rent from the date of such surrender until
such time as evidence of compliance with ISRA has been delivered to the
Landlord, and together with any costs and expenses incurred by Landlord in
enforcing Tenant's obligations under this Paragraph. Evidence of compliance, as
used herein, shall mean a "letter of non-applicability" issued by the New Jersey
Department of Environmental Protection ("NJDEP"), an approved "negative
declaration" or a "remedial action plan" which has been fully approved by NJDEP
or other equivalent document as may then be prescribed by applicable
regulations. Evidence of compliance shall be delivered to the Landlord, together
with copies of all submissions made to the NJDEP, including all environmental
reports, test results and other supporting documentation. In addition to the
above, Tenant agrees that it shall cooperate reasonably with Landlord, but
without cost to Tenant, in the event ISRA is applicable to any portion of the
Leasehold Premises of which the Tenant's Space is a part that is not itself part
of the Tenant's Space. In such case, Tenant agrees that it shall cooperate
reasonably with Landlord in connection with any information or documentation
which may be requested by the NJDEP without cost to Tenant. If any remediation
of the property is required in connection with the conduct by Tenant of its
business at the Leasehold Premises, Tenant expressly covenants and agrees that
it shall be responsible for that portion of the remediation which is directly
attributable to the Tenant's operation. Tenant hereby represents and warrants
that its Standard Industrial Classification No. is 2834, and that Tenant shall
not generate, manufacture, refine, transport, treat, store, handle or dispose of
"hazardous substances" as the same are defined under ISRA and the regulations
promulgated pursuant thereto, except in strict compliance with all applicable
governmental rules, regulations and procedures. In no event shall Tenant be
responsible for any remediation at the Property or Office Park unless resulting
directly from Tenant's use and occupancy of the Property. If ISRA compliance
becomes necessary at the Leasehold Premises due to any action or non-action on
the part of Landlord or any third party, including but not limited to a change
in ownership of the Leasehold Premises, a closing of operations, or a transfer
of ownership or operations, then Landlord shall comply with ISRA and all
requirements of the NJDEP (or its successor) at Landlord's own expense. Tenant
hereby agrees that it shall promptly inform Landlord of any change in its SIC
number and obtain Landlord's consent for any change in the nature of the
business to be conducted in the Tenant's Space. The covenants in this Paragraph
8.1 shall survive the expiration or earlier termination of the Lease term.
8.2 Landlord shall be responsible for complying with any
statute, ordinance, rule, order, regulation or requirement relating to improper
construction of the building or property; or
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relating to any environmental matter that pre-dates Tenant's occupancy; or for
which Tenant is not obligated under the provisions of Paragraph 8.1.
ARTICLE 9. NO WAIVER
9.1 Tenant and Landlord acknowledge and agree that Landlord's
acceptance of any payment of Rent tendered by Tenant to Landlord shall not be
deemed to constitute a waiver by Landlord of any Non-Monetary Default, or any
Monetary Default, committed by Tenant prior to the tender and acceptance of such
Rent payment. Tenant and Landlord acknowledge and agree that Landlord's
acceptance of such payment of Rent shall not constitute a waiver by Landlord's
of Landlord's rights under this Lease with respect to any Monetary Default or
Non-Monetary Default which occurred prior to Landlord's acceptance of such
payment, unless Landlord specifically notifies Tenant in writing that acceptance
of such payment constitutes such a waiver.
9.2 No waiver of any breach of any covenant or condition of
this Lease shall be construed to be a continuing waiver of such covenant or
condition or any subsequent breach thereof.
ARTICLE 10. TIME OF THE ESSENCE
Tenant and Landlord acknowledge and agree TIME IS OF THE
ESSENCE with regard to all deadlines, time periods for providing notice, time
periods for performance of covenants, and other time limitations provided in
this Lease. Tenant and Landlord acknowledge that the failure to perform any
covenant of this Lease within the time required, or failure to give notice
within the time required, shall be considered material and substantial.
ARTICLE 11. ASSIGNMENT
11.1 Except as otherwise specifically provided herein, Tenant
shall not voluntarily or involuntarily sell, assign, encumber, or otherwise
transfer this Lease or any interest in this Lease; allow this Lease to be sold
assigned, encumbered or otherwise transferred by operation of law or otherwise;
sublet the Tenant's Space or any part of the Tenant's Space; lease concessions
or license departments in the Tenant's Space; pledge, mortgage, or secure by
other security instrument this Lease; or suffer any other person to occupy or
use the Tenant's Space or any part of the Tenant's Space, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
No subletting, and no transfer or assignment of this Lease, whether voluntary or
involuntary, by operation of law under legal process or proceedings, to or by a
receiver or trustee in bankruptcy, insolvency or similar proceedings, or
otherwise, shall be valid or effective without such prior written consent. Any
subletting or assignment which occurs by operation of law, merger,
consolidation, reorganization, transfer or other change of Tenant's corporate or
proprietary structure shall not require Landlord's consent.
11.2 Landlord's consent to one assignment or sublease shall
not be deemed to waive the requirement that Tenant obtain Landlord's consent to
any subsequent assignment or sublease.
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11.3 Any request by Tenant for Landlord's consent to a
specific assignment or sublease shall be in writing, accompanied by payment to
Landlord in the amount of $500.00 to cover Landlord's administrative, overhead
and legal costs in connection with review of such proposed assignment or
sublease. Tenant's request for Landlord's consent shall include the following
information: (A) the name and address of the proposed assignee or subtenant, (B)
a copy of the proposed assignment or sublease, (C) such information as Landlord
shall reasonably require regarding the business, character and financial
responsibility of the proposed assignee or subtenant, including banking,
financial or other credit information, (D) sufficient information as to the
proposed use of the premises by the subtenant to allow Landlord to determine if
such use is consistent with applicable zoning laws and regulations.
11.3.1 If Tenant believes that Landlord has violated the terms
of this Lease or any applicable law by not consenting to any proposed assignment
or subletting, Tenant's sole remedy will be to seek a declaratory judgment that
the Landlord has violated the terms of this Lease or any applicable law by
withholding its consent or an order of specific performance or mandatory
injunction of Landlord's agreement to give its consent.
11.4 Any sale, assignment, encumbrance, subletting, transfer
of possession of Tenant's Space to any third party, or other transfer of this
Lease which does not comply with the provisions of this Article 11 shall be void
and shall constitute a default under this Lease. Landlord's consent to any
assignment or sublease will not be effective unless and until the following have
been delivered to Landlord: (a) fully executed copy of the instrument of
assignment or sublease and, (b) in the case of an assignment, a written
instrument by which the assignee has assumed and agreed to perform all of
Tenant's obligations under the lease; and (c) if this Lease has been guaranteed
by a third party guarantor, the guarantor's written ratification of the
assignment.
11.5 Landlord's acceptance of Rent or any other payment under
this Lease from any party other than Tenant shall not be deemed to constitute
consent by the Landlord to any sale, assignment, encumbrance, subletting, or
other transfer of this Lease.
11.6 Without affecting any of Tenant's other obligations under
this Lease, if Landlord consents to any assignment or sublease, Tenant shall pay
to Landlord, as Additional Rent, twenty-five percent (25%) of the difference
between (A) all sums or other economic consideration received by Tenant as a
result of an assignment or subletting (other than payments attributable to the
amortization over the Lease Term of the cost of leasehold improvements which are
part of the assigned or sublet portion of the Tenant's Space and have been paid
for by Tenant), whether or not denominated as rental under the assignment or
sublease, less any brokerage commission, reasonable and customary out of pocket
costs and expenses, including tenant fit up payable by Tenant on the sublease or
assignment, and (B) all sums which Tenant is obligated to pay Landlord under
this Lease (prorated to reflect obligations allocable to that portion of the
Tenant's Space subject to such assignment or sublease). The sums payable under
this Paragraph 11.6 shall be paid to Landlord as and when paid by any assignee
or Subtenant to
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Tenant. The provisions of this paragraph shall not apply to any sublease or
assignment to an entity controlled by or under common control with Tenant.
ARTICLE 12. GOVERNMENTAL APPROVALS
12.1 Tenant shall, at Tenant's own cost and expense, obtain
all federal, state, county, municipal and other government licenses, permits and
approvals (including but not limited to certificates of occupancy) now or
hereafter required, in connection with Tenant's occupancy of the Tenant's Space,
or the termination, continuation, expansion, alteration or change of Tenant's
business operations at the Tenant's Space. Tenant acknowledges and agrees that
Landlord has made no warranty or representation as to whether the use for which
Tenant is leasing the Tenant's Space is permitted, restricted, regulated,
prohibited or otherwise affected by any law, ordinance or regulation. Tenant
acknowledges and agrees that this Lease is not contingent on Tenant obtaining
any such governmental licenses, permits and approvals. Tenant shall indemnify,
defend and save harmless Landlord from all fines, civil penalties, suits,
procedures, claims, damages and actions of any kind, including attorney's fees,
arising out of Tenant's failure, to obtain such required governmental licenses,
permits and approval or in connection with any appeal of, or other procedure in
connection with, the issuance of such licenses, permits and approvals.
Notwithstanding the foregoing, Tenant shall make no application to any planning
board or board of adjustment for any site plan or variance approval or any other
approval or relief without first obtaining the written consent of the Landlord.
ARTICLE 13. This provision reserved.
ARTICLE 14. OCCUPANCY AND USE
14.1 Tenant shall occupy the Tenant's Space on the
Commencement Date and thereafter use the Tenant's Space for the Permitted Uses
during the entire Lease Term and for no other use or purpose whatsoever, without
obtaining Landlord's prior consent, which shall not be withheld unreasonably.
14.2 No trade name shall be used in connection with the
operation of Tenant's business at the Tenant's Space without Landlord's express
written consent.
14.3 Tenant shall not suffer or permit the Tenant's Space to
be used for any unlawful or immoral purpose. Tenant will not suffer or permit
any article to be brought into the Tenant's Space, or any act to be done in the
Tenant's Space, which shall render the Tenant's Space uninsurable. Tenant shall,
at Tenant's sole cost and expense, comply with all applicable laws, ordinances,
rules and regulations (including all zoning and building restrictions and
conditions associated with any present of future site plan approvals or
variances affecting the Leasehold Premises) or any governmental authority having
jurisdiction over the Tenant's Space, now or in the future, and the requirements
of all insurance underwriters.
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14.4.1 Tenant agrees that Tenant shall use window treatments
known as Vignett Roman Shades, made by Xxxxxx Xxxxxxx. The shades shall be
outside mounted paranot inside the windowsill (with the header above the top of
the window so that it will not be seen from the outside). Tenant will place no
signs, awnings or curtains on any part of the exterior of said premises or on
any show window, nor paint any brick work, cornice work, mill work or metal work
on the front of said premises without the prior written consent of Landlord,
which consent shall not be unreasonably withheld. Tenant's sign shall in no way
diminish the rights of other Tenants in the Leasehold Premises to maintain or
erect signs identifying their businesses. Any sign permits which are required
shall be obtained and paid for by the Tenant.
14.4.2 Landlord shall have the right to remove, and the
obligation to replace, Tenant's signs or any of them, at any time or from time
to time during the terms of this Lease, as may be necessary, in order to paint
or make any other repairs, alterations or improvements, including the
modification of the building facade, in or upon the Leasehold Premises.
14.4.3 The Landlord shall have the right to insure uniformity
of design and type of signage in the Leasehold Premises of which the demised
premises is a part to limit the shape, size, kind of number of signs in the
demised premises. In the event that the Landlord shall adopt such policy after
the Tenant has affixed any sign or signs, then the Landlord shall have the right
to replace, remove or alter the Tenant's signs so long as the Landlord replaces
such signage with new signage which identifies Tenant's premises and which new
signage is equal in size to that identifying the premises of other Tenants in
the Leasehold Premises of equivalent size. In such event, the cost of such
removal, replacement, alteration or modification shall be borne by Landlord.
14.5.1 Landlord agrees to provide to Tenant on-site parking in
common with other tenants of the Leasehold Premises. Landlord anticipates that
114 spaces will be available. Tenant shall be permitted to use its proportionate
share of such spaces based on the Tenant share set forth in Paragraph 1.14 of
this Lease. As Tenant is occupying 40.7% of the space Tenant shall be entitled
to utilize 47 parking spaces. Tenant agrees that the space set aside for the
parking of automobiles adjacent to the office space within the Leasehold
Premises shall not be used at any time for the loading or unloading of trucks or
delivery vehicles.
14.5.2 Without limiting the generality of the foregoing, it is
specifically agreed that Landlord may, from time to time, issue parking decals
so as to identify vehicles owned or operated by the Tenants of the Leasehold
Premises and their employees. In such event, Tenant shall require that such
decals be affixed to all vehicles owned or operated by Tenant or Tenant's
employees, in accordance with the rules and regulations from time to time
promulgated by Landlord. Tenant further acknowledges that Landlord may cause
employee vehicles improperly parked in accordance with the provision of this
Lease and rules and regulations from time to time promulgated by Landlord which
are applicable to employee parking to be towed from the Leasehold Premises and
in such event, Landlord shall not be responsible for any damage to personal
property occasioned thereby provided Landlord has exercised reasonable care
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14.6 Tenant, and Tenant's agents, guests, invitees, servants,
employees or licenses, shall not enter upon the roof of the Leasehold Premises,
and Tenant shall not cause or allow any machinery, equipment, stock or other
items to be placed upon or removed from the roof of the Leasehold Premises,
without the express prior consent of Landlord in writing, which consent shall be
unreasonably withheld.
14.7 Following advance notice to Tenant and without
unreasonably disrupting Tenant's operations, Landlord and Landlord's agents,
servants and assigns shall have the right, at all reasonable times, to enter
upon the demised premises for any reasonable purpose, including, but not limited
to, inspecting the same, making necessary repairs, moving material through the
premises, or showing same to potential purchasers or tenants. Landlord shall
have the further right, during the last twelve (12) months of the Lease Term, to
bring prospective tenants into the demised premises for the purpose of showing
the same.
ARTICLE 15. LANDLORD'S REMEDIES UPON TENANT'S
DEFAULT
15.1 If Tenant is in default under this Lease, as described in
Article 6, then without limiting the legal and equitable remedies generally
available to Landlord, the Landlord may, at the option of the Landlord, do any
one or more of the following:
15.1.1 In the event of a Monetary Default, without prior
notice to Tenant, Landlord may, at Landlord's option and in Landlord's sole
discretion, initiate summary proceedings in court of competent jurisdiction to
obtain a judicial order granting Landlord the right to possession of the
Tenant's Space. Service of process in said summary proceedings shall be deemed
to constitute notice by Landlord to Tenant of Landlord's election to terminate
Tenant's right to possession of the Tenant's Space only without releasing Tenant
from Tenant's obligations under the Lease.
15.1.2 In the event of any monetary default specified in
Article 6 or elsewhere in this Lease, Landlord may, at Landlord's option and in
Landlord's sole discretion, terminate Tenant's right to possession of the
Tenant's Space, without releasing Tenant from Tenant's obligations under this
Lease, following not less than three days written notice to Tenant, and at any
time after the effective date of such notice, Landlord may resume possession of
the Tenant's Space by any lawful means and remove Tenant and other occupants and
their personal property and effects from the Tenant's Space by any lawful means.
15.1.3 In the event of any default specified in Article 6 or
elsewhere in this Lease, Landlord may, at Landlord's option and in Landlord's
sole discretion, at any time after Tenant has defaulted, including any time
after Landlord has elected to terminate Tenant's right to possession only, elect
to terminate this Lease and the tenancy and leasehold interest created by this
Lease, on not less than three days written notice to Tenant.
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15.2 If this Lease is terminated pursuant to Subparagraph
15.1.2 above, Tenant shall remain liable for all reasonable costs, fees,
expenses and damages which are incurred and sustained by Landlord by reason of
Tenant's default, including but not limited to attorney's fees, costs and
expenses incurred by Landlord in pursuing remedies under this Lease, or costs
incurred in renting the Tenant's Space to others, from time to time, including
costs of redecorating and repairing the Tenant's Space, plus (A) an amount or
amounts equal to the Rent and other sums which Tenant is obligated to pay
Landlord during the remainder of the Lease Term following termination of
Tenant's right to possession, less the amount or amounts of rental, if any,
received by Landlord during such period from others to whom the Tenant's Space
may be rented by Landlord, the foregoing being payable at Landlord's option
either in an accelerated lump sum payment equal to the total Rent and other
amounts due for the balance of Lease Term, or payment in monthly installments,
or (B) an amount equal to the net value, as of the date of termination of
Tenant's right to possession, of Rent and other amounts which would have been
paid, but the termination of the Lease, less the fair market value of the Lease,
as determined by a real estate appraiser named by Landlord, the foregoing amount
being payable to Landlord in one lump sum on demand. If Landlord relets the
Tenant's Space during the balance of the Lease Term, Landlord may lease the
Tenant's Space on such terms and conditions (including concessions for rent free
periods and alterations of the Tenant's Space) as Landlord, in Landlord's
reasonable discretion, may determine. Landlord shall not be liable for, and
Tenant's obligations under this Article 15 shall not be diminished by Landlord's
reasonable failure to relet the Tenant's Space or any reasonable failure by
Landlord to collect any rent due upon such reletting.
15.3 If Landlord obtains possession of the Tenant's Space
after Tenant defaults and Landlord terminates Tenant's right to possession, and
Tenant abandons Tenant's goods, merchandise, equipment and other property and
leaves same within the Tenant's Space, Landlord may, at Landlord's option,
without further notice to Tenant, remove such goods, merchandise, equipment and
other personal property from the Tenant's Space and place same in a public
warehouse or elsewhere at the cost and expense of Tenant. If Tenant fails to
remove such property from storage and pay all cost and expense of the moving and
storage of such property within 10 days after Landlord demands same, Landlord
may, at Landlord's option, sell such property on behalf of Tenant, and for
Tenant's account, at a private auction or sale. If Landlord exercises the right
to sell such property on behalf of Tenant, such sale shall be held not less than
5 days after Landlord serves notice on Tenant specifying the time, date, and
place of such sale. The proceeds of such sale shall be applied by Landlord as
follows: First, to the costs of such sale; next to the costs of moving and
storage of such property; next to the amounts due Landlord under this Lease. The
balance, if any, shall be paid and turned over to Tenant. Tenant hereby
irrevocably appoints Landlord as Tenant's agent and attorney-in-fact for the
purpose of making such sale and hereby authorizes and empowers Landlord to
deliver title to such property at such sale on behalf of Tenant. Nothing in this
Subparagraph 15.3 is intended to limit or restrict the right of the Landlord to
pursue the remedy of distraint pursuant to N.J.S.A 2A:33-1 in accordance with
procedures required by law.
15.4 In the event of a default under this Lease by Tenant and
if Landlord files a complaint seeking a judgment of possession as provided in
Subparagraph 15.1.1., or serves on Tenant notices referred to in Subparagraphs
15.1.2. or 15.1.3., Tenant shall pay Landlord
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immediately, upon written demand by Landlord served upon Tenant, as Additional
Rent, a sum equal to (A) $1,000 in the event of a Non-Monetary Default, or (B)
in the event of a monetary default, twenty-five (25%) percent of the amount due
under the Lease and unpaid by Tenant at the time of the default, or $1,000
whichever is greater. Landlord and Tenant acknowledge and agree that the
foregoing amount represents reimbursement to Landlord for Landlord's added
administrative expenses and costs, including, but not limited to attorney's
fees, in connection with any such default. In the event of a material default by
Landlord in its obligations under this lease, Tenant may seek the assistance of
any court of competent jurisdiction by way of Complaint or Counterclaim , and
may, as part of such action seek to be relieved of the obligation to pay some or
all of the Rent. If Tenant
ARTICLE 16. This provision reserved.
ARTICLE 17. SECURITY DEPOSIT
17.1 Tenant has on or before the date of execution of this
Lease deposited with Landlord the Security Deposit as security for the prompt,
full and faithful performance by Tenant of all covenants and obligations
undertaken by Tenant in this Lease. The Deposit shall be paid to the Landlord in
the form of (i) cash, which shall be fully insured and interest to accrue to
Tenant's account, (ii) comparable secure financial instrument, satisfactory to
Landlord or (iii) an irrevocable letter of credit from Xxxxxxx Xxxxx, xxxx
equate to a total of Twelve (12) months average rental to be paid by Tenant over
the initial term of the Lease. The Landlord will agree to reduce the Security
Deposit by one month, commencing with the expiration of the second lease year,
(month 25 of the term) provided Tenant is not in default of the Lease and
continuing with an annual reduction by one month's rent each year of the term
thereafter, with it being understood that notwithstanding the annual reduction
in the Tenant Security Deposit, no less than three (3) months Security Deposit
shall remain with the Landlord after the seventh year of the Lease. During the
term of Lease, the Landlord may, if the Landlord so elects, have recourse to
such security, to make good any default by the Tenant, in which event the Tenant
shall, within five (5) days after notice promptly restore said security to its
original amount and failure to do so shall, at the option of the Landlord, be a
default under the Lease. If Tenant is in default under this Lease, without
limiting any other remedy available to Landlord under this Lease, Landlord may,
in Landlord's discretion, use, apply, and retain all or any part of the Security
Deposit for payment of Rent, or for payment of any amount due Landlord under
this Lease, or for reimbursement to Landlord for any sum which Landlord has
expended by reason of Tenant's default. Tenant shall not be entitled to
interest, if any, earned on the Security Deposit. If Landlord applies all or any
part of the Security Deposit upon default by Tenant as provided in this Article
17, Tenant shall pay to Landlord the amount necessary to replenish the Security
Deposit to the amount initially held hereunder by Landlord, said payment to be
due five (5) days after Landlord serves notice on Tenant demanding such payment.
At the termination of the Lease or upon Tenant vacating the premises, Tenant
agrees to obtain final meter readings for all utilities serving the Tenant's
Space and provide copies to the Landlord along with proof of payment within
thirty (30) days of the end of the term of the Lease or vacation of Tenant's
Space. Landlord shall not be obligated to return any portion of the Tenant's
Security Deposit until all utilities bills are paid in full.
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17.2 Should Tenant seek to provide an irrevocable letter of
credit pursuant to Paragraph 17.1 hereinabove, said irrevocable letter of credit
must, by its express terms, not expire without a minimum of 45 days notice by
the banking institution providing a letter of the Landlord. Said letter of
credit shall be extended a minimum of 30 days prior to its expiration or Tenant
shall be deemed to be in default under this Lease and shall be obligated to
replenish the Security Deposit in the form of cash.
ARTICLE 18. LIENS
18.1 Tenant shall promptly remove or release, by the posting
of a bond or otherwise, as permitted by law any lien attaching to the Leasehold
Premises or any portion of the Leasehold Premises by reason of any act or
omission by the Tenant. Tenant shall save, defend and hold harmless Landlord
from and against any such lien or claim of lien. If any such lien does attach
and any claims are asserted against the Leasehold Premises arising from any act
or omission by the Tenant, and such lien is not released, discharged and
satisfied of record within thirty days after Landlord serves notice on the
Tenant demanding same, Landlord may, at Landlord's option, but shall not be
obligated to, pay and discharge said lien and Tenant shall pay Landlord, as
Additional Rent, upon demand made by Landlord, reimbursement of all expenses
paid by Landlord in discharging such lien, including interest at the rate of 18
percent per year, or the maximum legal rate of interest, whichever is less, from
the date such lien is paid by Landlord until the date Landlord is reimbursed by
Tenant.
18.2 Landlord acknowledges that Tenant may enter into one or
more financing arrangements including promissory notes and financial and
security agreements for the financing of furniture or fixtures installed at the
expense of Tenant in the Tenant's Space (the "Collateral") with a third party
financing entity. In connection therewith, Landlord (i) consents to the
installation of the Collateral; (ii) disclaims any interest in the Collateral,
as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt
from execution, foreclosure, sale, levy, attachment, or distress for any Rent
due or to become due and that such Collateral may be removed at any time without
recourse to legal proceedings.
ARTICLE 19. CONSTRUCTION, MAINTENANCE AND REPAIR
19.1.1 Landlord shall complete the work identified on the
Landlords Workletters attached hereto as Exhibit C1 ("Tenant's Space Alterations
- Office and Lab) and Exhibit C2 ("Tenant's Space Alterations- Warehouse") and
shall notify Tenant of the Completion Date. The Tenant's Space Alterations shall
also include the installation of central air conditioning in the warehouse
space, based upon 3 tons per 1,000 sq. ft. (net rentable).
19.1.2 Tenant shall be given a credit for any work not
performed or materials not supplied by Landlord in accordance with the
allowances set forth in the Landlord Workletter, which credit may be taken in
the form of cash or applied to additional Landlord work, provided such work does
not exceed the amount of the allowance.
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19.1.3 The Tenant's Space Alterations shall be deemed
complete, despite the fact that minor or insubstantial details of construction,
decoration or mechanical adjustment remain to be performed. Landlord shall
perform such construction, decoration or mechanical adjustment within 30 days
after Landlord receives from Tenant written notice specifying any such
construction, decoration or mechanical adjustment which may be required. If
Tenant fails to serve such notice on Landlord within 30 days after the
Commencement Date, Tenant shall be conclusively deemed to have accepted the
Tenant's Space Alterations in an "as is" condition.
19.2.1 All installations, materials and work, other than the
Tenant's Space Alterations, which may be undertaken by or for the account of
Tenant to prepare, equip, decorate and furnish the Tenant's Space for Tenant's
occupancy (the "Leasehold Improvements"), which Leasehold Improvements shall
include without limitation, the addition of floor drains and other customization
of the warehouse (e.g., plumbing, electrical, or other Workletter items), shall
be at Tenant's sole cost and expense. Any such Leasehold Improvements shall be
made pursuant to a separate contract between Tenant and Landlord providing for
(i) Landlord's performance of the construction with progress payments as work is
commenced or (ii) at Tenant's election, by contractors selected by Tenant,
subject to Landlord's prior approval of such contracts, which approval shall not
be unreasonably withheld.
19.2.2 Except as specifically set forth in paragraph 19.2.3
below, Tenant shall not cut or drill into any part of the Tenant's Space, or
secure any fixture, apparatus or equipment of any kind to any part of the
Tenant's Space, without first obtaining Landlord's written consent, which shall
not be unreasonably withheld Tenant shall submit to Landlord plans and
specifications covering all work which Tenant proposes in the Tenant's Space,
including layout, fixtures and decor. No such work shall be performed until
Landlord has approved such plans and specifications. Tenant shall not make any
structural change, alteration or addition to the Tenant's Space. Moving stud
partitions, minor plumbing and electrical work, and modification and
rearrangement of floor fixtures shall not constitute structural changes. Failure
of Landlord to act with 5 days of request for approval shall be deemed to be
approval.
19.2.3 Tenant shall have the right to make improvements to the
demised premises without Landlord's consent, provided the cost of such
improvements will not exceed $20,000, such improvements are non-structural, do
not involve roof penetrations and will not affect the HVAC, electrical or
plumbing systems in the Leasehold Premises. If Tenant elects to make
improvements to the demised premises in excess of $20,000, Tenant shall utilize
the services of a contractor or contractors from a list of contractors selected
by Tenant and approved by Landlord, which approval shall not be unreasonably
withheld.
19.3 During the Lease Term, Landlord shall maintain the roof
and exterior walls of the Tenant's Space, except for any work done by Tenant and
glass, doors, windows, or any part thereof. If any repairs of the roof or
exterior walls are required by the negligence of Tenant or Tenant's agents,
employees, customers, invitees, licenses, Landlord shall make such repairs at
Landlord's cost and expense, which cost and expense shall be deemed to
constitute Additional Rent and shall be due upon demand by Landlord. Landlord
acknowledges that it has the responsibility to maintain the common areas of the
Leasehold Premises.
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19.4 Landlord covenants and agrees to be responsible for snow
removal in the parking lot and loading areas serving the Leasehold Premises.
Landlord agrees to perform this service promptly upon accumulation of snow and
to continue plowing until all areas are cleared.
19.5 Tenant shall make all necessary repairs, improvements,
and decorations on, in and to the interior of the Tenant's Space in a good and
workmanlike manner, in accordance with all applicable governmental requirements
and the general architectural design criteria provided by Landlord.
19.6 Tenant will pay all initial utility deposits and fees,
and all monthly service charges for water, electricity, sewage, gas, telephone,
and other utility services furnished to Tenant at the Leasehold Premises and the
improvements on the premises during the term of this Lease. Such services shall
be separately metered and billed to Tenant by the utility.
19.7 Tenant shall not permit the accumulation of garbage,
rubbish or other waste in and around the Tenant's Space. Tenant shall keep the
inside and outside of all glass surfaces of the doors and windows of the
Tenant's Space clean; promptly replace cracked or broken glass of the Tenant's
Space; keep all exterior surfaces of the Tenant's Space clean, maintain the
Tenant's Space in a clean, orderly and sanitary condition and free of insects,
rodents, vermin and other pests; keep any garbage, rubbish or refuse in rat
proof containers within the interior of the Tenant's Space until removed and
placed in areas designated by Landlord or trash pick-up, at times designated by
the Landlord; keep all mechanical apparatus free of vibration and noise which
may be transmitted beyond the Tenant's Space; and conduct its business at the
Tenant's Space in all respects in accordance with the high standards of Tenant's
Space operations consistent with a quality Leasehold Premises, as determined by
Landlord, to provide an appropriate quality atmosphere for the Leasehold
Premises.
19.8 Tenant shall not use or occupy the common areas of the
Leasehold Premises except as specifically allowed by the terms of this Lease or
by the written consent of Landlord. Tenant shall not place or maintain any
signs, displays, devices, merchandise, trash, refuse, or other articles in, and
shall not disrupt or obstruct, any vestibule, entry area, footwalk, corridor,
parking area, or other common area or facility. Tenant shall not use any
objectionable advertising medium or attention-getting device, including without
limitation loudspeakers, phonographs, public address systems, sound amplifiers,
radio or television broadcasts, flashing lights or anything else which could be
seen, heard or perceived outside of the Tenant's Space. Tenant shall not permit
accumulation of garbage, trash, rubbish, or other refuse within or without the
Tenant's Space; cause or permit odors of any kind to emanate or be dispelled
from the Tenant's Space; solicit business in the parking lot or other common
areas of the Leasehold Premises; distribute handbills or other advertising
matter to, in or upon any automobiles parked in the parking areas of the
Leasehold Premises or to persons in any common area of the Leasehold Premises;
permit the parking of delivery vehicles so as to interfere with driveways,
footwalks, parking areas or other common facilities of the Leasehold Premises;
receive or ship articles of any kind, except through service facilities provided
for such purpose by Landlord; conduct or permit to be conducted any auction,
fire sale, going out of business sale, bankruptcy
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or other similar type sale in or connected with the Tenant's Space; place a load
on any floor in the Leasehold Premises, which exceeds the designed or permitted
floor load capacity.
19.9 Landlord may, but shall not be required to, perform any
covenant required to be performed by Tenant pursuant to this Article 19 or
pursuant to any other provision of this Lease, if Tenant is in default with
respect to its performance of such covenant. If Landlord performs such covenant,
Tenant shall pay to Landlord, as Additional Rent, upon demand by Landlord,
Landlord's actual cost thereof, plus 15 percent to cover Landlord's additional
administrative and overhead expenses in connection therewith.
19.10 At the expiration of the Lease Term, or upon earlier
termination of this Lease, Tenant shall quit and surrender possession of the
Tenant's Space to Landlord in as good a state and condition as the Tenant's
Space was in on the Commencement Date, with the exception of reasonable use and
wear, and alterations, additions and changes permitted by Landlord in accordance
with this Lease.
19.11 All alterations, additions, erections, or improvements
on or in the Tenant's Space shall be and become a part of the Tenant's Space
immediately upon installation thereof and at Tenant's option shall either remain
upon and be surrendered with the Tenant's Space upon the expiration of the Lease
Term or earlier termination of this Lease or shall be removed by Tenant at its
expense and the premises restored to its prior condition.
19.12 Tenant may remove furniture or fixtures installed at the
expense of Tenant at the expiration of the Lease Term or earlier termination of
this Lease, provided that the Tenant's Space is restored to a condition
comparable to its condition on the Commencement Date prior to the installation
of such fixtures or furniture and provided that Tenant is not in default under
this Lease at the expiration of the Lease Term or earlier termination of this
Lease. If Landlord so notifies Tenant 30 days prior to the expiration of the
Lease Term, Tenant shall, at Tenant's own cost and expense, remove such
alterations, furniture and fixtures as may be designated by Landlord in said
notice and restore the Tenant's Space to a condition comparable to its condition
on the Commencement Date. Landlord's request must be made at the time of
installation and only apply to items that are unusual. If Tenant fails to remove
the alterations, furniture or fixtures designated by Landlord prior to the
expiration of the Lease Term or earlier termination of this Lease, Landlord may,
at Landlord's option, remove such items and restore the Tenant's Space to a
condition comparable to its condition on the Commencement Date, and Landlord's
costs thereof shall be paid by Tenant to Landlord upon demand by Landlord as
Additional Rent.
19.13 Landlord and Tenant recognize and agree that the
existing electrical service provided to "Tenant's Space" is inadequate for
Tenant's needs. Landlord and Tenant agree that the Tenant shall be responsible
for providing increased electrical power to Tenant's Space. Landlord shall
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pay the cost of brining the required electrical service from the transformer on
the south side of Minneakoning Road to the north side of Minneakoning Road.
Tenant shall be responsible for all other costs of upgrading the electrical
service, including but not limited to, trenching, wiring, backfilling,
installation costs, inspection fees and all equipment charges.
ARTICLE 20. INSURANCE AND INDEMNIFICATION
20.1 As a material part of the consideration for this Lease,
Tenant assumes all risks, waives all claims against Landlord, for any damage to
any property or any injury to or death of any person in or about the Tenant's
Space arising at any time and from cause whatsoever, other than causes
attributable to the negligence or willful acts of Landlord.
20.2 Tenant shall indemnify, defend, save and hold Landlord
harmless from and against (a) all claims of liability for any injury or damage
to any person or property whatsoever occurring in, on or about the Tenant's
Space or any part thereof, when such injury or damage shall be caused in part or
in whole by the act, neglect, fault of, or omission of performance of any duty
with respect to the same, by Tenant, and Tenant's agents, servants, employees or
invitees; (b) all claims by or on behalf of any person, firm or corporation
arising from the conduct or management of any work or thing whatsoever done by
Tenant in or about or from transactions of Tenant concerning the Tenant's Space.
20.3 At all times during the Lease Term, Tenant shall keep in
full force at its own expense, in companies and in amounts acceptable to
Landlord, and naming Landlord as an additional named insured (a) fire insurance
with extended coverage equal to the replacement costs of Tenant's improvements
to the Tenant's Space; (b) public liability insurance, insuring Landlord and
those in privity of estate with Landlord against cost, expense and liability
arising out of or based on claims, accidents, injuries and damages referred to
herein, with the broadest form of coverage available, with minimum amounts for
such insurance being $3,000,000 for bodily injury or death to any one person,
$5,000,000 for bodily injury or death to more than one person, and $3,000,000
with respect to damage to property; and (c) Workmen's Compensation insurance
insuring against and satisfying Tenant's obligations and liabilities under the
Workmen's Compensation laws of the State of New Jersey. A copy of the policy
shall be provided to the Landlord.
20.4 Tenant shall pay to Landlord, upon demand made by
Landlord, as Additional Rent, the amount by which insurance premiums for
insurance carried by Landlord on the Leasehold Premises increases by reason of
the nature of Tenant's activities at the Tenant's Space, the schedule issued by
the appropriate insurance underwriting rating service showing components of such
rate, being conclusive evidence of increase.
20.5 Tenant shall provide to Landlord, within 10 days after
demand is made by Landlord, evidence of insurance coverage as required by this
Article, the policy for such
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coverage to provide that same shall not be canceled or materially altered
without first providing 30 days written notice thereof to Landlord.
20.6 Tenant accepts all personal property, fixtures, goods,
wares and merchandise in the Tenant's Space as is, where is, and the risk of
loss of such property shall be on Tenant. Landlord shall not be liable for any
damage or losses resulting from acts of negligence of other persons, nor from
bursting, overflowing or leaking of roof, water and steam pipes, plumbing,
electrical systems, or any other cause whatsoever.
20.7 If the Tenant's Space is damaged by fire or other
casualty but is not rendered untenantable, Landlord shall apply the proceeds of
insurance to repair such damage. If such damage makes the Tenant's Space
untenantable, Landlord shall, at the option of Landlord, (a) apply the proceeds
of insurance to repair such damage and until such repairs are completed the Rent
shall be abated proportionately for those portions of the Tenant's Space which
are untenantable (with no extension of the Lease Term), or (b) terminate this
Lease by giving 30 days written notice to Tenant.
20.8 Landlord, its agents and employees make no representation
that the limits of liability specified to be carried by Tenant pursuant to this
Article are adequate to protect Tenant. If Tenant believes that any of such
insurance coverage is inadequate, Tenant will obtain, at Tenant's sole cost and
expense, such additional insurance coverage as Tenant deems adequate.
ARTICLE 21. CONDEMNATION
If any portion of the Tenant's Space is taken or condemned for
public use, Landlord shall rebuild and restore the remaining portion thereof so
as to provide an architecturally complete unit, with a pro rata adjustment of
Rent based on the actual remaining gross floor area. Either Party may terminate
this Lease by giving 30 days written notice to the other party within 30 days
after a condemnation judgment is entered, or a deed in lieu of condemnation is
executed, if more than 25 percent of the gross floor area of the Tenant's Space
is taken. Tenant shall have no right or claim to any portion of any condemnation
award received by Landlord for the Tenant's Space.
ARTICLE 22. HOLDING OVER BY TENANT
In the event the Tenant shall, without the written consent of
the Landlord, hold over upon the termination of this Lease, for whatever reason,
the same may be terminated, in addition to such remedies as may be provided
under the terms of this Lease or under applicable law. In the event the Tenant
shall hold over after the expiration of this Lease, the tenancy created by such
holding over shall be a month to month one, but subject to the provisions
hereinabove set forth, in all others respects shall be governed by the terms of
this Lease, except that, in addition to the provision, set forth above, the Base
Rent shall increase for such periods that the Tenant holds over fifty percent
(50%).
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In addition, Tenant agrees to defend and hold Landlord
harmless against any and all claims made by any future or subsequent tenant, due
to Tenant's action of holding over.
ARTICLE 23. COVENANT OF QUIET ENJOYMENT
Landlord covenants that it has full right and power to execute
this Lease, and that it will put Tenant into complete and exclusive possession
of the demised premises. Landlord further covenants that Tenant, and paying the
rents reserved herein and performing the covenants and agreements hereof, shall
peaceably and quietly have, hold and enjoy the demised premises and all rights,
easements, appurtenances and privileges thereunto belonging or in any way
appertaining, during the full term of this Lease, and any extension or renewals
hereof.
ARTICLE 24. SUBORDINATION
This Lease shall be subordinate to the lien of any mortgage
now or hereinafter placed upon the interest of Landlord in the demised premises.
If the interest of Landlord in the demised premises shall be transferred to and
owned by a mortgagee by reason of foreclosure, Tenant shall be bound to such
mortgagee under all of the terms, covenants and conditions of this Lease for the
balance of the term then remaining, with the same force and effect as if such
mortgagee was the Landlord under the Lease, and Tenant does hereby attorn to any
such mortgagee as its Landlord, said attornment to be effective and self
operative without the execution of any further instruments on the part of the
Tenant immediately upon such mortgagee succeeding to the interest of the
Landlord in the demised premises. Tenant agrees that, if requested, by the
holder of any such mortgage, it will, without charge therefore, be a party to a
subordination and attornment agreement as grantor or in any other requested
capacity in order to confirm the provisions of this article, and Tenant further
agrees that it will, upon the request of Landlord, without charge therefor,
execute, acknowledge and deliver any and all instruments necessary or desirable
to give effect to or notice of such subordination and attornment. Wherever the
terms "mortgage" and "mortgagee" are used in this Lease, they shall be deemed to
mean and include, respectively: (i) mortgages, deed of trust or security
instrument and any purchaser at any public or private foreclosure sale, or
anyone rightfully claiming by or through such mortgage of such purchaser. It is
specifically understood that the mortgagee shall honor this Lease in its
entirety, as if it were the party signing the Lease, and not disturb the Tenant
or it's right hereunder.
ARTICLE 25. TRANSFER OF LANDLORD'S INTEREST
25.1 The term "Landlord" as used in this Lease, is defined as
the then current owner or mortgagee in possession of the demised premises. In
the event of any sale or sales by the then current Landlord hereunder of the
demised premises, or in the event said demised premises are leased by the then
current Landlord hereunder to any party (subject to this Lease), then, from and
after the closing of such sale or Lease transaction, the Landlord whose interest
is thus sold or leased shall be and is hereby completely released and forever
discharged from and of all covenants, obligations and liabilities of Landlord
hereunder thereafter accruing, including any obligation with respect to any
security deposited by Tenant. In the event the Landlord sells the
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Leasehold Premises, the new Landlord will honor this Lease in its entirety and
not disturb the Tenant.
25.2 Tenant specifically agrees to look solely to Landlord's
interest in the Leasehold Premises for the recovery of any Judgments from
Landlord, it being agreed that Landlord (and its shareholders, partners,
ventures, and employees, agents, servants and assigns) will never be personally
liable for any such judgments, and Tenant, by signing this Lease, hereby forever
gives up and expressly waives any claim against the individual representatives
of Landlord. This provision will not limit any right that Tenant might otherwise
have to obtain injunctive relief against the Landlord of any suit or action in
connection with enforcement of collection of amounts which may become owing or
payable under or on account of insurance maintained by Landlord.
ARTICLE 26. CHANGES REQUIRED BY LENDER;
ESTOPPEL CERTIFICATE; RECORDING PROHIBITED
A. In the event that any mortgagee providing either the
interim or the permanent financing for the Leasehold Premises requires, as a
condition of such financing, that modifications to this Lease be obtained, and
provided that such modifications: (i) are reasonable, (ii) do not adversely
effect Tenant's use of the demised premises as herein permitted, (iii) do not
materially alter the mutually approved working plans and specifications, if any
there be, and (iv) do not increase the rents and other sums required to be paid
by Tenant hereunder; then and in such event, Landlord may submit to Tenant a
written amendment to this Lease incorporating such required changes, and Tenant
hereby covenants and agrees to execute, acknowledge (if necessary), and return
such amendment to Landlord within ten (10) days of Tenant's receipt thereof from
Landlord. If Tenant fails to so execute, acknowledge (if necessary), and return
such amendment to Landlord within such ten (10) day period, then Landlord,
without waiving any rights it may have at law or in equity by reason of Tenant's
failure to so execute and return such amendment, shall have the right, at its
sole option, either; (i) to execute, acknowledge (if necessary), and deliver
such amendment in the name and on behalf of Tenant, and, for the purpose
thereof, Tenant hereby irrevocably constitutes and appoints Landlord as,
Tenant's attorney in fact to execute and deliver such amendment in the name of
and on behalf of Tenant, said power of attorney being coupled with an interest
and being irrevocable; or (ii) to terminate and cancel this Lease by giving
written notice of such termination and cancellation to Tenant, immediately
whereupon this Lease and all rights of Tenant hereunder shall be canceled and
terminated, any money or other security theretofore deposited by Tenant with
Landlord shall be forfeited by Tenant (as liquidated damages and not as a
penalty), and both Landlord and Tenant shall thereupon be relieved from all
liability or obligations hereunder thereafter accruing (but neither shall be
relieved of any liability or obligation accrued to such date of termination,
including, without limitation, any liability of Tenant to Landlord for Tenant's
failure to execute and return the Lease amendment referred to in this Section)
B. Recognizing that both parties may find it necessary to
establish to third parties, such as accountant, banks, mortgagees or purchasers,
the then current status of performance hereunder, either party, on the written
request of one to the other made from time to
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time, will promptly furnish a written statement on the status of any matter
pertaining to this Lease.
C. Without limiting the generality of the foregoing, the
Tenant specifically agrees, promptly upon the commencement of the term hereof,
to execute a standard Commencement Letter prepared by Landlord, confirming the
date of the commencement of the term and acknowledging satisfaction of the
requirements with respect to construction and other matters by the Landlord,
save and except for such matters as the Tenant may wish to set forth
specifically in said statement. Thereafter, at any time within ten (10) days
after a request is made, the Tenant shall execute, acknowledge and deliver to
Landlord a Certificate, prepared by Landlord, evidencing whether or not
1. This Lease is in full force and effect;
2. This Lease has been amended in any way;
3. There are any existing defaults hereunder to the knowledge
of Tenant and specifying the nature of said defaults, if any; and
4. The date to which rent, including percentage rent, if any,
has been paid.
D. Tenant agrees that neither this Lease nor any memorandum
hereof shall be recorded and any recording in violation of this covenant shall
be absolutely void.
ARTICLE 27. MORTGAGEE'S RIGHTS TO CURE
LANDLORD'S DEFAULT
Tenant agrees that in the event the Landlord is in default
under this Lease, any mortgagee of Landlord's interest in the demised premises,
and the Landlord under any ground Lease which includes the demised premises,
shall be permitted to enter the demised premises during normal business hours
for the purpose of correcting or remedying such default, and Tenant agrees to
accept performance by such mortgagee or ground lessor in lieu of performance by
the Landlord.
ARTICLE 28. NOTICES
28.1 All notices which are sent or required to be sent under
this Lease by the Parties shall be sent by registered or certified mail, return
receipt requested; hand delivery; Express Mail; Federal Express; or any other
similar form of delivery where proof of delivery is available, as follows:
If addressed to Landlord, to
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XXXXXX BUSINESS PARK, II, L.L.C.
00 Xxxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
XXXXXX, XXXXXXXX & XXXXXX, P.C.
000 Xxxxxxxxx Xxxxxxx
P. O. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
If addressed to Tenant, to Tenant's Notice Address.
with a copy to:
Xxxxxx Xxxxxx, Esquire
00 Xxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
If notice is served by Express Mail or registered or certified
mail, return receipt requested, service of the notice shall be deemed to be
completed when the notice is deposited with the U.S. Postal Service. In the case
of any other manner of service specified in this Paragraph 28.1, service of
notice shall be deemed to be completed only when the notice is actually received
by the Party to whom the notice is addressed.
28.2 In lieu of serving notice on Tenant as provided in
Paragraph 28.1 above, Landlord may, at Landlord's option, serve any such notice
on Tenant by delivering such notice to Tenant or any employee of Tenant at the
Tenant's Space during regular business hours.
28.3 Either of the Parties may change the address for service
of notices under this Lease by serving notice of such change of address in the
other Party in accordance with this Article 28.
ARTICLE 29. BROKERAGE COMMISSIONS
29.1 Upon Landlord's receipt of the first payment of Basic
Rent hereunder on or after the Commencement Date, Landlord shall pay leasing
commissions to Xxxxxx X. Xxxxxxx, Inc. and Xxxxxxx Realty & Management Co.,
Inc., each in accordance with a separate written agreement between Landlord and
such broker, the terms of which are incorporated by reference herein.
29.2 Except as set forth in the foregoing paragraph, the
Parties acknowledge that no broker was involved in effecting this Lease and each
Party agrees to indemnify and hold the other harmless from any and all claims,
including attorneys' fees and costs, in defense thereof
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which may result from the breach of this mutual covenant on the part of the
Party from whom such indemnification is sought.
ARTICLE 30. RULES AND REGULATIONS
Tenant agrees to comply with and observe the rules and
regulations appended to this Lease, as Exhibit B, if any, and any amendments or
supplements thereto which Landlord may reasonably adopt. Tenant's failure to
keep and observe said rules and regulations shall constitute a breach of the
terms of this Lease in the manner as if the same were contained herein as
covenants.
ARTICLE 31. EXPIRATION OF OFFER
The delivery of a copy of this Lease Agreement from one Party
to the other shall not be binding in any manner, and neither Party shall be
obligated in any way, unless and until a copy of this Lease is fully executed by
both Parties.
ARTICLE 32. WAIVER OF RIGHT TO TRIAL BY JURY;
WAIVER OF DEFENSE AND COUNTERCLAIM
Landlord and Tenant waive any right they may have to a trial
by jury (and by signing this Lease hereby forever give up and expressly waive
the right to a trial by jury) in any action, proceeding or counterclaim brought
by either of them against the other on all matters arising out of this Lease or
the use and occupancy of the premises (including, without limitation, claims for
personal injury or property damage), or any emergency statutory or any statutory
remedy. If Landlord commences any summary proceeding for non payment of rent or
any other breach of this Lease, including, but not limited to, any Act of
Default as defined in Article 6, Tenant will not interpose (and by signing this
Lease hereby forever gives up and expressly waives the right to interpose) any
counterclaim in any such proceeding.
ARTICLE 33. SMOKE-FREE BUILDING
Landlord and Tenant agree that the building of which the
Tenant's space forms a part shall be, in its entirety, a smoke-free building.
The Landlord agrees to post appropriate signage throughout the building and
provide cigarette ash receptacles at appropriate locations outside the building
to ensure that smoking does not occur within the confines of the structure.
Tenant agrees to notify its employees and guests of the smoke-free policy and to
enforce that policy within the confines of Tenant's Space and throughout the
balance of the premises.
ARTICLE 34. MISCELLANEOUS
34.1 ENTIRE AGREEMENT; MODIFICATION; BINDING EFFECT. This
Lease shall only be amended by a writing signed by both parties in the same
manner and with the same degree of formality as this Lease. This Lease
constitutes the entire agreement between the parties. Neither party shall be
bound by any representation, covenant or warranty, whether or not evidenced by a
29
writing, made or allegedly made by or on behalf of a party hereto, except as
expressly set forth in this Lease or in an amendment to this Lease. This Lease
is binding upon and inures to the benefit of, the heirs, executors,
administrators, successors and assigns or the Parties.
34.2 CONSTRUCTION. Feminine, neuter and masculine pronouns,
the plural and singular and words "lease" and "agreement" shall be construed to
be and shall be interchangeable in any place or places herein in which the
context may require such interchange.
34.3 FORUM. The construction and enforcement of this Lease
shall be made in accordance with the laws of the State of New Jersey.
34.4 MULTIPLE COUNTERPARTS. This Lease may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
34.5 CAPTIONS AND HEADINGS. Captions and headings in the Lease
are used merely for reference and shall not amend or alter the meanings of the
provisions over which they are inserted.
34.6 JOINT AND SEVERAL LIABILITY. If Tenant is composed of
more than one signatory to this Lease, each signatory will be jointly and
severally liable with each other signatory for payment and performance of all
obligations specified in this Lease.
34.7 No CONSTRUCTION AGAINST DRAFTING PARTY. Landlord and
Tenant acknowledge that each of them and their own counsel, if they have elected
to consult with their own private counsel, have had an opportunity to review
this Lease and that this will not be construed against the drafting party and
that by signing this Lease forever give up and expressly waives any claim
against the drafting party.
34.8 SEVERABILITY. If any provision of this Lease proves to be
illegal, invalid or unenforceable, the remainder of this Lease will not be
affected by such finding, and in lieu of each provision of this Lease that is
illegal, invalid or unenforceable, a provision will be added as part of this
Lease as similar in terms to such illegal, invalid or unenforceable provision as
may be possible and be legal, valid and enforceable.
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IN WITNESS WHEREOF, both parties have signed and sealed this
document on the day and date first set forth above.
LANDLORD: Xxxxxx Business Park, II, L.L.C.
By
-----------------------------------------
TENANT: NovaDel Pharma Inc.
By
-----------------------------------------
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EXHIBIT "A"
32
EXHIBIT "B"
RULES AND REGULATIONS
1. LOADING
All loading and unloading of goods, merchandise, supplies and fixture
shall be done only at such times, in the areas, and through the entrances,
designated for such purposes of Landlord.
2. TRASH
All garbage, refuse and recyclables shall be kept in the kind of
container specified by Landlord, and shall be placed outside of the premises
prepared for collection in the manner and at the times and places specified by
Landlord. If Landlord shall provide or designate a service for picking up refuse
and garbage, Tenant shall use same at Tenant's cost. Tenant shall pay the cost
of removal of any of Tenant's rubbish. Tenant shall not burn any trash or
garbage of any kind in or about the Tenant's Space, or the Leasehold Premises.
Tenant shall dispose of all garbage and refuse to a legal and approved dumping
site or transfer station.
3. ANTENNAS
No radio or television antenna or other similar device shall be
installed without first obtaining in each instance Landlord's consent in
writing. No aerial shall be erected on the roof or exterior walls of the
premises, or on the grounds, without in each instance, the written consent of
Landlord, and said consent shall not be unreasonably withheld. Any aerial so
installed without such written consent shall be subject to removal without
notice at any time.
4. NOISE
No loudspeakers, televisions, phonographs, radios or other devices
shall be used in a manner so as to be heard outside of the demised premises.
5. ADJACENT AREAS
The outside areas immediately adjoining the premises, if any, shall be
kept clean and free from snow, ice, dirt and rubbish by Tenant to the
satisfaction of Landlord, and Tenant shall not place or permit any obstruction
or merchandise in such areas.
6. PLUMBING
The plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no foreign substance of any kind shall
be thrown therein and the expense of any breakage, stoppage or damage resulting
from a violation of this provision shall be borne by Tenant.
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7. EXTERMINATION
Tenant shall use, at Tenant's cost, such pest extermination contractor
as Landlord may direct and at such intervals as Landlord may require.
8. SALE
No auction, bankruptcy or "Lost our Lease" or "Going Out of Business"
or similar sales shall be conducted on the demised premises.
9. SALES AREAS
The lobbies, vestibules, sidewalks, hallways and driveways continuous
to the demised premises shall not be used for outdoor displays or sales areas.
10. ANIMALS
No animals, except seeing eye dogs, shall be permitted in the Tenant's
Space or the Leasehold Premises at any time.
11. DAMAGE
Tenant shall be responsible for any damage caused to the demised
premises or the common areas of the Leasehold Premises, if same are caused by
any of Tenant's agents, servants, employees, family members, repairmen, business
invitees or customers.
12. PARKING
If requested, Tenant shall provide to the Landlord the license plate
and vehicle information of all Tenant's employees, and direct same to park in
those areas as the Landlord may from time to time reasonably designate.
13. SIGNS
Tenant shall not post any signs or banners outside of the demised
premises.
14. TENANT'S SPACE TEMPERATURE
Tenant agrees to keep the heating, ventilating and air conditioning
system which services the demised premises set at not less then 68 degrees
during the winter months and not less than 72 degrees during the summer months.
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EXHIBIT "C"
35
